There is no central body responsible for the regulation of mediators.
Apart from mediation in specific sectors (banking, insurance, etc.) and outside the Ombudsman responsible for administrative mediation, and the Ombudskommittee fir tRechter vun de Kanner (Committee for the Defence of the Rights of the Child), the following legal associations devote their activities to mediation:
- Luxembourg Association of Mediation and Approved Mediators (ALMA asbl);
- Centre for Civil and Commercial Mediation (CMCC);
- Mediation centre (asbl);
- Centre de médiation Socio-Familial (managed by the Pro Familia foundation);
In what area is recourse to mediation admissible and/or the most common?
Mediation is admissible mainly in:
- Administrative cases,
- criminal cases,
- family cases,
- commercial cases,
- disputes between neighbours.
Civil and commercial mediation is a consensual and confidential process conducted by an independent, impartial and competent mediator. The mediation may concern the whole or part of the dispute. It comprises both mediation by agreement and court-referred mediation, and family mediation plays an important role.
In mediation by agreement (médiation conventionnelle) either party may suggest to the other that they take the matter to mediation, at any stage of the legal proceedings, independently of any court or arbitration procedure, as long as the pleadings have not ended.
In the context of judicial mediation, known as ‘judicial mediation’, the court is already seised of a dispute in civil, commercial or family matters and it may arrange for judicial mediation to be carried out at any time during the proceedings, as long as the case is not taken in deliberation, except in the Court of Cassation and in interlocutory proceedings. The judge may invite the parties to mediation on its own initiative or at the joint request of the parties, but in any event the parties must agree. Where the court is seised of a dispute raising a family law issue, which is exhaustively set out, it may propose to the parties a mediation measure and it orders a free information meeting during which the principles, procedure and effects of mediation are explained.
In criminal matters, the State Prosecutor may, under certain conditions, prior to his decision on prosecution, decide to use mediation if:
- such a measure is capable of ensuring compensation for the damage caused to the victim; or
- to put an end to the disorder resulting from the infringement; or
- contribute to the reclassification of the offender.
The use of mediation shall not prevent a subsequent decision from taking legal action, in particular if the conditions of mediation are not respected.
Are there specific rules to follow?
Mediation is entirely voluntary
Mediation in administrative matters and mediation in criminal matters, as well as ‘sectoral’ mediation, are governed by specific legislation.
Information and training
The law of 6 May 1999 and the Grand-Ducal Regulation of 31 May 1999 introduced the system of mediation in criminal matters. The State Prosecutor may, prior to his decision on the prosecution, decide to use mediation if it appears to him that such a measure is likely to ensure compensation for the damage caused to the victim, or to put an end to the disorder resulting from the offence or to contribute to the reclassification of the offender. Where the State Prosecutor decides to use criminal mediation, he may appoint any person authorised to do so to act as mediator.
With regard to approval:
A person wishing to be approved as a criminal ombudsman shall submit a request to the Minister for Justice, who shall decide on the request, after seeking the opinion of the State Prosecutor General.
Ombudsman in civil and commercial matters
The Law of 24 February 2012 creates a national legislative framework for mediation in civil and commercial matters in the form of a new title to the New Code of Civil Procedure. By means of this law, Luxembourg transposed Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, while also incorporating the principles set out therein for cross-border disputes also for domestic disputes. The law is supplemented by the Grand-Ducal Regulation of 25 June 2012 laying down the procedure for approving the duties of approved judicial and family mediator, the specific training required in mediation and the holding of a free information meeting.
The mediator shall be a third party whose task is to hear the parties together, where appropriate separately, so that the parties reach a solution to the dispute between them. It does not impose a solution on the parties but calls on them to agree on a negotiated and amicable solution.
Judicial mediation and family mediation may be carried out by an accredited or non-accredited mediator. ‘Approved mediator’ means a natural person authorised for this purpose by the Minister for Justice.
In the case of contractual mediation and in the event of a cross-border dispute, the parties may have recourse to an unauthorised mediator.
With regard to approval:
The Minister for Justice is the competent authority for the approval of mediators. In civil and commercial matters mediators do not need accreditation for conventional mediation.
Any natural person may apply for approval if he fulfils the conditions laid down in the Law of 24 February 2012 introducing mediation in civil and commercial matters in the New Code of Civil Procedure, as well as those laid down in the Grand-Ducal Regulation of 25 June 2012 laying down the procedure for the approval of judicial and family mediators, the programme of specific training in mediation and the holding of a free information meeting.
Under Directive 2008/52/EC and Article 1251-3 (1) paragraph 3 of the Mediation Act of 24 February 2012, a mediation service provider who fulfils the equivalent or essentially comparable authorisation requirements in another Member State of the European Union is exempted from authorisation in the Grand Duchy of Luxembourg.
Approval shall be granted for an indeterminate period of time.
Article 1251-3. (2) the New Code of Civil Procedure and the Grand-Ducal Regulation of 25 June 2012 referred to above set out the cumulative conditions to be met by natural persons wishing to be authorised:
- The person must be of good repute, fit, trained, independent and impartial;
- The person must produce an extract from the Luxembourg judicial record or a similar document issued by the competent authorities of the country of residence in which the applicant has resided for the last five years;
- The person must have the enjoyment of civil rights and the exercise of political rights;
- The person must have specific training in mediation established:
- either by a Master’s degree in mediation awarded by the University of Luxembourg or by a university, higher education institution or other establishment of the same level of training, designated in accordance with the laws, regulations or administrative provisions of a Member State of the European Union;
- three years’ professional experience, supplemented by ‘specific training in mediation’ as laid down in Article 2 of the above-mentioned Grand-Ducal Regulation of 25 June 2012;
- or through training in mediation recognised in a Member State of the Union.
The University of Luxembourg provides a training programme (Master’s degree) for specific mediation.
How much does mediation cost?
Mediation is often a free procedure. It shall be clearly stated whether it is remunerated.
In the context of contractual mediation, mediators’ fees are freely fixed. The costs and fees in this case shall be borne by the parties in equal shares, unless they decide otherwise.
In the context of judicial mediation and family mediation, fees are fixed by Grand-Ducal Regulation.
Is it possible to enforce an agreement resulting from mediation?
It is important to note that agreements resulting from civil and commercial mediation have the same probative value as a judicial decision. Such mediation agreements, whether concluded in another Member State of the European Union or at national level, are enforceable within the European Union by virtue of Directive 2008/52/EC. Approval of the agreement in whole or in part by the competent court shall render it enforceable.
The Law of 24 February 2012 transposes the Directive into national law. It puts mediation on an equal footing with existing judicial procedures.
Mediation centre (asbl);
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