Mediation as a procedural prerequisite is an institution whose scope has widened progressively in recent years. As matters now stand, the great majority of the dispute types most frequently encountered in practice fall within it.
Principal disputes within scope
- Employment law: claims by employee or employer for sums due, claims for compensation, and reinstatement claims.
- Commercial law: claims for sums due and for compensation whose subject matter is the payment of a sum of money.
- Consumer law: consumer disputes above a specified monetary threshold.
- Lease and immovable property: disputes arising from a lease relationship, division of immovable property, and disputes arising from condominium ownership.
Matters falling outside scope
Actions for pecuniary and non-pecuniary compensation arising from an occupational accident or occupational disease, together with related recourse actions, do not fall within the scope of mediation as a procedural prerequisite. Likewise, matters over which the parties cannot freely dispose (for example rectification of civil registry records, or divorce) are not amenable to mediation.
Effect on time limits
An application for mediation suspends limitation periods and forfeiture periods. This affords significant protection where a claim is close to expiry. Conversely, for short-term claims such as reinstatement, the application itself is subject to a time limit: application must be made to a mediator within one month of service of the notice of termination.
The question to be asked at the very outset of a file is this: does this claim fall within the scope of mandatory mediation? If the answer is wrong, every subsequent step is wasted.
The force of the settlement document
Where the settlement document drawn up at the end of mediation has been signed by the parties, their lawyers and the mediator, it is deemed a document in the nature of a judgment and may be submitted directly for enforcement. This makes a well-negotiated settlement as strong as a court judgment.
