Rules / Professional code of ethics

 

What is the mediator's deontology?

When acting as a mediator, the lawyer/mediator must comply with the deontological rules of the association to which they belong.

In addition, the O.B.F.G. has issued specific deontological rules for lawyers who act as mediators.

Mediators are bound by professional secrecy. They must ensure the confidentiality of their clients' files and ensure that their personnel and staff do likewise.
The mediator must always ensure that they have obtained the permission of a party before transmitting documents or information entrusted to them to another party. Exchanges must remain confidential.
If the mediation requires private meetings, the mediator will inform all parties of the confidential and non-contradictory character of the information which will be provided to them at the time and will ensure that they have received prior approval for the process.
Unless agreed to by the parties, the mediator will refrain from speaking to anyone about the mediation process which has been entrusted to them or of the content of the discussions which have occurred as part of the process.
Any oral or written information which the parties authorise the mediator to share with counsels will remain confidential.
The mediator will ensure that they retain their independence and neutrality during all exchanges.

 

Part one: The lawyer who acts as a mediator is first and foremost subject to the deontology of their professional bar association.

The deontology

The deontology is supervised by the authorities of each bar association and is established in the interest of the person the lawyer is defending and counselling: the litigant

The deontology requires that the lawyer remain independent. It requires that they maintain professional secrecy, integrity, and loyalty. They must also avoid conflicts of interest, maintain confidentiality in all correspondence, be fair in the fees charged, etc.

The relationship between the lawyer and their client and with third parties is based on three fundamental principles: independence, integrity, and professional secrecy.
 

Independence

The lawyer is independent of public powers, of the judge, of their client, and of preconceived ideas. This independence enables them to express themselves freely before the courts (immunity of freedom of speech) and enables them to reasonably accept or refuse cases.
Their independence forbids them from taking on the defence of conflicting interests (prohibition against conflicts of interest).

Integrity

The lawyer must scrupulously adhere to the duties of justice and ethics and abstain from any behaviour, either professional or private, which might negatively impact the honour of their profession.

Professional secrecy

The lawyer may not divulge, or be required to divulge, any information provided to them in confidence. In this same spirit, all correspondence between lawyers and between the lawyer and their client is confidential: with few exceptions, it can not be used in court.
This rule enables lawyers to correspond freely with each other and with their clients. They can, therefore, negotiate with complete confidentiality. This is often the key to a successful negotiation.

 

Discipline

Each lawyer is subject to the discipline of the bar association to which they belong. This discipline and supervision is also applicable to fees.
The president and council of the bar association are competent to evaluate and decide conflicts, notably those related to fees, between lawyer and client. They can be referred to court by simple letter written by any person involved, without formality.
The sanctions decided by the disciplinary council range from a warning to temporary (suspension) or permanent (removal) prohibition to exercise the profession of lawyer. The complainant retains the right to challenge the responsibility of their lawyer before the ordinary, civil, and criminal courts.

 

Part two: The lawyer intervening as a mediator is also subject to their own deontology.

RULES OF 20 JANUARY 2003 ON THE DEONTOLOGY OF LAWYERS INVOLVED IN MEDIATION

ARTICLE 1:  DEFINITON

Without prejudice to alternate means of conflict resolution, mediation is a voluntary and confidential process of conflict management through which the parties have recourse to an independent and impartial third party: the mediator. 

The role of the mediator is to help the parties reach on their own, and with full knowledge of the circumstances, a fair and reasonable resolution which respects the needs of each of the parties.

ARTICLE 2:  PRELIMINARIES

If the mediator is nominated by legal process or through the intermediary of the parties' counsels, they must inform the office of the court and/or the counsels as soon as possible of their acceptance or refusal of the mission and give the reasons for their decision.

If the mediator is contacted directly by the parties, they will inquire as to the prior involvement of counsels and, if necessary, notify them of his/her mission.
At the beginning of their intervention, the mediator will inform the parties, and if need be, their counsel, of the rules applicable to the mediation.

• The mediator will ensure that the mediation process has been fully understood.
• The mediator will inform the parties of the role played by the legal and technical counsels.
• They will inform the parties of the cost of the mediation.
• They will officially record the written consent of the parties to the mediation.

This consent to mediation will be signed by the parties and the mediator.

It will include the commitment of the parties to abide by applicable rules in matters of mediation and will insist on confidentiality, in particular.

The mediator will request that the parties present this text to their counsels.

ARTICLE 3: INDEPENDENCE AND IMPARTIALITY - CONFLICTS

The mediator will ensure that they remain independent and impartial at all times.

The mediator will refuse to accept a mediation mission if they are not able to guarantee, for any reason whatsoever, that they can handle the mediation in a totally independent and impartial way with respect to the parties or persons directly or indirectly involved in said mediation or dispute.

They, therefore, cannot intervene as a mediator in any dispute in which they have intervened or are intervening in any capacity whatsoever on behalf of one of the parties, both parties, or of people associated with the parties.

Likewise, unless there is clear and express agreement between the parties, the mediator will refrain from intervening if they know one of the parties or both parties. They will, in any event, refrain from intervening if, prior to the mediation, they have obtained information of a confidential nature related to the dispute or the private lives of the parties.

If the mediator exercises the profession of lawyer or mediator in association with other people, in any form whatsoever, the causes of potential conflicts of interest will extend to these people as well.

Should the mediator, during the course of a mediation, feel that they are no longer able to ensure independence and impartiality, it is their duty to inform the parties and end their mission, without, however, revealing their reasons.
The mediator may not then become the counsel of any of the parties involved in the dispute with which they have become acquainted.

They may not take on the role in another case before two years have gone by since the end of mediation.

ARTICLE 4:    PROFESSIONAL SECRECY - CONFIDENTIALITY

Mediators are bound by professional secrecy.  They must maintain the confidentiality of their clients' files and ensure that their personnel and their staff do likewise.

The mediator must always ensure that they have obtained the permission of one party before transmitting documents or information entrusted to them to another party. The exchange must remain confidential.

If the mediation requires private meetings, the mediator will inform all parties of the confidential and non-contradictory character of the information which will be transmitted to them and will ensure that they have received prior approval for this process.

Unless agreed to by the parties, the mediator will refrain from speaking to anyone of the mediation process which has been entrusted to them or of the content of the discussions which have taken place as part of the process.

Any oral or written information which the parties authorise the mediator to share with the counsels must remain confidential.

The mediator will ensure that they retain their independence and neutrality during these exchanges.

ARTICLE 5:     NONDISCLOSURE

The mediator will ensure that the parties are able to undertake the mediation.
If need be, they will suggest that the parties seek the services of appropriate professionals.

The mediator will, in principle, abstain from giving personal opinions on the respective rights and obligations of the parties, on the merits of the agreements proposed, and on the proposals for resolution which have been formulated.

The mediator will inform the parties of the possibility of obtaining independent legal counsel and of the benefits this may provide.

The mediator will encourage the parties to make decisions based on adequate and sufficient information, after obtaining relevant advice.

ARTICLE 6:     LEGAL SECURITY

The mediator will make sure that all parties know and understand the consequences of the options under consideration.

The mediator will ensure that balance and equality are maintained during the negotiations.

They may not allow any intimidation or manipulation on the part of those involved, by both parties, or by one of them.

In order to guarantee legal security, the mediator will ensure that the decisions taken by the parties and recorded in the agreement minutes are compatible with legislation in effect and comply with public order.

ARTICLE 7:     AGREEMENT MINUTES

At the end of the mediation, the mediator will record the agreements or have them recorded.

The agreement record will be submitted to the counsels before signature.

The mediator will inform the parties of the consequences of signing the document which, unless there are provisions to the contrary, will make it official.
 
The secrecy requirement for the contents of the negotiations which preceded the agreement can only be lifted with the consent of the parties and the mediator. Among other things, this will enable the judge to confirm the agreements reached.

ARTICLE 8:    SUSPENSION - INTERRUPTION OF THE MEDIATION

The mediator must suspend or terminate mediation if:

• One or all of the parties request it
• The conditions of Article 6 regarding the mission are no longer being met 
• The mediation is being used to achieve inappropriate ends, notably dilatory ones
• The behaviour of the parties, or of one of them, is incompatible with the mediation process 
• The mediation is no longer productive
• The parties, or one of them, are (is) no longer able to seriously participate in the mediation or show(s) no interest in doing so

The mediator must immediately inform the parties and the court if they are the object of a legal designation.
Given their duty of nondisclosure they must not at any time reveal the reasons which led to the suspension or interruption of mediation.

ARTICLE 9: 

The present rules will become effective on 1 March 2003.