Unlike lawyers, a mediator must not give advices

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[edit] Liability Insurance of Professional Mediators

The question has been raised by professional mediators about the necessity to separate the activities of mediator from those which imply a duty of information.

Lawyers, notaries, accountants are indeed concerned when they want to offer their services as a mediator. And what if, moreover, the lack of recommendation of mediation could deprive his client to resolve a dispute quicker?

The duty of information of legal professionals, for example, is really engaging, as reminded by Patricia Cassuto-Teytaud, counselor at the Court of Cassation, in her report on Responsibility of legal professionals, before the First Civil Chamber.

How to reconcile these activities without dissociating them? This is why the Professional Chamber of Mediation and Negotiation has proposed that a specific insurance was taken to distinguish the two modes of intervention.

The above clarification concerns the activity itself of the mediator. But the duty of information of a legal professional implies another aspect that could make look for the professional responsibility of occupations to have a duty of information.

[edit] And what if the Legal Professional does not Indicate mediation as a Possible Resort?

Could the fact of not indicating the possibility of mediation be considered as a dereliction of the duty of information?

In other words, is the absence of mediation proposal instead of a legal proceeding could be considered as involving the lost of a chance to resolve quicker the dispute?

Patricia Cassuto-Teytaud indicates that: The duty of information is essentially constituted by the obligation to inform and enlighten the parties.

This information can be a warning (...)

The information must be complete, within the framework of his mission of justice assistance, a lawyer must inform his client about the existence and forms of available resorts against the decisions made against him (Civ. 1st, February 2, 1994, Bull. No. 44 and November 13, 1997, Bull. No 303). A solicitor is held, as well as a notary, to a duty of information (...).

The obligation to inform the parties can be assessed in function of the aim pursued by them (Civ. 1st, June 12, 1990, Bull No 160) (...).

Legal professionals are required to advise their clients in accordance with the law. A lawyer who acts for his client in ignorance of the new jurisprudence commits a professional dereliction (Civ. 1st, October 15, 1985, Bull. No 257).

The responsibility of a notary regarding the existence of a legal uncertainty does not discharge him from his duty of information (Civ. 1st, December 9, 1997, Bull. No 362).

The duty of information, which has been clearly designed in an extensive manner, covers all activities included within the mission of legal professionals; the question then is to know if it has a relative or absolute character. Initially, while the First Civil Chamber has opted for the relative nature of the duty of information, for example by taking into consideration -to exclude the liability of a notary- the fact that the client was an "advised professional" (Civ. 1st, July 2, 1991, Bull No 228), it now recognizes the absolute character of this duty (...). The presence of a personal adviser beside the client has no influence on the range of this duty (Civ. 1st, December 12, 1995, Bull. No 459, June 18, 1996, Bull. No 260).

Finally, even the presence of another legal professional beside the client has no impact: a notary is not released from his duty of information because of the presence of another notary (Civ. 1st, November 26, 1996, Bull. No. 418) or the presence of a lawyer (Civ. 1st, July 10, 1995, Bull. No 312). A lawyer is not released from his duty of information because of the presence of a notary or a lawyer beside his client (Civ. 1st, June 24, 1997, Bull. No 214) and a lawyer is not released from it by the presence of a solicitor (Civ. 1st, January 15, 2002, Bull. No 15).

In short, through the information above, the liability of legal professionals could be very well engaged, especially if they have followed an initiation into mediation, if they do not propose to their clients to initiate a mediation process...

[edit] Can Mediation Become Legally Indispensable?

Furthermore, following the advice of a counsel, let's assume that the client initiates a long, costly, maybe even destructive, procedure. In the end of the procedure, his "gain" could be the same as at the end of the first hearing, even perhaps less, for example because of the high cost of such procedure.

Could not this client argue that a mediation process would have had a similar financial result, and thus, instead of winning through mediation, he has lost through a legal proceeding...?

Moreover, could not the client legitimately consider questioning the liability of the lawyer because of a dereliction of his duty of information?

Indeed, mediation can occur at any time: before or during any legal proceeding, before or during the appeal ... even after a trial!

Any occasion can be used to promote dialogue. The intervention of a mediator occurs naturally, rather than initiating a legal proceeding that remains the last resort: the abandonment of the responsibility of the parties which submit themselves to a third party who will decide for them.

Other situations: let's assume that heirs do not find an agreement and that the notary does not propose a mediation process... or let's assume that the notary intends to lead a mediation process himself but the situation is not improving...

The magistrates could very well be requested to defend their professional liability if ever there was a complaint on these different situations: the real and serious nature of the lost chance should be assessed in light of the likelihood of success of the action that has not been initiated.

It is an evident that the assessment of the magistrates will be difficult.

How to assess the loss of that opportunity? According to the intensity of the parties' anger? According to the law? But since it has been proposed in a dissuasive or not attempted manner, mediation will remain in the minds a lost chance...

[edit] Distinguish the Activities

To exert as a mediator, a professional who is held by a duty of information should clearly distinguish the two activities; in civil area, any professional involved in the legal recourses should systematically propose a mediation process to their clients.

[edit] Complementary Information

  • [Duty of information of a lawyer on lexinter.net (in French)]

"There are not two people who disagree; there are two people who have not discussed". Ouolof proverb - Africa Reference: quoted by Professor P.Y. Monette "International Mediation and Alternative Dispute Resolution".

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