Professor Fayez Hage Chahine (FHC)[1] shares some insights about mediation with Mr. David Lutran (DL)[2] during an interview in Beirut on December 28, 2019.

DL: What is the role of law at a time when many argue that it has become loquacious, very technical as a result of an excessive regulation?

FHC: Law, in my opinion, should be considered in terms of its usefulness, since people living within a society cannot manage without the law, in accordance with the  saying “ubi societas ibi jus” (where there is a society, there is law). Law is fundamental. The point is to avoid the abuse when resorting to law and the negative effects of an excessive regulation.

To restore its usefulness, law must be applied with moderation and balance, as symbolized by the scale.

DL: Should amicable dispute resolution modes be seen as a remedy to the proliferation of rules and the subsequent difficulties in rendering an intelligible and efficient justice?

FHC: Friendship excludes law, Aristotle said. Amicable dispute resolution modes contradict this assertion insofar as they constitute an abandonment of technical and rigid solutions of the law in favor of common sense and fairness.

Judgments, in France and in Lebanon, are rendered “on behalf of the people”. When the solutions rendered by the judge are more intelligible and effective, the parties will feel that they actually belong to the group from which the decision emanates.

DL: Litigation is very long and its solutions are imperfect. What is the usefulness of conflict? What are its potentials? How should the lawyer approach the conflict? Why favor a conflictual rather than an amicable (or vice versa) resolution of the dispute?

FHC: Any conflict is inherently hateful. Every means must be used to avoid it. Trial is the ultimum subsidium, the last resort.

The lawyer/counsel must envisage the conflict in a way that can lead not only to resorting to the judge – this is not an inevitable outcome – but to other referrals, whether to an arbitrator or to a mediator. The lawyer must take into consideration first and foremost the legitimate interest of his client, and not his own interest. If he finds it more appropriate for the client to take the amicable “path”, he should not hesitate to advise the client to choose that path.

My experience as a Lebanese lawyer leads me to observe that clients, are not fond of “grasping” lawyers, who aggravate the dispute by suggesting a one and only option: litigation.

DL: “A bad settlement is better than a good trial,” says the proverb. Why is that? Where does the qualitative superiority of mediation over a trial lie?

FHC: This proverb is akin to a Chinese proverb according to which “the one who goes to court to bring back the rooster ends up selling the cow”. It also encompasses a Lebanese proverb according to which “the amicable settlement is the lord of judgments”.

This popular wisdom, which is obviously universal, is enough to highlight the qualitative superiority of mediation over trial. It is a matter of recovering one’s rights in a peaceful manner. It is the best way to settle the disputes that relates to relationships between individuals and to their relationships with society.

DL: Explaining mediation through law could contribute to its further development?

FHC: In mediation, the law is mitigated but never set aside. What is sidelined is the dryness of technicality, “legalism“.

The mediator’s situation can be compared to the situation of an arbitrator who has been granted the power to rule ex aequo et bono, without however being exempted from applying general principles and public policy rules.

The law could contribute to a greater development of mediation, insofar as it constitutes the “backbone” of the solution reached by the parties with the help of the mediator. The solution needs the authority of the law in order to bring the dispute to an effective and lasting end.

DL: What does the expression “non-litigious fulfillment of rights” mean?

FHC: It is a way by which the beholder of a right obtains satisfaction outside of a lawsuit. It occurs, for example, when the debtor (the borrower) pays his creditor (the lender) the amount of debt on its due date without being compelled to do so by a judgment.

The non-litigious fulfillment of rights is ‘normal’, whereas the litigious fulfillment of rights is “pathological”.

DL: What are the expected qualities from a mediator? At what point does trust in mediation arise?

FHC: The qualities of a mediator should be: impartiality, intelligence, culture (especially legal culture), common sense, patience, pleasantness, intuition (which allows understanding the parties’ state of mind), wisdom, having a good memory, and knowing how to be firm without being aggressive.

It is important to balance these numerous qualities.

This question of balance reminds me of a French-speaking Chinese Professor of political economy when he participated to a conference at Saint Joseph University in Beirut.

When he was asked “why has the Chinese government succeeded in implementing an economic reform strategy when many other countries have failed to do so? “, the Professor replied: ” because the Chinese government did not use the architect’s technique (the ruler, the compass, the angles, the lines, the geometrical shape, etc…) but that of the cook (the measurings followed by tastings) “.

DL: You distinguish between the res judicata and the authority of the agreed matter? What does that mean?

FHC: The solution reached as a result of the mediation must be respected.

The settlement agreement resulting from mediation, which embodies the solution of the parties to their dispute, is not an agreement like any other resulting from an offer coinciding with an acceptance.

Indeed, it is the result of a collective effort of several actors: the parties, their lawyers if they were involved in the mediation, the mediator, the judge (in case of judicial mediation and/or homologation of the agreement resulting from the mediation), the experts and other “experts” possibly solicited for the needs of the mediation.

The “binding force” of the mediated agreement deserves to be called “authority”, as for a judgment, and the solution reached through mediation deserves to be called “res”.

Only this “res”, instead of being “judged”, is “agreed”.

DL: What would be the symbol of mediation?

FHC: The peace, or the scale without the sword.

DL: “Judicial truth” is by essence far from being absolute. Can mediation make “the truth” triumph? If so, which “truth” is it?

FHC: If the judicial truth is not, by essence, absolute the truth resulting from mediation is a fortiori not absolute, insofar as it results from an agreement subject to the doctrine of ‘privity of contracts”. Moreover, the mediation’ role is not to establish an absolute truth but to resolve conflicts in a concrete way by envisaging them in their pragmatic/realistic aspects.

DL: Will the development of mediation have an impact on the way justice is rendered? How do you see the combination of the so-called alternative dispute resolution modes and state justice in the future? Between mediation and arbitration?

FHC: In my opinion, the impact of mediation on the way justice is rendered will be tangible at a second stage.

In a first stage, the legislator must promote mediation as it has already done for arbitration. The development of mediation relies on the status granted by State justice to the solutions resulting from mediation. This development, once achieved, will have an impact on the way justice is rendered.

Article 1194 of the French Civil Code provides that “contracts are binding not only regarding what is expressed but also as regards all the consequences which equity, usages or law confer to them “. Moreover, the Cour de Cassation (French Supreme Court), when overturning the Courts of appeal’s decisions, refers to the general principles of law rather than to an explicit article of the Code, thus giving an increasing role to those general principles.

The impact of the development of mediation on the way justice is rendered will be reflected through the increased importance granted by State justice to fairness, usages and general principles of law.

As regards the interaction between mediation and arbitration, I believe that mediation will be to arbitration what arbitration was to State justice. The parties have resorted to arbitration in order to avoid the length and cost of state justice. However, arbitration has in turn become long and costly. It is therefore legitimate to expect that parties will choose mediation to avoid the length and cost of litigation and arbitration.

DL: Should mediation become a mandatory prerequisite for the trial?

FHC: The answer to this question depends on the source of the mandatory nature of the mediation prerequisite: the law or the parties’ agreement.

In the first case, the mandatory mediation prerequisite results from a special explicit text of strict interpretation, the principle being freedom of contract. This is similar to the notion of “mandatory contract” (such as automotive insurance), which is only applicable by virtue of an exceptional text considered to be of public policy.

In the second case, the mandatory mediation prerequisite will be the result of the parties’ will in accordance with the principle of freedom of contract, valid unless it breaches public policy or the mandatory provisions of the law. It should be pointed out that in practice, there are more and more arbitration clauses which provide for a mandatory mediation or conciliation prerequisite before setting the arbitration process in motion.

DL: Does the trial ‘divest’ the parties from their conflict. If so, for what reasons?

FHC: It is my opinion that litigation divests the parties from their aggressivity but not from their dispute.

Indeed, articles 1, 2 and 4 of the French Code of Civil Procedure (FCCP)[3] relating to the subject matter of the trial do not lead to assert that the trial divests the parties from their dispute, since they provide for the principle according to which trial is the parties ‘ownership.

On the other hand, in cases where the law provides for the ex officio powers of the judge, as in articles 3, 8, 10, 11, 12 and 13 of the French Code of Civil Procedure[4], it can be argued that trial divests the parties from their dispute within the limits of the powers granted to the judge.

DL: What is the “judicial miracle”? How and when does it occur?

FHC: The answer to these two questions can be found in the preface by the late Jean Vassogne, then First President of the Paris Court of Appeal, to the book by Cezar-Bru, Hebraud, Seignolle and Odoul – “The jurisdiction of the Tribunal’s President – volume 1– Summary proceedings“.

Preoccupied by the efficiency of justice, this judge echoed the concerns of litigants that “expect from their judges a solution to their disputes. A solution, i.e. a measure ordered in due time, even if it has to be legally rough, in preference to a skillfully elaborated but belated decision, therefore useless”.

A solution which is reached by a common effort, between “parties and lawyers together in the judge’s chambers”, who, “being sufficiently skilled to be simple, sufficiently passionate to be convincing, without being inquisitive” allows the occurrence of this “judicial miracle” which he called for, i.e. “the adhesion of all to the right measure”, “a measure which often is not simply provisional but completely extinguishes the dispute”.

DL: To conclude, how do you see the future of mediation in Lebanon pursuant to Law No. 82/2018 of October 10, 2018? Could mediation contribute to pacifying the climate in the country?

Mediation will flourish in Lebanon. It has a future for the following reasons.

On the one hand, mediation complies with Lebanese morals. Lebanon is a small country where people know each other. Historically, the Lebanese people preferred solutions crafted by relatives, friends or village notables to decisions rendered by courts, which were , for a long period of time, presided by judges appointed by the foreign governing authority (the Ottoman Wali and later the French High Commissioner).

On the other hand, young Lebanese lawyers are increasingly sensitive to the idea of mediation.

Finally, nowadays, the Lebanese people do not trust much their State justice system. When this trust is decreased, resorting to mediation will expand. During the “revolution of 17 October 2019”, the Lebanese people unanimously denounced the judges’ corruption backed by the politicians and claimed their right to a transparent, efficient and independent justice system which fundamentals are the law and the conscience in the moral sense of the term.

In conclusion, I would like to point out that it is taught that agreement is the soul of conventions; it would not be wrong to say that it is the core of good solutions.

[1]        Fayez Hage Chahine is “Agrégé” of the French Law Faculties, Honorary Dean of the Faculty of Law and Political Science of the Saint-Joseph University in Beirut and Dubai, Attorney at Law registered at the Beirut and Paris Bars.

[2]        David Lutran is a qualified lawyer registered at the Paris Bar, certified Mediator by the Centre de Médiation et d’Arbitrage de Paris (CMAP – France), registered at the C0entre National de Médiation des Avocats (CNMA – France) and registered on the list of mediators of the Paris Court of Appeal (France).

[3]            Article 1 of the FCCP: “Only the parties shall introduce proceedings, except where the law provides otherwise. They have the freedom to terminate it before it is extinguished by the effect of the judgment or by virtue of the law”.

Article 2 of the FCCP: “The parties shall conduct the proceedings under the expenses incumbent upon them. It is incumbent on them to perform the procedural acts in the required manner and within the required time limits”.

 Article 4 of the FCCP: “The subject matter of the dispute shall be determined by the respective claims of the parties.

These claims shall be determined by the submissions initiating the proceedings and by the statement of defense. However, the subject-matter of the dispute may be modified by incidental claims where these are sufficiently connected to the original claims”.

[4]            Article 3 of the FCCP: “The judge shall ensure the proper conduct of the proceedings; he shall have the power to set time limits and order the necessary measures”.

Article 8 of the FCCP: “The judge may invite the parties to provide explanation of the facts he considers necessary for the resolution of the dispute”.

Article 10 of the FCCP: “The judge has the power to order ex officio all legally admissible investigative measures”.

Article 11 of the FCCP: “The parties shall cooperate in the investigative measures, otherwise the judge may draw any inferences from an abstention or refusal”.

If a party has evidence, the judge may, at the request of the other party, order him to produce it, if necessary, under penalty. He may, at the request of one of the parties, request or order, if necessary under the same penalty, the production of any documents held by third parties if there is no legitimate impediment“.

Article 12 of the FCPC: “The judge shall settle the dispute in accordance with the applicable rules of law.

He must give or restore the exact legal characterization of the facts and deeds in dispute without being tied by the legal characterization suggested by the parties.

 However, he may not change the legal characterization or the legal basis when the parties, by express agreement and for the available rights, have bound him by the legal characterization and matters of law to which they intend to limit the debate.

 Once the dispute has arisen, the parties may also, in the same matters and under the same conditions, grant the judge the mandate to rule as “amiable compositeur” (ex aequo et bono), subject to appeal if they have not specifically waived this right“.

Article 13 of the FCPC: “The judge may invite the parties to provide explanations regarding the law which he considers necessary for the solution of the dispute“.