Interview conducted by Julie Lodomez, lawyer at the Brussels Bar, member of the EEEI

Through a series of questions on mediation, the answers given by Etienne Debaeke, mediator in civil and commercial matters in Belgium and the comments of Maître Claude Duvernoy, former President of the Hauts-de-Seine Bar, President of the FFCM, President of the Médiation en Seine and Vice-President of the EEEI take us further on mediation.

Your professional background?

By Etienne Debaeke

Following my academic education in Belgium (Economics) and the USA (MBA), I started my professional career in 1975 in the Finance Department of an international trading company in Belgium. From 1986 until today, I have been working as an independent auditor (“Commissaire aux comptes” in France). In the course of my audit assignments, this experience has brought me into contact with a number of organisations in the commercial sector (commercial and industrial companies, etc.) but also in the non-commercial sector (hospital institutions, etc.).

 

Mediation?

By Etienne Debaeke

In 2010, I completed the Civil and Commercial Mediator training. This interest followed several professional experiences in which I was asked, at the private request of the parties, to give an independent financial opinion – usually quantified – in the context of pre-conflict or even conflictual situations, and allowing, if necessary in certain cases, to widen the scope of alternatives and agreements beyond the mere statement of a figure. It was not my intention to practise civil and commercial mediation, but rather to gain a better understanding of its philosophy.

Maître Claude Duvernoy

Etienne Debaeke clearly evokes the interest of technical advice, which provides a basis for discussions, but also its limits, since discussions then make it possible to go beyond the “simple figure”.

The Role of Mediation Experts?

By Etienne Debaeke

In mediation under the guidance of a professional mediator, the role of the expert is somewhat confined as mediation encompasses many more aspects than the purely technical intervention of the expert required on a particular issue. The financial expert is generally expected to give an opinion on a figure or the value of an asset without regard to the other terms and conditions that would surround an agreement between the parties.

However, the mediator’s strict reserve and neutrality linked to the role of the mediator may allow, in certain specific situations, a controlled “highlighting” of the Expert’s role if his technical intervention may suggest other line of thought beyond the statement of a simple financial value for example.

Maître Claude Duvernoy

The answer to the question on the role of the expert intervening in a mediation is clearly stated: “intervention on a particular point”. But the cooperation that can be established between the latter and the mediator can allow the discovery of “other leads”.

The rules of expertise?

By Etienne Debaeke

Expertise in civil and commercial matters as such differs in nature from expertise in mediation because of the special rules that apply to mediation.

The judicial expert, for example, or even the private expert in certain circumstances, will limit himself, in the conclusion of his official report, to accepting or rejecting, in a factual but reasoned manner, a specific existing situation or to fixing an assessment of damages, without being concerned about, or even having knowledge of, the other elements of the dispute or conflict as a whole (origin, persons, etc.). It is then up to the Judge or the parties to interpret and implement the expert’s conclusions as they see fit, since the expert’s role is not to listen to the parties in a structured manner and, above all, to participate in a prior communication process.

The expert in private mediation should, in my opinion, be careful not to restrict the conclusion of his report too much, as this could close all the doors to a possible settlement. For example, if possible, the expert should ensure that he submits a preliminary report setting out the principles that he would use in order to carry out the valuation of the assets he is being asked to evaluate. In its final and motivated conclusion, and depending on the circumstances, it could, if necessary, formulate other possible approaches or valuation methods for this asset that would be relevant.

Maître Claude Duvernoy

Etienne Debaeke opens original leads as to the role of the mediation expert in relation to the Justice expert: the latter “will limit himself…to accept or reject…an existing situation or to fix an assessment of damage” while the former ” should take care not to restrict too much the conclusion of his report…”. It could be argued that this suggestion goes against the expected role of the expert (a clear and exploitable simple technical opinion) but it has the merit of opening up very interesting prospects for fruitful collaborations and thus provides a first answer to one of the questions raised during the FFCM/CNCEJ colloquium of 6 February 2020.

Criteria for mediation experts?

By Etienne Debaeke

The mediation expert, at the request of the mediator in agreement with the parties, or at the express request of the parties, should of course be aware that his intervention is part of a structured process whose rules he must know and respect. Although his technical support will then take precedence over the much more limited, if any, expertise of the mediator and the parties in a specific domain, it will be the same rules of mediation that will remain predominant. If, on the other hand, the expert cumulates his or her functions with those of a mediator, and given his or her know-how, his intervention could more easily undermine the natural process of mediation following a more proactive intervention.

In addition to the technical and experienced qualities of strict independence, neutrality and personal ethics, the expert is probably also expected to show a duty of reserve and to be able to motivate his or her judgements. Finally, the expert should strive to be a “creator of confidence”.

Maître Claude Duvernoy

Etienne Debaeke brings out the need for training, or at least information on the mediation process of the intervening expert. To be set up jointly by the FFCM, the CNCEJ and the Institute?
«If, on the other hand, the expert cumulates his or her functions with those of a mediator, and given his or her know-how, his intervention could more easily undermine the natural process of mediation following a more proactive intervention.
This reservation was clearly mentioned during the FFCM/CNCEJ colloquium of 6 February 2020. In my opinion, it should be the starting point. But the paragraph below, and this notion of “creator of confidence”, shows that it should perhaps not remain intangible.
In addition to the technical and experienced qualities of strict independence, neutrality and personal ethics, the expert is probably also expected to show a duty of reserve and to be able to motivate his or her judgements. Finally, the expert should strive to be a “creator of confidence”.»

Advantages of using a mediation expert?

By Etienne Debaeke

The use of a mediation expert will provide all stakeholders with independent external advice that will give them the necessary data to be incorporated, in one way or another, into a final agreement. In addition to the indisputable cases of technicality required, the nomination of an Expert would also facilitate the search for ways to resolve or mitigate the conflict.

Maître Claude Duvernoy

View shared: this is really what is expected of the mediation expert.

The process of self appointment of an expert in the French administrative system?

By Etienne Debaeke

The process of self appointment of an expert as mediator, with the agreement of the parties, is specific to the French administrative system. Belgium does not recognise this particular procedure. However, it can be compared, in Belgium, to the content of the mission of the Expert in Justice which, according to Article 977 of the Judicial Code (Section VI- $ 1 and 2). The attempt at “conciliation” is therefore part of the task of the Belgian expert.
In both cases (Belgian and French system) this process raises, in our opinion, certain questions.
This procedure can be assimilated to the search for a solution to a conflict outside of a structured mediation process and the guarantees it offers. The French expert self-appointed as “mediator” and/or the Belgian expert “conciliator” thus present themselves as “representatives/negotiators” who act in a framework where neutrality and confidentiality are not really ensured. While this route may produce results, the intervention of this procedure may also fail. The practice of judicial expertise in Belgium tends to show that the results of conciliation during judicial expertise are far from being really conclusive.
If “conciliation” or pseudo “mediation” does not succeed, the attempt to seek an amicable resolution of the conflict through structured mediation is undoubtedly desirable in view of the guarantees it offers but also considering its undeniably much higher success rate. The roles of the expert and the “conciliator-mediator” are, in our opinion, distinct and difficult to reconcile within the same conflict.

Maître Claude Duvernoy

” tries to reconcile the parties. If the parties conciliate, their agreement shall be recorded in writing. The statement of conciliation and a detailed statement of the expert’s costs and fees shall be deposited at the clerk’s office”.

The FFCM, along with others, has been insisting for years that a clear distinction be made between mediation and conciliation. It is a question of 2 different MARDs which each have their own qualities, even if certain points bring them closer together. The same must be true between expertise and mediation. Etienne Debaeke clearly points out the major difficulties of this situation: what becomes of neutrality and confidentiality, the pillars of mediation, in this situation?

The view of Ms Claude Vallet, Honorary Magistrate and EEEI’s member :

The role of mediator entrusted to the expert by Art.621-1 of CJA is specific to the French administrative courts. This possibility is not open in cases under the jurisdiction of civil courts. The confusion of functions is even excluded since under Art.131-8 para.2 CPC the mediator shall not be designated to expedite an investigative measure in a same defined case.

As is known according to the provisions of Art.240 CPC the French judge shall not entrust a conciliation mission to the expert. In practice, however, this does not seem to make a great difference as compared to the Belgian law as far as parties can find a friendly settlement during the forensic examination, due to the investigations made by the expert. In such a case, the investigative measure is hereby terminated and the settlement can become enforceable with judge’s approval.

Yet, as underlined by both Mr Debaeke and Maître Duvernoy, mediation and conciliation should be clearly distinguished.

In my view where confidentiality is obviously of primary importance, it is all the more through neutrality that the uniqueness of mediation becomes immediately apparent. Judges, experts or lawyers acting as counsel of their clients indeed shall or can, as the case may be, promote an amicable settlement in the framework of a conciliation process i.e. engage in a negotiation in view of reaching an agreement accepted by the parties.

However, those cannot be mediators due to the fact that their respective functions imply that they are not neutral and therefore not in a position to develop/promote dialogue under the specific tools used in a mediation process (reformulation, active listening, interest-based negotiation) enabling parties to find themselves the relevant solution to their dispute.

In order to be a mediator in a conflict it is necessary to be a third party, not in the legal meaning of this term, but in the sense of somebody having no influence on the issue of the dispute. Obviously, a judge or an expert cannot be a neutral third party. By function they shall have an opinion, with impartiality which is self-evident, yet anything but neutral. Which is in my view the reason why EC Directive 2008/52 excludes that a judge could be appointed as a mediator in a case before him.

Thus the role of an expert in the framework of a mediation process should comply with this rationale.

We would like to thanks Etienne Debaeke, Maître Claude Duvernoy and Claude Vallet for their contributions.