Last updated more than 5 years ago
Mediation is an out-of-court dispute resolution process whereby an independent third party (the mediator) is tasked with assisting both parties (the plaintiff and the defendant) to find an amicable solution without having to go to court.
The Luxembourg Regulatory Institute (ILR) acts as a mediator in attempts to resolve consumer disputes regarding:
- electronic communications services;
- postal services;
- energy supply (electricity and/or natural gas).
The ILR offers a free mediation procedure that is voluntary and quick.
Who is concerned
Any consumer (individual residing in Luxembourg or in another EU country) in a dispute with a Luxembourg-based professional who provides services related to electronic communications, postal services or energy (natural gas and/or electricity) may avail themselves of the ILR's mediation service.
Similarly, any Luxembourg-based professional in one of those sectors may file an application for mediation to amicably settle a dispute with a consumer residing in Luxembourg.
Disputes between 2 consumers or between 2 professionals are not eligible for this procedure.
For mediation with the ILR to be possible, all of the following conditions must be met:
- there must be a contractual dispute between a professional in the electronic communications, energy (electricity and/or natural gas) or postal services sector and a consumer;
- the consumer or professional wishing to go before the ILR must first have sent a written complaint to the other party. If the complaint has not been answered after a reasonable waiting period, or if the answer given is not satisfactory, they may go to the mediator;
- judicial proceedings for the same dispute must not be pending or have been executed;
- mediation proceedings for the same dispute must not be in progress or have been executed by the ILR;
- proceedings for the same dispute must not be pending or executed by a mediation agency other than the ILR or an arbitration court.
The ILR will refuse to handle the dispute if:
- if any one of these conditions is not met;
- if the mediator believes that the dispute in question would be better resolved by judicial means.
The mediator will notify the parties of the result of the mediation procedure in a report containing the reasons for the decision within 90 days of receipt of the completed application.
This period may be extended by the mediator because of the complexity of the dispute.
The mediation services of the ILR are offered free of charge.
How to proceed
The Luxembourg Regulatory Institute (ILR) is qualified to handle mediation requests regarding:
- electronic communications services;
- energy supply (electricity and/or natural gas);
- postal services.
Requests for mediation by the ILR may be made online or by post.
The parties (the consumer and the professional in question) can then communicate with the mediator by email or post.
The parties do not need to hire lawyers. However, they may seek assistance or guidance from a person of their choosing.
Submission of disputes
The consumer or the industry professional sends a request for mediation to the ILR by post or online.
Instructions for submitting an online application are available in the online mediation section of the ILR website.
To submit an application by post, the mediation application form corresponding to the sector in question (electronic communications, electricity / natural gas or postal services) must be completed in full, signed and dated.
All supporting documents must be attached to the form so the mediator has a complete file containing all elements relating to the dispute. This file must then be sent by post to the ILR.
Disputes must be submitted in one of the 3 official languages of the country: Luxembourgish, French or German.
When the application for mediation is submitted, the applicant chooses the language. The chosen language will be used throughout the entire mediation process. The chosen language cannot be changed subsequently, nor may several languages be used.
The mediation procedure takes place in 3 phases, during which the parties try to find a solution to their dispute: the written phase, the hearing and the proposed solution for the dispute.
Each party has the right to withdraw at any time from the mediation proceeding, provided they inform both the mediator and the other party to the dispute within a reasonable time and in writing.
The written phase
The mediator sends the defendant the complete file received from the plaintiff and grants them a maximum of 2 weeks to respond in writing.
There are 2 possible outcomes:
- the defendant refuses to participate in the mediation, stating the reasons for their refusal, in which case the mediation procedure is deemed to have failed;
- the defendant agrees to take part in the mediation and takes a stance on the problem, which marks the beginning of the proceeding.
Once the proceeding has been initiated, the mediator sends the defendant's response to the plaintiff and also gives them a maximum of 2 weeks to respond. A final written submission from the defendant is then communicated within 2 weeks, which marks the end of the written phase of the proceeding. If no solution has been found at the end of the written phase, the mediator may invite the parties to participate in a hearing if they consider it necessary.
All responses / position papers should be addressed to the mediator, who forwards them to the other party.
Any reply sent to the mediator beyond the allotted time will not be taken into account, unless the party has previously requested an extension of the time limit. In the event of failure to comply with the deadlines to respond, the procedure is closed with a statement of failure to reach an agreement.
Within a maximum of 2 weeks from the end of the written phase, the mediator summons the parties to a hearing at the ILR offices, where the parties discuss their dispute and attempt to find a solution.
If the parties reach an agreement, the mediator records the agreement in a report and closes the mediation proceeding.
If, however, the parties fail to reach an agreement, the mediator begins the third and final phase of the mediation.
During the first 2 phases, the mediator does not intervene in the resolution of the dispute. They merely ensure the proceedings are conducted properly and act as an intermediary. This allows the parties to find a solution for themselves.
Attendance at a hearing is mandatory. If one of the parties is absent from the hearing, the mediation procedure is closed with a statement of failure to reach an agreement.
However, each of the parties has the right to request postponement of the hearing if unable to attend or send representation on the set date. A request to postpone the hearing must be made no later than 3 days before the date of the hearing.
In the event of a cross-border dispute over the execution of a contract entered into online, a hearing is mandatory only if both parties agree to participate.
Proposed solution for the dispute
If the 2 parties do not reach an agreement in the first 2 stages of the proceeding, the mediator offers a solution in writing, indicating the type of rules on which it is based. The mediator makes the ruling on the basis of the law and/or of the principle of fairness. They forward the proposal to both parties and invite them to express their acceptance or rejection of the proposal, in writing, within 2 weeks maximum.
If at least one of the parties does not accept the proposed solution or does not respond within the prescribed time, the mediation procedure fails.
If both parties accept the mediator's proposal, an end-of-mediation report describing the arrangement is prepared.
In both cases, the mediation procedure is ended.
The proposal made by the mediator is non-binding. The parties are therefore free to accept or reject it.
Completion of mediation procedure and consequences
A mediation proceeding may end with:
- an end-of-mediation report:
- if the parties come to an arrangement during the first 2 phases; or
- if no arrangement is found during the first 2 phases, when both parties accept the solution proposed by the mediator;
- a statement of failure to reach an agreement:
- if one of the 2 parties no longer wishes to continue the mediation or does not express a position within the prescribed time limits; or
- if at least one of the 2 parties rejects the mediator's proposed solution.
No further request for mediation for the same dispute is possible after the mediation procedure has been completed. However, legal proceedings remain an option for the parties to the dispute.