1. Mediation under French law
In 1995, France passed a fundamental law on mediation (Law of February 8th, 1995). Since then, mediation has developed through the establishment of mediation centers. However, the progression was rather slow, given the little enthusiasm shown by courts and legal professionals and the lack of training in this regard.
After consulting widely with the Member States on possible measures to encourage the use of mediation in cross-border disputes in civil and commercial matters, the European Parliament adopted Directive 2008/52/EC.
The European Parliament adopted a resolution on September 13th, 2011 to complete this Directive. This resolution gives an agreement resulting from mediation the same enforcement power as a judicial decision. It also takes up the initiatives of certain European States to provide financial incentives to parties who resort to mediation.
France transposed this Directive by Ordonnance n°2011-1540 of November 16th, 2011 but also went further in the legal framework of mediation. The recent reforms of the French justice system, in all fields, show a real willingness of the legislator to promote alternative dispute resolution methods.
Henceforth, the French Code of Civil Procedure (CPC) provides for judicial mediation (Articles 131-1 and following of the CPC), and conventional mediation (Articles 1532 and following of the CPC).
As such, since January 1st, 2016, professionals have been obliged to provide consumers with the contact details of their consumer mediator (Article L.612-1 of the Consumer Code), thus enabling consumers to initiate a mediation process in the event of a dispute.
The Law of November 18th, 2016 on the modernization of justice for the twenty-first century provides for an attempt at compulsory mediation before referral to family court.
Law n°2019-222 of March 23rd, 2019 reforming the justice system now allows the civil judge – at the risk of distorting the very meaning of mediation- which is a process of adhesion of the parties – in all proceedings, including summary proceedings, to enjoin the parties to meet a mediator (Article 128 of the CPC, Article 22-1 of the Law of 8 February 1995).
This new legislation also introduces an obligation to mediate before starting court proceedings, for all appeals involving an amount of fewer than 5,000 euros or relating to a neighborhood dispute (Article 750-1 of the Code of Civil Procedure).
Mediation will surely become an obligatory step in a few years. It is therefore essential to become familiar with this method of dispute resolution and to consider it more frequently for your disputes.
2. Characteristics of mediation in France
Mediation is defined as a confidential dispute resolution process in which a neutral and independent third party – the mediator – intervenes between two or more parties to help them resolve their dispute by facilitating the search for a negotiated solution, thus avoiding the need for a trial.
Its characteristics are defined in the Law of February 8th, 1995, Articles 21 and following.
Mediation may be conventional (articles 1530 to 1535 of the CPC) or judicial, initiated by the judge (articles 131-1 to 131-15 of the CPC). Although these two processes are distinct, they have common rules:
An objective and neutral mediator
The mediator must meet several conditions to guarantee his competence and independence. He must be external to the parties and must have no ties of interest with either of them.
During the mediation, he or she ensures that the parties maintain a balanced debate by respecting the speaking time of each party, and by preventing one party from gaining the upper hand over the other. He does not express any opinion in favor of one party or the other, he remains neutral.
The mediator does not impose any decision. He simply offers the parties points for consideration. The mediator’s technical knowledge in the field concerned can be highly appreciated. Some areas (e.g. construction law, financial law, company law) require highly technical exchanges. A mediator specialized in this field will allow more relevant exchanges.
A confidential process
Confidentiality offers a space of freedom where parties can express and exchange in new and creative ways.
This is why the mediator and all other parties present at the mediation must observe strict confidentiality about everything that is said and exchanged during the mediation process (Article 21-3 of the Law of February 8th1995).
Any words or documents exchanged may not be used at a later date (in particular in the event of legal proceedings).
Furthermore, in the event of a separate meeting of the parties with the mediator, only with the party’s permission may the mediator raise before the other party the points that have been brought to his attention by the other party in a private meeting.
A managed process
udicial proceedings are uncertain in many aspects such as duration, cost, outcome, enforcement of the final decision… Mediation allows for more control over all these aspects.
The mediator sets an agenda in agreement with the parties. They may decide to meet, together or separately. The duration of each session can also be predefined.
Generally, the mediation process is set for two months, but it can be extended with the agreement of all parties. Sometimes a mediation can be concluded much more quickly than expected. In the case of judicial mediation, the initial duration of the mediation may not exceed three months (Article 131-3 of the CPC).
A solution that satisfies all the parties
Once the parties have identified together the issues in dispute, the mediator helps them explore, in greater depth, the areas of solution that may be available to them, until they agree on the terms of a settlement, or – more rarely, until they decide to leave each other to pursue their dispute judicially.
If an agreement is reached between the parties, they decide on its exact wording. This allows them to consider tailor-made, new and innovative solutions that are perfectly suited to their dispute.
The parties may then have this settlement approved by the judge seized in the case of judicial mediation, or by presenting the settlement to the court in the case of conventional mediation (Article 129 of the CPC).
In case of persistent disagreement, judicial proceedings will be resumed, or proceedings will be initiated by one of the parties. The limitation period, which is interrupted from the day the parties agree to resort to mediation, will then start to run again (Article 2238 of the CPC).
The judge or the court will then render a decision without being influenced by the mediation, all the more so as its content is unknown to him.
THE ROLE OF THE LAWYER
Beforehand, the lawyer’s role is to advise his client on whether to mediate, depending on the circumstances of the case. It is not automatic advice; it is given knowingly if the case is suitable.
During the mediation process, the client generally leads the discussions. However, the lawyer is there to help him articulate certain points, to help him develop solutions, to temper and generally play the role of counsel.
The lawyer will help his client decide on the interest of a specific dispute topic during the mediation, the usefulness of pursuing it or not, the need for an aside, the legal feasibility of the proposed solution…
Finally, it is the lawyer who at the end of the mediation process will draw up the transactional protocol and ensure its execution.
Why choose mediation?
- Renewing broken discussions
- Resolving a dispute between good business partners
- Ensuring confidentiality
- Managing the solution of the dispute
- Control costs and process delay
Amstel & Seine can assist you during a mediation, whatever the field of mediation.
Trained in the techniques and ethical tools of mediation, Marinka Schillings, Partner at Amstel & Seine, practices either as a mediator or as a lawyer. She will be, with her partners Mirjam Berg (specialized in labor law) and Valérie Judels (specialized in litigation), also trained in mediation, your dedicated lawyer for all questions about mediation.