Legal

Mediation is defined by a European directive of 2008 as a structured process, however it is named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.

 

Court-ordered mediation and conventional mediation should be distinguished:

Court-ordered mediation is a mediation, which occurs during a legal proceeding (possibly a emergency proceeding) following a decision of a court.

    The key rules include :

In France, court-ordered mediation is governed by the Code of Civil Procedure (Articles 131-1 et seq) and Article 2238 of the Civil Code.

This text provides the possibility for the judge to order mediation with the consent of the parties.

Consent of the parties :

The parties cannot be forced to go to mediation. The judge can only propose mediation. We often talk about mediation ordered by the judge. That is incorrect: The judge is only setting it up, after having received the agreement of the parties.

Mediator's skill :

The mediator must have been trained.

Confidentiality :

Mediation is confidential unless the parties agree otherwise.

The content of the agreement may be ratified by the court in charge of the case:

The content of the agreement may be made enforceable by a court at the request of the parties in a judgement or decision.

The duration of the process :

Three months, renewable once.

The control of the mediator's remuneration by the judge :

The judge decides upon the remuneration of the mediator.

The suspension of the procedure and statute of limitation periods during the mediation process :

The statute of limitation is suspended from the day after the occurrence of a dispute, the parties agree to use mediation or, in the absence of written agreement, from the date of the first meeting of mediation or conciliation. The limitation period begins to run, for a period not less than six months from the date on which either one or both parties, or the mediator or conciliator, declare that the mediation or conciliation is completed.

Conventional mediation is a mediation which occurs when the parties agree to use mediation, without the intervention of a judge.

It is organized by articles 1532 and 1535 of the Code of Civil Procedure.

These provisions incorporate the rules of confidentiality and ratification of the agreement provided for judicial mediation.

The rules of suspension of limitation periods are common to judicial and conventional mediations.

Ratification may also be requested from the judge when a conventional mediation took place during a court proceeding. If there are no pending legal proceedings, the agreement will be ratified in accordance with Article 1565 of the Code of Civil Procedure: “The agreement reached by the parties to mediation (…) may be submitted, in order to make it enforceable, to the ratification of the competent court to hear the dispute in the relevant field”.

Texts :

  • Directive 2008/52 / EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
  • Order No. 2011-1540 of 16 November 2011 transposing Directive 2008/52 / EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
  • Book I of the Civil Procedure Code: Provisions common to all jurisdictions (judicial mediation), Title VI bis: Mediation Article 131-1 et seq.
  • Book V of the Code of Civil Procedure: The amicable dispute resolution (conventional mediation), Article 1528 et seq.
  • Code of Civil Procedure, Articles 56 and 58.
  • Article 2238 of the Civil Code on prescription periods.
  • Articles 2044-2058 Civil Code on transaction.
  • Code of Civil Procedure – provisions on legal aid.

Other specific texts on mediation :

  • Civil Code, Articles 255, 256 and 373 (family mediation).
  • Code of Administrative Justice, Article L 771-3.
  • Labour Code, including Article L1152-6 (harassment), Article R1471-1 ff (border disputes), Article L2522-1 and following labour disputes.
  • Code of Criminal Procedure, Article 41-1.
  • National Code of Conduct for mediators.
  • European Code of Conduct for Mediators.
  • Directive 2013/11 / EU of 21 May 2013 on alternative dispute resolution for consumer disputes.

All our mediators have adhered to the European Code of conduct for Mediators.

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To see our standard contract, please click here.

Team

Claude Amar

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Michèle Weil-Guthmann

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Christian Hausmann

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Thierry Garby

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