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Mediation is defined as the act by the mediator of seeking to bring the two parties together and helping them to find a solution to the dispute between them.
Mediation may take place either out of court or in the course of legal proceedings. In the latter case, it is regulated by sections 131-1 and following of the new code of civil procedure and proceeds under the control of the judge. Any judge to whom a dispute is referred may, with the consent of the parties, have recourse to mediation: for this purpose, he appoints a mediator, a third person who is qualified, impartial and independent. The mediation process must not exceed three months and its confidentiality is guaranteed. The mediator’s remuneration is set by the judge and is the responsibility of the parties, who must make a provisional payment at the start of the procedure, with the exception of impecunious parties who are eligible for legal aid.
When mediation takes place out of court, there are no general regulations governing it.
Conciliation is the agreement reached by the parties, either by discussion between themselves or through a third party, the conciliator. Conciliation aims to put an end to a dispute by means of a solution accepted by the parties.
The parties may resort to conciliation before a legal conciliator out of court if their dispute concerns rights that they are free to exercise. The conciliators receive the parties, who may have assistance. They act in complete confidentiality; that is to say the reports and declarations that they obtain may not be produced or cited later in subsequent proceedings without the consent of the parties. The memorandum of agreement may become legally enforceable if the parties ask the court to order this.
In the judicial context, conciliation is defined as an agreement concluded between the parties in the case, under the aegis of the judge so that the proceedings may end in a negotiated solution and not one imposed by judicial authority. The court of first instance and the local court may also, with the consent of the parties, appoint a conciliator. This is a voluntary legal assistant registered on a list drawn up by the First President of the Court of Appeal following a proposal by the Court of first instance. Conciliation is a free service.
There are two mechanisms:
The law on guidance and planning for legal proceedings allows the court of first instance and the local court to order the parties to meet a conciliator to inform them about the aims and procedures of the conciliation process.
These procedures cannot succeed without the agreement of both parties. They can only be concerned with rights that the parties are free to exercise.
It is not necessary to resort to an advocate. Certain advocates take on conciliation or mediation work out of court.
Legal aid may be available for pre-litigation settlement procedures by an advocate (section 10 of the Act of 10 July 1991) and for mediation under judicial control. In other cases, if mediation involves payment, the cost is shared between the parties (cf. « Aide judiciaire – Informations générales ») (Legal Aid – General Information).
The alternative types of procedure ending in a settlement, that is to say mutual concessions agreed amongst the parties in order to put an end to their dispute, may be given legal force by the presiding judge of a court of first instance (section 1441-4 of the new code of civil procedure). These agreements therefore have the same legal force as a judgement. In other cases, the agreement will have the same value as a contract between the parties. If the agreement is not enforced, the party so requiring may bring the dispute before the judge.
A contractual agreement between the parties making provision for recourse to a mechanism for an alternative way of settling disputes is not prohibited in principle. It must be implemented by the parties. However, this agreement is liable to be prohibited if it makes provision for recourse to this mechanism to the exclusion of any referral to a court since it would remove the right of access to justice.
As indicated on the page “ Modes alternatifs de résolution des conflits - Droit communautaire” (“Alternative dispute resolution” – EU law”) , the European Commission’s website publishes the list of a number of extrajudicial institutions for the resolution of consumer-related disputes in all Member States. This list will give you the practical information you need to decide whether or not to resort to one of these bodies: its structure, operational scope, types of procedure, charges and contact details. You may have to call on an extrajudicial institution for the resolution of consumer-related disputes based in another Member State. To find out exactly which institution you should approach, you can consult the web pages réseau EEJ-Net or réseau FIN-NET for disputes concerning financial services.
This is a one-stop shop providing information and guidance to consumers and helping to settle consumer-related disputes. It brings together on a département level consumers’ associations, professional organisations and the administration (the département Office of Competition, Consumer Affairs and Fraud Prevention). This mechanism is free of charge. For more information, see the site of the Direction générale de la Concurrence, de la Consommation et de la Répression des Fraudes (Office of Competition, Consumer Affairs and Fraud Prevention).
Where insurance is concerned, groups of insurance companies have drawn up mediation charters through which an independent mediator gives an opinion on a dispute between insured and insurer. A matter may be referred to this mediator by letter (but a registered letter with advice of receipt is preferable). The mediator is bound by the adversarial system. If mediation fails, the case may be referred to the courts within a period of two years, in principle, starting from the act that was the original cause of the dispute.
Useful addresses :
26, boulevard Haussmann F-75311 Paris Cedex 09
In matters involving banks, section L 312-1-3 of the Monetary and Financial Code aims to institutionalise and extend the practice of the bank mediator. The procedure is free of charge and the mediator must give a ruling within two months of the matter being referred to him; limitation periods are suspended during this time.1.
Held before the Industrial Tribunal, a specialised court for hearing disputes between employers and employees, the procedure goes through a compulsory conciliation phase before the conciliation bureau. This procedure is regulated by sections L. 511-1 and R. 516 onwards of the Employment Code. If the parties reach an agreement, it is written up in an official report. If they fail to agree, the procedure continues.
Within each département, there is a conciliation commission dealing with matters relating to leases on dwellings. It is compulsory to refer a matter to this commission before taking it before a court when the dispute relates to rental prices. There is no charge for this procedure. Any dispute regarding the condition of the premises, guarantee deposits, charges and repairs may also be referred to this commission. The workings of this commission are regulated by Decree No 2001-653 of 19 July 2001.
Where commercial leases are concerned, there are similar commissions, referral to which is always optional: the conciliation commissions for matters involving commercial leases. They are regulated by section L. 145-35 of the Commercial Code and Decree No 88-694 of 9 May 1988. They are competent to hear cases involving disagreements on the setting of rental costs when leases are renewed.
Family mediation is a process of construction or reconstruction of family ties focusing on the independence and responsibility of the persons concerned in situations including break-ups or separations, involving an impartial, independent, qualified third party, with no decision-making power : the family mediator, who, by organising confidential interviews, promotes communication between family members and ensures the correct handling of their dispute within the intended confines of the family in its diversity and variation.
It must not concern rights that the parties are not free to exercise (e.g. filiation). This method of resolving disputes appears particularly suited to this field of law, where decisions must take into account the human costs involved and the need to maintain family ties beyond the separation stage.
Numerous authorities have an arbitrator. The médiateur de la République (French Ombudsman) has jurisdiction over relations between the authorities and their constituents. Before referring a matter to the Ombudsman, it is obligatory to have first made an approach to the authorities concerned – requesting an explanation or contesting a decision – and to establish that the disagreement still exists. The referral procedure is not direct : the matter has to go via a member of parliament. However, the Representatives of the Ombudsman may also settle a large number of problems directly and speedily.
With regard to healthcare matters, the regional conciliation commissions for medical accidents were set up by Act No 2002-303 of 4 March 2002, relating to patients’ rights and the quality of the healthcare system.
Where disputes involving advocates are concerned, their clients may, with a view to reaching an amicable resolution, refer the matter to the President of the Bar Council in writing or even by registered letter with advice of receipt. In the absence of an agreement, ordinary court proceedings may be instituted.Disputes with notaries may be referred to the President of the département Chamber of Notaries in writing or even by registered letter with advice of receipt
Last update: 28-04-2005