Mediation in France

Dispute Resolution Journal, Nov 2000-Jan 2001 by Gaillard, Emmanuel, Edelstein, Jenny

Some people think that the use of alternative dispute resolution methods in France is something of a novelty. But, according to authors Emmanuel Gaillard and Jenny Edelstein, this is not the case. In fact, ADR use in France has survived the past two centuries, and currently there is a resurgence of interest in conciliation and mediation among French disputants and the judiciary. Gaillard and Edelstein review recent laws that serve to promote further use of these processes in France today.

In France today, ADR is regularly promoted by the authorities and legal scholars alike as a means of relieving the burden of the courts, and resolving disputes in a faster, simpler, and cheaper manner. Moreover, recourse to ADR in France carries with it a fashionably progressive, American connotation. This impression is, however, deceptive. In fact, a long tradition of alternative dispute resolution exists in France. Indeed, the principle of optional or mandatory conciliation as a preliminary to litigation has appeared in French legislation at various intervals and in varying forms over at least the past two centuries. There is also a relatively long-standing practice in France to use mediation to resolve disputes.

Evolving Approaches to ADR

Conciliation was first institutionalized in France at the time of the French Revolution. Indeed, the thinkers of the Revolution considered conciliation to be the ideal method of dispute resolution. The Decree of August 16-- 24, 1789 thus provided for mandatory conciliation proceedings for all matters falling under the jurisdiction of the tribunaux de district (the ordinary civil courts). The juges de paix (justices of the peace, ruling in equity) attempted conciliation as a preliminary matter in practice, and by law starting in 1855. The duty of the civil judge to seek conciliation was subsequently also included in the 1906 French Code of Civil Procedure.

In the early 20th century, however, mandatory conciliation experienced a decline, and was abandoned as a legal requirement in the 1940s and 1950s, perhaps as the consequence of an increasing degree of confidence generally placed in the French judiciary. Nonetheless, in practice conciliation was still used by the French judiciary in certain contexts, so much so that optional conciliation was expressly included as one of the missions of the civil judge in the French Nouveau code de procedure civile (NCPC), at Article 21.

Despite the optional nature of this type of conciliation, certain inherent difficulties in fulfilling the dual missions of conciliation and judgment as prescribed by Article 21 NCPC were noted in France. Thus, a movement in favor of extrajudicial conciliation emerged in France in the 1970s and a number of persons were accordingly authorized to supervise conciliation attempts between the parties to a dispute, with no involvement of the judiciary. The mission of these third-party non-magistrates, known as conciliateurs de justice, was to facilitate the resolution of disputes outside of any judicial or procedural framework.'

Generally speaking, this form of extrajudicial conciliation had mixed results. There were concerns within the judiciary that such unsupervised conciliation could lead to the creation of a lower form of justice which would be prejudicial to the interests of the parties= Extrajudicial conciliation has been more successful in the particular instances where specific forms of conciliation have been institutionalized, such as collective bargaining (Article L 523-1 of the Labor Code), landlord-tenant disputes (Law # 89-462 of July 6, 1989), and insolvency of individuals (Law # 89-- 1010 of December 31, 1989, amended by Law # 95-125 of February 8, 1995) and corporations (Law # 84-148 of March 1, 1984, amended by Law # 94-175 of une 10, 1984).

As a result of the mixed reactions in France to extrajudicial conciliation performed by conciliateurs de justice, the most recent legislation has opted to revive judicial conciliation, but tempering its judicial nature by allowing the judge to delegate his or her conciliatory functions to a person or entity acting under the judge's supervision. Thus, Law # 95-125 of February 8, 1995, and the related decrees now authorize the judge to appoint a third party to attempt preliminary conciliation between the parties, under the judge's supervision. The Law of 1995 also refers, for the first time in French legislation, to mediation.' Judicial mediation under the Law of 1995 and the related Decree of July 22, 1996 is entirely optional, and requires the consent of the parties for the appointment of a third-party mediator to assist them in their attempt to resolve their dispute (for instance in proposing a settlement arrangement). Since the adoption of the Law of 1995 and related Decree of July 22, 1996, the Court of Appeals of Paris and of Grenoble have decided to systematically recommend the appointment of a mediator in disputes pending before certain chambers, while preventing any delay to the appellate procedure in the event of failure of the mediation attempt.' These courts suggest the intervention of a mediator from the time a hearing date is set.