Primacy of conventional education

The decree states that cases must be “conventionally heard by the parties. If not, they shall be judicially liable.’

It distinguishes between two types of conventions: simplified treaty instruction and participatory procedure for the purposes of pre-trial preparation.

Creation of the simplified conventional instruction

Agreements allowing for the investigation of the case in a simplified manner may be concluded by the parties' lawyers. The signature of the latter is therefore not mandatory (it is for the participatory procedure).

The parties must inform the judge of the use of a simplified pre-trial agreement (by sending a copy of the agreement or a corresponding conclusion) and indicate the modalities of its implementation. It does not defer the judge, who ensures the smooth running of the proceedings. It can thus rule on any request related to the convention (incidents, inadmissibility...) and issue a precautionary or provisional measure.

Finally, the judge may decide to continue the investigation of the case when he considers that the Convention "does not allow the preservation of the guiding principles of the trial or the right to a fair trial or if its implementation has not allowed the case to be put in a state of being tried".

The conclusion of a simplified preconditioning agreement interrupts the expiry period of the proceeding.

New details on participatory procedure for preconditioning

This agreement allows the parties to commit to “working jointly and in good faith to prepare their dispute”. It may be concluded at any time during the proceedings.

The Order states that one of the parties to the proceeding must inform the judge of the conclusion of the agreement and provide a copy to the judge.

It is also specified that the conclusion of the agreement interrupts the expiry period of the proceedings until the termination of the agreement. The expiry of a proceeding corresponds to the termination of a proceeding due to the inertia of the parties for 2 years. It does not extinguish the action contrary to the prescription.

For this procedure also, the judge can rule on any request related to the convention (incidents, inadmissibility...) and order a precautionary or provisional measure.

The investigation may be continued if, at the end of this procedure, the case is still not ready for trial.

Possibility of using a technician

The decree allows the parties to choose a technician together. Its tasks are determined by the parties, who remain free to revoke it by unanimous consent (or by recourse to the judge).

The technician, who is paid by the parties, must carry out his mission with “conscience, diligence and impartiality, respecting the principle of contradiction”.

The parties may also:

• resort to the judge in case of difficulties related to the appointment (or maintenance) of the technician or difficulties in the transmission of documents;
• modify the duties of the technician (with his agreement or at his request).

In addition, in order to encourage an amicable settlement of the dispute, it is now possible for the technician to reconcile the parties.

Finally, where the agreement to employ a technician is concluded between lawyers, the expert report drawn up by the technician has the same value as an opinion delivered in the context of a measure of judicial inquiry.

Developments in ADRs

In order to promote the use of ADRs, several measures of the Decree clarify its application rules.

Mediation and conciliation: possibility of injunction and new duration

The judge can now order the parties to meet with a court conciliator or mediator at any time during the proceedings. A party who does not comply with this injunction may be fined a maximum of €10,000.

The decree changes the duration of mediation or conciliation. It is increased to 5 months (compared to 3 months previously). An additional 3 months may be added at the request of the mediator or conciliator.

The purpose of recourse to the mediator or conciliator is to allow the parties, by mutual agreement, to attempt to amicably end their dispute. It may take place outside or during the proceedings and shall interrupt its expiry period.

Possibility of giving enforceability to the ADR agreement

The decree specifies that the agreement on the amicable resolution of the dispute is “negotiated and concluded in accordance with the common law of contracts”. When this agreement is written, it may benefit from enforceability. It is acquired where the agreement is approved by the clerk. Approval must be requested by the parties or by the most diligent party before the judge already seized of the dispute or before the judge who would have been competent to hear it.

The request for the affixing of enforceability shall be made in writing by the parties to the registry of the court of the domicile of the competent applicant.

May be enforceable:

• the document establishing the agreement reached by the parties to a conciliation, mediation or participatory procedure in the form of a document countersigned by the parties' lawyers;
• the act countersigned by lawyers establishing a settlement agreement (even if not resulting from a mediation, conciliation or participatory procedure agreement).

Evolution of the scope of the settlement hearing (ARA)

THEARA, which allows the judge to help the parties reach an agreement, now applies to all courts except the labor court (the labor court procedure already includes an attempt at conciliation).