Conventional Mediation

Verified 16 February 2022 - Directorate for Legal and Administrative Information (Prime Minister)

Conventional mediation also, called extrajudicial mediation, allows the parties to settle a dispute with the help of a mediator without going to court. Mediation can settle disputes in the commercial or labor law fields, for example. The mediator shall be appointed by the parties and shall be subject to an obligation of confidentiality.

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Mediation is provided for in a contract signed by the parties

In a contract, the parties may require the use of contractual mediation in the event of a dispute between them.

Mediation is then provided for in a clause mediation.

The clause must include the following:

  • Implementation of mediation before any judicial proceedings
  • Scope of its subject matter (e.g. non-compliance with payment deadlines, non-performance of a delivery obligation or any dispute concerning the performance of the contract)
  • Method of appointing the mediator and the conduct of the procedure

The clause may also refer to pre-written regulations on the organization of mediation. The Center for Mediation and Arbitration in Paris (CMAP) provides a pre-written regulation online.

Any legal action shall be declared inadmissible until the clause has been implemented. However, the parties are free to terminate mediation in the process.

If there is no provision in a contract

In the absence of clause in the contract, the parties may decide by mutual agreement to use mediation after a dispute has arisen.

Mediation is conducted by a mediator.

This is a natural person designated by the parties.

The mediator must be neutral and impartial.

In order to exercise treaty mediation, the mediator must fulfill the following 2 conditions:

  • Not to have been convicted, incapacity or a forfeiture mentioned on the criminal record bulletin n°3
  • Possess the required qualification in relation to the dispute or provide evidence of training or experience appropriate to the practice of mediation

The role of the mediator is not to settle the dispute between the parties, but to enable them to resume dialog and reach a lasting agreement together.

The Ombudsman shall carry out his duties impartially, competently, independently and diligently.

The mediator shall be paid by the parties.

During mediation, the parties may be assisted by a lawyer to accompany them towards an amicable resolution of the conflict.

It takes place in 4 stages:

  1. Statement of facts by each party so that the mediator knows the origin of the conflict
  2. Seeking the interests and needs of the parties, through separate interviews if necessary
  3. List by the mediator of the solutions envisaged by the parties
  4. Production of the Memorandum of Understanding (or transactional agreement) signed by the parties

The length of the mediation depends on the will of the parties.

They have to set a timetable.

One or more mediation sessions may be required to reach an agreement.

In case of agreement

Once the parties have reached an agreement, they can have it approved by a judge to give the agreement the force of a court decision.

The parties must jointly present the agreement before the competent courts (e.g. the court of justice, the commercial court).

If there is no agreement

The mediator may terminate the process if he or she considers that the parties will not reach an agreement (for example, in the case of bad faith on the part of one of them).

FYI  

due to the confidential nature of the proceedings, if the dispute is brought before the courts, the parties will not be able to use information revealed during mediation. If they want to use that information, they have to prove that it was obtained in another context.

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