Mediation is “conventional” (or “extrajudicial”) when the parties try to reach an amicable resolution of a dispute before bringing it before a judge. In this case, they appoint a mediator who helps them find a compromise.

The use of mediation should be favored when the parties are required to pursue professional or commercial relations: for example, in the event of delivery of a non-compliant goods, difficulty in recovering an unpaid amount, conflict for the taking over of the work in a commercial lease.

Mediation is confidential: it helps to protect the image of the company's brand or preserve the reputation of its manager.

In practice, mediation proves to be an effective process, followed by a result in the form of an agreement in nearly 70% cases.

It is also possible to use public mediators depending on the type of dispute:

• Ombudsman for companies in the event of disputes between professionals or with the administration (difficulties in the context of public procurementpayment terms not met, etc.)
• Credit Ombudsman  in the event of difficulties in finding financing or repaying a loan.
• Mediation of the Urssaf in the event of difficulties in the procedures with the Urssaf.

Conventional mediation may be provided for in a contract before a dispute arises. The parties may also decide to use it by mutual agreement during the dispute:

The mediator may be a natural person or a legal person. The latter must then designate a natural person responsible for carrying out the mediation.

The designated mediator must meet the following conditions:

• Not having been the subject of a conviction, incapacity or a forfeiture mentioned on bulletin no. 3 of the criminal record
• Not having been the perpetrator of acts contrary to honor, probity and good morals that led to a disciplinary or administrative sanction
• Have the required qualification based on the dispute: training or experience adapted to the practice of mediation
• Provide the necessary guarantees of independence to mediate, he must then indicate all the circumstances that could affect his independence or lead to a conflict of interest

The mediator is in principle remunerated by the parties.

There are different types of mediators:

• Professional Ombudsman : a person specifically trained to facilitate conflict resolution. Professional mediators may be hired by the parties to the conflict or may be recommended by organizations specializing in mediation.
• Advocate Mediator : a lawyer may act as a mediator. This can be particularly useful when the dispute involves complex legal issues and the parties prefer to avoid formal legal proceedings.
• Institutional Ombudsman : Some institutions, such as chambers of commerce and industry (CCIs), professional associations or non-governmental organizations, offer mediation services. Mediators working within these institutions may be appointed to intervene in conflicts.
• Mediator appointed by mutual agreement : the parties to the dispute may mutually agree on a mediator to facilitate the resolution of their dispute. They may be someone they know and trust, or a professional recommended by a trusted third party

It is not the role of the mediator to decide the dispute. It should enable the parties to resume dialog so that they can reach a lasting agreement together.

He accomplishes his mission with impartiality : it conducts the mediation process in a neutral and objective manner. He never takes a position on either side.

It must also act withdiligence that is, efficiently and quickly.

Mediation takes place in 4 steps :

1. Statement of facts by each party so that the mediator knows the origin of the conflict
2. Research of the interests and needs of the parties, via separate interviews if necessary
3. Enumeration by the mediator of the solutions envisaged by the parties
4. Production of the Memorandum of Understanding (or Settlement Agreement) signed by the Parties

The duration 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.

During mediation, the parties shall respect the principle of confidentiality. All information shared in the mediation process therefore remains secret. However, with the agreement of the parties, the findings of the mediator and the statements gathered during the mediation may be communicated to persons outside the mediation, for example to certain employees of the company.

The parties can always ask the judge to pronounce a measure of instruction or an interim measure, or conservatory.

Conventional mediation ends in one of the following ways:

• Agreement reached between the parties following the exchange of consents. The parties may decide to give effect to this agreement. This means that one party may request enforcement if the other party fails to comply with its commitments.
• Agreement not reached: the mediator establishes a failure.

Agreement reached and possibility of giving enforceability to the agreement

Mediation was successful when the parties reached an agreement:

• The agreement can be total: the conflict is therefore resolved.
• The agreement is partial and resolves only a few elements of the dispute.

Whether total or partial, this agreement can be formalized in a contract.

The parties can give it the force of a court decision and make it enforceable.

To do so, they must do one of the following:

• Make certify the mediation agreement by the court
• Make countersign the mediation agreement by the respective lawyers and have an enforceable form affixed by the Registry.

Approval of the agreement by the court

Parties that have reached an agreement may have it registered by submitting set the agreement before the court. One of the parties may also present the agreement to the court with the agreement of the other party. The court competent to approve the agreement is the one that can be seized to rule on the dispute.

Approval helps secure the agreement since one of the parties can request it forced execution if the other does not respect its commitments.

The judge cannot change the terms of the proposed agreement. It shall approve the agreement of the Parties only if the object of the agreement is lawful and if it does not affect public orderc.

When the judge refuses to approve, he must give reasons for his decision.

Enforceability by the Registry of a document countersigned by the lawyers

The mediation agreement has the status of an enforceable instrument if it fulfills the 2 conditions following:

• Counter-signature by the lawyers of each party
• Enforceability affixed by the registry of the competent court

The mediation agreement countersigned by the lawyer of each party is transmitted to the registry of the court which will sign it. The signature of the registry gives the mediation agreement the value of an enforceable title.

The request for an enforceable form shall be made in writing, in duplicate, to the registry of the court of the domicile of the applicant.

Agreement not found

Mediation failed when the parties failed to reach an agreement. The dispute is not resolved and the mediator then establishes a finding of failure.

When one of the parties refuses to engage in the mediation process, the mediator establishes a finding of deficiency.

If the mediation process fails, the parties can then take the matter to court.