Disputes between companies: participatory procedure and collaborative law

Verified 08 September 2025 - Directorate of Legal and Administrative Information (Prime Minister)

Alternative Dispute Resolution (ADR) allows companies to resolve their disputes amicably. The most common are mediation, the conciliation or else arbitration. Participatory procedure and collaborative law are amicable methods of dispute resolution conducted with the assistance of lawyers.

Participatory procedure

The participatory procedure is a negotiation conducted by specialized lawyers.

The parties shall draw up a contract (or participatory procedure agreement) by which they undertake to seek together an amicable resolution of their dispute or the preparation of their dispute.

The commitment to negotiate good faith is a central element of the participatory procedure.

The participatory procedure may take place:

  • either outside a judicial proceeding : we are talking about conventional procedure. In this case, it is not possible to refer the matter to the court for a ruling.
  • either in the context of a judicial proceeding : we are talking about participatory procedure for the purposes of rehabilitation. The parties and their lawyers agree to put their dispute in order to be tried. They define a working methodology and a meeting schedule. They shall also jointly select the experts they wish to use. This allows the judge, at the end of the proceedings, to make a decision on the merits.

Please note

When a participatory procedure agreement is concluded, it is not possible to refer the dispute to the court for a ruling.

The participatory procedure agreement must be established by written.

It is concluded for a fixed duration, which makes it possible to anticipate the date on which the dispute may end.

The agreement shall include obligatorily the elements following:

  • Identification of the parties and their lawyer (surnames, first names, address)
  • Term (or duration of contract)
  • Subject matter of the dispute
  • Documents and information necessary for the resolution of the dispute or the preparation of the dispute and the terms of their exchange. Upon signature of the agreement, the parties choose the documents that will be communicated to the other party.
  • Documents signed by lawyers if necessary (e.g. hearing of the parties)

The parties may include an obligation of confidentiality in the agreement.

The assistance of lawyers is mandatory in the participatory procedure.

It is also exclusive: it is a “monopoly” recognized to lawyers.

Lawyers are not required to undergo specific training to assist parties during the participatory process (unlike the collaborative process).

Outcomes depend on the type of participatory procedure initiated:

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Conventional participatory procedure

  • In case of agreement : the parties enter into an agreement terminating the dispute in its entirety. To give this agreement the force of a court decision, the parties may:
    • or ask the court toapproval of the agreement by an application to the court
    • or make countersign the agreement by their respective lawyers and have an enforceable form affixed by the Registry.
  • In case of failure of the participatory procedure : the parties did not reach an agreement before the end of the participatory procedure agreement. They will then be able to go to court. In this case, they are not obliged to go through a conciliation or prior mediation procedure.

FYI  

Parties assisted by their lawyers may terminate the agreement before the end of the term.

Participatory rehabilitation procedure

  • In case of total agreement on the substance of the dispute: the party or parties request the approval of the parties' agreement.
  • When the case is ready for trial but agreement on the substance is partial : an act of lawyers formalizes the points agreed between the parties and the points still in dispute. The parties may ask the judge to rule on the residual dispute. They may request the approval of the agreed items.
  • When the case is ready for trial but the dispute persists in full on the merits: a legal act formalizes the points agreed between the parties and the points still in dispute. The parties may ask the judge to rule on the dispute.
  • When the negotiation failed and failed to put the case on trial: the case is brought before the court to be put on trial

Collaborative Law

The collaborative law process is an amicable dispute resolution (ADR) process. The parties and their lawyers sign an agreement contract under which they undertake to settle a conflict by negotiation.

The parties undertake not to bring the matter before the judge during the process.

So the collaborative law process comes into play before any referral to a judge.

FYI  

The cost of the collaborative process varies according to lawyers' fees. Allocation may be agreed upon.

By signing the contract for participation in the collaborative process, the parties undertake to respect the principles following:

  • Do not go to court during the collaborative process
  • Working as a team. The team is made up of the parties, their lawyers and possibly third parties who know if their lighting is necessary.
  • Respect the loyalty and transparency. The parties undertake to share all the elements that will enable an agreement acceptable to everyone to be drawn up.
  • Respect a enhanced confidentiality. It concerns all exchanges of documents or information during the process.
  • Withdrawal of the two lawyers in case of failure. Lawyers cannot continue to intervene if the matter is brought to justice: they must withdraw.

The collaborative process takes place in several ways steps defined in the contract.

The negotiation consists of meetings between the parties and their lawyers. These meetings follow a very specific agenda. Lawyers help the parties listen to each other and exchange ideas to reach an agreement acceptable to both parties.

This is a real teamwork with the aim of exchanging with confidence without the threat of judicial referral.

Negotiation generally follows the next steps :

  • State of play/narrative: each party expresses their feelings of the situation
  • Determination of interests and objective information: research of needs, concerns, values of each party.
  • Collection of all objective elements: all information is shared. Lawyers analyse them and indicate all the legal and financial implications of the situation.
  • Hypotheses or options that could answer the questions posed by the situation: this step opens the field of all possibilities to reach an agreement.
  • Settlement offers from each party to meet the interests of both parties

FYI  

Sometimes it is called upon to knowing third party (e.g. mediator, notary, accountant or psychologist). He must then sign a endorsement the contract that specifies the principles that it undertakes to respect.

Only lawyers with followed a training course specific in collaborative law may intervene. This training allows them to master the negotiation process and various tools (reasoned negotiation, active listening, reformulation). There is a list of lawyers practicing collaborative law:

Find a lawyer specialized in collaborative law

In case of agreement, lawyers write a memorandum of understanding to seal the agreement. The parties may submit the agreement to the approval from the judge. The approval judgment gives the agreement the force of a court decision.

In case of failure, one of the parties may refer the matter to the judge. Each lawyer must then withdraw and can no longer represent or assist his client.

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