Disputes between companies: participatory procedure, collaborative law and mediarb

Verified 22 June 2022 - Directorate for Legal and Administrative Information (Prime Minister)

Alternative dispute resolution (ADR.) allows companies to resolve disputes amicable a dispute between the parties. The most common are mediation, the reconciliation, or arbitrationHowever, other dispute resolution methods coexist. These are participatory procedure, collaborative law and med-arb.

The participatory procedure is a negotiating option that can be used in the event of a conflict. Each party must be assisted by a lawyer.

The parties undertake by agreement to resolve their dispute together and in good faith.

Where legal proceedings are already in progress, they shall undertake to reconditioning of their dispute. In that case, that procedure shall temporarily interrupt the prescription the judicial action, without however erasing the period already elapsed.

Mandatory particulars

The participatory procedure agreement shall be contained in a written form (contract) for a fixed period.

It must contain the following information:

  • Identification of the parties and their lawyer (names, forenames, address)
  • Term of the procedure (i.e. the duration of the contract)
  • Subject matter of the dispute
  • Necessary documents and information the resolution of the dispute or to the preparation of the dispute (preparation of documents to facilitate the work of the judge) and the arrangements for their exchange
  • Documents signed by lawyers if necessary (e.g. hearing of the parties)

The parties may provide for an obligation of confidentiality.

Participatory dispute resolution procedure

The Participatory Procedure Agreement provides for the organization of negotiations to settle the dispute.

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In case of agreement

When the parties agree, they write a memorandum of understanding.

They can do it certify to give it the force of a court decision. This certification is a motion filed with the court.

If the parties do not reach an agreement at the end of the agreement on participatory procedure, they may apply directly to the court.

In this case, they are not obliged to go through a reconciliation or mediation prior.

In case of failure

If the parties do not reach an agreement at the end of the agreement on participatory procedure, they may apply directly to the court.

In this case, they are not obliged to go through a reconciliation or mediation prior.

FYI  

the Participatory Procedure Agreement concluded before judicial proceedings shall render inadmissible any appeal to the court for a decision on the dispute. However, if one of the parties fails to comply with the agreement, the other party may initiate proceedings before the court to rule on the dispute.

Participatory procedure for the purposes of preparation

At any time in an ongoing judicial proceeding, the parties may conclude a participatory procedure for the purposes of reconditioning.

The parties and their lawyers agree to put their dispute in a state to be tried.

They define together with their lawyers a working methodology and one meeting calendar. They shall also jointly choose the experts which they wish to have recourse to.

This allows the judge, at the end of the proceedings, to make a decision on the merits.

Collaborative law is a written contract between the parties and their counsel. Only lawyers specifically trained collaborative law ensure a smooth and collaborative process.

This process must be confidential and transparent (i.e. all necessary information is provided), which requires parties to act in good faith.

Counsel for one party suggests to the other to engage in the process. It is free to accept or decline.

If accepted, she will have to be assisted by a lawyer during the procedure. The parties undertake not to go to court.

By signing the collaborative engagement contract, the parties and their counsel commit to the following 5 steps

  1. Expression by each person of the feeling of the situation
  2. Research and expression of interests, needs, concerns, values
  3. Collect and share all information with all parties
  4. Assumptions or options that answer the questions posed by the situation
  5. Formulation of 3 offers for the global settlement of the dispute

In case of agreement, lawyers write a memorandum of understanding to seal the deal. The Parties may submit the Agreement to type-approval of the judge. The approval judgment gives it the force of a court decision.

In case of failureeither party may bring the matter before the judge. Each lawyer must then withdraw and is no longer able to represent or assist his client.

The cost varies according to the lawyers' fees. Allocation may be agreed.

FYI  

there is a list of lawyers practicing collaborative law.

The med-arb is a friendly procedure combining the mediation and arbitration. The parties shall decide in a contract or after a dispute has arisen to use this amicable procedure.

Mediation is the first step. When the parties cannot reach an agreement, arbitration is then arranged.

The role of the mediator and the arbitrator may vary according to the wishes of the parties. They may be different people or in some cases the mediator may become an arbitrator.

The parties may determine in advance the cost and anticipate the length of time the process will take.

FYI  

the Center for Mediation and Arbitration of the Chamber of Commerce and Industry of Paris (CCIP) proposes the establishment of a simultaneous med-arb that allows the use of mediation and arbitration within an agreed time frame and at a fixed cost.

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