Mediation

Conventional and judicial mediation

There are two types of mediation:

• Conventional or extra-judicial mediation : it is initiated by the parties. The mediator is a person who is specifically trained to facilitate conflict resolution and who is paid. It may be a lawyer or a person belonging to a chamber of commerce or a professional association. Conventional mediation can take place at different times:
  
  • Either before the dispute : Mediation is provided for in the contract: a mediation clause in the contract states that in case of dispute, mediation is mandatory.
  • Either in the course of the dispute : The parties shall appoint a mediator during a dispute who shall be responsible for finding a solution.
• Judicial mediation : it is proposed by the judge at any stage of the proceedings (on application for interim measures or pending appeal) before the court. The parties agree on the name of the judicial mediator proposed by the judge and who shall be paid. This may be a legal person (a business or an association) or a natural person. Its mission is limited to a period of 3 months renewable only once. The judge may refer to the list of mediators registered with the Court of Appeal.

To learn more about conventional mediation, you can visit the dedicated card.

Public Ombudsmen: companies Ombudsman and Consumer Litigation Ombudsman

In case of disputes between traders or with the administration, it is possible to refer companies to the Ombudsman, who is attached to the Ministry of Economy and Finance. In particular, it intervenes in the following disputes:

• Disputes in the performance of a contract (payment terms, sudden breach of contract, etc.)
• Disputes between a TYPE or a SMB and a large company
• Difficulties in the context of public order
• Non-compliance with a verbal agreement
• Non-compliance with payment conditions (late payment, unjustified deductions, penalties abusive), etc.

The companies Ombudsman provides a free service and allows a solution to be found while preserving the commercial relationship.

For more information on the companies Ombudsman, please see the dedicated card.

In case of dispute with a particular customer, the trader shall be obliged to offer to use the Consumer Litigation Ombudsman. The latter shall have jurisdiction in the event of a dispute concerning the performance of a contract of sale or service. Consumer mediation is free for the consumer but paid for by the trader.

For more information on the Consumer Litigation Ombudsman, please see the dedicated card.

Conciliation

Conciliation allows a dispute between several persons to be resolved through the intervention of a third party: conciliator of justice. For example, it can be used to resolve disputes related to debt collection.

Conciliation is based on the willingness of the parties to reach an agreement. It's free.

The Justice Conciliator is a volunteer who is appointed by order of the President of the Court of Appeal and sworn. This may include:

• On appointment of the judge: it is delegated conciliation or judicially ordered conciliation.
• At the request of one or more parties, before or during a trial: this is conventional conciliation.

To find a justice conciliator outside a judicial procedure, you must contact one of the offices of justice conciliators:

Arbitration

In the event of recourse to arbitration, the dispute shall not be settled by a court but by one or more arbitrators chosen and paid by the parties.

Arbitration is a widely used method of dispute resolution in commercial matters, in the case of disputes between partners of a commercial business, in the application of a franchise agreement or distribution.

The parties may decide to use thearbitration at different times:

• Before a dispute arises : the parties may agree on a arbitration clause, directly inserted into the contract or into a separate contract. This written form shall be signed by both parties and shall indicate the choice of the arbitrator responsible for settling the dispute. The arbitration clause is only permitted in contracts concluded in the course of a professional activity (for example, in a franchise agreement). Where one of the parties has not contracted in the course of his professional activity, the trader may not invoke the arbitration clause with the non-trader.
• During the dispute : the parties decide to settle an existing dispute by arbitration. We're talking about arbitration compromise. That compromise must determine the scope of the subject-matter of the dispute and the appointment of the arbitrators.

Participatory procedure and collaborative law

The objective is to reach an amicable agreement through the intervention of counsel on both sides.

Before the dispute:

• Conventional participatory procedure : it is the result of an agreement by which the parties undertake to find an amicable solution to their dispute through their lawyers. The parties exchange their exhibits and arguments through their counsel. The parties may use a third party (e.g. : expert, law professor...). This agreement shall be concluded for a fixed period. As long as the agreement is pending, any appeal to the court to rule on the dispute shall be inadmissible.
• Collaborative Law : it is the result of a contract by which the parties and their lawyers undertake to do their utmost to seek an amicable settlement of the dispute. The parties undertake not to refer the matter to the judge for the duration of the process. The negotiations are confidential. They take place in 5 defined steps to reach an agreement. The Parties may or may not decide to have their agreement approved.

Where the matter is referred to the court:

Participatory procedure for the purposes of preparation : the parties and their lawyers agree to put their dispute in a state to be tried. Together with their lawyers, 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.