There are various amicable dispute resolution (ADR) methods: mediation (conventional and judicial), arbitration, conciliation, participatory procedure and collaborative law.

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 can 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 inserted in the contract specifies that in the event of a dispute, mediation is mandatory.
  • Either in the course of the dispute : the parties shall appoint a mediator in the course of a dispute who shall be responsible for finding a solution.
• Judicial mediation : it is proposed by the judge at any time during the proceedings (in summary proceedings or pending appeal) before the court. The parties agree on the name of the judicial mediator proposed by the judge and who is paid. It may be a legal person (a business or an association) or a natural person. Its mission is limited to a period of 5 months. It can be renewed once for a maximum of 3 months. The judge may refer to the list of mediators registered with the Court of Appeal.

For more information, you can consult the fact sheet on the conventional mediation.

Public Ombudsmen: companies Ombudsman and Consumer Dispute Ombudsman

In case of disputes between professionals or with the administration, it is possible to refer the matter to the companies Ombudsman, which is part of the Ministry of the Economy and Finance. He intervenes in particular in the following disputes:

• Disputes in the performance of a contract (payment terms, abrupt breach of contract, etc.)
• Disputes between a TPE or a SME and a great company
• Difficulties in the context of public procurement
• Non-compliance with verbal agreement
• Payment terms not respected (late payment, unjustified withholding, penalties abusive), etc.

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

For more information, you can consult the sheet on the mediator of companies.

In case of litigation with a particular client, the trader has the obligation to propose to him to resort to the consumer dispute mediator. The latter is competent in the event of a dispute concerning the performance of a contract of sale or provision of services. Mediation of consumption is free for the consumer but paid for the professional.

For more information, you can consult the fact sheet on the mediation of consumer disputes.

Conciliation

Conciliation allows to resolve a dispute between several people through the intervention of a third party: conciliator of justice. It allows, for example, to settle a dispute concerning an unpaid payment between a craftsman and his client.

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

The Court Conciliator is a volunteer appointed by order of the President of the Court of Appeal and sworn in. It is seized:

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

To find a judicial conciliator outside of a judicial procedure, you must contact one of the judicial conciliator hotlines:

Arbitration

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

Arbitration is a mode of dispute resolution widely used in commercial matters, in the event of conflicts between partners of a commercial business, in the application of a franchise agreement or distribution.

The parties may decide to resort toarbitration at different times:

• Before a dispute arises : the parties may agree on a arbitration clause, directly inserted in the contract or in a separate contract. This written agreement is signed by both parties and mentions the choice of the arbitrator responsible for settling the dispute. The arbitration clause is only allowed in contracts concluded in the context of a professional activity (in a franchise contract for example). Where one of the parties has not contracted in the course of his professional activity, the trader cannot rely on the arbitration clause from the non-trader.
• During the dispute : the parties decide to settle an existing dispute by arbitration. We're talking about arbitration compromise. This 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 for each party.

Before the dispute:

• Conventional participatory procedure : it results from an agreement whereby the parties undertake to find an amicable solution to their dispute through their lawyers. The parties exchange their documents and arguments through their lawyers. The parties may use a third party (e.g. expert, law professor, etc.). This agreement is concluded for a fixed period. As long as the agreement is pending, any recourse to the court for a ruling on the dispute is inadmissible.
• Collaborative Law : it results from a contract by which the parties and their lawyers undertake to make every effort to seek an amicable settlement of the dispute. The parties undertake not to bring the matter before the judge during the process. Negotiations are confidential. They take place according to 5 steps defined to reach an agreement. The parties may or may not decide to have their agreement certified.

When the matter is referred to the judge:

• Participatory procedure for the purposes of rehabilitation : the parties and their lawyers agree to put their dispute in order 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.

For more information, you can consult the fact sheet on the participatory procedure and collaborative law.

He is not not required to resort to ADRs before referring a dispute to the commercial court with a trader, craftsman or commercial business. It is therefore possible to assign in payment its debtor without going through an amicable settlement phase, regardless of the amount of the dispute.

On the other hand, it is mandatory to seek an amicable solution before initiating legal proceedings when the following two conditions are met:

• The dispute concerns a sum not exceeding €5,000.
• The dispute is within the jurisdiction of the court (the debtor is an individual, a liberal professional, etc.).

The amicable solution can be a conciliation led by a conciliator of justice, a mediation or a participatory procedure.

Where a simplified procedure of collection of small claims has been initiated and failed, the use of ADRs is not mandatory.

Whether negotiating an agreement through lawyers (participatory procedure and collaborative law) or a third party (mediator, court conciliator), the various amicable dispute resolution (ADR) methods have many advantages:

• They are confidential. On the other hand, legal proceedings are always public and can have a negative impact on the image of one of the parties.
• They are less expensive legal proceedings and sometimes even free of charge. This is the case, for example, with conciliation.
• They are used to resolve a conflict faster than traditional judicial procedures.
• They allow for continued dialog between the parties and thus preserve the commercial relationship.
• The parties can choose the mediator or arbitrator and thus benefit from their specific expertise.