Introduction

Process of extra-judicial mediation

Mediation process

Extra-judicial mediation

Organization of judicial mediation

Process of judicial mediation

Judicial mediation

Mandatory mediation

Mediation

Organization of extra-judicial conciliation

Conduct of extra-judicial conciliation

Extra-judicial conciliation (conciliation conventionnelle)

Organization of judicial conciliation

Process of judicial conciliation

Judicial conciliation

Mandatory conciliation

Conciliation

Agreement for participatory procedure

Conduct of the procedure

Participatory procedure for the purpose of amicable resolution

Conditions for validity

Conciliation conducted by judge

Approval (homologation)

Acquisition of enforceable status

Agreement of the parties

6. Alternative Dispute Resolution

The scope of the prior conciliation clause can be particularly broad: the Court of Cassation deems it enforceable against persons contractually subrogated to the rights of a party to the contract containing it, even if they were not personally aware of it . However, the clause inserted in a deed of sale cannot apply to the direct action brought not against the seller, but against the notary, the r …

Scope of conciliation clause

The scope of the prior conciliation clause can be particularly broad: the Court of Cassation deems it enforceable against persons contractually subrogated to the rights of a party to the contract containing it, even if they were not personally aware of it . However, the clause inserted in a deed of sale cannot apply to the direct action brought not against the seller, but against the notary, the real estate agent, and the latter's insurer . Similarly, a statutory clause providing for an amicable procedure in case of disagreement between partners on the management of the company and loss of affectio societatis cannot hinder the initiation of proceedings aimed at appointing a provisional administrator to safeguard the interests of the legal entity, compromised by the discord between the management bodies . The bar to proceedings based on the failure to implement a conciliation clause in a loan agreement or a liability guarantee agreement can only concern the modalities of the creditor's action against the principal debtor and not the repayment debt itself, for which the guarantor is also liable, so it does not constitute an exception inherent to the debt that the latter can enforce .

A prior conciliation clause contained in the latest contract concluded between the partners cannot be enforced against all claims made by one of them, particularly those related to breaches prior to this contract . Furthermore, the existence of a prior conciliation clause in the contract concluded between the parties does not constitute a bar to proceedings for the abrupt termination of established commercial relations, which, by its tortious nature, is intended to govern all relations, contractual or otherwise, between the partners . The same reasoning applies to clauses establishing a mandatory conciliation procedure, and prior to bringing proceedings before the regional council of the order of architects, in a dispute regarding compliance with the terms of a construction contract . According to consistent case law, they are not deemed applicable when the claim is based, even subsidiarily, on the legal liability provided for by Article 1792 of the Civil Code . Such clauses also do not oppose an action based on Article 145 of the Code of Civil Procedure for the purpose of gathering evidence and interrupting a limitation period . Finally, a clause in the employment contract that establishes a prior conciliation procedure in the event of a dispute arising from it does not prevent the parties from directly bringing their dispute before the labor court judge, as there is a prior and mandatory conciliation procedure in labor matters .

Cass. 3e civ., 28 April 2011, LawLex202400002663JBJ.

Cass. 1re civ., 14 March 2018, LawLex202300001804JBJ. Similarly Cass. 3e civ., 18 December 2013, LawLex202400009317JBJ.

Cass. com., 8 November 2016, LawLex202400009209JBJ.

Cass. com., 6 July 2022, LawLex202300001053JBJ.

Cass. com., 22 September 2021, LawLex202100005410JBJ.

CA Paris, 28 October 2019, LawLex201900001293JBJ. Also see, CA Paris, 3 May 2017, LawLex201700000792JBJ; 10 July 2017, LawLex201700001251JBJ. Contra, Paris, 13 March 2024, LawLex202400002411JBJ, considering that neither the tortious nature of the action based on Article Law No 442-1, II of the Commercial Code, nor the mandatory public policy provision of this text, prevent the implementation of a prior conciliation clause, as long as it does not prohibit the exercise of the action but merely delays it.

See, in particular, Cass. 3e civ., 11 May 2022, LawLex202200008393JBJ; 23 May 2019, LawLex202200010540JBJ; 23 May 2007, LawLex202300001917JBJ.

Cass. 3e civ., 28 March 2007, LawLex202300001581JBJ.

Cass. soc., 5 December 2012, LawLex202300000283JBJ.

6. Alternative Dispute Resolution

26. Scope of conciliation clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

26. Scope of conciliation clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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