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

As in the case of mediation, the parties to a contract may include a clause that establishes the use of a mandatory conciliation procedure prior to bringing the matter before the courts in the event of a dispute. According to Article 1530 of the Code of Civil Procedure, they thus enter into “a structured process, through which [they] attempt to reach an agreement, outside of any judicial proceedin …

Conciliation clause

As in the case of mediation, the parties to a contract may include a clause that establishes the use of a mandatory conciliation procedure prior to bringing the matter before the courts in the event of a dispute. According to Article 1530 of the Code of Civil Procedure, they thus enter into “a structured process, through which [they] attempt to reach an agreement, outside of any judicial proceedings, with a view to the amicable resolution of their disputes, with the assistance of a third party chosen by them who performs their mission with impartiality, competence, and diligence.”

The conciliation clause must be drafted clearly and precisely, otherwise it may be classified as a “boilerplate clause”  or create ambiguities regarding its interpretation or binding force. Therefore, it is recommended that it be documented in writing , expressly providing for mandatory conciliation prior to any legal action  and detailing the specific conditions for its implementation . In effect, a clause that makes reference to an attempt at amicable settlement without laying down specific conditions for its implementation  or a clause that refers only to consultation between the parties with a view to submitting their dispute to arbitration or refusing such a measure , is not deemed to establish a mandatory conciliation procedure prior to referral to the court. The same applies to a clause in an exclusive distribution contract that provides for the appointment of a chartered accountant in the event of a termination not based on fault, if the parties do not agree on the proposed compensation amount, especially when it is enforced against a party that terminated the contract for fault without offering compensation to the other party .

On the other hand, a clause is sufficiently clear and binding if it provides that “in the event of a dispute, the contracting parties undertake to first seek an amicable settlement and simultaneously inform the arbitration commission of the chamber of independent estate managers” and that “[in] case of failure, the disputes will be brought before the competent courts” . Similarly, the terms of a clause entitled “conciliation-mediation,” which state that “in the event of a dispute, the parties agree, prior to any legal proceedings, to submit their dispute to a conciliator appointed by the president of the chamber of notaries,” sufficiently highlight the parties' intention to formalize the requirement of a mandatory conciliation procedure prior to bringing the matter before the court .

The clause must also, to produce its full and complete effect, extend to measures of compulsory enforcement. Indeed, the Court of Cassation consistently holds that a prior conciliation clause cannot, in the absence of an express stipulation to that effect, prevent the execution of a measure of compulsory enforcement and, in particular, the issuance of an order to pay deemed as writ of seizure of real estate .

As in the case of mediation, a mandatory prior conciliation clause may not be included in a consumer contractr . In the presence of such a clause, the court is required to examine its validity ex officio, as such a stipulation is presumed to be unfair, unless the professional provides evidence to the contrary .

Cass. 3e civ., 11 July 2019, LawLex202300001985JBJ, concerning a clause drafted in an elliptical manner and in very general terms.

Cass. 1re civ., 6 May 2003, LawLex202200010532JBJ, specifying that a preliminary conciliation procedure can only result from a contractual stipulation, and not from professional practices that would be evidenced by the presence of such clauses in the standard contract templates in force.

Cass. 3e civ., 19 January 2022, LawLex202200000482JBJ; 11 May 2022, LawLex202400009221JBJ.

Cf. CA Paris, 19 October 2010, LawLex202300002258JBJ, holding that a evtra-judicial procedure intended to bring the parties closer and promote the conclusion of an amicable agreement, which is not stipulated as a preliminary and mandatory formality whose omission would deprive them of the right to refer to the arbitrator, cannot be considered as a mandatory conciliation clause the breach of which would result in a bar to proceedings.

Cass. com., 29 April 2014, LawLex202200010632JBJ, holding that the contractual clause providing for an attempt at amicable resolution, without specifying the procedure to follow, does not constitute a mandatory conciliation procedure prior to bringing proceedings before the court; 19 June 2019, LawLex202300001953JBJ, considering that a clause sufficiently provides for the specific conditions of its implementation when it indicates that the third-party conciliator must be appointed either by mutual agreement between the parties or by the president of the Commercial Court in the form of interim proceedings.

CA Paris, 3 May 2017, LawLex201700000792JBJ. Cf.  CA Paris, 19 December 2019, LawLex201900001594JBJ, holding that the wording of a clause under which the parties “agree to come together to attempt to find an amicable solution” is not sufficiently precise to impose a mandatory attempt at amicable conciliation before any referral to the competent court to resolve the dispute.

Cass. 1re civ., 6 February 2007, LawLex202300001950JBJ.

CA Paris, 16 May 2018, LawLex201800000743JBJ.

Cass. 1re civ., 4 December 2019, LawLex202400002629JBJ.

Cass. 3e civ., 4 April 2019, LawLex202400002632JBJ. Cf., considering that the drafting of this same clause does not constitute a bar to proceedings, Cass. 3e civ., 23 May 2012, LawLex202300001986JBJ.

Cass. 2e civ., 21 March 2019, LawLex202300010341JBJ; 2 July 2020, LawLex202400009319JBJ.

6. Alternative Dispute Resolution

24. Conciliation clause

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

24. Conciliation clause

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise