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 law of 18 November 2016  allowed for the establishment, “for the information of the courts,” of a list of mediators in civil, commercial, and social matters drawn up by each Court of Appeal , with the conditions for establishment specified by Decree No 2017-1457 of 9 October 2017 .

Mediators in civil, commercial, and social matters are registered in the directory of mediators.

Article 1 of the decree specifies that the list is drawn up every three years and may be modified at any time, if necessary, by addition, removal, or deletion. It is made available to the public by all means, notably in the appropriate premises of the Courts of Appeal, Judicial Courts, Labor Courts, and Commercial Courts.

The list of criteria for registration is set out in Article 2 of the decree of 9 October 2017. In addition to the conditions required by provisions specific to certain particular fields and those specifically provided for in Article 131-5 of the Code of Civil Procedure for the execution of a mediation measure, the candidate must: (i) not have been subject to a conviction, incapacity, or disqualification mentioned on bulletin No 2 of the criminal record; (ii) not have committed acts contrary to honor, integrity, and good morals that resulted in a disciplinary or administrative sanction of dismissal, removal, revocation, or withdrawal of approval or authorization; (iii) provide evidence of training or experience demonstrating the ability to practice mediation.

Applications for registration must be sent by registered letter with acknowledgment of receipt to the first president of the Court of Appeal . The advisor responsible for monitoring the activity of mediators and coordinating their actions within the jurisdiction of the Court of Appeal is required to process the application and verify that the candidate meets the necessary conditions. They may receive and gather any information on the merits of the candidate, as well as any opinions they deem necessary , but they are not required to hear the candidate . The rejection of a registration application, which must be justified , can only be based on the non-compliance of the application with the criteria set by Article 2 of the decree of 9 October 2017. When this is the case, the assessment of the judges of the jurisdiction is sovereign , except in the case of a manifest error of assessment . However, reasons such as the candidate's lack of knowledge of the local context and the additional cost of mediation due to geographical distance, which are not included in the list provided by Article 2, cannot justify the refusal to register the candidate on the list of mediators with the Court of Appeal . Similarly, an alleged lack of independence of the candidate due to their very recent activity as a clerk of the commercial courts cannot be enforced against them, as such a criterion is unrelated to those mentioned by Article 2 of the decree . Registration cannot be subject to a diploma requirement, as only proof of training or experience demonstrating aptitude for mediation practice is required . However, the refusal of registration is justified when the file does not contain an application form or a document proving training or experience .

At the expiry of the three-year period, the list is fully renewed, and individuals who wish to be re-registered must submit an application at least six months before the expiry of their registration .

Law No 2016-1547 of 18 November 2016 on the modernization of 21st-century justice, OJ of 19 November 2016, Art. 8.

See Law No 95-125 of 8 February 1995 on the organization of courts and civil, criminal, and administrative procedure, OJ of 9 February 1995, Art. 21-1-A.

Cass. 2e civ., 30 March 2023, LawLex202400009218JBJ.

Cass. 2e civ., 27 September 2018, LawLex202400009223JBJ.

Cass. 2e civ., 10 January 2019, LawLex202400009224JBJ.

Decree No 2017-1457 of 9 October 2017, Art. 7.

D. 2017-1457 of 9 October 2017 concerning the list of mediators with the Court of Appeal.

Decree No 2017-1457 of 9 October 2017, Art. 4.

Cass. 2e civ., 18 October 2018, LawLex202400009217JBJ.

Cass. 2e civ., 18 October 2018, LawLex202400009215JBJ, emphasizing that a refusal based on the incomplete nature of the application, which does not allow the applicant to know the elements missing from their file, amounts to a lack of reasoning.

Cass. 2e civ., 18 October 2018, LawLex202400009216JBJ, upholding the refusal of registration based on the candidate's lack of specific experience and mediation training, even though the candidate claimed admission as a mediator by the Lyon Bar for over twenty years, registration in this capacity with the interprofessional mediation and arbitration center since 2004, and the fact that several mediations involving complex commercial relationships had been entrusted to him since that date.

Cass. 2e civ., 18 October 2018, LawLex202400009217JBJ, rejecting the allegation of such an error.

Cass. 2e civ., 27 September 2018, LawLex202400009214JBJ; 18 October 2018, LawLex202400009222JBJ.

18. Directory of mediators