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

Without preventing the exercise of the parties' right to bring legal proceedings, the mediation clause postpones it in time. The EU court considers that recourse to an amicable mediation procedure as a condition for the admissibility of a court action can only be imposed if this requirement does not deprive the parties of their right of access to the judicial system . The mandatory or optional nat …

Effects of mediation clause

Without preventing the exercise of the parties' right to bring legal proceedings, the mediation clause postpones it in time. The EU court considers that recourse to an amicable mediation procedure as a condition for the admissibility of a court action can only be imposed if this requirement does not deprive the parties of their right of access to the judicial system . The mandatory or optional nature of the mediation system is irrelevant as long as the parties' right of access to justice is preserved .

In order to guarantee access to the court, the limitation or prescription periods for bringing legal action are suspended from the day when, after the occurrence of the dispute, the parties agree to resort to mediation . The suspension takes effect as soon as the mediator is contacted in writing by one of the parties . However, to benefit from this, the negotiations between the parties to a dispute aimed at finding an amicable solution must necessarily take place within the formal framework of a mediation procedure .

The inclusion of a prior mediation clause in a contract obliges the parties, in the event of a dispute, to attempt to reach an agreement with the assistance of a mediator before referring the matter to a court. A party cannot therefore bring legal action by claiming that the other party has preemptively refused a mediation procedure that has not yet been implemented . It follows that referring the matter to the court in violation of a mandatory and prior mediation clause results in the inadmissibility of the application since such a clause constitutes a bar to proceedings , which cannot be remedied by implementing the clause during the proceedings . However, the admissibility of a counterclaim made during proceedings initiated after an unsuccessful mediation cannot, unless otherwise stipulated, be subject to the implementation of the contractual mediation procedure . Furthermore, a clause imposing or allowing mediation prior to the filing of a legal claim relating to the contractual rights and obligations of the parties cannot, in the absence of an express stipulation to that effect, prevent the execution of a compulsory enforcement measure . Notwithstanding such a clause and the initiation of a mediation procedure, an order to pay deemed as a seizure of real estate may therefore be issued, and the debtor summoned to appear at an orientation hearing of the enforcement judge .

Finally, the judge in interim proceedings cannot hear serious disputes relating to the application of a clause in an exclusive distribution contract that requires the parties to engage in mediation prior to any legal action .

CJEU Case C-75/16 Menini and Rampanelli v Banco Popolare Società Cooperativa, Judgment of 14 June 2017, LawLex201700001188JBJ.

CA Rennes, 29 November 2016, LawLex201600002031JBJ.

Cass. com., 11 May 2022, LawLex202200002426JBJ.

Cass. 3e civ., 24 June 2014, LawLex202300000907JBJ.

Cass. 1re civ., 8 April 2009, LawLex202200010536JBJ.

Cass. 1re civ., 30 October 2007, LawLex202200010538JBJ CA Paris, 7 May 2014, LawLex201400000670JBJ, and, a contrario, Cass. com., 13 September 2011, LawLex202400009226JBJ. See however Cass. com., 3 October 2018, LawLex202400002665JBJ, holding that the non-compliance with a clause by which the parties to the contract merely undertake to amicably resolve any dispute by referring it to a mediator, cannot, in the absence of appointing the mediator or specifying the terms of their appointment, constitute a bar to proceedings.

Cass. 3e civ., 6 October 2016, LawLex202400000130JBJ.

Cass. com., 24 May 2017, LawLex202300001829JBJ.

Cass. 2e civ., 22 June 2017, LawLex202200009295JBJI.

6. Alternative Dispute Resolution

11. Effects of mediation clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

11. Effects of mediation clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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