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

Participatory procedure agreements must meet certain formal requirements, failing which they are invalid . They must be in writing and specify their term , since, pursuant to Article 2062, they are necessarily fixed-term contracts; the subject matter of the dispute; the documents and information necessary for the resolution of the dispute; where applicable, the documents countersigned by lawyers that the parties agree to draw up.

Other information is also required, but not under penalty of invalidity of the agreement. The agreement sets out the distribution of costs between the parties, subject to the provisions of Article 123 of Decree 2020-1717 of 28 December 2020, when one of the parties is receiving legal aid. In the absence of any specific provisions in the agreement, the costs of the participatory procedure must be shared also between the parties (Art. 1538-1CPC).

Furthermore, any amendment to the participatory procedure agreement must be made in the same form as that provided for its establishment.

Furthermore, any amendment to the participatory procedure agreement must be implemented in the same form as that provided for its establishment.

Unlike other methods of ADR, the participatory procedure does not benefit from any protection of confidentiality . Only exchanges between lawyers are protected by professional secrecy. As a result, the agreement itself, exchanges between the parties and, where applicable, the report of the designated technical expert may be produced in court by either party. It is therefore recommended that the parties include confidentiality clauses in the agreement if they wish to preserve confidentiality regarding certain elements of the negotiation, even though confidentiality is not enforceable against the court responsible for validating the agreement or ruling on difficulties in its enforcement.

Cf. CA Paris, 25 January 2023, LawLex202400003045JBJ; CA Nîmes, 14 February 2019, LawLex202400003044JBJ.

Requirements of form

As long as it is in force, the participatory procedure agreement concluded before the matter is referred to a court renders inadmissible any appeal to the court to rule on the dispute . Failure to comply with a contractual clause that establishes mandatory recourse to participatory proceedings in the event of a dispute over the performance of the contract and before any dispute on the merits constitutes a plea of inadmissibility that cannot be regularized, pursuant to Article 126 of the Code of Civil Procedure, by its implementation during the proceedings . However, inadmissibility only applies to the points of the dispute covered by the clause. In fact, the participatory procedure agreement contained in the deed of transfer of a business does not prevent the matter from being brought before the court when the dispute does not concern the performance of the transfer between the transferor and the transferee but rather the claim by the tenant-manager to the notary, appointed as escrow agent, for part of the sum paid . In consideration of the prohibition on bringing the matter before the court, Article 2238 of the Civil Code specifies that the limitation period for bringing an action is suspended from the date of conclusion of a participatory procedure agreement. The time limit for bringing an action recommences from the end of the agreement, for a period of not less than six months.

Article 2065 provides for two exceptions to the rule of inadmissibility of referral to the court. In effect, failure by one of the parties to perform the agreement, which may be due to bad faith, unwillingness to work towards the resolution of the dispute, or refusal to provide useful notice to the technical expert, entitles the other party to refer the matter to the court for a ruling on the dispute. Furthermore, in urgent cases, the agreement does not prevent the parties from requesting interim or protective measures.

The participatory procedure is purely contractual in nature: it cannot be ordered by the court in order to compel the parties to find an amicable solution to their dispute .

CA Montpellier, 7 September 2021, LawLex202400003021JBJ.


CA Nancy, 15 January 2024, LawLex202400009329JBJ.


CA Lyon, 13 October 2022, LawLex202400002981JBJ.

6. Alternative Dispute Resolution

39. Requirements of form

40. Effects of the agreement