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

Inspired by Quebec's collaborative law, the participatory procedure was introduced into French law by the law of 22 December 2010 , on the proposal of the Guinchard commission . Tasked with considering a new distribution of disputes, particularly with a view to dejudicialization, this commission proposed adding a new conflict resolution method to the range of alternative dispute resolution modes:  …

Principle

Inspired by Quebec's collaborative law, the participatory procedure was introduced into French law by the law of 22 December 2010 , on the proposal of the Guinchard commission . Tasked with considering a new distribution of disputes, particularly with a view to dejudicialization, this commission proposed adding a new conflict resolution method to the range of alternative dispute resolution modes: the “participatory procedure of negotiation assisted by a lawyer.” This procedure, in which the parties agree to “work together and in good faith towards the negotiated resolution of their dispute,” with the assistance of their respective lawyers, is characterized by a pre-examination of the case by the latter, and provides, in the event of partial or total failure, a bridge to simplified referral to the competent court, to allow for expedited handling of the case.

However, contrary to the principles of collaborative law, the parties' lawyers do not withdraw their mandate if no agreement is reached. Despite this advantage, practitioners have not embraced the participatory procedure, which has been scarcely used since its implementation. The lack of awareness of the mechanism by lawyers and the fact that initially, signing a participatory procedure agreement entailed waiving procedural objections and bars to proceedings, partly explain this lack of enthusiasm, even though recent texts  have attempted to address some of its drawbacks to make it more appealing.

Governed by Articles 1542 et seq. of the Code of Civil Procedure and 2062 et seq. of the Civil Code, the participatory procedure unfolds as a conventional procedure for seeking an agreement, followed, if necessary, by a procedure for the purpose of judgment . Since 2019 , it can also be used during proceedings, for the purpose of preparation before any court of the judicial order, regardless of the procedure followed .

In all cases, the participatory procedure requires the intervention of the parties' lawyers, who are the only ones authorized to assist them . Indeed, no one can, unless they are a lawyer, assist a party in a participatory procedure . It follows that the mechanism can be covered by legal aid .

Law No 2010-1609 of 22 December 2010 on the enforcement of court decisions, the conditions for practicing certain regulated professions, and judicial experts, OJ of 23 December 2010.

Report of the Guinchard Commission, L'ambition raisonnée d'une justice apaisé, submitted on 30 June 2008.

See, in particular, Decree No 2021-1322 of 11 October 2021 relating to the order for payment procedure, decisions regarding disputes over attorney fees, and amending various provisions of civil procedure, OJ 13 October 2021.

Law 2019-222 of 23 March 2019 on the 2018-2022 programming and reform for justice, JORF No 71 of 24 March 2019.

Law No 71-1130 of 31 December 1971 on the reform of certain judicial and legal professions, OJ of 5 January 1972, Art. 4, para. 3.

Law No 91-647 of 10 July 1991 on legal aid, JORF No 162 of 13 July 1991, Art. 10, para. 2.

The Law of 22 December 2010  introduced the concept of a participatory procedure agreement into Articles 2062 to 2068 of the Civil Code. Under Article 2062, this is an agreement whereby the parties to a dispute make a commitment to work together in good faith to resolve their dispute amicably or to prepare their case for litigation. In its initial wording, Article 2062 envisaged the implementation of a participatory procedure agreement only in cases where a dispute had not yet been referred to a court . The Law of 18 November 2016 , which amended the provision, extended the scope of participatory procedures to the case preparation stage (mise en état). The Decree of 6 May 2017  then established the procedural framework. Decree No 2025-660 of 18 July 2025 finally distinguished amicable resolution from the pre-trial phase, which is now covered by a section in Book I devoted to extra-judicial pre-trial procedures (mise en état conventionelle).

Any person, assisted by their counsel, may enter into a participatory procedure agreement regarding rights to which they are entitled, subject to the provisions of Article 2067 of the Civil Code, which authorizes such agreements in matters of divorce and legal separations . The original provision excluded from the participatory procedure “disputes arising from any employment contract subject to the provisions of the Labor Code between employers, or their representatives, and the employees they employ” . The Law of 6 August 2015  repealed this paragraph of the provision, so that recourse to the participatory procedure is now possible in the context of labor disputes.

Law No 2010-1609 of 22 December 2010 on the enforcement of judicial decisions, the conditions for exercising certain regulated professions, and expert witnesses, Official Journal of 23 December 2010, Art. 37.

Previous version: “The participatory procedure agreement is an agreement by which the parties to a dispute that has not yet been brought before a judge or arbitrator undertake to work together in good faith to resolve their dispute amicably.”

Law No 2016-1547 of 18 November 2016 on the modernization of justice in the 21st century, Official Journal of 19 November 2016, Art. 9.

Decree No 2017-892 of 6 May 2017 introducing various civil procedure modernization and simplification measures, Official Journal of 10 May 2017.

For an application, see CA Nouméa, 25 November 2021, LawLex202400009332JBJ.

Law No 2015-990 of 6 August 2015 on growth, activity, and equal economic opportunity, Official Journal No 181 of 7 August 2015.

6. Alternative Dispute Resolution

37. Principle

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

Sous parties

Les notions juridiques connexes

37. Principle

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

Sous parties

Les notions juridiques connexes

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