Evolving Approaches to ADR
Conciliation was first institutionalized in France at the time of the French Revolution. Indeed, the thinkers of the Revolution considered conciliation to be the ideal method of dispute resolution. The Decree of August 16-- 24, 1789 thus provided for mandatory conciliation proceedings for all matters falling under the jurisdiction of the tribunaux de district (the ordinary civil courts). The juges de paix (justices of the peace, ruling in equity) attempted conciliation as a preliminary matter in practice, and by law starting in 1855. The duty of the civil judge to seek conciliation was subsequently also included in the 1906 French Code of Civil Procedure.
In the early 20th century, however, mandatory conciliation experienced a decline, and was abandoned as a legal requirement in the 1940s and 1950s, perhaps as the consequence of an increasing degree of confidence generally placed in the French judiciary. Nonetheless, in practice conciliation was still used by the French judiciary in certain contexts, so much so that optional conciliation was expressly included as one of the missions of the civil judge in the French Nouveau code de procedure civile (NCPC), at Article 21.
Despite the optional nature of this type of conciliation, certain inherent difficulties in fulfilling the dual missions of conciliation and judgment as prescribed by Article 21 NCPC were noted in France. Thus, a movement in favor of extrajudicial conciliation emerged in France in the 1970s and a number of persons were accordingly authorized to supervise conciliation attempts between the parties to a dispute, with no involvement of the judiciary. The mission of these third-party non-magistrates, known as conciliateurs de justice, was to facilitate the resolution of disputes outside of any judicial or procedural framework.'
Generally speaking, this form of extrajudicial conciliation had mixed results. There were concerns within the judiciary that such unsupervised conciliation could lead to the creation of a lower form of justice which would be prejudicial to the interests of the parties= Extrajudicial conciliation has been more successful in the particular instances where specific forms of conciliation have been institutionalized, such as collective bargaining (Article L 523-1 of the Labor Code), landlord-tenant disputes (Law # 89-462 of July 6, 1989), and insolvency of individuals (Law # 89-- 1010 of December 31, 1989, amended by Law # 95-125 of February 8, 1995) and corporations (Law # 84-148 of March 1, 1984, amended by Law # 94-175 of une 10, 1984).
As a result of the mixed reactions in France to extrajudicial conciliation performed by conciliateurs de justice, the most recent legislation has opted to revive judicial conciliation, but tempering its judicial nature by allowing the judge to delegate his or her conciliatory functions to a person or entity acting under the judge's supervision. Thus, Law # 95-125 of February 8, 1995, and the related decrees now authorize the judge to appoint a third party to attempt preliminary conciliation between the parties, under the judge's supervision. The Law of 1995 also refers, for the first time in French legislation, to mediation.' Judicial mediation under the Law of 1995 and the related Decree of July 22, 1996 is entirely optional, and requires the consent of the parties for the appointment of a third-party mediator to assist them in their attempt to resolve their dispute (for instance in proposing a settlement arrangement). Since the adoption of the Law of 1995 and related Decree of July 22, 1996, the Court of Appeals of Paris and of Grenoble have decided to systematically recommend the appointment of a mediator in disputes pending before certain chambers, while preventing any delay to the appellate procedure in the event of failure of the mediation attempt.' These courts suggest the intervention of a mediator from the time a hearing date is set.
The Decrees of July 22 and December 13, 1996, and December 28, 1998, implementing the Law of 1995 specify that the small claims judge (huge d'instance)-who is required to attempt conciliation as a preliminary step-may only delegate his or her conciliatory duties to a conciliateur de justice. The institution of conciliateurs de justice, initially designed to handle extrajudicial conciliation, has thus now been reinvented to carry out judicial conciliation under the supervision of the judge.
Impact of ADR in France
onciliation is thus optional in most cases in France today, and a detailed procedural framework has been established to firmly establish alternative dispute resolution within the French judicial institutions. As noted earlier, in French law today the mission of the civil judge expressly includes the attempted conciliation of the parties. This principle is set forth in Article 21 NCPC with further guidelines stipulated at Articles 127-- 131 NCPC. In addition, Articles 768, 863, 840 and 1074 NCPC reinforce this general principle in the context of certain specific jurisdictions such as the Family Court (huge aux affaires familiales).
Mandatory conciliation has nonetheless survived before certain jurisdictions. For example, conciliation as a preliminary step is mandatory for disputes brought before the labor court (Conseil des prud'hommes) in accordance with Article R 516-3 of the Labor Code, or before a small claims court (tribunal d'instance) under Article 840, para. 1 NCPC. Preliminary conciliation is also mandatory in divorce or legal separation proceedings before the Family Court (Article 252 of the French Civil Code), although only where the divorce or separation has been sought for misconduct or cessation of communal life. Finally, attempted conciliation before the judge of first instance is required for disputes involving attachment of an employee's pay (Article R 145-9 of the Labor Code).
ADR has thus had significant impact in the areas of labor law and family law in France. In divorce proceedings, in particular, conciliation is now mandatory prior to court proceedings in many instances.5 Other areas where conciliation and mediation have been successful are consumer disputes, landlord-tenant disputes, parental visitation and child support disputes and disputes between neighbors.' In addition, the recent emergence of the ADR movement has led to greater interest in the use of conciliation in commercial and corporate disputes.
Even in the field of criminal law, attempts have been made to promote recourse to mediation as an alternative to pressing charges. Since the enactment of Law # 93-2 of January 4, 1993, Article 41, para. 6 of the Code of Criminal Procedure stipulates that the public prosecutor (procureur de la Republique) may, prior to any decision to prosecute and with the consent of the parties, decide to attempt mediation. Mediation in criminal matters, as an alternative to prosecuting a complaint, is intended to provide reparation to the victim where appropriate, to put an end to the disturbance of the peace, and to facilitate the social reintegration of the perpetrator. The requirements to be eligible to serve as a mediator in criminal matters are defined by Decree # 96-- 305 of April 10, 1996.7
Finally, recourse to conciliation is increasingly frequent in administrative disputes, although the administrative tribunals have to date strongly resisted any attempts to make a preliminary conciliation attempt mandatory.8
Practical Considerations for ADR Users
(a) Timing Issues In practice, conciliation attempts are most frequently made as a preliminary step at the very outset of the proceedings. The parties have full freedom over the process when having recourse to extrajudicial conciliation. In cases where there is a duty of conciliation, such duty arises as a preliminary matter. Nonetheless, under the general provision of Article 21 NCPC, the judge retains the power to initiate a conciliation attempt at any time during the proceedings. Article 128 NCPC specifies that it is the judge's prerogative to identify the most advantageous time and place for a conciliation attempt, in the absence of any mandatory provisions in that regard. The judge has certain statutory guidelines to follow, furthermore, in judicial conciliation. Thus, in accordance with Article 832 NCPC, the mission of a conciliator designated by a juge d'instance cannot exceed one month, renewable once bv the judge on the request of the conciliator. Article 131-3 NCPC stipulates that the initial duration of a mediation attempt is three months, also renewable once by the judge on the request of the mediator. No time limits are set, however, for conciliation attempted directly by the judge.
(b) Sanction for Failure to Attempt Dispute Resolution
In the several instances where preliminary conciliation is mandatory in French law, this requirement is generally accompanied by the sanction of nullity if not respected. Thus, in divorce and separation proceedings as well as disputes involving the attachment of an employee's pay, the failure to attempt preliminary conciliation renders the ensuing procedure invalid.9 The decision of a small claims court-if no preliminary conciliation is attempted in accordance with Article 840, paragraph I NCPC-may be censured by the Cour de cassation.10 In all of these cases, if a party brings an action seeking a judgment in disregard of the requirement to participate in preliminary conciliation proceedings, the action may be deemed inadmissible.11
With regard to contractually agreed ADR, the practice of stipulating at the time of the conclusion of a contract that disputes will be resolved through conciliation or mediation is still relatively rare in France, although slowly increasing.12 More and more, legal professionals have been encouraging the inclusion of conciliation or mediation clauses in complex or long-term contracts such as construction contracts or shareholders agreements.13 Where the duty to attempt conciliation is contractual, the position of the French courts regarding the sanction for the failure to comply is less clear. The Cour de cassation has, in one case, said that a party's failure to comply with a contractually stipulated conciliation rendered an ensuing court action inadmissible, unless the conciliation attempt was clearly destined to fail. 14 Subsequently, the Cour de cassation upheld a decision of the Paris Court of Appeals pursuant to which the failure to respect a conciliation clause could not constitute a cause of inadmissibility of an action.15
However, more recently, the commercial chamber of the Cour de cassation shed some light on the question by characterizing the debate as an issue of whether the parties could validly waive the conciliation agreement by engaging in litigation. The court found that such a waiver could only be made in express terms, such that engaging in litigation could not deprive a party of its contractual right to attempt conciliation.16
(c) Institutions
Several institutions exist in France for the facilitation of the negotiated settlement of disputes outside of any judicial framework. The best known of these institutions is the Centre de Mediation et d'Arbitrage (CAP), recently established by the Chambre de Commerce et d'Industrie de Paris. The CMP has its own mediation rules and maintains a list of mediators who possess the qualifications required by the Decree of July 22, 1998.
ADR and Settlement
When successful, conciliation or mediation proceedings result in an agreement between the parties. Although typically a document recording the agreement is drafted, a verbal conciliation agreement is acceptable.17 The contract may also be endorsed by the courts, which enhances the enforceability of the document, whereas a conciliation agreement which has not been brought before the courts for approval is an ordinary contract subject to the general provisions of law of contract of the French Civil Code, binding only between the parties but with no effect on the rights or obligations of third parties.
In certain circumstances, the conciliation agreement may be characterized as a settlement agreement (contrat de transaction). To qualify as a contrat de transaction, the agreement must provide for a settlement of the dispute between the parties based on mutual and reciprocal concessions of the parties, and it must be in writing (Article 2044 of the Civil Code). This qualification is important given that a contrat de transaction has effects which go beyond those of an ordinary contract; it extinguishes the right of action of the parties for the particular subject matter in dispute, in accordance with Article 2052 of the Civil Code. Hence, in the presence of a contrat de transaction, if a party brings a new action on the same grounds, the admissibility of the action will be subject to challenge. As a result, the contrat de transaction has virtually the same effects as a judgment.
To enhance its enforceability, the parties to a conciliation, mediation or settlement agreement have the right to seek judicial approval of the agreement by proces-verbal de conciliation, also sometimes referred to as a judicial contract or contrat judiciaire (Article 129 of the NCPC). In so doing, the judge merely ascertains the prima facie existence of the agreement and ensures that it is in no way a violation of public policy. No appeal of the judicial approval is possible. The judge has the duty to approve any such agreement brought to his attention, in accordance with Article 384 of the NCPC. Moreover, the parties to a successful extrajudicial conciliation are empowered to request that the president of the Court of First Instance enforce their agreement, under Decree # 98-1231 of December 28, 1998.
In each of these cases, the effects of the judicial approval of the conciliation agreement are substantially the same. The approval of the conciliation agreement renders it executory, and terminates the right of action of the parties regarding the subject matter in dispute.
ADR and Arbitration
It is fairly common in France to encounter conciliation or mediation clauses as part of a comprehensive dispute resolution agreement which provides that should the conciliation attempt be unsuccessful, the parties agree to submit their dispute to arbitration. However, such provisions are not always well drafted, and sometimes confuse arbitration and conciliation or mediation. Thus, the French courts have had relatively ample opportunity to provide guidance on the distinction between the two types of dispute resolution clauses.
In deciding on the proper characterization of ambiguous dispute resolution clauses, the French courts have looked to the intent of the parties, and more particularly to the intended effect of the solution reached by the third party. Thus, if the decision of the third party is binding, the clause will typically be construed as an arbitration clause, whereas if the parties remain free to accept or reject the decision of the third party, the clause would be considered a conciliation or mediation clause.18 Other factors which may be taken into consideration to distinguish arbitration from other ADR clauses are whether the parties are called on to participate in the procedure, and whether the parties are informed of the findings of the third party prior to the final decision, both of which characterize conciliation rather than arbitration.
The distinction between the two forms of dispute resolution is not absolute, however. Indeed, the French courts have also noted that conciliation is a part of the mission of an arbitrator. For instance, in a 1984 decision, the Paris Court of Appeals held that "conciliation followed by settlement is a natural outcome of arbitration" (our translation).19
Although numerous commentators have emphasized the issues of confidentiality and impartiality that arise in cases where a third party successively assumes the roles of conciliator and arbitrator,20 no express prohibition of the combination of the two functions exists in French law. Nonetheless, it is important to note that the mediation rules of the Centre de Mediation et d'Arbitrage de Paris (CMAP), the premier institution for mediation in France, prohibit a mediator from subsequently serving as arbitrator.
The confidentiality of information produced and statements made by the parties during a conciliation or mediation process is a fundamental aspect of those dispute resolution mechanisms. Thus, the NCPC specifically prohibits the reference in subsequent proceedings to positions taken during a conciliation or mediation attempt. Most mediation or conciliation institutions, including the CAP, impose similar restrictions.
Conclusion
Conciliation and mediation play a meaningful role in the resolution of disputes in France today. Although limited statistics are available, it is apparent from the statistics issued by the French Ministry of Justice that a number of disputes are being submitted to conciliation or mediation, and that the success rate for those cases is significant.21
We conclude that conciliation and mediation in France today are neither dusty institutions of mainly historical interest, nor merely part of a passing ADR fad. Rather, these dispute resolution mechanisms are being used by parties, and in particular by the French judiciary, with reasonable frequency and success. Conciliation (or mediation) is obviously not the ideal dispute resolution mechanism for every dispute, but for certain cases and in certain circumstances it allows the swift and relatively painless settlement of disputes
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