On 23 March 2019, the French Parliament adopted Law No. 2019-222 on programming for 2018-2022 and justice reform. Its main objective is to improve the efficiency of the procedures applicable before the judicial judge. To this end, the legislator has undertaken to modernise and simplify the existing procedural framework. The reform is far-reaching and contains several measures aimed at developing "Alternative Dispute Resolution Mechanisms" (hereinafter ADRM).
Among other priorities, optimising the functioning of the judiciary involves reducing the pressure exerted by the number of disputes brought before the courts each year. One solution is to encourage litigants to favour out-of-court methods of resolution whenever possible. The methods covered by the reform include arbitration, conciliation, mediation and participatory procedure. In brief :
arbitration consists in resolving a dispute through a "private court" composed of one or more arbitrators paid by the parties concerned;
conciliation and mediation involve a third party - paid or unpaid - whose mission is either to assist in reconciling each party’s allegations in order to "conciliate" them; or to formulate settlement proposals to "mediate" their disagreements;
the participatory procedure allows the parties, as well as their lawyer(s), to define the procedural framework of their exchanges considering the amicable settlement of their dispute.
The new Law promotes these alternative methods of resolution through 4 sets of measures.
1. Regulation of Arbitration, Conciliation and Mediation Providers
With a view to the introduction of digital platforms for arbitration, conciliation and mediation, or even online assistance in bringing cases before the courts, the legislator has decided to regulate the new market for ARDM providers. Among the most important rules are :
the prohibition, except for lawyers, to carry out operations of legal assistance and representation, legal advice and drafting of legal acts;
obligation to protect the personal data of users, to guarantee professional secrecy and to ensure the confidentiality of exchanges;
duties of competence, diligence, impartiality and independence of the mediator;
prohibition of using algorithms and automated processing without information and prior consent of the user;
optional certification by an accredited body of arbitration, conciliation and mediation providers who comply with the aforementioned rules.
2. Prerogative of the Judge to Oblige the Parties to Attempt Mediation
The new law (Article 3.I) considerably extends the judge's power to order the use of a mediator. From now on, this power is applicable at any time and for all proceedings - including urgent summary proceedings or appeals, if :
the judge considers that an amicable resolution of the dispute is possible;
and the parties refuse to resort to it themselves.
In this case, the judge appoints a mediator and sets the duration of its mission, which may not exceed a period of 3 months (renewable once at the mediator's request).
Previously, judicial prerogatives were, with some exceptions, subject to the agreement of the parties. Nevertheless this new possibility of overriding their refusal interrogates on the chances of success of an imposed mediation attempt.
In any event, the parties remain free to ask the judge to appoint a judicial mediator whenever they agree.
3. Obligation of Prior Recourse to an ADRM
Since January 1, 2020, Article 750-1 of the French Code of Civil Procedure provides that any "legal claim must be preceded, at the parties’ choice [and under a sanction of inadmissibility], by an attempt of conciliation […], mediation or participatory procedure, when [this legal claim] seeks the payment of a sum not exceeding 5,000 euros or when it relates to [...] [neighbourhood (demarcation, pruning, easements)] actions".
However, the same article exempts the parties from this obligation in four cases:
"1° if at least one of the parties seeks approval of an [already concluded] agreement ;
2° where the exercise of a prior recourse is imposed [on the court];
3° if the absence of recourse to one of the methods of amicable resolution mentioned in the first paragraph is justified by a legitimate reason relating to
a manifest urgency; or
the circumstances of the case making such an attempt impossible or requiring a decision to be given without adversarial proceedings; or
the unavailability of judicial conciliators [for] a period of time that is manifestly excessive in relation to the nature and stakes of the dispute;
4° If the judge or administrative authority must, pursuant to a specific provision, make a prior attempt at conciliation".
In order to fulfil its obligation, the plaintiff applies either directly to a conciliator or by petition to the judge.
4. Extension of the Participatory Procedure to the Pre-Trial Stage
The "Agreement on Participatory Procedure for the Purpose of Preparing the Case" (hereafter A4PC) allows the parties and their lawyer(s) to instruct and organise their case themselves - exchange of writings, evidence, appointment of a technician - and thus to prepare it for trial before submitting it to a judge.
Aiming to speed up the judicial processing of legal disputes, this conventional method is available before any referral to the courts or during the proceedings. In the latter case, the A4PC interrupts the jurisdictional procedure, as well as the time limit for its expiry, until the termination of this convention. Thus, parties have plenty of time to seek and reach an amicable agreement.
When the participatory procedure leads to a total or partial agreement, it is up to the most diligent party to file a legal claim for total or partial homologation. Failure of the conventional process reactivates, at the request of the most diligent party, the judicial processing of the case.