The Chancellery has began a project to reform civil procedure which includes developing alternative methods of dispute resolution. However, one should not have too many illusions. Although mediation has many advantages, its success necessitates an “ecosystem” for it to develop properly. Furthermore, there are different types of mediation for different circumstances.
About the writer
Xavier Lagarde is qualified to teach law in universities and an honorary member of the University Institute of France. He is currently a professor at the Sorbonne Law School (University of Paris 1 Panthéon-Sorbonne), where he directs the “Sorbonne Justice and Trials Research” department. He is also a lawyer at the Paris bar and a partner with Dupichot Lagarde Bothorel & Associés (DLBA) where he heads the Scientific Department. He is a contractual litigation practitioner and a Social Protection Mediator.
The civil and commercial courts are snowed under. Lawsuits are long, with uncertain outcomes and high costs, at least for long cases. Above all, law suits can harm the image of the companies concerned. It is true that arbitration is secret, with, in the main, a high quality of justice. However uncertainty subsists and the cost is often too high for medium-sized operators. Mediation or a negotiated settlement is often preferable, because its gives control over the resolution of the dispute, it is quick and the costs are reasonable. It enables courts to be unblocked which is why the Chancellery is considering making mediation compulsory before proceedings start. However, it should not be believed that mediation can work miracles. It works in some cases, less in others. This was recently established by a report by the General Inspectorate of Judicial Services , which found that excluding family law, only 800 out of almost 800,000 new cases a year in District Courts and Appeal Courts of appeal are settled by mediation. As there are many facets to mediation, a better term is “amicable dispute resolution” which covers a multitude of methods available in relation to the type of dispute.
Different types of mediation
Empirically, three mediation models can be identified:
– Firstly mediation can cover compensation or reconciliation and which enables a durable business relationship which has been blocked by the dispute to be restored. This type of mediation is the opposite of a judgement. It involves subtle negotiations where the mediator persuades the parties that it is in their interests to preserve their relationship for the future and to forget the past, and can therefore be described as mediation in its “purest form”.
– Mediation can also function on an inverse model as a substitute for legal proceedings and the judgement. Here the parties are not interested in continuing their relationship but want to separate under the most legally acceptable terms possible, which they want the mediator to identify, and to give an opinion on. This model is called the institutional mediation or contractual mediation model, and is used in different business sectors (e.g. banking, insurance etc).
– Finally there is what can be termed the “peace of the braves” mediation, which is sometimes successful at the end of long and drawn out legal proceedings. The law is very uncertain and an experienced mediator is needed to explain where the keys to a fair outcome lie to the parties. For the mediation to be successful, the judge should also be involved. This kind of mediation is a combination of the first two models where the mediator gives a convincing picture of the probable outcome of the dispute whilst leaving enough room for each litigant to get out of the dispute with its head high.
Different methods of mediation
There are basically two methods of mediation which can be interpreted as two models, but whose application must be nuanced in relation to the specificities of each case.
The first model could be called the “therapy” model. The mediator must be wary of formalizing the dispute and confides in the parties rather than listening to them. The mediator avoids confrontations and exchanges of arguments, and sees where the parties’ interests lie, rather than rights. This model functions best when the mediation begins before the parties have started legal proceedings, when they are relatively uncertain about the outcome, and when they still have a common future in the same business sector.
The second method is the “appraisal” method, which already works very well for appraisals before proceedings. In a technical field such as construction, it is not unusual for the parties to agree on the findings of the expert appointed under the terms of article 145 of the Civil Procedure Code. However, the appraisal can be extended to the legal field. The mediator is often asked to explain what the probable outcome of the dispute would be if the case went to court. The parties want to know and to decide once the issues have been clarified to them. This mediation method works as well as the first and is the method used in institutional mediation.
Both methods must be employed correctly. A good therapist must be able to fix legal reference points for the parties whilst a mediator who works as expert must also be flexible and have a spirit of dialogue with the parties.
THE KEY POINTS
- Mediation could become a prerequisite for all civil litigation
- Mediation gives the parties control over the outcome of the dispute
- It has different aspects: reconciliation but also appraisal
- A good mediation requires the capacity to listen, but also solid legal skills
- It does not rule out the more marked involvement of the judge
The role of the judge
Lastly, it is often forgotten that the judge can also try to reconcile the parties too. However judges intervene fairly infrequently in big cases, no doubt through fear that the parties would consider their involvement to be biased.
However, this fear is unjustified because bias results from considerations before the litigation. A judge who forms an opinion after an initial consideration of the case is only doing his or her job, with a chance of reaching a negotiated settlement. What the parties need after proceedings have been brought is not an alternative to justice but a “different kind of justice”, based on the principle of dialogue so dear to Mr. Guinchard. He considers that the judge should give an opinion at the end of the pre-trial proceedings, in a report to the parties’ lawyers before discussing the terms and conditions of this first document with them at a first hearing. The probable outcome of the dispute would be then sketched out, which the lawyers would then use as a basis for proposing a negotiated solution to the parties.