Key Benefits:
Mr. President of the Republic,
The purpose of this Order is to transpose Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, which, in particular, establishes a framework to promote the friendly resolution of disputes by the parties to this dispute, with the assistance of a third party, the mediator.
This order is made under theArticle 198 of Act No. 2011-525 of 17 May 2011 simplifying and improving the quality of the law, which authorized the Government to legislate by order to transpose the directive, in order to comply with the deadline for the transfer expired on 21 May 2011. Taking into account that mediation arrangements would necessarily impact other areas than mediation itself, but approaching, such as the transaction, Parliament has empowered the Government to "harmonize the law in force with the measures taken" in the area of mediation law.
The Directive of 21 May 2008 governs all cross-border mediations on matters of a civil or commercial nature, whether these mediations are judicial or conventional. This extensive vision of the field of mediation is found in the definition that the directive gives in its article 3 has to the notion of "mediation", whose very broad character thus covers not only the conventional and judicial mediation within the meaning of French law, but also the conciliations carried out by the conciliators of justice, as well as any process that would respond to the definition of the directive, without using the name of "mediation" or "mediation". Conversely, some qualified mediation processes do not fall within the scope of the directive, such as those that need to be considered, in reality, as pre-administrative remedies or those that merely give notice to the administrations or companies that take them to that end.
With regard to the multiplicity of the sectors concerned by the Directive, but also with the aim of adopting legislation that allows for an increased development of alternative dispute resolution modes in France, the Government has conducted consultations in the context of the work of transposition of this text.
Thus, in May 2010, the Government requested the Council of State to best guide it in the choices it would make to transpose this directive. In this context, on 29 July 2010, the Plenary Assembly of the Council of State adopted a study entitled "Develop mediation within the framework of the European Union". It is in the same spirit that the Ministry of Justice and Freedoms conducted a public consultation in May 2011 to gather the views of all interested parties on the draft texts on the implementation of this directive.
As soon as the Government's will was to take advantage of the transposition of the directive to improve the mediation regime and the requirements of this text were of such an improvement, it was decided, as the authorization allowed, not to limit the transposition of this text to the only area of cross-border mediations covered by the directive, but also to extend it to mediations outside of any cross-border context.
French procedural law, derived from the Act No. 95-125 of 8 February 1995 concerning the organization of courts and civil, criminal and administrative proceedings, already has a legal framework, meeting the requirements of the directive, for judicial mediation, as well as for the conciliation conducted by a conciliator of justice. The order therefore intends to establish a general framework for mediation, encompassing conventional mediation and all processes within the material scope of the directive.
For this purpose, the order in its section 1 provides a complete amendment to Chapter I of Title II ("Cashion and Judicial Mediation") of the Act of 8 February 1995 referred to above. Thus Chapter I is now called "Mediation".
Section 1 of this chapter is devoted to the general provisions applicable to all forms of mediation within the meaning of Directive 2008/52/EC, whether conventional or judicial, regardless of its name. This generic concept of mediation from the directive refers, in domestic law, not only to mediation in the strict sense but also to any conciliation that is not led by the judge in charge of deciding the dispute.
The new article 21 of this law defines in its first paragraph the notion of "mediation" by drawing very broadly from the definition given by the directive: mediation refers to any structured process, regardless of its name, by which two or more parties attempt to reach an agreement for the amicable resolution of their disputes, with the help of a third party, the mediator, chosen by them or designated, with their agreement, by the court. Particular emphasis should be placed on the concept of structured processes: mediation is not a rigid procedure, since the parties, in perfect agreement with the mediator, are free to determine in a consensual way the modalities under which mediation will take place. This is the framework given by the mediator, in agreement with the parties, who participates in the structuring of this process.
The purpose of section 21-1 is to recall that the provisions governing mediation under this section apply without prejudice to the supplementary rules applicable to certain types of mediation established, such as family mediation, which is, inter alia, governed by the Articles 255 and 373-2-10 of the Civil Code. This provision is in a way that allows specific devices to certain sectors of activity, such as consumption, and at the same time allows to articulate the general provisions of the Act of 8 February 1995 with these special provisions. These complementary rules may also concern the quality of the "mediator". Indeed, in the sense of the directive, the notion of "mediary" should not be understood restrictively. Thus, this provision makes it possible to reserve the case of specific regulations, like those resulting from the Decree No. 78-381 of 20 March 1978 on Judicial Conciliators.
Article 21-2 specifies the qualities that the mediator must present in the mediation that he conducts, namely those of competence and impartiality. These two qualities are essential for the success of mediation as long as they are likely to enable the parties to reach a balanced agreement ending the dispute between them.
The Government chose not to retain the concept of independence in the definition of the mediator. Indeed, this last concept, which is not used by the directive, can be understood as referring to the existence of a statute, especially when people register their activity within the framework of an organized structure. Therefore, it was considered preferable not to refer to such a concept, which would have been of a nature to rigidify the exercise of such an activity, which instead requires genuine flexibility; the notion of impartiality is sufficient for itself: the mediator, who must be a third party to the dispute must be impartial, that is, devoid of any party taken for either party.
In addition, in order to transpose the requirement of effectiveness of the mediator provided for in the directive, it was made choice to specify that the mediator must act diligently, which implies that the mediator is bound to a genuine obligation of means to carry out the mediation process.
The purpose of section 21-3 is to transpose the principle of confidentiality of mediation, as provided for in section 7 of the directive and previously provided for in section 24 of the Act of 8 February 1995. This principle appears essential to the success of mediation. In fact, if not, the parties may be concerned that the findings of the mediator or statements collected during the mediation are not disclosed to third parties or used in a subsequent judicial or arbitral proceeding. This is the reason why this article affirms in its first paragraph the principle of confidentiality, which provides the entire mediation process and is binding on all persons involved in it, unless the parties agree otherwise to the mediation.
The second paragraph gives the principle enacted by the preceding paragraph its practical application. To this end, the wording used by the order is intended to prevent the parties from disclosing to third parties the findings of the mediator and the statements made during the mediation process, or to state during a judicial or arbitral proceedings such elements. As such, it should be noted that the wording borrowed will not be such as to prevent the parties from adjudicating before the courts the evidence that they could have produced in the absence of a mediation. Thus, the principle of access to a court is preserved.
The third, fourth and fifth preambular paragraphs reproduce the exceptions to the principle of confidentiality as provided by the directive, subject to a slight variation. Indeed, the directive provides that the content of the agreement originating from the mediation may be disclosed "to implement or execute the agreement". As long as the mediation agreement may have been expressed in verbal form, it has become necessary to add that it is made exception to the principle of confidentiality when the disclosure of the existence of the agreement or its content is necessary for its implementation or execution.
The last paragraph provides a clarification when the mediation takes place within a judicial framework. It reiterates, by slightly amending it, the wording borrowed by the former third paragraph of section 24 of the Act of 8 February 1995 to provide that the mediator designated by a judge informs the judge of whether or not the parties have reached an agreement. The effectiveness of the mechanism requires that the judge who ordered, with the agreement of the parties, the mediation be informed of its success or failure, being specified that, of course, the mediator does not have to disclose the reasons for the success or failure of the mediation, which are covered by the confidentiality requirement.
Article 21-4 recalls the principle under which the parties cannot, within the framework of the mediation agreement, infringe on the rights of which they do not have the free disposition.
Article 21-5 is intended to transpose the possibility given to the parties by the directive to enforce agreements arising from mediation. The wording borrowed takes, by slightly modifying it, the drafting of the former section 25 of the Act of 8 February 1995 referred to above. As mentioned in the above-mentioned article, reference is made to the notion of "approval", which implies that, in order for the agreement of the mediation to be made enforceable, the judge shall, by a decision, endorse the terms of the agreement, this after having carried out the necessary verifications, in particular by ensuring that the agreement in question is not contrary to provisions of public order. Regulatory provisions, including incorporated in the Civil Procedure Code, will determine the procedural conditions in which such approval will take place.
Section 2 is reserved for judicial mediation. This section reproduces, by adapting them to the architecture of the order, the old provisions of articles 21, 22 and 23 of the Act of 8 February 1995 referred to above.
Article 22 recalls the principle that a judge who has a dispute may, at any time, designate a mediator who, in practice, may also be a conciliator of justice, in the cases and conditions provided for by the provisions governing the activity of the latter.
Article 22-1 repeats, in its first paragraph, the prohibition for the judge to delegate to a mediator the prior attempts of conciliation in matters of divorce and separation of bodies. The second paragraph states that, as part of the other conciliation attempts prescribed by law, a judge who has not obtained the agreement of the parties may direct them to meet a mediator in order to be informed about the purpose and the conduct of the mediation measure. It is specified that this mediator must meet the conditions prescribed by decree in the Council of State. Justice conciliators, in the rule of law, may be responsible for such an information mission.
Sections 22-2 and 22-3 reflect the existing provisions of former sections 22 and 23 of the Act of 8 February 1995, with the necessary modifications, with respect to the costs and duration of mediation.
With respect to the costs of judicial mediation, article 22-2 recalls that it relates to the case where mediation is carried out on an expensive basis, which makes it possible to reserve conciliation by a conciliator of justice, who is free for the parties.
On the merits, the costs of mediation are consensually distributed among the parties, as in the case of conventional mediation. If there is no agreement, the distribution is made equally. In any event, it is anticipated that the judge may determine another distribution if it is unfair to the economic situation of the parties.
Identical rules of distribution are provided in the case where one of the parties is granted legal aid, being specified that the costs to the beneficiary party of legal aid are borne by the State, subject to the provisions of Article 50 of the Law of 10 July 1991 on legal aid, listing cases of withdrawal of legal aid.
It should also be recalled that these provisions are already supplemented by regulatory provisions. Thus, if the parties determine the distribution of the cost of mediation, it is the judge who, pursuant to theArticle 131-13 of the Civil Procedure Codefixed the remuneration of the mediator he appointed. In addition, theArticle 123-2 of Decree No. 91-1266 of 19 December 1991 Implementation Act No. 91-647 of 10 July 1991 Legal aid provides that the agreement of the parties may not charge the beneficiary of legal aid more than half of the costs of the proceeding.
Section 3, entitled "Continuing Provisions", contains section 23 which provides that the provisions of Chapter I are not applicable to criminal proceedings, taking into account the terms of former section 26 of the Act of 8 February 1995.
Article 24 reserves, in respect of disputes arising in connection with a contract of work, the application of the provisions intended to govern treaty-based mediations to only cross-border mediations, a definition of the cross-border dispute within the meaning of Directive 2008/52/EC being given by the second and third paragraphs of this article. This limitation, for the conventional mediation, of the scope of the measures taken in the context of the transfer in the field of labour law, has been desired as long as the prud'homale procedure gives rise to a pre-conciliation to which it has not been desired to infringe.
Article 25 provides that the conditions of application of this chapter shall be determined by decree in the Council of State. Such provisions already exist, particularly in the area of judicial mediation (Articles 131-1 et seq. of the Civil Procedure Code) or conciliation by a conciliator of justice (decree of 20 March 1978 referred to above). The Government is also considering adding a new book on amicable resolution of disputes in the Civil Procedure Code and providing for provisions in the Labour code relating to the registration of agreements arising from conventional mediations of a cross-border nature.
Section 2 provides for the transfer of the administrative directive by inserting a new chapter in Title VII of Administrative Justice Code, which includes three provisions.
Article L. 771-3 provides the principle of the possibility for parties to a dispute within the jurisdiction of the administrative judge to resort to mediation. The administrative mediation process may be initiated directly by the parties to the dispute, prior to any referral by the administrative judge.
This article refers to articles 21, 21-2 to 21-4 of Act No. 95-125 of 8 February 2005 on the organization of jurisdictions and civil, criminal and administrative proceedings. These provisions specify the qualities to be submitted by the mediator, who must be an impartial, competent and expeditious third party and be appointed by the parties or the judge before the dispute; they recall the requirement of confidentiality, which applies both in respect of conventional mediation and when mediation is ordered by the judge.
In accordance with the legislative authority granted to the Government by order, the material scope of this provision is limited to cross-border disputes, only governed by the Directive. The second and third paragraphs define cross-border disputes that may be the subject of mediation.
In addition, the administrative matter of the country is excluded from the scope of the directive; Article L. 771-3 provides that mediation shall not be able to intervene in disputes in which a party implements prerogatives of public power.
Article L. 771-3-1 governs the case in which the administrative judge has already been seized of the dispute: it will be possible, with the agreement of the parties, to order administrative mediation in the cases provided for in Article L. 771-3.
Article L. 771-3-2 states that, in all cases where a mediation process has been initiated in administrative matters, the administrative judge may approve and enforce the agreement arising from the mediation.
Article 3, based on the civil regime provided by theArticle 2238 of the Civil Code, provides in new article 2-1 of Act No. 68-1250 of 31 December 1968 on the limitation of claims on the State, departments, municipalities and public institutions that the statute of limitations is suspended from the date of the agreement of the parties on the principle of mediation implemented in the cases provided for in Article L. 771-3, and at least from the first mediation meeting. The suspension of the prescription may not exceed six months.
Section 4 amendsArticle 3 of Act No. 91-650 of 9 July 1991 reform of civil enforcement procedures. This amendment is led by the implementation of the new mediation regime. Its purpose is to give the agreements to which the courts have conferred enforceable force the quality of "executive title", which allows the creditor to continue the forced execution of his debt on the property of his debtor. The former drafting of Article 3 of the aforementioned Act of 9 July 1991 already provided for such a rule for the transactional agreements, as well as Article 9 of Decree 2 March 1978 on the conciliators of justice provided that the judge conferred enforceable force on the findings of agreements established by the conciliator of justice. The drafting of Article 4 allows for the implementation of the requirement laid down by the Directive, while harmonizing the rule of law, in accordance with the authorization given to the Government.
Article 5 provides that agreements arising from mediation between 21 May 2011 and the entry into force of the order and that meet the conditions set out in Articles 21-2 to 21-4 of the Act of 8 February 1995 referred to above may be approved.
This is the subject of this order that we have the honour to submit to your approval.
Please accept, Mr. President, the assurance of our deep respect.
