EXPERT JURIDIQUE

Group 49

ALTERNATIVE DISPUTE RESOLUTION METHODS

Several solutions are possible to solve a dispute, with or without the intervention of a third party.

Here are several examples:

 

The negotiation

In Negotiation parties find themselves the most appropriate solution to their problem. They also decide together of the practical details related to its implementation and on the monitoring of its implementation without the intervention of a third party.

Mediation:

The parties can decide to turn to mediation (conventional mediation). It can also be ordered by the judge (court mediation).

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Conventional mediation

Conventional mediation is an amicable conflict resolution process. A clause in the contract signed between the parties can force them to turn to mediation. The parties can also choose to turn to the process by themselves, spontaneously. Mediation involves an impartial third-party who helps the parties find their own optimal negotiated solution, in accordance with their respective interests.

If mediation is successful, an agreement is established. The content of the agreement can be made enforceable by a court or other competent authority in a judgment or decision or in an authentic instrument.

For further information…

The Center is seized by mail addressed to the CMAP (39 avenue FD Roosevelt, 75008 Paris):
  • either by a joint request from the parties which includes the following information :
    • The civil status or corporate name and address of each of the parties and, if applicable, the name and address of their counsel;
    • A copy of the relevant agreements between the parties;
    • The origin and nature of the dispute;
    • The claims of the parties and their grounds;
    • An indication of the number of arbitrators agreed upon or their request for a decision of the CMAP in this respect;
    • The indication of the arbitrator or arbitrators that the parties propose to appoint or their request for appointment by the CMAP;
    • The indication of the mediator that the parties propose to appoint or their request for appointment by the CMAP.
  • or by a unilateral request for simultaneous med-arb, accompanied by the first four elements mentioned above and an indication of the number of arbitrators desired. In this case, the CMAP will contact the other party in order to obtain its agreement.
NOTE: The request shall be registered only if it is accompanied by the payment of the file opening fees as fixed according to the scale in force on the date of its receipt at the Center.

For more information...

For more information on this procedure, please consult Med-Arb’s Rules and Regulations, or contact us.

The emergency decision

“The emergency decision allows for a binding decision within a maximum of 28 days.”

Judicial mediation

Judicial mediation is a measure ordered by the civil or the commercial judge, either on his own initiative after obtaining the agreement of the parties, or at the request of the parties. The judge appreciates the interest and the opportunity given by mediation in the context of Articles 131-1 to 131-15 of the Code of Civil Procedure.

As a non-profit organization, CMAP can be appointed as mediator by commercial courts, high courts, lower courts and courts of appeal.

At the end of the mediation, CMAP informs the judge in writing whether an agreement has been found or not.If the mediation fails,judicial proceedings are resumed. All mediation exchanges remain confidential. If the mediation is a success, the parties can submit their agreement to the judge for approval to make it enforceable.

For further information…

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Conciliation

Mediation and Conciliation refer to the dispute resolution process in which two or more parties attempt to reach an amicable agreement with the help of a third party.

There are few differences between conventional mediation and conventional conciliation.

However, judicial mediation and judicial conciliation are governed by different laws.

Article 21 of the CPC provides that “to reconcile the parties is part of the judge’s mission”.

Judicial conciliation is implemented by the judge himself or by a conciliator to whom he will have delegated his mission to reconcile.

However, judicial mediation is entrusted to a mediator, an external party to the jurisdiction. As provided in Article 131-1 of the CPC, the judge may designate the mediator if the parties agree. The conciliation is free for the parties. Mediation is a chargeable service.

“Despite this conflict, we are forced to continue working together. We will therefore immediately implement the decision of the third party and the work stoppage will thus be avoided, which is the most important thing for us. If necessary, we will make the final accounts at the end of the contract.”

The Center is seized by mail addressed to the CMAP (39 avenue FD Roosevelt, 75008 Paris) including the following elements

  • The civil status or corporate name and address of each of the parties and, if applicable, the name and address of their counsel;
    the subject matter of the dispute as well as a precise statement of the issue to be decided
  • The application shall not be registered unless it is accompanied by payment of the file opening fee as set forth in the schedule in effect on the date of its receipt at the Center.

For more information...

For more information on this procedure, please consult Med-Arb’s Rules and Regulations, or contact us.

The decision on the last offer

“A procedure that has the originality of leaving the third party-decider on the last offer only one possibility: that of choosing.” 

Amicable expertise

Amicable expertise is a procedure that enables the parties to solicit together an independent expert for a confidential advice on a technical matter (defect, machine operation, product compliance, etc.) or on a financial matter (determination of a price or of a value).

The expert’s opinion is written and confidential.

Expertise is frequently inserted during a mediation or an arbitration process.

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Arbitration

rbitration is a private judicial method of conflict resolution, regulated in Articles 1442 of the Civil Procedure Code.

By contract, the conflict, which has arisen or may arise between one or more natural or legal people, is subject to the jurisdiction of a third party: an independent and impartial arbitrator or an arbitral tribunal (if several arbitrators compose it). The arbitrator(s) must solve the dispute in accordance with the applicable rules and trade usages. The arbitrator then renders a decision, called arbitration award. This decision has a binding force, which means that it is imposed upon the parties. The decision ends the conflict.

For further information…

Court proceedings

This is the classic recourse to national courts.

 

The Center is seized by mail addressed to the CMAP (39 avenue FD Roosevelt, 75008 Paris) including the following elements

  • The civil status or corporate name and address of each of the parties and, if applicable, the name and address of their counsel;
  • A copy of the relevant agreements binding the parties, if any;
  • The origin and nature of the dispute;
  • The statement of the problem posed to the decision-maker on the last offer;
  • The name of the person whom the parties propose to appoint or the request for appointment by the CMAP

The request is registered only if it is accompanied by the payment of the file opening fees as fixed according to the scale in force on the date of its receipt at the Center.

For more information...​

For more information on this procedure, please consult Med-Arb’s Rules and Regulations, or contact us.