“In the event of disagreement, several solutions are possible, with or without recourse to third parties.”
Through negotiation, parties find the most appropriate solution to their problem themselves. 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.
The parties can decide to turn to mediation (conventional mediation). It can also be ordered by the judge (court mediation).
An amicable conflict resolution process, mediation is initiated at the request of companies, either because a clause in the contract at the origin of the dispute provides for it, or because they choose to use it expressly and freely.
Mediation involves the intervention of an impartial third party who helps the parties to find an optimal negotiated solution themselves, while respecting their respective interests.
If the mediation is successful, it ends in an agreement that is the subject of a protocol. It can be approved by a judge, which gives it the authority of “res judicata”.
It is a measure ordered by the civil or commercial judge, either on his/her own initiative after having obtained the agreement of the parties, or at the request of the parties. . The judge assesses the interest and appropriateness of mediation within the framework of Articles 131-1 to 131-15 of the French Code of Civil Procedure.
As an association under the law of 1901, the CMAP is entrusted with the monitoring of mediation by the commercial courts, the high courts, the courts of first instance and the courts of appeal.
At the end of the mediation, the CMAP informs the judge in writing whether or not the parties have managed to reach an agreement. If the mediation is unsuccessful, the proceedings resume, and all information exchanged during the mediation remains confidential.
If successful, the parties have the option of submitting their agreement to the judge for approval, which makes it enforceable.
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 “reconciling parties is part of the judge’s mission”.
Judicial conciliation is therefore implemented by the judge him/herself or by a court conciliator to whom he/she will have delegated the mission of conciliation.
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. Conciliation is free, whereas mediation is a chargeable service.
Amicable expertise is a procedure that enables the parties to solicit together an independent expert for a confidential opinion 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 a part of a mediation or an arbitration process.
Arbitration is a private judicial method of conflict resolution, regulated in Articles 1442 of the French Civil Procedure Code.
It consists of submitting, by contractual means, a dispute born or to be born between one or more natural or legal persons to the jurisdiction of a third party, the arbitrator or the arbitral tribunal (when several arbitrators make up the tribunal), which is independent and impartial, and is responsible for settling the dispute in accordance with the rules of law and commercial practice applicable to it. . The arbitrator then makes a decision, called an arbitration award, which is binding on the parties, meaning that it is enforceable on them and puts an end to the dispute.
This is the classic recourse to national courts.