Civil mediation

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Civil mediation is defined in relation to civil law. It applies to all disputes between peoples linked or not by contract, for reasons which concern civil law. Regarding this point, civil mediation can be distinguished from administrative mediation, penal mediation or even from political mediation...

Contents

[edit] Legal Framework

[edit] In France

Civil mediation is a possibility provided for by the legislature to resolve a dispute when the parties plan the recourse to a legal proceeding. Legal professionals are required to inform their clients. In France, civil mediation is provided in the New Code of Civil Procedure, Title IV, Section 131-1 to 131-15.

The parties can freely make the choice of mediation or organize it under the aegis of a judge who may provide an ordinance of mediation if he obtains the agreement of both parties.

Mediation can treat all or part of the dispute, inducing that a partial agreement can be reached by the parties and that another part of the settlement would be taken by the arbitration decision of the judge.

It should be emphasized that in no way a civil procedure must necessarily be prosecuted. The parties are free to mutually submit themselves to the judge's decision.

However, the legislature has provided for a time-limit for the duration of the mediation. This constraint aims to prevent a party from delaying tactics. The duration of the mediation is limited to three months, renewable once for the same duration, at the request of the mediator.

[edit] The Mediator

Mediation can be entrusted to an individual or association whose individual members performing mediation measures must be subject to the judge's approval. The mediator must:

  • 1. have not been the subject of a judicial sentence, a disability or forfeiture as mentioned on the criminal record;
  • 2. have not been responsible for acts contrary to the honor, integrity and morality leading to a disciplinary sanction;
  • 3. possess, through the past or present practice, the required qualification regarding the nature of the dispute;
  • 4. justify a formation or a suited experience;
  • 5. present the necessary guarantees of independence for the practice of mediation.

The mediator has no power of investigation. However, he can, with the agreement of the parties and for the purposes of mediation, meet third parties with their consent. The mediator cannot be assigned, during the same case, to make a measure of instruction.

The mediator is bound by the confidentiality of meetings. If the mediator has collected statements, these ones cannot be used by the parties in the following stages of the proceeding or in any other proceeding. The mediator cannot be compelled to testify.

[edit] The Judge's Ordinance is the First Parties' Agreement

The law that provides for the decision to order a mediation process is original: it uses the parties' agreement for the mediation and defines its modalities. This decision looks more like a multiparty contract, including the protagonists of the dispute, the mediator and the judge than a binding decision, since indeed the parties can stop it at any time, even if it displeases the judge. This is an ordinance... not binding, probably the only one in French law.

This ordinance provides for the organization. It:

  • Defines the mission and appoints the mediator;
  • Specifies the initial duration of the mission;
  • Indicates the date on which the case will be referred to the hearing;
  • Determines the amount of the provision regarding the mediator's remuneration as close as possible with the predictable fees;
  • Identifies the only party or the parties who will provide the provision within the prescribed time-limit; if several parties are appointed, it specifies in which proportion each party will have to contribute. In case of no deposit, the decision is considered as invalid and the legal proceeding goes on.

[edit] Establishment

From the announcement of the decision appointing the mediator, the clerk of the jurisdiction informs by ordinary letter the parties and the mediator.

The mediator shall inform the judge of his acceptance without delay. When the mediator has been informed by the clerk that the deposit has been made, he can convene the parties.

[edit] End of Mediation

The individual who is leading the mediation informs the judge of the difficulties encountered during his mission.

The judge can put an end to the mediation process at any time, at the request of either party or at the mediator's initiative. The judge can also end the mediation process when the proper conduct of the mediation appears compromise.

The case must always first be referred to a hearing where the parties are convened at the behest of the jurisdiction by registered mail with return receipt.

If the judge puts an end to the mission of the mediator, he can at this hearing pursue the legal proceeding. The mediator is informed of the decision.

At the end of his mission, the mediator shall inform in writing the judge if the parties have or not found a solution to their conflict.

The judge approves at the request of the parties the agreement they have submitted to him. The approval belongs to the non-contentious matter.

At the end of his mission, the judge shall fix the remuneration of the mediator. The fees of mediation shall be apportioned in accordance with Article 22 of Law No. 95-125 of February 8th, 1995, regarding the organization of jurisdiction and civil, penal and administrative procedure (France).

The judge allows the mediator to receive the due amounts deposited at the Clerk's Office. The judge can order, if necessary, the payment of additional fees and specifies the party or parties that are charged, or the refund of deposit in excess.

An enforcement order is issued to the mediator at his request.

The decision that orders, renews the mediation or puts its end is not likely to be subject of appeal.

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[edit] External Links

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