Conciliation

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Conciliation is part of alternative dispute resolution. It consists in the intervention of a third party which, after listening to the parties and reasoning their viewpoints, proposes a solution in order to resolve their dispute; while on the other hand, mediation accompanies the parties and arbitration constrains. The parties are of course free to accept or refuse the suggested solutions. The recourse to a conciliator is free.

The name mediator, as generally agreed upon, is the one who intervenes at the request of the parties as part of a mission to lead interviews aiming at a conflict resolution. On the other hand, the use of the term conciliator is becoming a title reserved for the judicial system, because of the seniority of the expression "justice conciliator". The expression "judicial mediator" is used, in the same spirit as the term "judicial expert", while the term "mediator of justice" does not exist. In their respective nomination, the three of them are court auxiliaries.

Contents

[edit] The justice conciliators (France)

Sections 21, 829 to 847-3 of the French Code of Civil Procedure state that reconciliation is under the mission of the judge, then indicate the modalities for trial judges and judges of proximity to delegate this mission.

The function of justice conciliator has been created by the decree of March 20, 1978, then modified in May 1981, February 1993, December 1996, April 2000 and finally in May 2008.

The justice conciliators are mandated to facilitate, out of any judicial procedures, the friendly settlement of conflicts between individuals, excluding disputes concerning individual status (name, affiliation, divorce).

The justice conciliators are voluntary auxiliaries in the legal system. They are appointed, initially for one year then possibly for two more years, by the first presidents of the Court of Appeal, among those having at least three years of experience in judicial matters.

As contrasted to judges, they do not deliver judgements. They look for an amicable solution acceptable for the parties in conflict in order to avoid the court proceedings.

Their intervention is free. Every adult is allowed to refer a case to the local justice conciliator. To do this, it is just necessary to call or write to the mayor, the district court, the police or gendarmerie in order to get the conciliator's location and request an appointment.

[edit] How to become a justice conciliator

Areas of competences of conciliators They are particularly concerned with neighbourhood conflicts, the recoveries of debt, the relationships between renters and owners, family conflicts, except those concerning divorce, child custody or child support.

[edit] Judicial Conciliator

The conciliator may be private or be appointed by a judge (magistrate or professional judge) in the context of a judicial proceeding. In the case of a designation by a judge, the term of justicial conciliator is used.

Conciliation is part of alternative dispute resolutions. It consists in the intervention of a third party which, after listening to the parties and reasoning their viewpoints, proposes a solution in order to resolve their dispute; while on the other hand, mediation accompanies the parties and arbitration constrains. The parties are of course free to accept or refuse the suggested solutions. The recourse to a conciliator is free.

The name mediator, as generally agreed upon, is the one who intervenes at the request of the parties as part of a mission to lead interviews aiming at a conflict resolution. On the other hand, the use of the term conciliator is becoming a title reserved for the judicial system, because of the seniority of the expression "justice conciliator". The expression "judicial mediator" is used, in the same spirit as the term "judicial expert", while the term "mediator of justice" does not exist. In their respective nomination, the three of them are court auxiliaries.

[edit] In Trade

This conciliation procedure is proposed to companies which have failed in their negotiations. In France, the President of the Commercial Court can conclude the conciliation by the homologation of a protocol of agreement proposed by the conciliator and accepted by the parties. There are two different practices at this stage of the procedure: the mandate ad hoc and the conciliation.

Conciliation concerns companies having proven or predictable difficulties in legal, financial or economic matters, or in cases more complex or situations more difficult than the mandate ad hoc. In the past, few leaders of company spontaneously solicited the Court because of difficulties. Currently, there are very few congenial procedures. However magistrates have a real willingness to detect problems as soon as possible, as shown by the evolution of the convocations of leaders.

It belongs to the leader of the company to deposit a request to the President of the Court. The request must be written, signed and dated of the day of its delivery to the President. It must include a description of the economic, financial and social situation of the company, its financing needs and the means to assume them.

However, several preconditions have to be analyzed. The company should:

  • not be in a state of cessation of payments for more than 45 days,
  • not be in a restructuring process for a return to profitability,
  • have real prospects of sustainability.

It is necessary to have an observation of the situation and reliable forecasts. Indeed, negotiation during a period of a crisis depends on the transparency of the real situation. The procedure and the agreement are both confidential. The agreement is likely to be approved through the homologation of the President of the Court.

  • If the agreement is concluded with all creditors; it must be approved by the President and deposited in the clerk's office.
  • If the agreement is concluded with the main creditors, it can be approved by the President.

The homologation provides a public executory power to the agreement.

[edit] Family Affairs

The parties are received by the judge of family affairs, first the plaintiff, then the defendant and thereafter the couple assisted by their own lawyers or their common lawyer. The presence of both spouses is required (In France, article 1107 and following of the CPC).

The mission of conciliation can last three months to the maximum and is renewable for one additional month. There is a conciliation hearing.

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