Lawyer and mediator

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[edit] Lawyer and Mediator: Compatible

In France, Article 115 of Decree No. 91-1197 of November 27, 1991 which organizes the profession of lawyer, amended by Decree No. 2004-397 of May 4, 2004, - art. 1 JORF May 7, 2004, specifies that:

  • "The profession of lawyer is incompatible with the exercise of any other profession, except for a special regulations or provisions.
  • The profession of lawyer is compatible with the functions of: teacher, deputy associate, assistant of senator, substitute of a Court judge, assessor member of Juvenile Courts or Rural Lease Courts, member of Social Affairs Courts, adviser of an elected industrial tribunal, arbitrator, mediator, conciliator or receivership."

[edit] A Required Formation

To enable clear information about mediation, it should be noticed that mediation is not a matter of "law". Even if it is "framed" by few official texts, mediation is a space of release from a conflictual situation that opens or reopens on a state of free will which enables people to take a free decision and change a relationship, modify and develop a contract, resume or stop it. It is a personal decision.

The parties negotiate, discuss again, through the intervention of a mediator. If the mediator involves laws, it means he does not do his work that must consist in accompanying the parties which are in a broken or collapsed dialogue regarding a relationship that has taken a judicial form. The restoration of dialogue can enable the parties to reconsider the relationship and discuss back about the contract terms. An advised legal counsel could then give an official form of the agreement and help to anticipate the risks regarding the pursued relationship, or even regarding the modalities of a definitive rupture...

In other words, a judicial profession - a lawyer, judge, usher or notary, etc. - is not necessary a mediator nor vice versa. Moreover, without appropriate training, these two activities do not obviously complement each other. If we consider the professional liability insurance of a lawyer for example: a lawyer has to provide advice; not a mediator who, on the contrary, must abstain to be an adviser because advising is already taking a side and being partial...

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