FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country The most popular ADR methods in France are mediation and conciliation, which are structured processes in which the parties aim to reach an agreement for the resolution of a dispute with the help of a third person. The main difference between mediators and conciliators is that judg- es may themselves be conciliators if they decide so, whereas a mediator is always a third party. Moreover, mediators receive fees from the par- ties, while conciliators are volunteers. Mediation and conciliation may be suggested either by the parties themselves or by the judge. Parties may also contractually agree to use the Procédure participative (participatory proce- dure), in which they undertake to work jointly and in good faith for an amicable resolution. To enforce an ADR agreement, the parties may refer it to the judge for approval. Since March 2022, an ADR agreement may even be enforce- able when countersigned by the parties’ lawyers and with a visa from the court’s registry. The popularity of judicial ADR methods is increasing as they offer advantages such as con- fidentiality, flexibility and the saving of significant time and money. Courts often encourage parties to initiate ADR. In certain matters, it has become standard practice for some courts to suggest mediation at the beginning of the proceedings and to recommend names of mediators. According to the Centre for Mediation and Arbi- tration of Paris (CMAP), the success rate of mediation cases in France was 63% in 2023, but only 22% have been initiated by both parties.
expenses. Expenses falling within the dépens regime are enumerated by Articles 695 et seq of the FCCP and include: • duties and taxes collected by the court administration; • court translation costs for international notices; • compensation for a court-appointed expert; • costs relating to investigation measures; and • public officers’ remuneration. They do not include attorney’s fees (and some other trial costs). 11.2 Factors Considered When Awarding Costs In general, the dépens are borne entirely by the losing party. However, the court may decide oth- erwise, depending on either the behaviour of the parties or reasons of equity. In some matters, French law provides specific rules for allocating these costs. The court decides freely whether the losing party must pay the attorney’s fees of the prevailing party and, if so, which part of the fees must be reimbursed. In practice, French courts some- times oblige the losing party to pay, but only a small part of the attorney’s fees. 11.3 Interest Awarded on Costs Any award of compensation shall bear interest at the legal rate from the date of delivery of the judgment, unless the court decides otherwise. This is applicable to attorney’s fees.
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