FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
65% of mediations in 2023 were conducted in commercial cases. Parties may include media- tion or conciliation clauses in contracts (this is known as conventional mediation or concilia- tion). 12.2 ADR Within the Legal System Generally, neither mediation, conciliation nor Procédure participative is compulsory. They are based on consent and must be accepted by all parties. By exception, an ADR attempt is manda- tory before initiating certain proceedings, such as labour law disputes or divorce proceedings. An ADR attempt may also become compulsory due to the willingness of the parties. If they have provided for mandatory conciliation or mediation in their contract, they must use it first, before ini- tiating litigation. If they fail to do so, the defend- ant can assert that the claim is inadmissible (except in proceedings of interim relief depend- ing on emergency situations). A 2019 French Act widened the judge’s power to ask the parties to use mediation at every step of the proceedings, even during pre-trial or specific proceedings where it was previously prohibited (divorce and judicial separation). The Act also introduced a mandatory ADR proceeding for dis- putes with low financial stakes (under EUR5,000) and neighbourhood disputes, except in certain cases (for example, in the case of legitimate grounds or for consumer or mortgage loans). Since 2022, the judge may order the parties to proceed to mediation, in which case the dead- lines to submit their motions or appeal are sus- pended. Although this is an injunction, there are no sanctions against parties who do not comply. More recently, a 2023 French Act gave judges the power to summon parties to a conciliation
hearing to be held by another judge. The hearing enables a judge – who is not the one assigned to the dispute – to assist the parties in reaching an amicable resolution within a confidential frame- work, playing a more proactive role in facilitat- ing the process. However, the parties are only required to be physically present, with no real obligation to reach a final and binding agree- ment. If the parties fail to reach an agreement, they must return to the original judge. 12.3 ADR Institutions Several organisations with a particular focus on ADR have been established since the 1980s, including the Institut Français de la Médiation , which was launched in 2007, as well as pro- fessional training organisations for mediators, labour unions and professional networks. The government has also established a number of specific mediation institutions that work in a variety of fields, including both public and private ones. The most successful is the Médiateur des Entreprises , a national service reporting to the Ministry of Economic and Financial Affairs that was created in 2010 to help companies solve their disputes with clients or suppliers. Accord- ing to a 2024 report, its mediation department handled over 1,940 cases in 2023, with a high success rate. Most recently, a Law of 22 December 2021 titled “Confidence in the judicial system” cre- ated a National Mediation Council. Its members have recently been appointed by the Decree of 25 May 2023, making it fully operational. Their mission is to provide advice in the field of media- tion and to propose to the public authorities any measures to improve it.
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