Who to contact?
In France, there is no central or government authority responsible for regulating the profession of mediator.
There is no national, official website relating to mediation. However, there is a mediation section on https://www.justice.fr/régler-litiges-autrement/médiation, and it is kept up to date.
Each court of appeal (cour d’appel) publishes lists of mediators in civil, social and commercial matters. These lists were established by Article 8 of Law No 2016-1547 of 18 November 2016 on the modernisation of the 21st-century justice system. While their main purpose is to inform judges, they may also be shared with litigants by any means. In particular, they are available on the websites of the relevant courts of appeal.
In which area is recourse to mediation admissible/most common?
Parties may refer a matter to mediation at any time and in any area of law, except for those areas falling under rules of public policy governing social and economic conduct (ordre public de direction). For example, mediation cannot be used to circumvent mandatory rules on marriage or divorce.
Mediation is most often used to resolve:
- disputes between neighbours;
- problems recovering a debt;
- disputes between landlords and tenants;
- disputes between spouses regarding the right of access to a child.
What are the rules?
Recourse to mediation
Law No 95-125 of 8 February 1995 on the organisation of courts and civil, criminal and administrative procedure introduced civil mediation into French law.
Order (ordonnance) No 2011-1540 of 16 November 2011 transposed EU Directive 2008/52/EC into French law. The Directive establishes a framework intended to facilitate the amicable resolution of disputes by the parties, with the aid of a third party, the mediator. The Order broadened the scope of the provisions in the Directive to cover not just cross-border mediation but also mediation without a cross-border element, with the exception of disputes relating to a contract of employment or involving administrative law within the sovereign power of the State (droit administratif régalien).
This Order of 16 November 2011 also amended the Act (loi) of 8 February 1995 so as to establish a general framework for mediation. It defined the concept of mediation, described the conditions that the mediator must satisfy, and confirmed the principle of confidentiality, which is vital to the success of the mediation process.
Mediation by agreement:
The parties may decide to consult a mediator of their own accord. They need not to go to court to do this.
Nevertheless, parties who have taken their dispute to court still have the option of accessing a form of alternative dispute resolution, such as mediation.
If court proceedings have been brought, ‘the court hearing the dispute may, with the consent of the parties, appoint a third party to ascertain the parties’ positions and to compare and contrast their points of view with a view to enabling them to find a solution to the dispute’ (Article 131-1 of the Code of Civil Procedure).
In family matters, in the specific fields of the exercise of parental authority or interim measures in divorce cases, the court may also direct the parties to attend a briefing meeting on mediation, which is free of charge, and which cannot give rise to any penalty (Articles 255 and 373-2-10 of the Civil Code).
Law No 2019-222 of 23 March 2019 on programming for 2018-2022 and justice system reform introduced post-ruling mediation in Article 373-2-10 of the Civil Code:
‘Should the parties disagree, the court shall endeavour to reconcile them.
To help the parents agree on the exercise of parental authority, the court may suggest that they engage in mediation, unless there are allegations that one parent has behaved violently towards the other parent or the child. If the parents agree to mediation, the court may appoint a family mediator to this end, including in the final decision on how parental authority should be exercised.
Unless there are allegations that one parent has behaved violently towards the other parent or the child, the court may even direct the parents to meet with a family mediator who will inform them of the purpose and course of the mediation measure.’
Recent legislative developments have made it mandatory, under French law, to use mediation in certain circumstances.
Article 7 of Law No 2016-1547 of 18 November 2016 on the modernisation of the 21st-century justice system introduced, on an experimental basis, a requirement to attempt mediation prior to court referral in 11 courts. The experiment was initially scheduled to conclude at the end of 2019, but was extended until 31 December 2020.
Anyone wishing to amend a family court decision or a provision of a court-approved agreement must attempt family mediation before referring the matter back to the court. If this is not done, the application for amendment will be inadmissible.
This applies to applications concerning:
- the child’s place of habitual residence;
- visiting rights and the right to have the child to stay;
- a parent’s contribution to the education and maintenance of a minor child; and
- decisions relating to the exercise of parental authority.
It is not mandatory to attempt family mediation before returning to court if:
- one parent has behaved violently towards the other parent or the child;
- the application seeks to have the court approve an agreement made between the parties; or
- in the court’s assessment, there is another legitimate reason not to require the parties to attempt mediation before returning to court.
Law No 2019-222 of 23 March 2019 on programming for 2018-2022 and justice system reform made it mandatory to use a form of alternative dispute resolution, such as mediation, for applications relating to the payment of a sum not exceeding EUR 5 000 or to a dispute between neighbours. Before such applications can be referred to court, the parties must, at their discretion, undergo an attempt at conciliation led by a legal conciliator (conciliateur de justice), an attempt at mediation or an attempt at a participatory procedure (procédure participative). If they do not do this, the court may rule of its own motion that the application is inadmissible. However, the law provides for four exceptions:
- if at least one of the parties is requesting that the court approve an agreement;
- if an appeal must be brought before the body that issued the decision ahead of referral to a court;
- if recourse to one of the means of amicable dispute resolution mentioned in the first subparagraph is unavailable for a legitimate reason, particularly if legal conciliators are not available within a reasonable period; or
- if there is a specific provision requiring the court or administrative authority to make a prior attempt at conciliation.
Rules governing mediation
There is no national ethical code for mediators.
Some mediators are guided by the ethical codes or charters adopted by associations or federations, whether they subscribe directly themselves or via the body that employs them.
Accredited family mediation services – that is, services that receive public funding from the Family Allowance Fund (Caisse d’allocations familiales), the Agricultural Mutual Benefit Fund (Mutualité sociale agricole) and the Ministry of Justice – undertake to comply with certain standards relating to the provision and quality of these services; these standards are set down in a national reference framework.
Finally, Decree (décret) No 2017-1457 of 9 October 2017 on lists of mediators at courts of appeal laid down conditions for inclusion on such a list. These conditions stipulate that mediators must:
- have no convictions, declarations of unfitness or disqualifications listed on Bulletin No 2 of their criminal record;
- not have committed any acts contrary to honour, probity and morality that gave rise to a disciplinary or administrative sanction taking the form of removal, suspension, termination, withdrawal of approval or withdrawal of authorisation;
- have training or experience demonstrating their ability to practice mediation; this requirement applies both to individuals and to legal entities – every individual who belongs to the legal entity and provides mediation services must satisfy the conditions applying to individuals.
Information and training
At present, French legislation does not make any provision for specific training in mediation.
A State family mediator’s diploma (diplôme d’Etat de médiateur familial, DEMF) was introduced for family mediators by a decree dated 2 December 2003 and a ministerial order (arrêté) dated 12 February 2004.
Family mediators are not required to hold this diploma in order to practise, unless they wish to provide accredited family mediation services, in which case it is mandatory.
How much does mediation cost?
When parties resort to mediation as an alternative method of resolving disputes, whether in court proceedings or out of court, fees have to be paid.
Mediators’ fees may be covered by legal aid, as provided for in Articles 118-9 et seq. of Decree No 91-1266 of 19 December 1991. However, these fees cannot exceed EUR 256 for one party or EUR 512 for all parties.
For court-ordered mediation, they will be determined by the judge assessing legal costs (magistrat taxateur) upon completion of the mediator’s work, on presentation of a report or a statement of expenses (Article 119 of Decree No 91-1266 of 19 December 1991). The judge who assesses the legal costs fixes the amount of the deposit and the remuneration (Articles 131-6 and 131-13 of the Civil Code of Procedure). The legislation does not lay down any precise scale of remuneration, and the unit cost for the provision of family mediation services therefore varies.
Publicly funded mediation services undertake to apply a national scale for families’ financial contribution to the cost. The financial share to be borne by each party per mediation meeting ranges from EUR 2 to EUR 131, depending on the parties’ income.
Is it possible to make the mediation agreement enforceable?
When the parties reach an agreement, it is binding upon them, as with any contract.
When the agreement is reached outside of court proceedings, Article 1565 of the Code of Civil Procedure provides that it may be submitted to the court that would have jurisdiction in the dispute, with a view to making it enforceable.
Where court proceedings have been brought, Article 131-12 of the Code of Civil Procedure provides that on application by the parties, the court hearing the case may approve an agreement that the parties submit to it.
Article L111-3 1° of the Code of Civil Enforcement Procedure (Code des procédures civiles d'exécution) provides that agreements concluded following court-ordered mediation or out-of-court mediation which are made enforceable by the ordinary courts or the administrative courts are enforceable documents.
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