French people like to fight in court. Indeed French Code of Civil Procedure allows anyone to initiate a proceeding in front of French court. The article 31 of this Code specified that "the right of action is available to all those who have a legitimate interest in the success or dismissal of a claim, without prejudice to those cases where the law confers the right of action solely upon persons whom it authorizes to raise or oppose a claim, or to defend a particular interest."
In France, state courts are of course free of charge and should you fail in court, the judges will require the case's loser to only pay a small amount of money to the case's winner–and not their full lawyer fees and costs as is the case in the Anglo-Saxon countries.
In addition, French courts can allow to the case winner some few damages payable by the case's loser. Very rarely, courts can also require payment from a party who failed to pay a criminal penalty.
There are more and more cases initiated in front of French Courts but strangely, according to the latest survey (BVA, February 2014), 75 percent of the French people believe that French courts do not work well!1
In France, the tradition of the centralized state is very high. French people are more comfortable with traditional judicial proceedings, prefer straightforward win/lose methods of resolving disputes, and fear perceived weaknesses noted by the other side. In France, unlike in North America, the people do not see the courts as being the guardians of their rights but rather as an arm of the government, which exists for the more straightforward purpose of enforcing the laws promulgated by the legislature.
Unlike the common law American tradition, where judges make law by way of judicial opinion, French judges do not play the same role. The nature of the civil law system in France also explains some of the resistance to increased use of alternative dispute resolution (ADR).
The increasing use of the term "mediation" in general in French society (Médiateur de la République, Médiateur du crédit, etc.) has not helped the cause of ADR because it has added confusion to the public conception of what the term means.
But ADR, in particular mediation, are growing increasingly popular in many modern countries, although its popularity is growing a little bit more slowly in France. The traditional process of litigation through the courts is much slower (300 average days in France) and undeniably expensive. In comparison therefore, ADR offers an attractive and often more flexible set of solutions to parties' disputes.
French courts and culture are embracing more and more mediation. In the past decade, there has been somewhat of a concerted push to encourage mediation in France, with some success.
Since a law dated of February 8, 1995, French judges can also appoint a mediator should the parties agree.2
Since a law dated of December 22, 2010,3 and a Decree dated January 20, 2012,4 "Collaborative Law" was also introduced in French law. Parties and their lawyers will try to find resolution without involving a third party.
On May 21, 2008 the European Parliament issued a Directive 2008/52/EC on mediation in commercial and civil matters (the "Directive").5 The purpose of the Directive was to encourage the use of mediation in commercial and civil matters in order to facilitate cross-border dispute resolution and to attempt to create some uniformity throughout Europe with regards to the application and enforcement of mediated agreements and the quality of mediation procedures.
EU Member States were expected to have transposed the provisions of the Directive into their national laws by 21 May 2011. Finally, on November 16, 2011, the French Ministry of Justice published Ordinance, No. 2011-1540,6 setting a standard for the mediation procedures included into the French Code Civil on January 20, 2012, as Decree No. 2012-66.7
Before 2000, and despite a mediation clauses included in contracts, many French judges issued judgments without any prior mediation session.
The famous judgment known as "Saint Valentine," issued on February 14, 2003, by the French High Court, specified that in case of a mediation clause inserted into a contract and without a prior mediation session, the judge must freeze the court process.8 Then the mediation session must start and should the mediation failed, the judge will then be able to restart the judicial process.
Further case law (Cass 2ème, 16 December 2010) confirmed both parties were able to regularize the situation by starting the mediation process even though the case is already an ongoing one in front of French courts (first instance and appeal).9
The legal situation has changed a lot in recent years.
On December 12, 2014, the same French High Court, regarding a contract in front of the Architect Council that included a conciliation clause, decided that the judge must stop examining the case and the parties have to initiate the conciliation process.10 Should the ADR phase will fail, the parties won't be able to continue the existing litigation in front the Court and must restart the litigation from the beginning!
On May 19, 2016, concerning a project management contract, the French High Court adopted the same position.11 The lack of a prior conciliation process is a bounce-back situation that any party or the judge can raise at any time during the judiciary process.
On October 6, 2016, the same French High Court adopted the same decision concerning a commercial lease.12
On November 18, 2016, a new law to modernize justice in the 21st century encouraged mediation and ADR.13
Concerning small cases (under €4,000), a previous decree dated of March 11, 2015 encouraged the lowest court to appoint a conciliator, but the above-mentioned law of November 18, 2016, now imposes ADR on parties and judges to try to resolve an issue in front of a conciliator.14
This new law also implements a mediation process in front of administrative courts.
In addition, and concerning judicial mediation, a list of mediators who can be appointed by French courts will be established in the future.
The Ordinance No. 2011-1540 issued on November 16, 2011and its official transposition into the body of French law are recent and are clearly good signs. The French legislature is also encouraging mediation, especially by way of the November 18, 2016 Law. Last but not least, in the case of a mediation clause in a contract, French judges have now adopted a clear position concerning the prior mediation process that must be implemented prior to any proceeding in front of French Courts.
- https://www.legifrance.gouv.fr/affichCode.do? idSectionTA=LEGISCTA000023276654&cidTexte=LEGITEXT000006070721.