In the French legal system, alternative dispute resolution methods, including mediation, have a rather long history. France was one of the first countries in Europe to develop legislation on mediation.
The beginning of the use of mediation in France was laid in the middle of the 20th century, and in the 90s. the possibility of using mediation was enshrined in law.
Over the past decades, several reforms have been carried out in France, aimed not only at developing alternative civil dispute resolution methods, but also expanding the possibilities for alternative dispute resolution with the state. These reforms are motivated by an ever-increasing desire to make French justice less cumbersome, cheaper and more efficient. In France, it is the way of negotiation that is preferred or even obligatory in many areas of law.
The last significant changes in legislation took place in 2016, when the Law On the Modernization of Justice in the 21st Century (dated 18 November 2016) was adopted, which became a turning point in the field of mediation. It started a boom in alternative dispute resolution methods. The law introduced a number of novelties, which, according to lawyers, marked the beginning of a real revolution in the field of mediation.
In general, the principles and procedure of mediation in France are very similar to those in Russia, however, there are a number of features that distinguish French mediation from Russian mediation.
2. Types of mediable disputes - disputes with the state
Currently, in France, through mediation, if not any dispute, then the absolute majority of them, including disputes with the state (public law disputes), can be resolved. An exception is disputes where a mediation agreement may violate public policy and ethical standards, for example, disputes in the field of electoral law, disputes related to the powers of the administrative police, etc. At the same time, if a dispute arising in a field affecting public policy concerns only protection of a private interest (for example, indemnification), then recourse to mediation is possible.
Disputes with the state are resolved through mediation, in general, in the same manner as civil disputes.
In general, the possibility of recourse to mediation is provided for almost all administrative disputes, with the exception of cases when the body is obliged to act in strict accordance with the law, in the absence of discretion. For example, it is possible to conclude a mediation agreement between the tax authority and the taxpayer, as well as in a criminal case between the perpetrator and the victim (for more details, see Section 3 below).
Some disputes with state authorities provide for mandatory pre-trial mediation, for example, disputes between employees with disabilities and state employers.
In France, there is a special procedure for resolving disputes with the state with the help of a mediator. This is not quite traditional mediation, but rather a special institution, similar to the Russian institution of the financial ombudsman, although such an intermediary is called a mediator. There are two such mediators - the Mediator of the Republic and the Mediator of the Ministry of Economy, Finance and Industry.
- Human Rights Defender (Mediator) of the Republic - Défenseur des droits (Le Médiateur de la République)
The Institute of the Mediator of the Republic was introduced in 2011. The mediator of the Republic considers complaints and petitions of citizens, groups of citizens and organizations within the framework of the implementation of their functions by any state bodies - relations avec une administration ou un service public. Associations and other associations of citizens and organizations may also apply to it.
The decisions of the Mediator of the Republic are not binding, rather they are in the nature of recommendations addressed to a state body. Based on the results of consideration of the petition or complaint, the Mediator of the Republic offers the state body options for resolving the dispute or indicates the uncertainty of its decision for the purpose of additional interpretation. The Mediator indicates in his decision the period during which the state body must give a reasoned opinion on whether the state body agrees with the arguments of the Mediator and whether the decision of the state body will be changed or supplemented or not.
The activity of the Mediator of the Republic is absolutely free for applicants.
- Mediator of the Ministry of Economy, Finance and Industry
The mediator of the Ministry of Economy, Finance and Industry is a specific mediator in disputes with this Ministry and its subordinate bodies and institutions, including the tax authority. The Institute of this Mediator was introduced in 2002.
In general, its activities are similar to the Mediator of the Republic with some differences:
- The mediator of the Ministry of Economy, Finance and Industry considers only individual complaints, does not consider collective complaints,
- he can be contacted only after appealing the decision of the body to a higher authority, that is, they should all administrative methods of appeal have been exhausted,
- if, after receiving the recommendations of the Mediator, the state body has not changed its decision, the Mediator may apply to the Minister of Economy and Finance for further resolution of disagreements.
The activity of the Mediator of the Ministry of Economy, Finance and Industry is public, he publishes reports on it on his website (Médiateur des ministères économiques et fianciers | economie.gouv.fr).
According to the latest posted report for 2020:
- The mediator received 4729 complaints,
- 1486 mediations were carried out on complaints,
- 60% of complaints are satisfied partially or completely.
3. Mediation in the criminal sphere
An interesting feature of mediation in France is that French criminal law provides for the possibility of resolving a dispute in the criminal sphere through mediation. The mediation agreement is between the perpetrator and the victim.
As a rule, the initiator of mediation is the prosecutor, since the issue of initiating a criminal case is within his competence. The prosecutor may propose mediation to the parties if he considers it appropriate.
Mediation in a criminal case always takes place with the consent or at the request of the victim and only at the pre-trial stage.
The mediator may be a prosecutor or mediators specially accredited to the prosecutor's office.
If mediation ends with the conclusion of a mediation agreement, then the criminal case is terminated; if not, the case goes to court. For successful mediation, the offender must acknowledge the fact of the crime. If the mediation agreement provides for the payment of funds to the victim, then in case of non-fulfillment of the agreement, she can demand their recovery from the offender in a civil law manner.
Mediation is not possible in all criminal cases, the law provides for cases where the use of mediation is impossible, for example, these are cases of violence in a married couple.
4. Mandatory mediation
In general, the mediation procedure in France is voluntary, which is in line with its fundamental principles.
However, the state actively stimulates the development of mediation, in particular, through the introduction of a mandatory pre-trial mediation procedure and mediation appointed by the court in certain categories of disputes.
- Mandatory pre-trial mediation procedure
For some categories of disputes, mandatory pre-trial mediation is provided by law. Its application is mandatory, for example, for the settlement of family disputes, in particular those related to the divorce of spouses, as well as cases heard by labor dispute boards and agricultural lease tribunals.
Pre-trial mediation is also mandatory for any disputes of small value. Thus, from 1 January 2020, any person must justify an attempt at conciliation through mediation before any recourse to the court in disputes whose value is less than 5,000 euros. The introduction of compulsory mediation for disputes with such a price cap has been widely welcomed by the legal community, as it avoids a huge amount of litigation. It should be noted that the use of pre-trial mediation in France is effective in 80% of cases.
- Court-ordered mediation
Recently in France, judges have become more mediation-oriented, and often offer mediation to the parties in those disputes that, in the opinion of the judges, can be resolved by mediation. Judges can convince the parties of the effectiveness of mediation if the parties have doubts about this.
France has implemented a directive model of resorting to mediation, in particular, the judge can order mediation after obtaining the consent of the parties. And if the parties do not agree to mediation, the judge may oblige the parties to meet with the mediator, who will explain to them the essence of mediation.
Special rules contained in family law (sections 255 and 373 (2-10) of the Civil Code - on parental rights and divorce, respectively) establish the right of a judge to refer the parties to a family mediator, who explains to the parties, free of charge, the purpose and essence of the mediation procedure . But at the same time, the appeal to mediation still remains voluntary, that is, the parties may not agree to mediation.
In the case of court-ordered mediation, the judge continues to control the entire process. For example, the judge appoints a mediator and may terminate the mediation process on his own initiative, at the request of the mediator or the parties. If the parties have not agreed on the cost and distribution of costs for mediation, then this is determined by the court. In this case, the judge may take into account the financial situation of the parties and distribute the costs unequally (as a rule, the costs of mediation are distributed equally).
The judge sets a time limit for mediation, which may not exceed three months, but may be extended once at the request of the mediator.
Judicial mediation has an interesting feature - the mediator can hear third parties with the consent of the mediation parties, which does not happen in the traditional mediation process.
As in traditional mediation, in judicial mediation the information received by the mediator remains confidential and cannot be used without the consent of the parties either in the current court case or in other court cases.
At the request of the parties, the judge approves the mediation agreement. If the mediation ordered by the court was unsuccessful and did not lead to an agreement, then the litigation continues until the decision of the court is made.
5. Mandatoryness of mediation clause
In France, there is no obligation for parties to mediate commercial disputes. Despite this, lawyers and companies are increasingly recognizing the benefits of mediation.
An important role in the promotion of mediation in France was played by the obligatory nature of the mediation clause in the contract. So, if the parties have provided for a mediation clause in the contract, it is mandatory, and its failure to fulfill it is the basis for refusing to initiate proceedings on the dispute due to non-compliance with the pre-trial procedure for resolving the dispute.
6. Mediators in France
The activity of a mediator in France is not regulated in any way, in which the community sees a number of problems, in particular, the lack of proper qualifications of mediators, and as a result, the low quality of mediation procedures.
In particular, the law does not require a mediator to have a diploma or training, except in special cases (for example, in criminal mediation this is mandatory). Some organizations train mediators and issue mediator diplomas or certificates, but this activity is also poorly regulated.
At the same time, mediators, as a general rule, must have the qualifications to resolve a particular dispute, and must also confirm the availability of training, education or work experience as a mediator.
Courts generally compile lists of recommended mediators, and mediators can apply to be included on those lists. In the case of court-ordered mediation, the judge selects a mediator from the list of the relevant court.
The mediator can be both an individual and a legal entity. If the selected mediator is a legal entity, then the legal entity appoints its representative, who will mediate on its behalf.
There are special requirements for mediators in a number of categories of disputes. So, for example, in the case of mediation in a criminal process, the mediator must be accredited in a special way with the prosecutor's office. Permission to participate in criminal proceedings as a mediator is issued for a limited period with a mandatory probationary period. The mediator takes an oath in criminal court: "I swear to perform my duties with rigor, loyalty, impartiality and dignity and to respect professional secrecy."
7. The cost of mediation in France
The mediator's average hourly rate is between 200 and 300 Euros per hour. As a rule, the parties bear the costs in equal shares.
Since the French state is very interested in the development of mediation, economic incentives for parties to mediation are common.
Thus, in France, the participation of the state in the organization of mediation assistance is significant, by covering the costs of mediation in the framework of free legal assistance or legal insurance. In the case of mediation in the direction of the court, the services of a mediator can be compensated from the funds provided by the state for legal assistance. The amount is determined by the judge in the manner prescribed by law.
There are also many schemes that differ from court to court, which determine the procedure and amount of payment for mediation services in the event of mediation by court order.
In addition, it is possible to compensate for the services of a mediator in the field of family mediation: a national scale of costs for the parties has been established, which is defined in a national protocol signed by the Ministry of Justice, the Ministry of Labor, the Ministry of Social Affairs, the Family and Solidarity Fund, the National Family Allowance Fund, the Central Agricultural mutual benefit fund. Reimbursement is made for mediation providers who provide family mediation services and operate in accordance with the rules of this scale.
8. Communicative traditions of the French during negotiations
French communication traditions are quite specific and differ from Russian traditions, which should be taken into account in negotiations and when doing business with the French.
The French love to meet in person. It is allowed, of course, to hold a remote meeting, but it is still preferable to meet in person at least once. You cannot build a good relationship with a Frenchman unless you meet him in person. Even during the pandemic, the French tried to meet whenever possible. They may prefer to fly in from another country to a meeting just to chat.
For the French, being late is not considered unacceptable, being late, in general, is allowed. In the south of France, being late is considered the norm, in the north it is considered acceptable. If you are late for a meeting, to maintain decency, you need to politely apologize and go to your place, nobody will not express dissatisfaction about it.
In view of this attitude to time, it is not difficult for the French to reschedule the meeting for another day if you cannot meet; they will not find it inappropriate or disrespectful.
When meeting with a Frenchman, be sure to say hello and introduce yourself with your first and last name if you are not familiar. If this is the first meeting, you should also express the pleasure of meeting you with polite phrases, for example: très heureux (very glad); ravi de vous connaître (happy to meet you); enchanté (enchanted). In subsequent meetings, you need to shake hands or, if you already have a good relationship, touch your cheeks twice as if kissing.
It is a well-known fact that the French love to speak French. Of course, they will prefer to communicate in their own language if you speak it well. If not, it is better to use English, and its level is not so important. You can also use an interpreter.
In the process of communication, it is recommended to speak quieter and softer than we communicate in Russian, since many foreigners perceive our usual tone as elevated.
The French, in general, are polite and well-mannered people, and expect this from the interlocutor. At the same time, they can interrupt you, this is in the order of things, including to express their arguments. This is not considered impolite.
The French are very emotional, they can get carried away and not hear the other side. In this case, it is worth letting them speak, and then convey their position. At the same time, they will always listen to a different point of view and will not try to convince you, which should also be taken into account.
- Negotiation approach
The French love long discussions, do not like to bargain and make final decisions in the negotiation process. They rather attach importance to preliminary agreements, and always take a break to make a decision.
They really do not like to face unexpected changes in the position of partners. In general, the French are very thoughtful about the topic under discussion, always trying to figure out all the details and do not make quick decisions. The French need to work through the issue slowly and carefully. Their negotiating style is by no means dynamic.
- Topics for conversations
In a non-business conversation, the French are very fond of compliments about everything French - cuisine, art, cars and more. There are not many such compliments.
At the same time, during the conversation, avoid touching on the following issues: religion, personal issues related to position in the service, income and expenses, illness, marital status, politics.
- Time for negotiation
The French value their own and other people's time very much, this also applies to personal time as well. Therefore, it is better to appoint working meetings during working hours - from 8 to 19 hours. Don't make work appointments in the evening, unless it's a business dinner, and don't call them after 9:00 p.m. with work questions.
Holidays are a holy time for any Frenchman, during the holidays you should not count on any negotiations. At the same time, the holidays for the French are usually long and there are many of them: Christmas, February children's holidays, Easter. In the summer, as a rule, everyone is on vacation, some offices close completely in August. Please also note that the time of preparation for the holidays (2-3 weeks before them) is also not the most favorable for solving work issues.
The French are very fond of food, they can often end the meeting with an offer to go to a restaurant. Lunch can last up to two hours. It is useless to disturb them during lunch, no one will answer you. In a restaurant, the person who invites usually pays. A business lunch is often organized both for the exchange of courtesies and for the discussion of business matters. As a rule, people who are directly involved in the negotiations, or regular business partners (clients) are invited to dinner.
Talk about business only at the very end of lunch, after coffee. If you start discussing business at the beginning of the dinner, it may be taken frowned upon and lead to a failure in the discussion. During lunch, it is customary to talk on neutral topics, avoiding taboo topics.
Mediator at the Solis Mediation Center
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