Mediation is an amicable, confidential and structured process for settling disputes with the help of an independent, neutral and impartial third party.

It enables the parties to reach a personalized, effective and rapid solution to a dispute, while respecting the interests of each party.

This can be the parties, at any time, including during the course of the proceedings. A judge may also propose mediation to the parties. Mediation can be :

• judicial, when the mediator is appointed by a judge in the context of a lawsuit,
• conventional, i.e. initiated by the parties.

It is governed by various legal texts and the Code of Civil Procedure.

Mediation and conciliation share the same objective and use the same techniques, although practice dictates that the conciliator proposes one or more solutions to the parties, which the mediator generally refrains from doing.

The real difference lies in the status of the conciliator, who is an auxiliary of justice, whereas the mediator is not.

Often better trained, the mediator is paid by the parties and has more time than the conciliator to resolve sometimes complex disputes.

Negotiation is a direct discussion between the disputing parties, without the help of a third-party mediator. This discussion is not confidential, unless the parties have agreed otherwise.

A transaction is a contract governed by the French Civil Code, recording an agreement between the parties, which may result from negotiation or mediation.

Trained in communication techniques, the mediator helps the parties to resume dialogue.

He or she provides a framework for structuring the discussions and monitors their progress. They also ensure that the principles of mediation are respected (see 6 below).

Although this is the case on our platform, where all mediators are also business lawyers, the mediator is not necessarily a lawyer, but must be trained in mediation techniques.

Negotiation is a direct discussion between the disputing parties, without the assistance of a mediator.

The principle is that parties resort to mediation of their own free will, and that even the judge cannot impose mediation on them.

However, it should be noted that :

Since January 1, 2020, recourse to mediation is, with a few exceptions, mandatory for disputes under €5,000 (art. 750-1 of the Code of Civil Procedure);

Mediation must also be initiated prior to any legal proceedings if the parties have included a mandatory prior mediation clause in their contract.

Mediation can be used for all types of dispute, whether family, commercial, social or administrative in nature.

Mediation can take place at any time, before or during the course of proceedings, or even afterwards, to help enforce a court decision. In fact, a significant number of mediations take place at the appeal stage.

Mediation can also be used as a tool for supporting and structuring the management of corporate projects, in the context of interim management, cooperation arrangements, joint ventures, contract negotiation, etc.

A transaction is a contract governed by the French Civil Code, recording an agreement between the parties, which may result from negotiation or mediation.

• Confidentiality: The entire mediation process is conducted under strict confidentiality to ensure maximum freedom of speech and proposal. However, exceptions apply in the following cases:

  • Threats to public order;

  • Harm to a person’s physical or psychological integrity;

  • Situations involving the best interests of a child;

  • Difficulties in implementing or enforcing the settlement agreement.

• Free and informed participation: Each party is free to participate and may withdraw from the process at any time.

• Balance: All parties are treated equally.

The mediation meeting(s) take place at a neutral location chosen by the mediator (or, if necessary, by videoconference) and on a mutually agreed date. It is customary for the mediator to ascertain before the meeting how much time the parties have available.

• Selection and appointment of the mediator: In conventional mediation, the parties freely choose the mediator and mutually agree on their remuneration. In judicial mediation, the mediator is appointed by the judge, who sets their remuneration.

• Analysis and listening phase: This stage aims to assess the situation, identify the needs, and understand the interests of each party.

• Dispute resolution phase: This involves highlighting possible options and allowing the parties to choose a solution.

• Agreement formalization phase: This consists of drafting a contract that records the agreement reached between the parties.

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It all depends on the complexity of the situation and the number of participants in the mediation.

The average length of a commercial mediation is 16 hours*, which can be spread over several weeks. Many disputes are resolved in a single meeting.

*Source CMAP Statistics 2019

The mediator can invoice his services according to a sum set by the judge (judicial mediation) or by the parties in agreement with the mediator according to an hourly rate or a fixed price.

Over 60% of commercial mediations cost less than €6,000 excluding VAT*, this sum being shared between the parties.

*Source CMAP Statistics 2019

The parties alone determine the outcome of their dispute.

They are free to choose the solution that suits them best. This solution is the result of their own negotiations under the aegis of the mediator.

The mediator is not a judge, and can in no way settle the dispute; he simply acts as a facilitator.

These are the parties, who may be assisted by their lawyer.

The agreement reached in mediation can be homologated by a judge, who will make it enforceable. If necessary, it can be enforced by a bailiff in the same way as a court decision.

• Time-saving: The solution can be found much faster than through judicial proceedings.

• Controlled cost: The cost of mediation can be determined in advance.

• A more accepted and easier-to-enforce solution: The agreement comes from the parties themselves, making it freely consented and more easily implemented.

• Restoring social or business relationships between parties: There is no winner or loser.

Between 70% and 80% of disputes submitted to mediation result in a settlement.

• Through associations of mediators: l’Académie de la médiation.
• In some jurisdictions: lists of accredited mediators are freely available online.
• From mediation centers: CMAP, FFCM, CIAM, etc.