The future of mediation in France
Text published in Les États Généraux de la Recherche sur le Droit et la Justice - Éditions Lexis Nexis - March 2018
In an age of artificial intelligence, algorithmic predictive justice and the calculation of our desires and thoughts through computerized data processing, some people have a nightmare of a future of robotic justice. They won't be wrong if machines and software do away with hearings and eventually supplant judges in their deliberations and judgments.
But what if the main effect of these new technologies, rather than cutting short all discussion and removing us from the decision-making process, were to free us from time and material constraints to gather the information we need to better understand conflicts? Wouldn't they then be formidable tools for refocusing conflict management on the word of the parties involved in a dispute? Wouldn't they be a useful way of reinforcing amicable conflict resolution methods, in particular mediation?
In the face of the cold technology of artificial intelligence, we can rejoice that mediation, this flexible and contractual process of conflict resolution, enables people to resolve their dispute, with the help of the mediator, by talking, listening, understanding and expressing grievances using methods that respect people.
Let's have a dream. That recourse to the judge, to the person who makes a decision, in accordance with the law but sometimes without regard for the complexity of human relations, is only the last resort of the parties after all attempts at amicable resolution have failed. This is what litigants aspire to because, better informed about their rights, they want to have greater control over the management of their disputes.
This aspiration is in line with the State's budgetary constraints, which are pushing for the development of amicable methods, so that recourse to the courts is only necessary when the parties are unable to reach a compromise agreement. However, whatever the number of legislative texts encouraging the use of mediation and the number of wishes expressed to develop it, the future of mediation in France will only be fruitful if the efforts of the public authorities to promote it are reflected in concrete actions encouraging litigants and judges to use it.
All amicable dispute resolution methods, including mediation, are popular with their adopters for at least two reasons: on the one hand, they respond to a strong social desire to empower individuals (Section 1); on the other, they are in line with the needs of the State (Section 2). The fact remains, however, that mediation can only achieve its full potential at the cost of concrete action, which must go beyond the incantatory stage (Section 3).
Mediation, an amicable solution in line with people's desire for greater responsibility
The simplest and lightest form of amicable dispute resolution is direct negotiation between the parties and their counsel. It has to be said, however, that negotiation is not the most effective way of resolving complex disputes.
Mediation, through the intervention of a neutral and impartial third party, the mediator, who has no jurisdictional powers but is invested with an authority based on the trust of the parties, is the most effective form of amicable resolution for those wishing to resolve a complex conflict amicably, while retaining control of the decision-making process.
Litigants see mediation as a means of resolving disputes that removes them from a kind of incapacity in which the jurisdictional process places them, by depriving them of responsibility for the decision that will be taken by the judge or arbitrator to settle the dispute.
Mediation is a mature form of conflict resolution that responds perfectly to the desire to empower individuals and reinforce consensus-based decision-making.
We have seen in previous presentations that the process of producing standards, even at the highest level of government, is influenced by consideration of the needs and demands of those who will be affected by the application of these standards. This influence takes the form of listening and consultation at the very least, and prior agreement at the most. The State listens to civil society, and not only to its experts, to ensure that the production of standards is as consensual as possible[1].
Authority is all the more respected and perceived as legitimate when its decisions have been discussed and agreed upon. Changes in working relationships are also tending to replace pyramidal organization with horizontal, networked organization.
Authority, even that of a judge, is only accepted if it is consented to, recognized as legitimate by a reasonable discourse, convincing by reason, and not imposed without explanation.
This democratization of the standards production and decision-making process is reflected in the development of amicable dispute resolution methods, notably mediation.
The public increasingly prefers negotiated justice to delegated justice[2].
Increasingly well-informed about their rights, thanks in particular to the development of legal information on the Internet, litigants want to control the management of their disputes and not leave them entirely to third parties such as lawyers or judges. The contractualization of justice enables them to regain this control. Without being naïve about the meaning of Alfred Fouillée's phrase "Where there's contract, there's justice", we can legitimately believe that negotiated justice is the most appropriate means of resolving most disputes today[3].
Litigants are all the more likely to adhere to mediation if the process is managed by well-trained mediators who are not content to push for compromise and present only the "split pear" solution, but who go in search of the parties' expressed or underlying needs so that a creative amicable resolution can emerge from the process.
Yet this legitimate aspiration of those subject to the law is in line with the State's need to reorganize the public justice service due to its financial constraints.
Mediation, an amicable solution in tune with the needs of the modern state
Traditional justice is bankrupt. The state no longer wants to fund it.
France has ten professional judges per 100,000 inhabitants, half the average for European Union member states. We have around 7,000 professional magistrates, which corresponds to roughly the same number of magistrates in 2017 as in the 19th century.
On average, a French person waits 304 days for his or her case to be heard by a court of first instance, compared with 19 days in Denmark, 91 in the Netherlands and 133 in Sweden.
With only around 2% of the national budget, half of which is allocated to the prison service, the justice system is unable to perform its essential functions properly and reasonably.
According to a 2011 report by the European Parliament (Directorate-General for Internal Policies, Quantifying the cost of not using mediation)[4], "mediation is cost-effective at a success rate of 19% and above, as it significantly reduces legal costs for citizens and businesses, as well as for governments, by reducing the costs they incur in running the justice system. This study found that the average cost of legal action in the European Union was 10,449 euros, while the average cost of mediation was 2,497 euros".
It is therefore in the State's interest to see the development of ADR, and in particular mediation, so that disputes are increasingly resolved by means other than recourse to the courts.
Mediation has become one of the most important tools for meeting French people's need for justice, which judges can no longer provide within a reasonable timeframe.
So what are we lacking in France to see mediation develop in a concrete way?
We have no shortage of standards on the subject. Public authorities, both national and European, have long shown their interest in the development of mediation by adopting legislation that is increasingly specific to all the sectors of activity concerned.
After the introduction of general judicial mediation in the 1990s, we have seen the introduction of more specialized mediation processes: family mediation, consumer mediation and administrative mediation.
The European Directive on certain aspects of mediation in civil and commercial matters has been transposed into our Code of Civil Procedure by the adoption of rules for amicable dispute resolution[5].
The law modernizing justice for the 21st century, enacted on November 18, 2016, provides for the promotion of alternative dispute resolution methods. All these legislative processes are at our disposal to advance mediation.
We have no shortage of training courses for mediators either.
For over twenty-five years, mediators' associations have been working to develop training courses for mediators. For example, IFOMENE and the Paris Bar Association, together with the Association of European Mediators, and the International School of Alternative Dispute Resolution (EIMA)[6] have developed both training programs for mediators and initiatives to promote the development of mediator networks.
Mediation is now a well-established part of the dispute resolution landscape.
So much so thatChantal Arens, First President of the Paris Court of Appeal, which is at the forefront of the development of alternative dispute resolution (ADR), in close cooperation with the Paris Bar, has expressed the wish that mediation should be the principal means of resolving disputes, with recourse to the courts as the alternative.
What's missing is a few concrete incentives to see it develop even further.
For all too often, the use of mediation relies solely on the goodwill of judges and lawyers who have been sensitized or trained to it. If the use of mediation is not to depend on those who are already adept at it, it needs to be institutionalized and rewarded.
Of course, the radical solution would be to impose mediation before any trial. A revolutionary idea! As Professors Loïc Cadiet and Thomas Clay point out in their book Les modes alternatifs de règlement des conflits, MP Louis Prugnon was already urging the first deputies to adopt this measure in a speech to the National Assembly on July 7, 1790: "Rendering justice is only society's second debt. Preventing lawsuits is the first. Society must say to the parties: to reach the temple of justice, pass through the temple of concord. I hope that in passing you will compromise"[7].
The decree of March 11, 2015 was a first step in this direction. By obliging the parties and their lawyers to consider an amicable solution before going to court, the decree attempts to impose an attempt at amicable resolution before proceedings are instituted. To date, however, failure to comply with this requirement has not been sanctioned by inadmissibility[8].
The law modernizing the justice system for the 21st century provides for such a provision, by introducing systematic prior free conciliation for disputes under €4,000. The mandatory mediation stage is being tested in other types of dispute, such as family or administrative disputes.
However, judging by the lack of success of conciliation hearings in labour matters, I think we need to be cautious about introducing such compulsory remedies if the parties are not free to choose their mediator or adapt the mediation process to their dispute.
Other concrete measures can be just as effective. For example, is it still understandable that when a magistrate sees a case removed from the docket of the chamber for which he or she is responsible, due to a settlement resulting from a mediation that he or she has promoted, this removal from the docket is counted as a withdrawal that is not as valuable as a judgment in the results expected of him or her by his or her superiors?
Who can fail to see that this practical measure alone is an obstacle to encouraging magistrates to use mediation?
Another incentive could be to give lawyers who have advised parties in a mediation process and helped them to draw up a settlement protocol under the aegis of a mediator, the option of affixing an executory clause to their deed, as a notary can do.
Finally, another incentive could be to institute compulsory mediation in certain areas, as has been tried out in family matters in some courts, or to ensure that if mediation is refused outright by the parties, the losing party in the lawsuit will bear the actual cost, in particular by awarding compensation under Article 700 of the Code of Civil Procedure, which corresponds to the actual financial cost of a lawsuit for the litigant.
Finally, provided that an effective national public policy is put in place to promote, channel and organize the many public and private initiatives in favor of mediation, we are very confident in the development of mediation in France.
In any event, lawyers are working hard to develop this activity, both as advisors to the parties and as mediators. The launch of the Centre national de médiation des avocats by the Conseil national des barreaux, as well as the initiatives of the Paris Bar, demonstrate the strong commitment of lawyers to promoting ADR, and in particular mediation.
In conclusion, for the future of mediation, let's live up to the promises of its past:
Already under the Ancien Régime, faced with the many failures of the judicial institution - its slowness, cost and uncertainty - private initiatives were set up to promote ADR. The Compagnie du Saint-Sacrement, for example, set up "charitable arbitrators" to act as "conciliators" and assist litigants. A delightful book recounts the missions of these third parties, who were as much arbitrators as mediators in today's sense of the term: L'arbitre charitable pour éviter les procès et les querelles, ou du moins pour les terminer promptement par M. Alexandre de La Roche, prieur de Saint-Pierre (1668).
Jean de La Fontaine spoke of this in his last fable, Le Juge arbitre, l'Hospitalier et le Solitaire :
"Since he is of the Laws, Man, for his sins,
Condemns himself to pleading for half his life.
Half of it? Three quarters, and often all of it.
The Conciliator thought he'd get the job done.
To cure this crazy, detestable craving".
The conciliator, or mediator, believed this. For a long time, he was disappointed not to be able to achieve this, for lack of concrete incentives for the parties to resort to him. But let him have hope, for everything seems to indicate that in the future his work will be recognized and rewarded by the increasingly common recourse to mediation before any trial.
[1] D. Schnapper, La démocratie providentielle, essai sur l'égalité contemporaine, Gallimard, 2002.
[2] CEPEJ, Contractualization and judicial processes in Europe, study no. 16, ed. Council of Europe, 2009.
[3] J.-F. Spitz, Qui dit contractuel, dit juste, quelques remarques sur une formule d'Alfred Fouillée: RTD civ. 2007, p. 281. - L. Rolland, Qui dit contractuel, dit juste (Fouillée)... en trois petits bonds, à reculons : McGill L.J. 2006, 51, 765.
[4 ] Report by the Directorate General for Internal Policies, note PE 453.180, quoted in an article by F. Vert and H. Deghani-Azar, Médiation: comment trouver 50 milliards! Deghani-Azar, Médiation : comment trouver les 50 milliards! Gaz. Pal. Apr. 30, 2014, p. 11.
[5 ] EP and Cons. UE, dir. n° 2008/52/CE, 21 mai 2008 : JOUE n° L 136 ; CPC, Titre VI.
[6] SEE: http://www.avocatparis.org/ecole-internationale-des-modes-alternatifs-de-reglement-des-litiges-eima.
[7] L. Cadiet and Th. Clay, Les modes alternatifs de règlement des conflits, Dalloz,2nd ed. 2017, p. 34.
[8 ] D. n° 2015-282, March 11, 2015.
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