MEDIATION IN FRANCE - Dispute Resolution Journal - Vol. 55, No. 4
Emmanuel Gaillard is head of the international arbitration group of Shearman & Sterling and managing partner of the firm’s Paris office. He is also a professor of law at the University of Paris XII.
Jenny Edelstein is an associate of Shearman & Sterling, based in the Paris office.
Originally from Dispute Resolution Journal
Some people think that the use of alternative dispute resolution methods in France is something of a novelty. But, according to authors Emmanuel Gaillard and Jenny Edelstein, this is not the case. In fact, ADR use in France has survived the past two centuries, and currently there is a resurgence of interest in conciliation and mediation among French disputants and the judiciary. Gaillard and Edelstein review recent laws that serve to promote further use of these processes in France today.
In France today, ADR is regularly promoted by the authorities and legal scholars alike as a means of relieving the burden of the courts, and resolving disputes in a faster, simpler, and cheaper manner. Moreover, recourse to ADR in France carries with it a fashionably progressive, American connotation. This impression is, however, deceptive. In fact, a long tradition of alternative dispute resolution exists in France. Indeed, the principle of optional or mandatory conciliation as a preliminary to litigation has appeared in French legislation at various intervals and in varying forms over at least the past two centuries. There is also a relatively long-standing practice in France to use mediation to resolve disputes.
Evolving Approaches to ADR
Conciliation was first institutionalized in France at the time of the French Revolution. Indeed, the thinkers of the Revolution considered conciliation to be the ideal method of dispute resolution. The Decree of August 16-24, 1789 thus provided for mandatory conciliation proceedings for all matters falling under the jurisdiction of the tribunaux de district (the ordinary civil courts). The juges de paix (justices of the peace, ruling in equity) attempted conciliation as a preliminary matter in practice, and by law starting in 1855. The duty of the civil judge to seek conciliation was subsequently also included in the 1906 French Code of Civil Procedure.
In the early 20th century, however, mandatory conciliation experienced a decline, and was abandoned as a legal requirement in the 1940s and 1950s, perhaps as the consequence of an increasing degree of confidence generally placed in the French judiciary. Nonetheless, in practice conciliation was still used by the French judiciary in certain contexts, so much so that optional conciliation was expressly included as one of the missions of the civil judge in the French Nouveau code de procédure civile (NCPC), at Article 21.