Article | 29/05/15 | Marie Danis Benjamin van Gaver
Decree No. 2015-282 of March 11, 2015, published in the French Official Journal on March 14, 2015, provides, inter alia, for the modification of the mandatory information that must be contained in a writ instituting judicial proceedings (acte de saisine). Such reform came into effect on April 1, 2015. Henceforth, a writ must specify "the steps taken to achieve an amicable resolution of the dispute" "unless the applicant provides a legitimate reason pertaining to the urgency or to the nature of the matter, in particular when it involves issues relating to to public policy".
A reform in line with a general policy of encouraging amicable dispute resolution methods
The Decree of March 11, 2015 is in line with a more deep-rooted legal trend which has been aiming, over the last couple of decades, at promoting the use of amicable dispute resolution methods. There are many out-of-court dispute resolution techniques, ranging from mediation/conciliation to other processes such as collaborative law or participatory proceedings.
The desire to promote the amicable resolution of disputes has been expressed in both European and national regulatory instruments. In practice, courts are also increasingly inclined to encourage alternative dispute resolution. Thus, for some years now the Paris Commercial Court has been developing a practice consisting in frequently proposing conciliation to parties at the very beginning of the proceedings, with a success rate of approximately 50% in 2014.
At the same time, institutions such as inter alia, the International Chamber of Commerce (ICC) or the Centre for Mediation and Arbitration of Paris (CMAP), have met with increasing success. They advertise success rates in the region of 70- 80%.
The obligation to prove, in the writ, that an attempt has been made to amicably resolve the dispute
Even though mandatory prior conciliation attempts were already required in certain courts (inter alia, regarding labor and family matters), before April 1, 2015, parties had no general obligation to seek amicable resolution before commencing litigation.
The new system laid down by Articles 56 (for writs of summons) and 58 (for petitions) of the French Code of Civil Procedure requires parties to state, in the writ, the "steps taken to achieve an amicable resolution of the dispute", unless the urgency or nature of the matter does not allow it.
Such new obligation raises the sensitive issue of legal privilege attached to negotiations initiated between the parties via their lawyers. Indeed, the very existence of such exchanges is confidential and, as a consequence, the disclosure of such information by the parties would constitute a material breach of legal privilege.
The decree gives no indication of the level of information to be provided to prove that an attempt has been made to resolve the dispute amicably. Therefore, a mere statement should be sufficient to prove such attempt, without detailing the amicable dispute resolution method selected or the content of the exchanges.
Consequently, it is recommended to keep a written trace of amicable attempts and to immediately adapt the wording of formal notices, which should now contain an amicable dispute resolution proposal and the request for a response to such proposal within a set timeframe.
An obligation deprived of any effective sanction
If the writ fails to mention that attempts at amicable dispute resolution were made, this does not mean that the instrument is void, failing a provision to that effect in the Decree.
Simply, according to the new Article 127 of the French Code of Civil Procedure, in such a case "the judge can propose a conciliation or mediation measure to the parties" and, moreover, the Decree simplifies the conditions of referral of the matter to a conciliator.
However, it is difficult to consider this new Article 127 as penalizing, as conciliation aims at promoting the interests of all parties.
Moreover, such discretionary ability to propose a conciliation or a mediation is merely an echo of the judge’s general functions, provided in Article 21 of the same Code.
Finally, the lack of any effective sanction raises the issue of the consequences of a refusal by any party to attempt to achieve an amicable resolution of the dispute. Although it is true that such refusal is likely to be frowned upon by the judge, this could however avoid the parties spending several months making vain attempts to achieve an amicable resolution.
One step closer to a generalized prior duty of conciliation?
France is far from being the first country to have taken steps to promote amicable dispute resolution prior to referring a matter to a court. In comparison, English law provides for rules that strongly encourage amicable resolution: approximately 98% of lawsuits result in a settlement in the course of proceedings. Under Italian law, mandatory mediation was reintroduced by a decree in 2013 in relation to certain limitative subject matters.
In this context, it is quite possible to imagine, in line with the examples of our neighbors, a gradual reinforcement of this obligation through the implementation of real – or even automatic – sanctions that could render truly mandatory the search for an amicable resolution of disputes prior to filing a lawsuit.
Marie Danis, partner
Benjamin van Gaver, partner