Actance Tribune

Mediation […] refers to any structured process, whatever its name, by which two or more parties attempt to reach an agreement for the amicable resolution of their disputes, with the help of a third party, the mediator, chosen by them or appointed, with their agreement, by the judge hearing the case (article 21 of law no. 95-125 of February 8, 1995, amended by order no. 2011-1540 of November 16, 2011).

Strongly encouraged by the development of what is known in France as MARD (Modes Alternatifs de Règlement des Litiges – Alternative Dispute Resolution Methods), it seemed appropriate to present this method, which is increasingly used and praised by judges and certain organizations to put an end to disputes.

A common distinction is made between :

• Transactions
• Collaborative law
• Participatory procedure
• arbitration
• Conciliation
• and, naturally, the mediation.

It is this last approach that is the subject of the present article in order to present its particularities.

I- The two existing types of mediation :

• Conventional mediation

Conventional mediation was first recognized in the field of labor law.

In contrast to judicial mediation, it is initiated by the parties but outside the context of a dispute. As mentioned above, disputes arising from employment contracts were originally excluded from conventional mediation, and it was article 21 of the law of February 8, 1995, amended by the law of May 20, 2016 and the decree of May 6, 2017, which authorized it.

The parties may also agree in the employment contract on a provision providing for a mediation clause prior to any litigation; however, such a clause cannot be imposed on employees, who remain free to take their case to the Labour Court.

The Supreme Court recently reiterated this point in an opinion dated June 14, 2022 (no. 22-70.004).

• Judicial mediation

Judicial mediation intervenes in the ongoing legal proceedings as a parenthesis that closes if no agreement is reached. It is to be understood as a pause to try to resolve the conflict in a way other than by a judge’s decision, which may not be satisfactory to the parties.  It can be initiated by one party, who will propose it to the other, or by the judge.

In any case, mediation requires the agreement of all parties; it cannot be imposed.

Article 127 of the Code of Civil Procedure was amended by Decree no. 2020-1452 of November 27, 2020, and provides: “Except in the cases provided for in Article 750-1, the judge may propose conciliation or mediation to parties who fail to demonstrate that they have taken steps to resolve the dispute amicably”. 

II- Why mediation?

Mediation enables direct dialogue between the parties, who are the main players in the process, in the presence of their counsel.

Its aim is to bring the parties back together to find a compromise solution that suits each of them.

It allows the parties to consider innovative options and solutions for redress: money is not always the main remedy expected.

Mediation provides companies with a short, simple and effective way of resolving dysfunction or conflict. It helps restore trust between the company and the employee, or between employees, and leads to the co-construction of a joint project or to a solution to the dispute.

Mediation can be used in all types of employment law situations:

• conflict between two employees
• conflict between an employee and his or her manager;
• conflicts within a department;
• after an investigation concluding the absence of moral or sexual harassment, to enable professional relations between the protagonists to continue;
• when an employee is on sick leave and complains about working conditions;
• when disputing the termination of an employment contract;
• during collective disputes;
• to avoid and/or terminate litigation.

III- Mediation and collective disputes

Little known to practitioners, who are more accustomed to using mediation to resolve individual labor law disputes, this alternative means of resolving difficulties nevertheless has its place in this system.

It may therefore be preferable in the event of :

– requests for expert appraisals, which are usually contested by the employer through the courts;

– requests for suspension of projects made by works councils that consider themselves insufficiently informed by management, which considers that the bodies are multiplying obstacles and difficulties, and are a hindrance to the company’s projects;

–  trade unions and employee representative bodies, who consider themselves to be victims of pressure resulting in the commission of the offence of obstruction;

– disputes over the interpretation of collective agreements, which call into question the balance of the negotiations that preceded them. These disputes are often accompanied by additional demands from the trade union initiating the dispute;

– blocking situations in the drafting of the CSE’s internal regulations.

In these collective disputes, the mediator’s real aim is to invite the parties to renew a dialogue that has generally broken down.

These are often serious conflicts or deadlocked situations that hamper labor relations between employee representative bodies and company management, with the parties sometimes adopting historically oppositional positions.

With this in mind, the parties attempt, under the mediator’s guidance, to re-establish dialogue and restore trust as much as possible.

The mediator’s role in calming conflict is a major one; it also enables the parties to envisage the “post-dispute” phase in a more constructive way: the solution has been jointly constructed, with a renewed balance that guarantees the quality of future social dialogue.

In conclusion

It’s in your best interest to start by negotiating before any break-up or point of no return when relations become strained, without waiting for conflict to set in.

Our teams are fully trained in these methods, and are on hand to help you find the best possible compromise.