Authorities, different institutions and other economic actors have a growing interest toward mediation in order to solve commercial issues.
Some significant mediation centers have been created in France in particular the CMAP (Mediation and Arbitration Center of Paris) as well in the international sphere with the ICC. As a consequence, the biggest French companies, members of the CAC 40, have signed up the CMAP’s mediation charter which epitomizes the importance of that practice.
Mediation is governed by strict conditions either on the mediation processes which shall be strictly and totally confidential as on appointed mediator’s qualities. It has to be a neutral third party, independent and trained to mediation. He has to be able to facilitate, focus and adjust the exchange between the parties in order to arise a solution by mutual consent.
Mediation could either be judicial, ordered by a judge on the grounds of the articles 131-1 to 131-15 of the French “Code de procédure civile”. This procedure cannot exceed three months, renewable once. It could also result from a clause set out by the parties in the agreement. A conventional mediation can also be established after the litigation raised on the ground of a convention which stipulates this particular way of solving the litigation. Failing, a party can also ask to the other to have recourse to mediation in particular via the CMAP. In that case, mediation cannot exceed two months, exceptionally six months.
In commercial matters, mediators can be either a natural person (if they benefit from a specialized training, have the required qualities, and a professional experience) or social entities.
In general, the mediation shall take place in a neutral place. It takes place in one or several meetings between the mediator and the parties. Parties can be assisted by their lawyers who may negotiate on their behalf. In that regard, mediator shall be the guarantor of the mediation process integrity and dignity between lawyers and the parties.
During these meetings, the mediator leads the discussion between the parties in order to reword the issues and to choose the suitable solution. This discussion is possible in regard to the mediator expertise and in regard to the fact that he knows how to proceed with the parties, in order to make their respective claims acceptable toward the other party.
The mediator shall not give any advice or judgment.
Once the parties have determined the solution, the mediator invites them to write a mediation agreement which can be either a compromise, settlement agreement or a transaction depending on the parties’ will.