Directive no. 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (the "Directive") has been transposed in French law by Order no. 2011-1540 of 16 November 2011 (the "Order"). This Order has also been completed by Decree no. 2012-66 of 20 January 2012 (the "Decree").
The purpose of the Directive is to facilitate and promote the use of mediation, while enabling a satisfactory coordination between this alternative method of settling disputes (more commonly referred to as Alternative Dispute Resolution "ADR") and judicial proceedings. It relates to cross-border disputes in civil and commercial matters, in fields where the rights of the parties are at their disposal pursuant to the "relevant applicable law" (Article 1, paragraph 2, of the Directive). This Directive mainly provided a definition of mediation common to the European Union and a legal scope ensuring compliance with the parties' right to a fair trial through the intervention of an impartial, competent and diligent third party, as well as the possibility to make the mediation agreement enforceable. In the event of the failure of the mediation, the Directive ensures access to courts in strict compliance with the confidentiality of the mediation.
As made possible by the Directive in its Recital 8, the French Government chose to extend, except in matters relating to employment law and administrative public law (insofar as it does not concern any exclusive powers of the State), the transposition of the Directive to purely internal disputes.
While this reform effectively enabled to establish common rules to all types of mediation and other ADR, a more thorough analysis shows that its concrete outcome is still limited.
The definition of common rules
The transposition of the Directive first of all enabled to establish a general legal scope for the various types of ADR, such as mediation resulting from the parties' intention ("contractual mediation"), court-ordered mediation and conciliation resulting from the parties' intention ("contractual conciliation"), i.e. the conciliation that is not led or delegated by the Judge in charge of settling the dispute. Thus, Article 1528 of the French Code of Civil Procedure now provides that "the parties to a dispute can, at their initiative and in the conditions provided for in this Book, attempt to amicably settle such dispute with the assistance of a mediator, judicial conciliator or, in the scope of a participatory procedure, of their Counsel".
Pursuant to Article 21 of Law no. 95-125 of 8 February 1995 on the organisation of courts and of civil, criminal and administrative proceedings (the "Law of 8 February 1995"), as amended by the Order, mediation must be understood as "any structured process, regardless of the name given to it, whereby two or several parties attempt to reach an agreement in view of the amicable settlement of their disputes, with the support of a third party, the mediator, chosen by them or appointed, with their consent, by the Judge hearing the matter". The Order thus acknowledges for the first time the contractual mediation led by a third party without any court intervention.
The provisions of the Directive on the essential principles governing mediation, i.e. impartiality, competence and diligence of the mediator are also introduced in French law (Article 21-2 of the Law of 8 February 1995). These requirements, which were already included in the National Code of Ethics of Mediators, are thus now established in a law. The principle of confidentiality of the mediation, which was previously only established for court-ordered mediations (Article 131-14 of the French Code of Civil Procedure), is now laid down in general terms and thus applicable to all kinds of mediations.
The Decree also created in the French Code of Civil Procedure a Book V entitled "amicable dispute resolution", which includes provisions relating to, notably, contractual mediation and conciliation. With respect to contractual mediation, the Decree specifies the qualities that are required from a mediator1.
Lastly, the Order and the Decree have made a great step forward by creating a homologation procedure common to all agreements resulting from the various ADR. In particular, they introduce the possibility to make the agreement resulting from extrajudicial mediation enforceable. Thus, Articles 1565 to 1568 of the French Code of Civil Procedure determine the court with jurisdiction and the procedure to obtain the homologation, as well as the possibility to appeal the decision in the event of a refusal. However, res judicata has not been conferred on this homologated agreement, as only a settlement agreement can currently be conferred such effect.
The concrete outcome of this reform, however, seems limited, due, first of all to the wording of the Directive, which has only laid down very general principles. The changes implemented by the Order and the Decree also represent only limited progress compared to pre-existent French law. The latter already included rules meeting the requirements of the Directive, notably in matters relating to court-ordered mediation, where a duty of confidentiality was imposed on the mediator and the parties pursuant to former Article 24 of the Law of 8 February 1995.
Moreover, neither the Directive, nor the Order, nor the Decree mention independence among the qualities required from the mediator, even though the Report of the Conseil d'Etat (French Administrative Supreme Court) insisted on the importance of this notion2. Pursuant to the wording of the Report to the French President3, "the notion of impartiality is self-sufficient" and the introduction of the notion of independence in the transposition texts "could have rigidified the exercise" of mediation. Yet, the notion of independence goes far beyond the notion of impartiality insofar as it notably implies the absence of any relationship with the parties. It is in fact imposed by the National Code of Ethics of Mediators, as well as by Article 131-5 of the French Code of Civil Procedure with respect to the mediator in court-ordered mediations.
Moreover, the Directive as well as its transposition texts do not enable the homologation of the mediation agreement without the consent of the two parties to the agreement (Article 6, paragraph 1 of the Directive, Articles 1534 and 1541 of the French Code of Civil Procedure). The cancellation of this condition to obtain homologation could nevertheless have enabled the enforcement of mediation agreements in the event of a lack of spontaneous enforcement.
Lastly, the Directive had provided two exceptions to the principle of confidentiality of mediation, considering that the persons having taken part in the mediation can be required to disclose information or evidence resulting from the mediation, on the one hand, "when this is necessary for overriding considerations of public policy […], in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person" (Article 7, a), underline added), and, on the other hand, "where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement" (Article 7, b)). To transpose the first exception, the Order lays down, in Article 21-3 of the Law of 8 February 1995, an exception to the principle of confidentiality "in the presence of overriding considerations of public policy or reasons relating to the protection of the best interests of children or the physical or psychological integrity of a person" (underlines added). The possible breach of the principle of confidentiality of mediation shall thus depend on the extent granted to these exceptions.
The effects of these texts in our legal system thus seem extremely limited. One will have to carefully monitor the evolution of case law that will arise from the general principles thus laid down to more specifically understand the regime applicable to mediation in civil and commercial matters.