Legal disputes: a long, costly and uncertain process
French justice has been under fire for a long time: clogged courts, lack of means, procedures lasting several years, judicial uncertainty, difficulties in enforcing decisions. All these problems are well known and are at the origin of an important mistrust towards the justice system. The health and economic crisis that France has been going through for over a year has increased these difficulties.
The same is true in other countries, while the complexity of international litigation is accentuated by the questions that classically arise in this area – jurisdictional competence, applicable law, enforcement of decisions abroad – with the consequence of prolonging and increasing the cost of proceedings.
Requiring a substantial financial and human investment, the choice of settling the dispute by judicial means (state courts or arbitration tribunals) will not necessarily be able to meet the expectations of the party who will have taken the initiative to engage in it: in addition to the problems described above, the decision obtained will often be incapable in itself of satisfying him. Rendered solely from a legal standpoint, it does not constitute a solution to the problem in question considered in its entirety. Rendered too late, it will be complicated to execute in an increasingly liquid economic environment. As a result of a bitter struggle between the parties, it will contribute to the definitive deterioration of their relationship whereas the problem could have been solved in depth and upstream.
If civil and commercial justice must fulfill its role – by its function of both dissuading and regulating relations between economic actors – and if the law is essential to life in society, the judicial settlement of the conflict is no longer self-evident.
The lawsuit must remain the last resort when the parties have not managed to reach an agreement beforehand. Resolving a conflict usefully and efficiently requires nuance, clarity, and an understanding of the other party’s position, in order to quickly reach a satisfactory and solid solution because it is effective.
Mediation: an agile and simple method of conflict resolution
Widely spread in the world, mediation is beginning to find its place in the landscape of dispute resolution methods in France, thanks to the combined action of various actors: favorable governmental policy, involvement of magistrates and lawyers, awareness-raising actions of the associative environment.
Mediation is a confidential process that takes place outside of a trial (judicial or arbitral) or on the bangs of one, aiming at the resolution of a dispute between parties, with the help of a neutral, independent and impartial third party called a mediator.
Mediation lasts much shorter (from a few days to a few months) than a trial and is moderately expensive, while allowing the parties to make substantial savings, not only in financial terms but also in terms of human resources, disorganization of the teams mobilized by the litigation, reputation, etc. The confidentiality that is attached to it prevents the parties from misusing the information obtained in this context (preservation of business secrets, industrial and technical know-how, etc.)
Today, mediation covers almost the entire legal spectrum: commercial and economic law, labor and family law, public law, etc.
A flexible process that can be freely tailored by the parties to the conflict, mediation is either conventional – when the parties spontaneously appoint a mediator or mediation is provided for in a contract – or judicial when it is initiated by a judge when the case is already before the courts.
The balance without the sword: added value of mediation
The essence of mediation is to find the point of balance between the respective interests of the parties by relativizing the notions of victory and defeat specific to traditional litigation. The parties retain control of the process (choice of mediator, organization, elaboration of the solution) and do not disengage themselves from their conflict.
The Fiutak wheel, named after a famous mediator, schematizes the course of a mediation.
First, the mediator helps the parties in conflict to establish a quality dialogue in order to understand the origin of the conflict, to accept the position of the other party and to widen the field of possibilities by encompassing aspects of the relationship of the parties that were not part of the dispute in its initial formulation.
This dialogue will make it possible to establish a framework favorable to a common reflection of the parties, who, by trial and error and with the help of their lawyers (if they have any), will be able to compose a palette of solutions to finally agree on a mutually satisfactory solution in adequacy with the parameters of the conflict (legal, economic and other power relationships, various concerns… each case having its singularity). Flexible and agile, mediation thus solicits the creativity of the parties to resolve their dispute.
Stages of mediation (from Thomas Fiutak’s wheel)
The agreement will most often be formalized in the form of a contract (settlement protocol), which may be given the same enforceability as a judgment (through a simplified procedure of homologation before the judge). The agreement having been wanted and thought out by the parties, they will execute it spontaneously; difficulties in execution are therefore rare, while mediation records high success rates (2 out of 3 cases on average).
Effective and not random, mediation thus brings a real added value by making it possible to solve the conflict in all its dimensions: legal, economic, personal, reputational, etc. The relationship between the parties can thus be preserved and resized, or end appropriately if there is no future between them.