Lawyer at the Paris Bar specialized in business litigation and mediator accredited by the Paris Mediation and Arbitration Center (CMAP), David Lutran explains why it is interesting to resort to mediation in case of a commercial dispute.
Justice is today very much criticized, in particular for its lack of means and the length of procedures (often several years…). How do you integrate this into your practice as a lawyer?
As a lawyer for more than 15 years, I have witnessed the decline of the public service of justice and the growing distrust of my clients (companies of all sizes, both French and foreign) towards it. Where the judicial reflex was once a matter of course, clients are now looking for quick, operational and low-cost solutions to resolve their conflicts.
This is the meaning of the amicable approach that I have fully integrated into my practice in recent years, first as a lawyer and then as a mediator.
So, advising your clients to initiate proceedings is not necessarily automatic?
Indeed. The well-known problems that undermine the judicial institution in a context of increasing complexity of cases and normative inflation make it necessary to question the relevance of referring a case to a judge, which no longer seems to me to be self-evident. Moreover, and this is an essential point, the conflicts as they are submitted to the judge – whose duty is to apply the law to a given situation – do not allow for a global understanding of them, i.e. beyond the law alone by integrating other equally essential parameters – economic, reputational but also psychological.
In this respect, it is striking to note the extent to which the human dimension is present in conflicts, even for purely technical issues at first glance.
Amicable dispute resolution methods are indeed gaining momentum among economic players. How can this be explained?
This is due to the concern of companies to reach quick and efficient solutions, in order not to waste their financial and human resources in proceedings and to concentrate on their main business.
Moreover, it is known that legal proceedings (but also arbitration proceedings) aggravate the relations between the parties in conflict, whereas amicable methods allow to understand the real reasons of the problems in order to overcome them and eventually allow the continuation, on new foundations, of the commercial relations, which would have been impossible otherwise.
What are the amicable methods that companies can use?
Their range is very diverse: mediation, conciliation, collaborative process, participatory procedure, to mention only the most widely known. If they differ in their articulation (intervention of third parties as in mediation or conciliation for example), they have as a common denominator to be instruments at the service of the parties – preferably assisted by their lawyers.
The amicable methods allow for the initiation of a fruitful and in-depth dialogue on the structuring aspects of a case, in order to reach a solution (75% of the cases in mediation) which can be formalized by a contract or a memorandum of understanding, which can be given the force of a judgment.
In which cases is an amicable settlement preferable to court proceedings?
We should not oppose amicable and judicial settlements of disputes, which are complementary while not meeting the same objectives. In simple terms, recourse to a judge is necessary if a binding decision is required, which will most often take the form of a sentence. The amicable settlement, on the other hand, is a solution designed by the parties and tailored to their needs, with the possibility of legal action naturally encouraging the parties to reach an agreement.
It is a choice made with the client after an analysis of the various aspects structuring the case (breach of commercial relations, contractual liability, debt collection, conflict of partners, etc.): (i) judicial aspects: cost and length of the procedure, uncertainty as to the meaning of the expected decision with regard to the law and case law, complexity of the case; (ii) extra-judicial aspects: type of desirable solution, intersecting interests of the parties, confidentiality imperatives… the list is long and each case has its peculiarities.
This is how I proceed with each new case, identifying with my client its specific expectations after an in-depth discussion to understand the case in its entirety. We determine together the most judicious path according to the objectives to be reached, it being specified that nothing prevents us from opting for an amicable approach after having brought an action before the courts in order to create a favorable balance of power in the discussions.
Nowadays, mediation is undergoing significant development, with parties resorting to it more and more as a result of the combined efforts of the legislator and the actors in the judicial sphere (magistrates, lawyers, etc.). What exactly does it involve?
Mediation is a confidential process that takes place either outside of a judicial process (conventional mediation) or within the framework of a judicial process (judicial mediation) and aims to resolve a dispute with the help of a neutral, independent and impartial third party called a mediator. The role of the mediator consists in encouraging the establishment and the continuation of a dialogue between the parties in conflict by means of adapted communication techniques (reformulation, active listening…) to help them find a solution together.
As a lawyer, I have been working as a mediator for several years in commercial, partnership and real estate cases of various origins (conventional or judicial mediation). The experience I have acquired allows me to approach my cases in an extensive manner, with the primary concern of reaching a rapid solution adapted to the needs of my clients.
Has the role of lawyers changed in mediation?
A lawyer must defend the interests of his client, regardless of the setting. In a mediation, the lawyer does not plead his case but accompanies and advises its clients to identify its interests and those of the opposing party, in order to reach a mutually satisfactory solution in view of the balance of power and stakes involved. Going to mediation is not synonymous with weakness but with a desire to find a way out of the conflict by showing pragmatism and creativity, with the parties keeping control not only of the process – which they can interrupt at any time – but also of the solution.
So mediation is a tool to be favored for its effectiveness?
Absolutely. And especially in the current context of crisis, which has deeply disrupted relations between economic actors worried about their future and concerned about preserving their activity and the quality of their relations with their partners, concerns that I have seen repeatedly in recent months. This is the approach that I favour as a lawyer with my clients when the case lends itself to it, by giving them the benefit of my experience as a mediator to enable them to achieve their objectives.