The EU Mediation Directive was implemented in France by Ordonnance No 2011-1540 of 16 November 2011, passed pursuant to Law No 2011- 525 of 17 May 2011 (“Ordonnance”). The implementing legislation has gone beyond the scope of the EU Directive in the sense that it has created a general regime for mediation in France, subject to specific rules applicable to mediation of certain types of dispute, which applies in relation to the mediation of both cross-border and domestic civil and commercial disputes. Recent legislation has completed this regime and confirmed the generally favourable approach of French law to mediation (see Law No. 2021-1729 of 22 December 2021) and Decree No. 2022-245 of 25 February 2022). A good illustration of this favourable trend is the recent creation of a “national mediation council” reporting to the French Ministry of Justice, in charge inter alia of issuing advice on mediation and proposing measures to improve the mediation procedure.

The definition of mediation contained in the Ordonnance, is very close to that of the Directive. Accordingly, mediation is defined as any structured process, regardless of its name, whereby two or more parties attempt to reach an agreement to settle their dispute amicably, with the assistance of a third party, the mediator, chosen by them or appointed, with their agreement, by a judge seized of the dispute (Article 1 of the Ordonnance, enacted as Article 21 of the Law of 8 February 1995 as amended (“1995 Law”).

The Ordonnance has been supplemented by Decree No 2012- 66 dated 20 January 2012 which sets out additional features of the regime (the “Decree”). Certain provisions of this legislation have been incorporated in the French Civil Procedure Code (“CPC”).

Two types of mediation may be relevant for commercial disputes: court-ordered mediation (médiation judiciaire) and mediation on the basis of a contract, either in the form of a dispute resolution clause providing for mediation or a subsequent agreement (“contractual mediation”).

A section of the French CPC is dedicated to court-ordered mediation in civil and commercial matters (Articles 131-1 to 131-15 of the CPC). In accordance with Articles 131-1 and 131-2 of the CPC, a judge seized of a dispute (including in the context of summary proceedings) may, after obtaining the consent of the parties, appoint a mediator and refer the parties to mediation of their dispute in whole or in part. Mediation may be ordered by any of the three court levels, i.e. first instance courts, courts of appeal and (more recently) the French Court of cassation. Although party consent is required, the term “court-ordered mediation” is used in such a case. If the parties do not agree, the court may order the parties, pursuant to Article 127-1 CPC, to meet with a mediator in charge of informing them of the purpose and organisation of a mediation measure. Such decision is qualified as a measure of judicial administration and, as such, is not subject to appeal.

A further section of the CPC, which addresses various methods for achieving the amicable resolution of disputes, contains a specific chapter on contractual mediation (Articles 1530 to 1535 CPC; see also Articles 1565 to 1567 CPC). Contractual mediation can either be (i) purely contractual – i.e. the parties appoint a third party to help them reach an agreement and agree on a set of rules applicable to the mediation procedure – or (ii) institutional – i.e. mediation is organised by a specialised body such as the CMAP (the Centre for mediation and arbitration in Paris) or the ICC (International Chamber of Commerce), which have their own set of rules.

Law No 2019-222 of 23 March 2019 , supplemented by Decree No 2021-95 of 29 January 2021, also introduced new provisions to regulate online mediation services providers, requiring in particular that they comply with personal data protection rules and standards of impartiality and independence.

With regard to consumer disputes, in 2015 France implemented the EU Directive on alternative dispute resolution for consumer disputes, with the publication of Ordonnance No 2015-1033 of 20 August 2015 and Ordonnance No 2016-301 of 14 March 2016 (now Articles L.611-1 et seq. of the French Consumer Code). The implementing legislation provides all consumers with a right to mediation, free of charge, with respect to disputes between a consumer and a trader (professionnel). A website has also been created to facilitate the use of mediation (https://www.economie.gouv.fr/mediation-conso). Similarly, the European Commission has opened a platform for the online settlement of consumer disputes to which 117 national out-of-court dispute settlement bodies are connected across seventeen Member States (http://ec.europa.eu/consumers/odr). Submission of disputes to mediation remains voluntary and mediations under this regime are conducted by a consumer dispute mediator (médiateur de la consummation), who must meet certain statutory requirements. A clause making mediation mandatory for the consumer is forbidden (Article L.612-1 of the French consumer code). In addition, according to the Court of cassation’s case law, a mediation clause inserted in a consumer contract is presumed to be unfair unless the professional proves otherwise (Cass. civ. 1, 16 May 2018, No. 17-16.197 and Cass. civ. 3, 19 January 2022, No 21-11.095).

Conciliation is another form of amicable dispute resolution, which is very similar to mediation (Articles 128 to 131 and Articles 1536 to 1540 of the CPC). Conciliation can be either ordered by the court, during court proceedings, or purely contractual. The only significant difference to mediation relates to the identity of third party conducting the conciliation, known as the “judicial conciliator.” Judicial conciliators are sworn in and registered on a list established by the Court of Appeal, following a recruitment process (which includes a mandatory training course on conciliation). If the conciliation takes place during court proceedings, conciliation may be conducted by the judge itself (Article 129 of the CPC), although the judge more often appoints a judicial conciliator.

An alternative to mediation and conciliation may be found in the so-called “participative procedure” which is another form of negotiation process involving the parties’ counsels, but which does not involve any mediator or conciliator. Such procedure is very rarely used in practice.

Mediation is conducted by a neutral third party. The mediator can be a legal entity or an individual. If it is a legal entity, it must submit the name of the individual who will be its representative in the mediation to either (i) the judge in a court-ordered mediation, or (ii) the parties in a contractual mediation.

The Ordonnance provides that the mediator must fulfil his or her role in a manner that is impartial, competent, independent, and diligent (Article 1 of the Ordonnance, enacted as Article 21-2 of the 1995 Law). The requirement of diligence is intended to mean that the mediator has a best endeavours obligation (“obligation de moyens”) to bring the mediation to a successful conclusion. The procedure to be followed depends to a large extent on the parties’ agreement.

In the case of court-ordered mediation, if the parties agree to submit all or part of their dispute to mediation, the court will appoint the mediator or designate an association to nominate a mediator, in which case the judge must confirm the appointment. The appointment decision also provides for the provision to be paid by the parties (or one of them) directly to the mediator and the deadline for such payment. In the absence of payment within the specified time period, the appointment decision becomes null. The mediator will summon the parties as soon as he/she has received the provision. The parties may be represented by any person having the right to do so before the court that ordered the mediation (Article 131-6 CPC).

The court fixes a time period for the mediation when making the mediation order. Article 131-3 of the CPC provides for a maximum time period for the mediation of three months, from the date of payment of the advance on costs into the hands of the mediator. Such time period may be renewed once for the same duration, at the request of the mediator. No specific mediation procedure is provided for in the CPC rules on court-appointed mediation. The CPC specifies that the mediator does not have investigatory powers but may, with the parties’ consent, hear third parties who appear voluntarily (Article 131-8 CPC).

The court may terminate the mediation procedure at any time at the request of a party, the mediator or ex officio "when the proper conduct of the mediation appears to be compromised" or when it has become "pointless" (new Article 131-10 CPC). The final remuneration of the mediator is fixed at the end of his/her mission in agreement with the parties or, failing such agreement, by the court. The court will generally divide the costs to be paid in equal shares, unless it deems such allocation to be unfair in light of the parties’ respective economic situations.

With regard to contractual mediation, the procedure to be followed will be determined by the mediator with the consent of the parties. Although the rules of civil procedure do not apply, the requirement of neutrality on the part of the mediator is essential to the mediation process and this principle can affect the procedure adopted. If the parties have referred to a set of mediation rules, such as those of the Paris Centre for Mediation and Arbitration (“CMAP”), those rules may impose certain requirements, which may be incorporated into the parties’ agreement to mediate by reference (unless they provide otherwise).

In mediations, the principle of adversarial debates, applicable in court proceedings and arbitration, does not have to be respected (i.e. a party may have an ex parte meeting or “caucus” with the mediator).

There is no general obligation to mediate in commercial matters. Nevertheless, there appears to be increasing awareness amongst judges, lawyers and companies in France of the benefits of mediation. In recent years, courts have proposed mediation to parties with growing frequency and recent legislations tend to promote it. If the parties have agreed to a contractual provision providing for a compulsory attempt to mediate prior to referral of a dispute to a competent court, the parties must comply with it. Failure to comply with a contractual clause referring disputes to mediation will result in the inadmissibility of the claim before a court.

Legislation introduced in 2015 (Decree No 2015-282 of 11 March 2015) has made it mandatory for a claimant to indicate in a writ of summons (assignation) the efforts that have been made to settle the relevant dispute, save where there are legitimate reasons for not doing so, such as urgency, the nature of the dispute and, in particular, where matters of public policy are involved (Articles 56 and 58 CPC). Where this requirement is not complied with, the court may propose conciliation or meditation (Article 127 CPC).

Moreover, parties have, in principle, an obligation to try to find an amicable settlement before bringing an action before the judicial courts, when (i) the amount in dispute does not exceed 5.000 euros, or when (ii) the dispute at stake relates to a neighbourhood conflict such as demarcation actions (as set out in Articles 211-3-4 and 211-3-8 of the Code of Judicial Organization) or to abnormal neighbourhood disturbances (Article 750-1 CPC).

This may be an attempt at conciliation, an attempt at mediation or a participatory procedure. Please note that the conciliation attempt may also be delegated to a judicial conciliator or conducted by the court itself. If such a procedure is not attempted before these disputes go to court, the latter may raise the inadmissibility of the claim ex officio.

It must be noted that a mandatory recourse to mediation does not prevent a party from applying, in summary proceedings, for an interim measure to prevent imminent damage or to put an end to a manifestly unlawful disturbance (Cass. civ. 1, 24 November 2021, No. 20-15.789).

Awards of costs in court proceedings are discretionary in France. Decisions on costs generally follow the event, but awards of costs tend to be much lower in France than in countries such as England. A party’s conduct with regard to acceptance or not of a settlement offer is not referred to in the CPC as a factor to be taken into consideration by a court in making an award of costs. Similarly, French civil procedure rules do not, at present, provide that a failure to mediate is to be taken into consideration by a court in making an award of costs or that such a failure will necessarily have adverse consequences with regard to costs.

Confidentiality is considered to be one of the most important features of mediation in France. Accordingly, the Ordonnance has included a general principle of confidentiality, which is subject to the same exceptions provided for in the EU Mediation Directive. The Ordonnance preserves the confidentiality of any observations made by the mediator and statements made during the course of the mediation and provides that they may not be disclosed to third parties, nor invoked or produced in the context of court or arbitration proceedings, without the agreement of the parties (Article 1 of the Ordonnance, enacted as article 21-3 of the 1995 Law). There are express exceptions which mirror those of the Mediation Directive. In addition, the Ordonnance provides that, where the mediator has been appointed by a judge, the mediator shall inform the judge or court as to whether or not the parties have reached an agreement.

Article 131-14 CPC states, in relation to court-ordered mediation, that “The mediator’s findings and the statements the mediator receives may not be produced or referred to subsequently in the proceedings without the parties’ agreement, nor under any circumstances in connection with other proceedings”. This principle pre-dated the Ordonnance but is not inconsistent with it. Applying this provision, the courts have protected confidentiality through interlocutory orders.

An agreement embodying an amicable settlement of the parties is a contract, which is enforceable as such. However, a settlement agreement concluded during mediation may also be enforced through a court recognition process (referred to as “homologation”). In line with the Directive, the Ordonnance provides that, once a settlement agreement resulting from mediation has been recognised by the court, it may be enforced through execution measures as if it were a judgment (thereby given “force executoire”) (Article 1 of the Ordonnance, enacted as Article 21-5 of the 1995 Law).

With regard to court-ordered mediation, “homologation” is specifically provided for in Article 131-12 CPC (as amended by Decree No. 2015- 514 of 26 April 2016), which states that settlement agreements reached during the mediation process may, at the request of the parties, or the most diligent party, be recognised by the court that ordered the mediation through a non-contentious procedure (“procedure gracieuse”). The court decides the application without submissions from the parties unless it considers that it is necessary to hear them.

With regard to contractual mediation, Article 1534 of the CPC provides that the parties to the mediation (or one party with the consent of the others) may apply to the court for the recognition (homologation) of their mediation settlement.

The judge having jurisdiction to recognise the agreement is the judge who would have jurisdiction to hear the related dispute, should it proceed to trial. The judge will make his or her decision without a hearing unless he or she thinks one is specifically needed. The terms of the agreement may not be modified by the judge.

Before rendering a decision that will make the agreement enforceable, the court will verify that its contents are not inconsistent with French principles of public policy.

If the request for recognition is granted, anyone having an interest in the mediation can challenge this decision before the judge who granted recognition. If the request is not granted, the decision may be appealed through a non-adversarial procedure.

Beside the ordinary recognition procedure (described above), the Decree No. 2022-245 introduced another way of making a settlement agreement enforceable. Transactions and acts recording an agreement resulting from a mediation, a conciliation or a participative procedure are now enforceable provided that (i) they are countersigned by each party’s counsel and (ii) they contain the “enforcement clause” (“formule exécutoire”) (Article L.111-3 of the Code of civil enforcement procedures). Such “enforcement clause” is applied to the settlement agreement by the registry of the competent court (Article 1568 CPC). Anyone having an interest in the dispute may request the deletion of the “enforcement clause” before the court whose registry applied the said clause (Article 1570 CPC).

If the agreement resulting from a mediation has been recognised by a court or an authority in another member state, the agreement will be enforceable in France pursuant to the procedure of recognition of EU court decisions.

There is no mandatory statutory accreditation system or regulatory body for mediators in commercial cases, although this has been the subject of discussions given that such a system exists in France for mediators involved in family law cases and now exists for mediation of consumer disputes.

However, Law No 2019-222 of 23 March 2019 (supplemented by Decree No 2019-1089 of 27 October 2019, Decree No 2020-1682 of 23 December 2020 and Decree No 2021-95 of 29 January 2021) introduced an optional certification system for online mediation services providers. An online mediation services provider may (but does not have to) apply for a certification to an accredited certifying body. If, following a complete audit, the accredited certifying body is satisfied that the applicant complies with certain requirements, relating to personal data protection, impartiality, independence, competence and diligence, the required certification is awarded, for a period of 3 years, renewable. Such certification may only be awarded by an entity accredited by the French committee of accreditation (COFRAC).

Such certification is automatically awarded, if requested, to (i) judicial conciliators; (ii) mediators registered on a list before a Court of Appeal (see below) and (iii) consumer dispute mediators.

1-5 CPC sets out some minimum requirements for court[1]appointed mediators:

(i) the mediator must not have been the subject of a criminal sentence, incapacity or forfeiture;

(ii) the mediator must not have engaged in acts that are contrary to principles of honour, probity or good morals, giving rise to disciplinary or administrative sanctions or dismissal, removal, revocation, or withdrawal of an accreditation or authorisation;

(iii) the mediator must have, by virtue of his or her actual or past occupation, qualifications with respect to the subject matter of the dispute;

(iv) the mediator must have appropriate training or experience for the practice of mediation; and

(v) the mediator must demonstrate the capacity to be independent.

As regards contractual mediation, Article 1533 CPC sets out quite similar requirements (applicable to the mediator if he or she is an individual or, where the mediator is a legal entity, its representative):

• the mediator must not have been the subject of a criminal sentence, incapacity or forfeiture;
• the mediator must have, by virtue of his or her actual or past occupation, qualifications with respect to the subject matter of the dispute or have appropriate training or experience for the practice of mediation.

Since Law No 2016-1547 of 18 November 2016 (supplemented by Decree No 2017-1457 of 9 October 2017), a list of mediators is established by each Court of Appeal, “for the judges’ information”. A mediator may be registered on this list if he/she complies with the conditions (i), (ii) and (iv) enumerated above. A special category for online mediation services was created in 2021 (Decree No 2021-95 of 29 December 2021).

Similarly, after having been sworn in before the Court of Appeal, judicial conciliators are registered on a list established by each Court of Appeal (pursuant to Decree No 2018-931 of 29 October 2018).

Mediators and conciliators providing online services must demonstrate that they comply with data protection and confidentiality obligations. This is also a requirement for mediators to be registered on the lists established by the Courts of Appeal.

In addition, several private institutions provide mediation training and set qualification requirements for mediators (CMAP is an example of such an institution), but there is no general regulatory body.

Finally, in the case of consumer mediation, a Commission to evaluate and monitor the mediation of consumer disputes has been created (Commission d’évaluation et de contrôle de la médiation de la consummation, provided for in Ordonnance No. 2015-1033 of 20 August 2015, now Article L. 615-1 of the Consumer Code). The mandate of this Commission includes the establishment and updating of a list of mediators that meet certain statutory requirements (contained in Article L. 613-1 to L. 613-3 of the Consumer Code), the notification of the names of mediators on the list to the European Commission, as well as to evaluate the activities of consumer dispute mediators and ensure that these activities are conducted properly.