How to resolve disputes with your own lawyer and without trial?

mai 23, 2018

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Born in 2010, the French procedure named « procédure participative » (participatory procedure) is inspired by collaborative Anglo-Saxon law. This procedure, considered as a new form for amicable settlement of disputes, is an agreement by which the parties to a dispute, not yet before a judge or an arbitrator, commit to work together and in good faith to resolve their dispute amicably.  This agreement is entered into for a specified period of time. All natural or legal persons may conclude such an agreement.

Requirements

All the regulation for the participatory procedure can be found in the French Civil Code (articles 2062 to 2068) and the Code of Civil Procedure (articles 1542 to 1559).

The agreement of participatory procedure is, under penalty of nullity, included in a writing that specifies its term, the object of the dispute, the documents and information necessary for the resolution of the dispute and the modalities of their exchange.

Any person, assisted by his legal counsel, may conclude an agreement of participatory procedure concerning rights that he may freely dispose. The assistance of a legal counsel is necessary and the company’s managing director will choose a person qualified in collaborative law, with negotiation skills.

The participatory procedure can be used to resolve international disputes. However, no agreement may be concluded whose effect is to resolve disputes arising from any labour contract governed by the French Labour Code between employers or their representatives and their salaried employees.

Outcome of the “procedure participative”

Participatory procedure may be terminated in the following ways:

  • The parties who, upon arrival of the term of the agreement of participatory procedure, reach an agreement that settles all or part of their dispute, must submit that agreement to the judge for formal confirmation. The lawyers must countersign the agreement. In case of a partial agreement, the parties may apply to the judge to solve the litigations that remain existing;
  • When, upon arrival of term of the agreement of participatory procedure, the parties have failed to reach an agreement on their dispute, they submit their dispute to the judge, and they are freed from the obligation to enter a mediation or a conciliation, if that had been provided for. The hearing will take place immediately, without any pre-trial phase.

Benefits for each party

Even though it’s used sparingly, participatory procedure offers numerous benefits.

First of all, confidentiality. As long as it is in effect, an agreement of participatory procedure makes inadmissible any demand to a judge to rule on the dispute. However, if one party to the agreement does not execute it, the other party is then authorized to call on the judge to rule in the dispute. There is a suspension of any legal prescription and the parties are committed to an absolute confidentiality on all matters entrusted or communicated to them during the procedure.

Second, cost of the procedure. The cost for each party is only that of his legal counsel fees. In this way, no need to pay a third party as in mediation or arbitration procedure. A considerable time saving is also a way to avoid financial troubles.

Thirdly, the participatory procedure avoids the risk of a long trial and the uncertainty of the final result unlike judicial proceedings. Also for more complex queries, an answer may be requested from an expert in the relevant policy area. In fact, the parties remain in control of the procedure and free to give their agreement for each solution.

Finally, it’s important to note that the parties do not lose time. Actually, if no agreement is reached and the dispute has to be judged, the judgment will be rendered without any pre-trial phase (phase supervised by a judge who controls the loyal conduct of the procedure, namely as to the timely exchange of pleadings and transmission of documents; the average time for completion of this stage is around one year).

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