1. Mediation, as an alternative dispute resolution technique, is far from a recent phenomenon. In an article published almost twenty years ago,2 Professor Oppetit remarked that the technique, which had been applied to labour disputes since the 1950s, was spreading to commercial disputes. This growth in mediation led France's legislators, at the instigation of Pierre Bellet, premier président of the Court of Cassation, to include in the New Code of Civil Procedure provisions relating specifically to this method of amicable dispute resolution.3

2. Although there are underlying differences between contractual or private mediation and court-connected mediation, some of the problems they raise are common to both and it is often possible to draw comparisons.

The purpose of this short article is not to give an exhaustive description of the development of mediation in Europe and elsewhere in the world.4 It is rather to look at some of the most recent judgments-mostly rendered in connection with court-ordered mediation, but equally instructive for private mediation-which show that the decisions of French courts have shed interesting light on certain questions, including the interpretation of mediation clauses (a) and their effectiveness (b). Only rarely however have the courts had to rule on the mediation process itself, and in this respect a recent decision by the Paris Tribunal de Grande Instance5 is particularly interesting (c). Lastly, recent legislation encourages us to reflect on the problems that may arise after the mediation process, at the stage of implementing the agreement reached by the parties (d). [Page64:]

a. Interpretation of the mediation clause

3. In private mediation, the clauses referring to mediation or conciliation procedures are not always very clearly worded, and this often raises awkward problems of interpretation. More often than not, the difficulty is to know whether the parties are referring to ADR proceedings,6 or whether their wish is rather to refer disputes to arbitration.

To resolve such difficulties, a distinction needs to be drawn between those cases where the parties' intention is to set up a mechanism enabling them to seek an amicable settlement, and those cases where the parties are looking for a legally binding decision or award that can be enforced at law.7

In the first case, the parties are referring to conciliation, mediation or ADR proceedings of another kind, while in the second case they have entered into an arbitration agreement. Thus, mediation differs from arbitration in that the outcome of the proceedings is not binding on the parties.8 The distinction between mediation and conciliation is less clear-cut;9 however, as the practical implications are less important, we shall discuss it no further in the context of this article.

4. When faced with the problem of determining the exact nature of this type of clause, the courts look beyond any label given by the parties. The Versailles Court of Appeal held10 that: 'the legal definition of the clause does not depend on the terms used in the agreement, but on the role assigned to the neutral. Arbitration implies that the parties wished to give a neutral authority the power to make a binding decision.' This rule was very clearly confirmed in a recent decision by the Paris Court of Appeal:11 'The expression "arbitral submission agreement" is not in itself sufficient to characterize an arbitration. The status of the neutrals appointed by the parties is not determined by the terminology used by the parties, but by the role assigned to the neutrals.'

This for instance means that, in the words of the Paris Court of Appeal, 'a clause in an architect's contract providing that, in the event of a dispute concerning the performance of the contract, the matter shall be referred to the Council of the National Association of Architects, not for arbitration but merely for an opinion, prior to any court action, does not constitute an arbitration clause'.12

5. A close examination of the parties' intentions and an analysis of the powers they have granted the neutral are necessary in order to determine the exact nature of the clause.13[Page65:]

In most cases the main problem will not be to establish, as in the aforementioned case, whether the neutral's solution to the dispute will be binding on the parties, as this is usually clear.

6. On the other hand, it is not unusual for a clause that refers to 'mediation' proceedings to stipulate that the parties will be under an obligation to abide by the neutral's findings, while not fully meeting the criteria for definition as an arbitration clause. Whilst one may be certain these are not mediation proceedings, what they actually are is difficult to define, leaving a vacuum which French courts are hard put to fill.

A dispute between private individuals and a professional liability guarantee fund for French notaries provides an interesting illustration of this kind of problem. The parties had made a joint application to one of the presiding judges of the Paris Tribunal de Grande Instance for: 'mediation in accordance with article 21 of the New Code of Civil Procedure with a view to deciding between them and, if need be, fixing the amount of money owed (…) The applicants each undertake to accept the outcome of the judge's mediation (…) by treating it as a settlement by compromise (transaction) within the meaning of articles 2044 and following of the Civil Code.'

The parties had thus provided for court mediation, but in so doing had undertaken to abide by the decision of the judge acting in his capacity as 'mediator'. This decision was therefore intended to be binding upon them.

The Paris Court of Appeal held14 that 'a joint application in which the parties to a dispute confer a mediation role on a judge pursuant to article 21 of the New Code of Civil Procedure with a view to deciding between them and which the parties undertake to accept and treat as a settlement by compromise (transaction) within the meaning of articles 2044 and following of the Civil Code, is exclusive of any judicial power as the judge can only be vested with such authority by a joint expression of the parties' wishes clearly stated in accordance with articles 12 and 58 of the New Code of Civil Procedure'.15

The Court found that 'the ambiguities in the joint application-resulting from the combination of concepts that are far from compatible, such as mediation, conciliation and settlement by compromise, with powers granted to a judge to "decide between" the parties and, if need be, award damages-which could suggest that the judge is being given judicial powers-mean that the clause cannot be considered an arbitration agreement, which implies a clear and unequivocal intention on the part of the parties to resort to arbitration'.

After noting, therefore, that the parties had not expressed a joint wish to grant the judge powers to rule as an amiable compositeur, and that the judge, when acting as a 'mediator', had 'decided an issue in dispute', the Court inferred that he had gone beyond his powers and that the decision should be overruled. The Court of Cassation upheld this judgment on 16 June 1993.16

Thus, the courts have clearly decided that a mediator cannot be vested with the authority to settle a dispute between the parties. In this respect their decision is beyond reproach.

As for regarding the parties' agreement as a reference to arbitration, this was ruled out on the basis of the 'ambiguities in the joint application'. Here, the wisdom of the court's analysis is open to doubt. Given that, in compliance with the general rules on the interpretation of agreements, it was the court's duty to [Page66:] analyse the parties' wishes so as to determine what they truly were, it could not avoid doing so on the pretext that the deed was ambiguous. What exactly was the nature of the agreement in dispute? A certain degree of hesitation is understandable. There was indeed a dispute concerning 'the amount of money owed' and a neutral was required to settle the matter by a decision that would be binding on the parties. Why, in light of this, did the court refuse to consider the parties' agreement as a reference to arbitration and deny the existence of an agreement to give the judge the powers of amiable compositeur? In our opinion, the answer lies with the reference made by the parties to article 2044 of the Civil Code, and their undertaking to accept the neutral's decision as a settlement by compromise (transaction). As the parties thus clearly stated their intention to accept the decision as a contract between them and not as a court ruling, it was impossible to define the settlement technique as arbitration, as the neutral, as an arbitrator, would necessarily be granted judicial powers. Nevertheless, this poses the problem of whether the ruling to set aside the neutral's decision was justifiable in the case in point: in actual fact, this decision had a contractual value for the parties, and its annulment should doubtless have been decided on the basis of the ordinary rules of law relating to the nullity of contracts. In this particular case, it is true, however, that both parties had described the decision in question as an arbitration award.

7. Although it is not the purpose of this article to discuss the complex question of judicial contracts, the matter nonetheless deserves to be mentioned. In the case in point, the parties did not enter into a genuine arbitration clause, which would suppose that the neutral is vested with judicial powers.17 Nor did they intend for mediation to be used as the settlement technique, as this would not allow the resulting decision to be binding on them. Was this sufficient reason to make their agreement ineffective? Professor Jarrosson18 approved the ruling of the Court of Appeal, on the grounds that as the disputed decision was based on a clause that was valid neither as an arbitration agreement nor as a mediation agreement it should be overruled.

In certain situations, however, parties can grant a neutral the power to issue a binding decision, without this being arbitration in the true sense of the term. This seems akin to signing some kind of judicial blank cheque, whereby the neutral is mandated to make a decision that would have a contractual value between them and not constitute a judgment. This kind of dispute resolution is rarely found in French law, but there are other legal systems in which it is recognized in certain circumstances.19 It also brings to mind a form of non-judicial arbitration, such as exists under Italian law as arbitrato irrituale.20 This issue is beyond the scope of the present article but deserves attention at some future stage.

b. The effectiveness of the clause

8. Arbitration clauses differ from ADR clauses in that the implementation of an ADR clause requires that the parties agree to take part in the proceedings they have chosen. It is an acknowledged fact that an arbitrator can make an award even if one of the parties refuses to take part in the proceedings. On the other hand, mediation cannot take place without the cooperation of all the parties.

This often results in a party that contractually agreed to ADR subsequently adopting the position, once a dispute or difference has arisen, that it can choose not to [Page67:] submit to the ADR proceedings, either because it feels that current circumstances are such that any amicable settlement would be impossible, or because it wishes to protect its rights.

This leads us to consider whether and what penalties can be imposed upon such a defaulting party.

9. There is no doubt that the contractual nature of mediation clauses makes them binding on the parties thereto.21 If the clause provides for a compulsory attempt at mediation prior to referral to the relevant courts, then the parties must comply.

In our opinion, the only possible exception is when a party is obliged to refer the matter to the courts as a matter of urgent necessity, in order to interrupt the time period laid down in a statute of limitations22 or apply for emergency protective measures, for instance.

10. Therefore, save for some special cases, the parties should comply with any ADR clause to which they have freely agreed. This has raised the question of how to define the obligation thus entered into by the parties: is it an obligation of best efforts or an obligation to achieve a specific result?

To answer this, we need to differentiate between the practical aspects of organizing the mediation process (choice of a neutral, transmission of the file to the neutral, the initial meeting) and the actual search for a solution: as far as the first phase is concerned, the obligation to refer a matter to mediation is an obligation to achieve a specific result, whereas the outcome of the mediation process is merely an obligation of best efforts.23

This distinction does not in itself provide a solution to the problem of how to penalize any party who refuses to cooperate in mediation proceedings. In most cases, such refusal occurs even before a framework has been laid down for the mediation, and in any event it is only at that stage that it will cause real problems. What sanction does the defaulting party risk having imposed upon it?

We will not dwell on the possibility of the payment of damages, as it seems highly unlikely that any injured party could prove the existence of a loss. In practice, any sanctions must be procedural: it is necessary to prevent the defaulting party from benefiting from its actions, by making it impossible for it to apply with impunity to the courts or an arbitral tribunal for a ruling or award on the merits.

11. There is no real controversy about this: almost all legal commentators advise that any legal action brought in breach of a mediation undertaking should be stopped. The consensus does not, however, extend to the way this should be done.

One theory is that an undertaking to attempt mediation amounts to a waiver of legal action. Accordingly, if a party refers the matter to the courts in breach of the mediation clause, a plea of non-admissibility could be filed on the ground of lack of entitlement to bring proceedings.

Strangely, there have been instances where a court has declared a claim inadmissible on the sole ground that the creditor did not waive the benefit of the clause. It is difficult to see, however, why failure to waive the benefit of the clause should necessarily imply that a claim is not admissible, since such a procedural sanction can only be based on the court's assessment of the scope of the agreement. And yet, this was the substance of a ruling by the Versailles Court of Appeal on 11 September 1998:24 'The clause organizing preliminary conciliation [Page68:] proceedings is valid (…) and is binding on the parties. Given that the parties have not waived, or even implicitly waived, the benefit of this clause, it behoves the party wishing to bring judicial proceedings to arrange for an attempt at conciliation before referring any dispute to the courts, failing which its claim will not be admissible.'

In a ruling dated 28 November 1995,25 the Court of Cassation held that: 'A right can only be waived by deeds clearly indicating the party's wish to waive said right. The judgment which found that a court action was admissible on the ground that, because all attempts to negotiate had failed, the parties had implicitly waived the clause requiring them to refer any dispute or difference to a conciliator, should be quashed for the reason that it is in breach of article 1134 of the Civil Code. The wish to waive the preliminary conciliation procedure could not be inferred solely from the defendants' failure to implement it.'

In this ruling the Court of Cassation did not expressly state its position on the ground cited in support of inadmissibility. However, the case which led to the 28 November 1995 ruling came before the second civil chamber again five years later (and this time-span is indicative of the procedural complications ADR clauses can cause). After the Court of Appeal26 to which the case had been referred for a rehearing had ruled that the action was not admissible because the mediation clause had not been waived, the Court of Cassation was asked to rule on a plea concerning the sanction for breach of the mediation clause, in which it was argued that this did not amount to a waiver of court proceedings. The supreme court backed the lower court, which had 'noted that the agreements contained a conciliation clause whereby the parties had undertaken to refer any differences to two conciliators prior to taking any court action', for having decided that the action brought in breach of this procedure was not admissible.27

12. These rulings raise certain questions, not as regards the binding nature of mediation clauses-as there is no real doubt about this-but as regards the penalties that can be imposed when they are breached. The solution of non-admissibility based on the waiver of the right to bring court proceedings has been criticized by some commentators, in that any such waiver could not have any legal value at a point in time (the signing of the agreement) when, by definition, the party waiving the right was not fully aware what it was waiving.28 Strictly speaking, there is no waiver (in the sense that a party to an arbitration clause waives its right to refer any dispute to the national courts of law); there is rather an undertaking not to refer a dispute to the courts before initiating the ADR proceedings, which is not the same thing.

Furthermore, it has been pointed out that allowing a party to file an objection to admissibility at any stage of the proceedings would open the door to unacceptable dilatory tactics.29

These are no doubt the considerations which have led some courts to take the view that declaring the claim inadmissible is not the right sanction for breach of a mediation or conciliation clause.

13. The Court of Cassation adopted this position in a ruling dated 15 January 1992:30 'Failure to respect the contractual provisions requiring preliminary conciliation proceedings cannot be a reason for the inadmissibility of court proceedings.' On 24 September 1997,31 the Paris Court of Appeal similarly ruled that 'breach of a preliminary conciliation clause does not render any court action brought by one of the parties inadmissible'. [Page69:]

Ruling on a slightly different appeal on a point of law, the commercial chamber of the Court of Cassation gave the following reasoning for its ruling of 8 June 199932 in a case in which one party (Mr B.) objected that a Court of Appeal had failed to find that the other party's claim was inadmissible although a conciliation clause existed: 'Whereas, Mr B. objects that the ruling was pronounced (…) without respecting the agreed preliminary conciliation procedure (…). But whereas, the ruling notes that Mr B. initially served a writ for payment of an advance (…) without any preliminary conciliation proceedings, and then requested in the winding-up proceedings that the terms of reference of the ad hoc receiver be modified, again without complying with the conciliation clause (…), the Court deduced from Mr B.'s positive actions that he had waived the benefit of the conciliation clause at issue.' In other words, the Court of Cassation considered that a party whose procedural actions are not compatible with an intention to make use of a mediation or conciliation clause cannot object to the failure of the party having referred the dispute to the courts to implement the same clause. It may thus be inferred from this ruling that any plea based on the existence of a clause providing for preliminary mediation or conciliation must be made as soon as possible.

Lastly, the unclear reasoning given for a recent ruling by the first civil chamber of the Court of Cassation will doubtless not put an end to the hesitation of the courts over the sanction to be imposed for breach of an ADR clause.33 It was held that: 'A clause in a professional contract making court proceedings dependent upon conciliation between the parties conducted by the professional body, which is not a bar to the court proceedings, is not part of public policy and not subject to any sanction.' Hence, the sanction for breach of an ADR clause could not be a bar upon court action, but no indication was given as to what the sanction should be. On the contrary, and rather unfortunately, the supreme court considered the breach to be 'not subject to any sanction'.

14. In our opinion, it is right to exclude any bar upon court proceedings based on a breach of the clause, for various reasons.

First, the parties must conduct the proceedings in a consistent manner and in good faith: they cannot therefore be allowed to contradict themselves, and have a duty to assert the existence of a mediation or conciliation clause as soon as the matter is referred to the courts. The party wishing to avail itself of a mediation or conciliation clause must therefore do so in limine litis, in the same way as any other procedural objection.34 This is therefore not compatible with the rules governing the barring of proceedings, according to which objections to admissibility may be raised at any stage.35

Second, a mediation clause cannot be deemed to be a true equivalent of a waiver of court proceedings. It is more of a compulsory step prior to the bringing of court proceedings than a true waiver. From this point of view, the condition set forth in article 122 of the New Code of Civil Procedure for an action to be considered inadmissible (lack of right to bring proceedings) is not satisfied.

Third, a ruling of inadmissibility is inappropriate and, indeed, pointless. Inadmissibility will result in the claim being dismissed, which implies that the claimant will need to initiate new proceedings and that the claim found to be inadmissible will not interrupt the statute of limitations.36 Such consequences may well be excessive for the party that has to bear them. They also encourage acting in bad faith: the temptation for a defendant would be to wait for a time limit imposed upon the opposite party to expire and then tardily to object to admissibility and thus walk away from the case unscathed. [Page70:]

In practice, a stay of proceedings is quite sufficient to penalize breach of a mediation clause: the court proceedings will be frozen until mediation has been attempted. This solution has the merit of ensuring that the rights of all the parties are protected, without rendering the mediation clause ineffective.37

c. The conduct of mediation proceedings

15. The confidentiality of the mediation proceedings is an essential safeguard for the parties.38 A recent case, described below, illustrates the problems that may arise later if mediation proceedings fail.

The aerospace group SNECMA had begun mediation with another company on the basis of a mediation agreement which provided that 'all information contributed, used, exchanged and generated during the mediation process shall remain strictly confidential and may not, under any circumstances, be used for any purpose other than the mediation without the prior agreement of the parties and the mediator'.

Following the failure of the mediation, the mediator drafted a mediation report at the parties' request, which report stated that it would be submitted to the parties, which would decide 'by mutual agreement to what extent it could be used'.

The other company, seeking payment, then served a writ on SNECMA to appear before the Paris Commercial Court. The operative part of the writ expressly referred to the 'mediator's findings' and concluded that the mediator had recognized the claimant's 'right to compensation', stating that SNECMA 'had agreed to pay FRF X'.

SNECMA then applied to the presiding judge of the Paris Tribunal de Grande Instance in summary proceedings, seeking an order that the other party must hand over all the originals and copies of the confidential documents at issue to a sequestrator, withdraw them from the exhibits and evidence submitted in the Commercial Court proceedings, withdraw the writ at issue, and only serve a new writ on condition it contained no reference to the mediation proceedings.

By means of a court order dated 18 January 1999,39 the chief judge of the Paris Tribunal de Grande Instance first pointed out that 'due to the very nature of this measure, which is intended to encourage the amicable settlement of a dispute, judicial or contractual mediation implies that each party can confide freely in the mediator and that, unless the parties unanimously agree otherwise, all the information, offers or concessions communicated to the mediator are kept secret'. After noting that the confidentiality clause in the mediation agreement 'simply reiterates this fundamental rule of mediation and, owing to the general terms in which it is expressed, necessarily applies not only to purely technical information communicated (…) to the mediator, but also to all the offers made by each party with a view to drawing up the settlement agreement sought', the judge further pointed out that 'this confidentiality obligation naturally also applies to the mediation report, the contents of which are a priori covered by an obligation of secrecy and could not be disclosed other than within the limits and on the terms agreed by the parties and the mediator'. The judge thus found that 'the account given in the writ at issue of facts established by and information communicated to the mediator in the performance of his duties is liable to constitute a breach of the obligation of confidentiality incumbent upon all those involved in the mediation'. [Page71:]

He concluded that such behaviour accordingly constitutes 'a manifestly unlawful disturbance within the meaning of article 809, paragraph 1 and article 873, paragraph 1 of the New Code of Civil Procedure'.40

16. A judge ruling in summary proceedings therefore has jurisdiction to protect the rights of the parties in the event of a breach of the obligation of confidentiality concerning the mediation proceedings. This is justified in view of the urgency of the matter and the serious disturbance caused by the disclosure of confidential documents.

The situation would be the same even if the parties had agreed that in the event of the failure of the mediation process the dispute should be referred to arbitration. In such a case, the judge ruling in summary proceedings would be called upon to fulfil his supportive role in relation to the arbitral proceedings.

d. Avenues of appeal and enforcement of the agreement reached at the end of the mediation proceedings

17. When the mediation proceedings are successful, an agreement is usually signed to put an end to the dispute. This raises two very closely interlinked issues: first, the available avenues of appeal against any court decision confirming the agreement and, second, the enforceability of the agreement in cases where it is likely to be considered a settlement by compromise (transaction) under French law.

These two issues concern the judicial or contractual nature of the act.

An act of a contractual nature

18. If the mediation procedure results in a settlement by compromise, this will either be performed like any other contract or will be endorsed as enforceable in accordance with relevant legal provisions.

French law has recently introduced the possibility of rendering a settlement by compromise (transaction) enforceable. Whenever the agreement between the parties can be defined as a transaction,41 it will come within the scope of article 1441-4 of the New Code of Civil Procedure,42 which provides that: 'Following an application by a party to the settlement by compromise, the presiding judge of the Tribunal de Grande Instance will rule that the deed submitted is enforceable.'

The advantage of this, as regards performance of the agreement, is clear. Application of article 1441-4 of the New Code of Civil Procedure means that the agreement becomes immediately enforceable.

We still need to establish, however, when this article will be applicable. Is it sufficient that the parties have themselves described the deed as a transaction? Or that it is explicitly said to be governed by articles 2044 et seq. of the Civil Code? Given that the terminology used by the parties is not binding on the courts, it seems probable that this is not sufficient. Does the deed have to be subject to French law pursuant to the conflict-of-law rules of the forum? In any event, for article 1441-4 of the New Code of Civil Procedure to be of any relevance, the [Page72:] agreement must be able to be performed in France. We need to establish, however, whether the place of performance of the settlement agreement is sufficient for French law to be applicable, particularly when the parties have decided, or conflict-of-law rules dictate, that the agreement is governed by another law. Having said that, if the agreement expressly refers to a transaction, it seems logical that the deed to be endorsed as enforceable in compliance with article 14414 should satisfy the conditions set forth in French law for this purpose: existence of a dispute, reciprocal concessions, parties' wish to put an end to their dispute.

One may also ask whether French courts are competent where the parties have assigned jurisdiction to adjudicate a dispute on the merits to a foreign court or an arbitral tribunal. However, given that this is a question of enforcement which comes within the competence of the forum of the place of performance, any contractual assignment of jurisdiction should not, in our opinion, prevent a French judge from sanctioning enforcement.

19. The question may not, however, be quite as straightforward. For instance, judicial settlement agreements recorded by a court in a foreign country that is a party to the Brussels Convention of 27 September 1968 constitute a special case. Having been endorsed as enforceable in the original country, these settlement agreements are treated as authentic foreign instruments.43 The Convention's article 51 provides that: 'A settlement which has been approved by a court44 in the course of proceedings and is enforceable in the State in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments.' The exequatur order which would be issued in the addressed State for a judicial settlement declared enforceable in the country of origin could therefore be appealed under the conditions set forth in the Convention, and any such appeal would suspend enforcement.45

An act of a judicial nature

20. If, on the other hand, the mediation proceedings result in an act of a judicial nature such as an award by consent or a judgement recording the entry of facts in the judicial record,46 this shall normally be governed by the ordinary laws on appeals and exequatur applying to awards47 or judgments.48 However, given the hybrid nature of these acts, the question arises as to the availability of these actions as far as both judgements and awards49 are concerned. It is a question that calls for further reflection.

21. The situation is rather more complicated as far as court-connected mediation is concerned, because the law is not entirely clear. The decree of 22 July 1996 added article 131-12 to the New Code of Civil Procedure. According to this [Page73:] provision, 'the court shall confirm the agreement submitted by the parties, at their request.' It further provides that 'confirmation is considered a non-contentious matter'.

22. The aforementioned provisions have given rise to discussion which is not without interest from a practical point of view. The question, which pertains to the judicial or contractual nature of the confirmed agreement, is whether the confirmation decision is open to appeal. If, as article 131-12 provides, the parties' agreement must be confirmed in non-contentious proceedings,50 this means that the resulting decision ruling on the request made51 would be of a judicial nature, and therefore open to appeal. A party could therefore lodge such an appeal if it disputes the conditions in which the mediation took place, and the appeal court proceedings would then be contentious.52

In actual fact, the reference to non-contentious proceedings introduced in article 131-12 of the New Code of Civil Procedure is a mistake.53 When an agreement between the parties is referred to court for confirmation, the court will simply record the existence of the agreement between them. It does not actually make a ruling, within the meaning of article 25 of the New Code of Civil Procedure, and it is therefore inappropriate to refer to 'confirmation' of the agreement.

Accordingly, the agreement between the parties, together with any 'confirmation' it may have been given, should therefore be subject to the rules governing contracts and not those applicable to judicial acts.

As the agreement between the parties is contractual, it should not be able to be brought into question by way of an appeal against the decision of the court that 'confirmed' it, but only by an action for avoidance based on contract law. In view of this, one may wonder whether the confirmation procedure provided in article 13112 serves any real purpose, given that any transaction signed at the conclusion of mediation proceedings is liable to come within the scope of article 1441-4 of the New Code of Civil Procedure. There is undoubtedly a need for the existing legislation on this point to be clarified and harmonized, if not indeed unified.54

23. To conclude, in view of the overlap and lack of clarity in legislation, the different rules that apply depending on the nature of the instrument, and no doubt also the differences in enforcement rules from one country to another, caution should be the watchword whenever compulsory enforcement of an agreement signed at the end of mediation proceedings is sought. Great caution must also be taken when drafting the agreement.

1
This article originates from a speech given by the author at a colloquium on the ICC ADR Rules organized by ICC France on 20 February 2001.

2
'Arbitrage, médiation et conciliation' [1984] Rev. arb. 307.

3
Law 95-125 of 8 February 1995 and Decree 96-652 of 22 July 1996 (codified as articles 131-1 et seq. of the New Code of Civil Procedure). With respect to court-connected conciliation, Decree 78-381 of 20 March 1978, amended by Decree 96-1091 of 13 December 1996. For a discussion of these provisions see Gérard Pluyette, 'Principes et applications récentes des décrets des 22 juillet et 13 décembre 1996 sur la conciliation et la médiation judiciaires'[1997] Rev. arb. 505. It may be noted that the bill on labour-related matters, adopted by the French National Assembly at its second reading on 13 June 2001, introduces new provisions relating to mediation in connection with industrial disputes. In a report published on 10 July 2001, the Economic and Social Council recommends that mediation be developed as an alternative method of settling disputes.

4
For this see Ph. Fouchard, 'Arbitrage et modes alternatifs de règlement des litiges' in Souveraineté étatique et marchés internationaux à la fin du 20ème siècle. A propos de 30 ans de recherche du CREDIMI. Mélanges en l'honneur de Philippe Kahn (Litec, 2000) 95; M. Santa-Croce, 'L'efficacité des modes alternatifs de règlement des litiges dans le contentieux international et européen' Gaz. Pal. (10-12 juin 2001) 3.

5
Ruling by the presiding judge of the Paris Tribunal de Grande Instance, 18 Janvier 1999, SNECMA v. P. Ségui et autres, Gaz. Pal. (29 April-3 May 2001) 45.

6
The terms used may give rise to confusion. Arbitration must be clearly distinguished from what is commonly called alternative dispute resolution or ADR. As Professor Ph. Fouchard remarks (op. cit., p. 96): 'Although, notably in the United States, arbitration has been classed with alternative methods of dispute resolution, which cover all methods other than proceedings in national courts, I (…) along with the majority of legal commentators and prevailing practices in Europe, prefer to limit "alternative method" to methods that do not lead to a legally binding decision enforceable at law. This leaves arbitration midway between litigation in national courts and amicable methods of dispute resolution.'

7
On the distinction between arbitration and ADR in general, see Oppetit, op. cit.; Ph. Fouchard, op. cit; Ch. Jarrosson 'Les frontières de l'arbitrage' [2001] Rev. arb. 5.

8
According to certain distinguished authors, the criterion of whether or not the neutral's decision is binding, based on the judicial or non-judicial nature of his or her functions, is sometimes insufficient to distinguish arbitration from ADR. In this case, the distinction must be made on the basis of a number of criteria. See Ph. Fouchard, op. cit. at 108ff. The vagueness of the expression ADR, which can cover manifold methods apart from mediation, would appear to explain this uncertainty.

9
Conciliation and mediation are sometimes confused with each other. For instance, the Court of Cassation (2d civil chamber), in its ruling of 16 June 1993 in the case Epoux Bruère v. Caisse régionale de garantie (Dalloz 1993.Inf.176), refers to mediation as an application of article 21 of the New Code of Civil Procedure relating to conciliation: '(. . .) mediation, the purpose of which is to compare the respective claims of the parties with a view to reaching an agreement suggested by the mediator, is an application of art. 21 of the New Code of Civil Procedure on the amicable resolution of disputes (. . .)' Article 21 of the New Code of Civil Procedure states: 'The court's role includes conciliating the parties.' More generally, see G. Herrmann, 'La conciliation, nouvelle méthode de règlement des différends' [1985] Rev. arb. 343; J.-C. Goldsmith, 'Means of Alternative Dispute Resolution (ADR)', [1996] IBLJ/RDAI 221; and with regard to institutional ADR mechanisms, Ph. Fouchard, op. cit. at 109ff and the literature mentioned.

10
Versailles (3d chamber),11 September 1998, Diakite v. Taxitel, Gaz. Pal. (9-11 January 2000) 60.

11
Paris, 21 December 2000, Mutuelle Fraternelle d'assurances v. Chetouane, [2001] Rev. arb. 178.

12
Paris (23d chamber A), 24 September 1997, Maury v. Chaplet, Gaz. Pal. (9-11 January 2000) 48.

13
If the court has insufficient information to do so, it should request details from the parties. See Paris Court of Appeal, 19 October 1999, Choux Tamisier v. Association Les Tuileries [2001] Rev. arb. 156.

14
Paris (1st suppl. chamber), 28 March 1991, Caisse régionale de garantie v. Epoux Bruère [1991] Rev. arb. 470 (Annot. Jarrosson).

15
The Court was here referring to the provisions of the New Code of Civil Procedure which allow the judge to rule with the powers of an amiable compositeur when the parties have given the judge such powers. Article 12, which sets down guidelines for proceedings, states that 'once the dispute has arisen, the parties may (…) confer upon the judge the power to rule as amiable compositeur, subject to appeal if they have not specifically waived this'. Article 58 states that 'when this option is available to them under article 12, the parties may, if they have not already done so since the dispute arose, confer upon the judge, in their joint request, the power to rule as amiable compositeur or bind the judge by the definitions and legal questions to which they wish to confine discussions'.

16
Cass. (2d civil chamber), 16 June 1993, Epoux Bruère v. Caisse régionale de garantie, see supra note 9.

17
For other decisions that refuse to consider as arbitration agreements situations in which the parties have entrusted a neutral with the task of filling the gaps in an agreement, see Paris Court of Appeal (1st civil chamber), 15 December 1998, Attali v. Lecourt, [2001] Rev. arb. 151; Paris Court of Appeal (1st civil chamber), 9 November 1999, Syndicat des copropriétaires du 35, rue Jouvenet v. Halpern, [2001] Rev. arb. 159; Paris Court of Appeal (1st civil chamber), 18 November 1999, SNC HR v. Guérin, [2001] Rev. arb. 163.

18
See his commentary of the Paris Court of Appeal decision of 28 March 1991, supra note 14. The view expressed there seems to be based on concern that the neutral comply with the fundamental principles of a fair trial. However, this begs the question of whether these principles should fully apply, given that it is not a judicial decision that the neutral makes. The matter maybe stands in a different light now, since the recent addition of article 1441-4 to the New Code of Civil Procedure (to which reference will be made later).

19
For instance, Italian law. See Carmine Punzi, Disegno sistematico dell'arbitrato, vol. I (CEDAM, 2000) at 54. One finds a similar kind of procedure in Dutch law. In our opinion, the question of the validity of the neutral's decision is here more one of party consent than definition of the clause.

20
See Tiziana Tampieri, 'Réflexions sur l'avenir de l'arbitrage libre en Italie', Gaz. Pal. (9-11 janvier 2000) 73; Punzi, ibid. at 63ff. So-called 'free' arbitration in Italy has however become increasingly procedural since the 1994 reform.

21
There is no reason to think that an ADR clause merely amounts to a moral undertaking, devoid of any legal sanction, unless of course the parties have clearly indicated that such is their understanding.

22
A period of limitation may be interrupted by a court summons, an injunction or a seizure (Civil Code, art. 2244) or by the debtor's acknowledgement of the creditor's right (Civil Code, art. 2248). According to case law, a request for conciliation does not interrupt a period of limitation (Cass. (2d civil chamber), 8 June 1988, [1989] Rev. trim. dr. civ. 751 (Annot. Mestre); Cass.(3d civil chamber), 18 February 1998, Bull. Civ. 1989.III.No. 38), except in certain mandatory conciliation proceedings where a request for conciliation entails referral to the courts. Also according to case law, talks alone, without acknowledgement of liability, do not interrupt a period of limitation (Cass. (2d civil chamber), 5 October 1988, D.1989.209 (Annot. Choppin de Janvry); Versailles Court of Appeal, 11 March 1993, D.1993.Inf.145).

23
This is the view expressed by Professor Jarrosson in his commentary of the decision of the Court of Cassation (commercial chamber), 28 November 1995, Peyrin v. Polyclinique, [1996] Rev. arb. 613.

24
Versailles (3d chamber), 11 September 1998, Diakite v. Taxitel, Gaz. Pal. (9-11 January 2000) 60.

25
Cass. (commercial chamber), 28 November 1995, Peyrin v. Polyclinique des fleurs, referred to above. cf. Trib. gr. inst. Paris (1st chamber), 25 January 1984, Auxhill v. CEA [1984] Rev. arb. 376. This decision, like several of those mentioned hereafter, was rendered in disputes relating to conciliation clauses. However, the solutions would not have been any different had they been mediation clauses.

26
Nîmes, 2 June 1998.

27
Cass. (2d civil chamber), 6 July 2000, Société Polyclinique des fleurs v. Peyrin et autres, Gaz. Pal. (29 April-3 May 2001) 48 ; [2001] Rev. trim. dr. civ. 359 (Annot. J. Mestre & B. Fages).

28
Xavier Lagarde, 'L'efficacité des clauses de conciliation ou de médiation' [2000] Rev. arb. 377 at 386-87.

29
cf. Edouard Bertrand, 'Arbitration and Mediation: An Impossible Conciliation?' [2001] IBLJ/RDAI 133.

30
Cass. (2d civil chamber), 15 January 1992, Brunet v. Artige [1992] Rev. arb. 646 (Annot. Daniel Cohen). It should be pointed out, however, that the same chamber of the Court of Cassation has since disavowed the position it took here (see decision of 6 July 2000 referred to supra note 27).

31
Paris (23d chamber A), 24 September 1997, Maury v. Chaplet, Gaz. Pal. (9-11 January 2000) 48.

32
Cass. (commercial chamber), 8 June 1999, Bourhis v. ACF et autres [1999] RJDA 1031.

33
Cass. (1st civil chamber), 23 January 2001, SA Clinique du Morvan v. Vermuseau, J.C.P.Gén.2001.I.330 (Annot. Vissaramy); [2001] Rev. trim. dr. civ. 359 (Annot. J. Mestre & B. Fages, who suggest that the difference in case law between the first and second chambers of the Court of Cassation is due to the fact that in the case which led to the 23 January 2001 ruling, the mediation appeared to be more of an institutional than a contractual nature. However, our opinion is that the procedural sanction for a breach of the clause should not vary depending upon the origin-legal or contractual-of the binding nature of the mediation.)

34
New Code of Civil Procedure, art. 73: 'A procedural objection is any plea that seeks either to have the procedure declared to be irregular or extinguished, or to have it stayed.' Ibid., art. 74: 'Objections must be raised simultaneously and before any defence on the merits (. . .) failing which they will be inadmissible. (. . .)'

35
New Code of Civil Procedure, art. 122: 'A bar to action is any plea that seeks to have the claim of the opposing party declared to be inadmissible, without considering the merits, for lack of entitlement to bring proceedings.' Ibid., art. 123: 'A proposal may be made at any stage for an action to be barred, although the court may order any person who wilfully fails to do so, in an attempt to delay proceedings, to pay damages.'

36
Article 2247 of the Civil Code states that if a claim is dismissed, there will be deemed to have been no interruption.

37
If an arbitral tribunal has jurisdiction over the merits, a stay in proceedings may possibly make it difficult for the arbitrators to abide by the time limit within which they have to render their award. However, they may ask the court or arbitration body, as the case may be, to extend this time limit.

38
With regard to judicial mediation, the New Code of Civil Procedure, art. 13114 states: 'The mediator's findings and the statements the mediator receives may be neither produced nor referred to later in the proceedings without the parties' agreement, nor under any circumstances in connection with other proceedings.' This principle was applied in the following judgment: Cass. (criminal chamber), 28 February 2001, D.2001.Inf.1517.

39
Paris Trib. gr. inst., 18 January 1999, SNECMA v. P. Ségui et autres, Gaz. Pal. (29 April-3 May 2001) 45.

40
New Code of Civil Procedure, art. 809, paragr. 1 'Even when there is a serious objection, the presiding judge may always prescribe any urgent measures for conservatory or restitutive purposes that may be necessary either to avoid imminent damage or to stop a clearly unlawful disturbance.' Similar powers are given to the presiding judge of the Commercial Court by article 873 of said Code.

41
This should usually be the case, in our view, at the end of mediation proceedings. The Civil Code, art. 2044, states: 'A settlement by compromise (transaction) is a contract whereby the parties end an existing dispute or prevent a future dispute.' The courts are not bound by the terms used to describe the deed and may define it as a transaction if the parties have ended a dispute by making mutual concessions.

42
This provision was added to the New Code of Civil Procedure by Decree 98-1231 of 28 December 1998. It applies when the courts have not been asked to judge on the merits. If a settlement by compromise is reached after the courts have been asked to judge on the merits, article 384, para. 3, of the New Code of Civil Procedure is applicable, which states that 'it behoves the court to render the deed recording the parties' agreement enforceable, regardless of whether said agreement is made in court or out of court.' These provisions are akin to article 9 of the decree of 20 March 1978, as amended by the decree of 13 December 1996, regarding court-connected conciliation, which provides that where parties have reached an agreement local courts of first instance may render enforceable the deed recording such agreement signed by the parties. It should be noted however that the force of the approval given for the purpose of enforcing the settlement has been weakened by an opinion of the Court of Cassation, according to which such approval cannot be used to enforce an eviction. See [2001] Rev. trim. dr. civ. 384, with a critical commentary by P.Y. Gautier.

43
And not as decisions. C.J.E.C., 2 June 1994, Solo Kleinmotoren, Rec. I, 2237 (concl. Gulmann). See also Cass. (1st civil chamber), 11 February 1997, [1997] J.D.I 1026 (Annot. M. L Niboyet). As from 1 March 2002, reference must be made to article 58 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

44
'Court' as used here excludes arbitrators, as the Brussels Convention does not apply to arbitration.

45
Articles 50 and 39 of the Convention. On this entire question and the difficulties caused by a conflict between the performance of an approved settlement and the performance of a judgment rendered with respect to the same parties, see M. Santa-Croce, op. cit., supra note 4.

46
Some writers believe that it cannot be taken for granted that judgments recording the entry of facts in the judicial record are truly judicial decisions (see Santa Croce, op. cit., supra note 4 at 5), and the Court of Cassation has held that a decision 'which does not rule on a dispute but, by merely granting the parties the acts they request, records a judicial contract, does not constitute a judgment and is therefore not open to appeal' (Cass. (2d civil chamber), 14 April 1998, Bull. civ. 1988.II, No. 79).

47
As, for example, in the case of an award by consent pursuant to art. 26 of the ICC Rules of Arbitration or an award rendered pursuant to art. 34 of the UNCITRAL Rules of Arbitration. On the relationship between arbitral proceedings and settlements by compromise, see F. Dessemontet, 'L'instance arbitrale et la transaction' in Etudes de procédure et d'arbitrage en l'honneur de Jean-François Poudret (Faculté de droit de l'université de Lausanne, 1999) 367.

48
As regards the ordinary rules of law, reference should be made to art. 509 of the New Code of Civil Procedure ('Judgments handed down by foreign courts and deeds received by foreign officials are enforceable in the French Republic in the manner and situations specified by law.') and the conditions laid down in case law (in particular, Cass. (1st civil chamber), 7 January 1964, Munzer). In a European context, reference should be made to arts. 25 et seq. of the Brussels Convention of 27 September 1968, which will be replaced as from 1 March 2002 by EC Regulation 44/2001.

49
Some authors consider that awards by consent should not exist, the alternative being between a contract (the settlement agreement) and a classic award. See S. Lazareff, 'Editorial' in Les Cahiers de l'arbitrage, 2001/2, Gaz. Pal. (November 2001) 4.

50
New Code of Civil Procedure, art. 25: 'A court rules non-contentiously when, in the absence of a dispute, a claim is brought before it, which, on account of the nature of the case or the status of the applicant, is required by law to be reviewed by a court.'

51
New Code of Civil Procedure, art. 60: 'In non-contentious proceedings, an application is made in the form of a request.' Ibid., art. 543: 'Appeals may be made in all areas, including non-contentious matters (. . .)'

52
Apart from the additional time limits, such a situation would raise difficult conflicts of jurisdiction where the parties had chosen to have an arbitral tribunal judge the dispute that the mediation proceedings were intended to resolve.

53
cf. Yvon Desdevises, 'Les transactions homologuées: vers des contrats juridictionnalisables?' [2000] Dalloz 284 and the literature quoted in this article.

54
Some writers (see M. Santa-Croce, aforementioned article) advocate a uniform set of judicial rules applicable to all agreements rendered enforceable by the courts. This would certainly have the advantage of improving conditions so as to make such agreements more effective internationally. Yet it perhaps overlooks their contractual nature and all the consequences that result therefrom.