First joint symposium organized by the CNCEJ and the FFCM within the framework of their partnership agreement of January 31, 2019.
Mrs Michèle Guillaume Hofnung, whose work on mediation, published in the collection “what do I know” (Que sais-je) and regularly enriched since 1995, is a reference, was the Scientific Director of the conference.
Annie Verrier, President of the CNCEJ and Claude Duvernoy, President of the FFCM, opened the colloquium of which these two organizations were co-organizers, by formulating some problems posed by the interactions between Expertise and Mediation.
They reminded us that mediation, long underestimated and little known, has now become a common practice. Avoiding conflict is the objective of the development of Alternative Dispute Resolution Methods (ADR).
The colloquium focused on the relations and interactions between expertise and mediation, between expert and mediator in their respective roles. Beyond the common points in attentive listening, the confrontation of points of view, understanding, and submission to deontology and rules of ethics, the aim was to explain the particularities and originalities of each of these two practices, when they are called upon to meet in the context of missions that may be intertwined or successive.
Each of the two round tables was composed of a magistrate, a lawyer, an expert and a mediator, comparing their points of view, followed by a debate with the audience providing additional information.
Expertise in mediation
The first round table, moderated by Claude Duvernoy and Didier Faury, focused on the place of expertise in mediation: how does the expert intervene within a mediation? Are the rules that apply in his expertise then the same as in the usual framework of a civil expertise? Are adversarial proceedings applicable?
How should mediation be defined?
First observation: the law does not define mediation very precisely.
The 2008 European directive defines mediation as “A structured process, regardless of how it is named or referred to, in which two or more parties to a dispute attempt by themselves, voluntarily, to reach an agreement on the resolution of their dispute with the help of a mediator.” This definition has been taken up in article 1530 of the Code of Civil Procedure, which does not distinguish between mediation and conventional conciliation. As a result, there is no official definition of mediation.
This definition is considered too general by many who would like to supplement it with the notion of “re-establishing the links between the parties to the conflict with the help of an independent third party”.
Thus, in the context of a proposal to recast the law of The FFCM suggests that Article 21 of Law No. 95-125 of 8 February 1995 should be drafted as follows:
“Article 21. – Mediation governed by this chapter is a structured process based on the responsibility and autonomy of persons who, voluntarily, with the help of a mediator, chosen by them or appointed by the judge hearing the dispute, promote through confidential interviews the establishment or re-establishment of links and the amicable resolution of the conflict.”
Are expertise and mediation compatible?
Very often the re-establishment of links between the parties can come up against a question of fact that blocks the amicable process. It is then necessary for a specialist to enlighten the parties on the technical aspects at the origin of the conflict.
However, there is no text on the modalities of the expert’s intervention in mediation.
How can expertise and mediation be compatible on the same case? Is the confidentiality of the documents produced, reports or documents filed by the parties guaranteed in the event of failure of the mediation?
Expertise and mediation have different characteristics:
- Expertise is based on the principle of contradiction, its process is long and can take several years, and the resulting report is very detailed.
- Mediation, on the other hand, must be quick, generally not exceeding 3 months, and requires respect for confidentiality.
The mediation process is very flexible: the mediator can organise it as he or she sees fit, in the form of adversarial or individual meetings. He defines the practical arrangements with the parties. When an expert is consulted during the mediation to provide indispensable technical insight, he is not necessarily asked for a real report. His report may be written or oral (50% of cases) and remains confidential if it is written. The term “findings” is used in this case rather than “expert report”.
Some Courts of Appeal, such as that of Marseilles or Rennes, have set up joint orders in which the magistrate appoints both mediator and expert at the same time.
What skills are required for mediation?
The question of the mediator’s skills was at the heart of the debate throughout the afternoon. Is the mediator above all a communicator? Should he be a specialist in the technical problems at the origin of the conflict? Different points of view were presented by the participants, with two opposing tendencies:
On the one hand, those who hold a decidedly neutral position:
- The mediator is not interested in the facts. He conducts a process of ethical communication in which everyone’s word receives equal attention.
- The mediator does not investigate, but seeks to express the point of view of each person in order to make it understood by others and to establish empathy.
- Mediation is a maieutics. We help and prepare people to reach a solution.
On the other hand, there are those in favour of the competence of the mediator in the matter of the conflict:
- When appointing the mediator, the magistrates and the parties can be reassured by the mediator’s technical knowledge, thus acting as an element of trust.
The expert mediator
The second round table, co-hosted by Claude Duvernoy and Didier Faury, dealt with the position of the expert when he becomes a mediator.
As the cost of an expertise represents for some a significant budget, the judge would rather tend to advise the parties to do without it and to resort to mediation, perhaps with a specialized mediator, which would offer additional legitimacy for the outcome of the mediation.
Here again, the debate did not call for a single answer, depending on the context, but rather a relational or technical one.
Various practices were exposed in the different testimonies:
- The danger of the mediator knowing too much about the subject matter, risking him or her giving an opinion that is not asked of him or her instead of having the facts explained to him or her in all innocence.
- The mediator places himself in a position of listening attentively to the parties and of reformulating, while refraining from giving an opinion. But, some will say, to reformulate one must understand a little of what one is talking about; some subjects require at least an understanding of the problem statement. The need for a more or less technical insight is felt depending on the field.
This question was the subject of a new debate between the proponents of the neutral position, arguing that the mediator can intervene in an area with which he or she is not familiar, and the advocates of a competence giving sufficient confidence to the parties.
These two positions were in conclusion deemed not incompatible by the moderators of the round table, depending essentially on contextual elements, but highlighted the difficulty of the mediator’s neutrality. Some mediations where the human element prevails can be unblocked “because people start talking to each other”. Others need to move financial demands. Family mediation is indeed very different from financial mediation.
“There is no absolute truth, it depends on the case.”
Mediation in administrative matters
We were reminded of the differences between civil and administrative mediation:
- According to Article 240 of the Code of Civil Procedure:
“The judge cannot give the technician the mission to conciliate the parties.”
- Contrary to Article R621-1 of the Code of Administrative Justice which states :
“The court may, either of its own motion or at the request of the parties or of one of them, order, before ruling, that an expertise be carried out on the points determined by its decision. The expert may be entrusted with a mediation mission. He may also take the initiative, with the agreement of the parties, of such mediation. If mediation is initiated, he shall inform the court. Subject to the exceptions provided for in Article L. 213-2, the expert shall submit his expert report without being able to state, unless the parties agree otherwise, the findings and statements made during the mediation. »
The administrative expert may indeed have the task of reconciling. He certainly does not switch from one role to another during the course of the mission, but once the expertise has been completed, he can suggest a mediation mission and become the mediator.
An administrative mediation could also be interrupted during the course of the mission by the launch of an expertise.
Mrs. Michèle Guillaume Hofnung concluded the debates by synthesizing the structuring aspects of the power and authority of the mediator as well as the National Code of Ethics of the mediator co-drafted by several organizations including the CTF:
“The mediator has no power, by asking the right questions to resolve the conflict situation he acts as a detector of misunderstanding.”
She stressed the need for a legislative definition of mediation that would clarify the process.
In conclusion of the symposium, Claude Duvernoy then spoke of the continuation of the agreement between the CNCEJ and the FFCM with the hope of producing a practical guide to mediation. We can only hope that this project will become a reality.
With more than 220 participants, this colloquium was an undeniable success.