“One of the most undervalued qualities of a man of action is ingenuity. The man who asserts himself in difficult situations is one who invents a solution, where the others reached a deadlock.” Jacques de Bourbon Bus
OUR SOLUTIONS TO CONFLICTS
The trial seems to be the natural recourse to litigation, yet it is established that the use of judges to rule on a case has major disadvantages (Costs /Very long durations/ uncertainty of the outcome).
DELAGE-CRESPIN Avocats law firm pleads before all the courts when the trial is required but offers its business customers or individuals alternative solutions, increasingly being used by stakeholders of the legal and economic field.
The alternative dispute resolution methods (MARC) in most cases quickly find a satisfactory solution to all conflicts.
Maître Isabelle DELAGE is a lecturer of « Interest-based Negotiation » at the Barrister Training School of Paris Appeal Court.
There are four methods of conflict resolution that belong to this category of non-judicial means. These are:
- COLLABORATIVE LAW
The order of 16 November 2011 establishes a general framework for mediation. It defines it as “any structured process, regardless of the name by which two or more parties attempt to reach an agreement for the amicable settlement of their dispute with the assistance of a third party, the mediator, chosen by them or designated, with their agreement, by the judge hearing the case [we speak in this case of judicial mediation]. “Some common rules in all mediations are raised, including the possibility to make the judge approve the agreement to make it binding.
The “participatory process” finally operational
The decree of 20 January 2012 complements this provision by focusing only on methods of amicable settlement used outside of any legal proceedings. It thus creates a new book (Articles 1528 and following) in the Civil Procedure Code which specifies the rules applicable to:
- conventional mediation: the document states the ethical requirements and qualifications of the mediator chosen;
- conventional conciliation: close to mediation, this procedure involves a “judicial conciliator” who tries to reconcile the parties to end up with a memorandum of agreement which they co-sign;
- participatory process: recent creation (Law of 22 December 2010), this new mode of amicable settlement of disputes involves the parties’ lawyers instead (or before) of referring the matter to the judge. A “participatory process agreement” is signed by the parties and their lawyers, to precisely define the conditions under which they will conduct negotiations with a view to finding a solution to the dispute. The agreement must especially provide for the duration of these negotiations, during which the limitation will not run (this is one of the major advantages of this procedure). In case of agreement, approval by the judge can be quickly obtained.
Arbitration is an alternative method of dispute resolution by a court composed of one or more individuals who derive their power from the parties’ agreement.
Arbitration is a private and conventional court:
- Justice because the sentence pronounced has the same effects as a judgement and is enforceable in all European countries and most countries of the world
- Private justice because the parties choose their judge
- Conventional justice since the parties will choose the limits of the trial, the applicable law and length of judicial proceedings.
- Its decisions (arbitral awards) are also bound by a strict confidentiality element inseparable from business situations.
- The parties may choose one or more arbitrators who are specialists in law or have a given expertise, depending on the specificities of the case. For example, an arbitral board may consist of a lawyer and two technicians or a lawyer, a businessman and a technician.
- Arbitration is confidential. Hearings are not open to the public. Parties wishing that their cases or some facts concerning them should not be brought to the attention of the public, have every right to resort to arbitration.
- Arbitration eliminates conflicts of jurisdiction between courts, particularly in international affairs, and generally the problems of conflict of laws.
- Forced execution is possible everywhere.
- Arbitral sentences, which are veritable judgements,can be easily enforced abroad thanks to international conventions signed by many countries worldwide.
- Arbitration is quick.
- The time within which the ruling must be given is determined by the parties and if not by the Arbitration Rules.