The lawyer in mediation: identify, recommend, prepare and support, practical workshops at the EFB (2023-2025)

On April 18 and 20, 2023, in Créteil and then in Bobigny, and again in the first half of 2025, I led the EFB workshops “Drafting an agreement to enter mediation (convention d’entrée en médiation): identify, recommend, prepare and support.” The lawyer’s role is broken down into four steps, up to drafting the agreement that sets the framework for the mediation. Here are the key takeaways, and the presentation materials.

Identify: a diagnosis, not a reflex

Identifying a case for mediation means making a tailored diagnosis: reviewing the law, the case law, deadlines and limitation periods, truly listening to the client to understand their needs and priorities, and comparing the costs and benefits of litigation and mediation. Some criteria point toward mediation: a relationship damaged by a misunderstanding or a breakdown in communication, people who will keep dealing with each other, a legal solution with unsuitable consequences, multiple proceedings, a decision that would be hard to enforce.

Others point away from it: a question of principle that needs a ruling, public policy or rights the parties cannot waive, an imbalance of power such that one party has no interest in negotiating, violence that prevents a balanced discussion. One criterion is decisive: the mediation clause. Failing to comply with it is a bar to proceedings that the court must apply if the parties raise it (French Supreme Court, mixed chamber, February 14, 2003, No. 00-19.423), and implementing the clause once proceedings are under way does not cure the defect (3rd civil chamber, October 6, 2016, No. 15-17.989).

Recommend: at the right time, without misconceptions

Lawyers recommend mediation upstream, when drafting contracts with a precise clause; because the law or court policy requires it; or as part of a litigation strategy. It is also an ethical expectation: the French bar’s national rules (règlement intérieur national, RIN) recommend that lawyers consider amicable resolution with their clients (art. 6.1 RIN).

Recommending mediation also means dispelling misconceptions: mediation does not exclude the courts, it has a framework, the mediator is bound by confidentiality, and entering mediation does not signal weakness. As for deadlines, the limitation period is suspended once the parties agree to mediate or, absent a written agreement, from the first meeting, and it starts running again for at least six months when the mediation ends (art. 2238, Civil Code).

Prepare and support: the agreement to enter mediation

Supporting the client means validating the choice of mediator, preparing the client, reviewing the agreement to enter mediation, following the process and anticipating both failure and settlement. The first contact with opposing counsel is preferably by phone or in person, to discuss their view of the case and their experience of amicable methods.

The agreement is reviewed clause by clause: who the parties are, their mandates and powers; a preamble that does not lock in the scope of the dispute; the mediator’s role, with no power to decide; no adversarial requirement and the option of separate sessions; full confidentiality, including toward the judge; how any agreement will be formalized. During the mediation, the lawyer prepares and debriefs each meeting with the client.

The outcome: making the agreement enforceable

The mediator does not draft the agreement; the lawyers do, as a settlement, a deed countersigned by the lawyers or a notarial deed. To make it enforceable, there are two routes: approval by the court, or, for a deed countersigned by each party’s lawyer, a declaration of enforceability by the court clerk. If proceedings are pending, the agreement must also end them, for example through a withdrawal of the appeal accepted by the other side.

Sessions

• April 18, 2023 in Créteil and April 20, 2023 in Bobigny: “Drafting an agreement to enter mediation: identify, recommend, prepare and support,” EFB workshops.
• First half of 2025: the same module at the EFB, with Hirbod Dehghani-Azar and Stephen Bensimon.

Key takeaways

1. 1Diagnosis firstLaw, deadlines, the client’s real needs, comparative cost: mediation is a choice, not a default setting.
2. 2The mediation clause mattersIf ignored, it bars the claim, and the defect cannot be cured during proceedings.
3. 3A carefully reviewed agreementMandates, the mediator’s role, separate sessions, confidentiality: each clause protects the client.
4. 4Two different rolesThe mediator is neutral and impartial; the lawyer advises and defends the client, without acting as an adversary in the room.
5. 5An enforceable outcomeCourt approval, or a declaration of enforceability by the clerk for a deed countersigned by the lawyers.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.