In spring 2022, I presented the participatory procedure (procédure participative) and collaborative practice (processus collaboratif) to the Paris Bar’s amicable dispute resolution committee, at the EFB and at the IXAD, then at the Centre Sud bar school in Montpellier. These are two amicable methods in which each party keeps its own lawyer to build an agreement. Here are the key takeaways, and the presentation materials.
Proposing amicable resolution: an ethical expectation
Since the amendment to the national bar rules published in the Official Journal on January 17, 2021, lawyers are encouraged to consider with their clients whether their dispute can be resolved through an amicable method, before or during litigation, or by including a clause in a contract (art. 6.1 of the national bar rules, RIN). With the client’s consent, they may also propose an amicable settlement to the other party (art. 8.2 RIN).
It still has to be proposed well. To the client: analyze the situation, identify whether it lends itself to an amicable method, present the options and how they work, offer reassurance. To opposing counsel: preferably talk rather than email, about their view of the case and their experience of amicable methods; if they are trained, they will say so quickly.
Collaborative practice: negotiating without a judge
Collaborative practice is an amicable process that takes place before any court filing, based on the contractual commitment of the parties and their lawyers, set out in a collaborative charter, to seek in good faith a global solution based on each party’s interests, in four-way meetings. It is not codified: the national bar rules mention it in articles 6 and 7.
Its strength lies in two commitments: transparency, including on finances, and the withdrawal of the lawyers and experts if the process fails. The lawyers must be trained, and principled negotiation is inseparable from the process.
The participatory procedure: a legal framework to negotiate or prepare a case
The participatory procedure is defined in article 2062 of the Civil Code. Signed before any filing, it aims at an agreement on the merits; signed during proceedings, it organizes pretrial preparation by agreement (mise en état conventionnelle), a purpose added by the law of November 18, 2016. The agreement is a written contract, on pain of nullity, stating its term, the subject of the dispute, the documents and information needed and how they will be exchanged (art. 2063, Civil Code).
Its effects are concrete: while it is in force, no court may be asked to decide the dispute, except in urgent cases or if a party fails to perform (art. 2065, Civil Code); the limitation period is suspended (art. 2238, Civil Code); if it fails, the parties are exempt from any prior conciliation or mediation requirement. Deeds countersigned by the lawyers make it possible to appoint an expert, whose report has the value of a court-ordered expert report (Decree No. 2021-1322 of October 11, 2021), to record statements or to set out the points of agreement. A full agreement can be approved by the court.
Two related but different tools
The two methods have much in common: two lawyers, four-way meetings, a charter or agreement setting out rights and obligations, jointly appointed experts, confidential negotiations and an agreement that can be approved by the court. The participatory procedure differs in that it requires no withdrawal of the lawyers, no duty of transparency, no ban on pending proceedings and no global agreement. One is a structured process, the other a codified procedure: the choice depends on the case.
Sessions
- April 21, 2022: Paris Bar amicable resolution committee, “Collaborative practice and the participatory procedure.”
- April 23, 2022: EFB, workshop “Participatory procedure: agreements and lawyers’ deeds.”
- April 25, 2022: IXAD, in Lille.
- May 6, 2022: Centre Sud bar school, Montpellier, “Participatory procedure: agreements and lawyers’ deeds.”
- The participatory procedure has remained at the core of my workshops at the EFB: see “Participatory procedure: agreements and lawyers’ deeds, practical workshops at the EFB (2023-2025).”
Key takeaways
- 1An ethical recommendationThe national bar rules invite lawyers to consider amicable resolution with their clients, before and during litigation.
- 2Collaborative, before any courtCharter, transparency, four-way meetings and withdrawal of the lawyers if it fails.
- 3Participatory, codifiedA written agreement that suspends the limitation period and temporarily closes access to the court.
- 4Two purposesAn agreement on the merits, or pretrial preparation by agreement of a pending case.
- 5One shared expertAppointed by a lawyers’ deed, the expert’s report is worth a court-ordered expert report.
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. State of the law as of April and May 2022.