At the origin of mediation

Delivered. “Here, a bad arrangement is better than a good trial …” In Lost illusions, Balzac, bachelor in law and bankruptcy expert, portrays a wise magistrate who convinces an inventor to find an arrangement with the two dishonest brothers who dispossessed him of his patent.

A trial is war. It is won or lost at the end of long passes of contradictory weapons, fleshed out with expertise and procedural maneuvers. On the contrary, an arrangement has neither a winner nor a winner. It only allows the opposing parties to allow a solution acceptable to each of them. “This is neither a stopgap nor a medium term, but a satisfactory response to real needs”, emphasizes Valérie Ohannessian in Mediation in business.

In this summary, the lawyer by training reviews the philosophy and legal foundations that underlie mediation, but also its implementation and the techniques that must be known for successful mediation.

The author, who advises companies in their governance, is convinced of this: “Choosing mediation to settle a dispute suits the purpose of the business. It is to save time, money, serenity to continue to accomplish its mission, which is to produce goods or services and create value. “

Long time of anachronistic justice

While the long term of justice appears more and more anachronistic compared to the time of the company, which is accelerating with the development of information technologies, mediation is still presented as a convenient but degraded alternative to justice. cluttered, slow and inefficient. “This regrettable approach introduces a set of suspicions with regard to those involved in mediation: the mediator does not have the authority of a judge, so he would not offer the same guarantees of impartiality and could favor the law of the most strong at the expense of the weaker party. “

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However, mediation is not free from fundamental principles of law and its usefulness has appeared to the magistrates themselves, aware of the limits of the sole mobilization of the law to satisfactorily settle certain conflicts.

Born in the 1970s from a praetorian practice favoring the search and proper understanding of the solution by the parties, mediation is organized by the law of February 8, 1995 and continues to develop. Since January 2020, disputes of less than 5,000 euros can only be brought before the court if the claimant justifies an unsuccessful attempt at an amicable resolution. Today, it is “an autonomous mode of conflict resolution and not just a simple means of relieving congestion in the courts”.

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