Mediation and Lawyers

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Mediation and Lawyers
PROMOTION OF MEDIATION BY THE BAR: THE PARIS BAR EXPERIENCE
Louis B. Buchman
Member of the Paris and New York Bars
Councillor of the Paris Bar
Accredited Mediator, ICDR-AAA and WIPO
Joint CCBE-Belarus Bar Association Seminar (Minsk, 25 September 2015)
INTRODUCTION:
Why did the Paris Bar decide to promote mediation? For three main reasons:
1. Economic pressure
Some areas of litigation, from which lawyers used to derive revenue, are declining in numbers,
even though the overall population of lawyers is constantly growing.
There is therefore an economic reason to replace a dwindling activity - litigation – by another in
which lawyers could play a useful role.
2. Courts pressure
Judges have the right to induce litigants to settle their disputes but are not individually effective
in exercising that right. Courts started to promote mediation in the hope of inducing litigants to
reach out-of-court settlements and thus reducing the number of cases which the courts must
handle and the number of decisions the judges must write and render (alleviating their
schedules by the same token).
INTRODUCTION (Continued)
3.
Legislative changes
In 1995, a law was adopted to regulate court-ordered mediations, but is success was
only moderate.
In May of 2008 (after the adoption by the European Parliament of the Mediation
Directive on 23 April), a report was released by a Working Group presided by the
then President of the Paris Court of Appeals, Mr. Magendie, calling for renewed
efforts to further develop court-induced mediations. Some of the measures
suggested by the Magendie report were taken up by the French government which
introduced legislative changes, and these changes were adopted by the French
parliament.
A recent change in the French Civil Procedure Code came in force this year, which
makes it compulsory for a plaintiff to be able to justify having attempted reaching a
settlement agreement, before initiating judicial proceedings.
Which tools were used by the Paris Bar to promote mediation?
Firstly, the Paris Bar inserted provisions on mediation and its practice by
lawyers into its Internal Rules of Ethics.
Secondly, it adopted and implemented a mediation policy, built on several
elements:
1. Creation of an ADR Commission
Open to all interested Paris lawyers, it was created several years ago, with three
objectives: 1) to promote mediation, collaborative law and participatory procedure
(the latter being a negotiation without a mediator); 2) to encourage dialogue and
further studies; and 3) to be a source of proposals.
Composed of three specialised sub-commissions (e.g. family mediation), the regular
meetings of which are well-attended, it is active and a good forum for dialogue.
2. Creation of a separate Mediation Association for lawyers who practice
mediation regularly
The Association of European Mediators (www.mediateurseuropeens.org) promotes
and develops both voluntary and judicial mediations and above all, the role of lawyers
in mediation.
It brings together almost 200 mediators who come from various backgrounds, hold
specialised university degrees (200 hours of education), have professional liability
insurance, follow continuing education, and who have signed its ethics policy.
The association keeps and updates a list of qualified mediators (lawyers and nonlawyers) which are involved in judicial mediations and also develop a voluntary
mediations practice.
For voluntary mediations, fees are set freely (on average, 250 € per hour plus VAT).
For judicial mediations, in partnership with the Paris Court of Appeals, the Association
of European Mediators participates in a "public service of mediation".
With over 500 mediations per year, AME has become a leading mediation centre in
France.
3. Initial training of lawyers
The Paris Bar has organized both a basic training module and an advanced training
module.
4. Continuing legal education programs on Mediation
Continuing education is mandatory for all French lawyers, who must follow at least 40
hours of CLE over two-year periods (an average of 20 hours/year).
The Paris Bar Association and its Bar Training School offers a 130-hour course aimed at
enabling lawyers who act as counsels to parties in alternative dispute resolution
("ADR") to acquire and master all the ADR skills.
To this end, an International School of ADR Methods ("EIMA") was created. The training
focuses on the role of the lawyer and in particular his or her ability to assist the client.
At the end of the course, the student's skills are evaluated. A passing score gives the
lawyer a diploma , and the ability to put "EIMA" or "International School of ADR
Methods of the Paris Bar" on his or her professional communication.
5. Creation of a Centre for the Resolution of Professional Disputes
In July 2013, in order to further structure its offer of dispute resolution services, the
Paris Bar set up a centre for the resolution of professional disputes (“CRLP”) to respond
initially to disputes between lawyers.
It is envisaged to later open it up to disputes between other professionals.
The purpose of the centre is to "manage the processing of any civil professional dispute
which parties agree to submit to it".
This shows the ambition of the Paris Bar to go beyond lawyers only.
Mediation rules were drafted and adopted by the Paris Bar, and an ethics policy for the
CRLP disputes was also adopted, in order to avoid conflicts of interest.
Since its opening, the CRLP handles an average of 750 cases per year, and 85 % of these
cases are settled.
6. Appointment by the Paris Bar President of a delegate in charge of
Mediation
At the beginning of this year, the Paris Bar President created a new position: one of the
elected Councillors became his delegate, in charge of developing ADR.
This appointment is intended to emphasise the importance that the Bar attaches to
alternative methods of dispute resolution, by entrusting to a delegate of the Paris Bar
President the task of being a coordinator of all initiatives and a liaison between the
various stakeholders, the Paris Bar President, and the Paris Bar Council.
Other professionals and institutions
The lawyers are also compelled to modify their conservative opinions and
attitudes because of the competition in the mediation field coming from
other professionals or institutions.
This is healthy and a good accelerator of changing the lawyers’ mentality.
(i)
The Paris Notaries
The Notaries Public in Paris have created a training course of 84 hours for their
members, and offer two services: 1) a service for the general public with an initial
fee of 150 € to open the matter and 250 €/hour thereafter (plus VAT), with a
notary serving as mediator; 2) a service to the courts and to other legal
professionals with a set fee of 1,500 € per matter (plus VAT) with a notary serving
as mediator.
(ii) The Process-servers (Baillifs)
The Process-servers' center offers an online mediation tool for small disputes, as well
as face-to-face mediation, with a process-server serving as mediator.
Through a negotiation support service, the process-servers also want to serve as
counsels to parties in mediation. The cost of the "mediation negotiations" runs from
80 €/hour to 300 €/hour (plus VAT), depending upon several criteria.
(iii) The Chartered Accountants
The Chartered Accountants have also recently set up their own "Center of Trustworthy
Multidisciplinary Mediation".
(iv) The Paris Chamber of Commerce and Industry
Opened in partnership with the Paris Bar many years ago, the Centre for Mediation
and Arbitration of Paris (www.cmap.fr) created and funded by the Paris Chamber of
Commerce and Industry, is devoted to solving commercial disputes, and offers a 56hour training course with an accreditation process, and various ADR services.
(v) Experts accredited by the Paris Commercial Court
They created an Institute for Expertise, Arbitration and Mediation (www.ieam.eu),
which organises a 56-hour training course and also offers ADR services to solve
commercial disputes.
Under its fee scale, the cost of mediation is proportional to the amount in dispute,
and runs from a flat fee of 1,000 € (plus VAT) for three hours plus a filing fee of 150 €
(plus VAT), up to fees of 550 €/hour (plus VAT) with a filing fee of 2.000 € (plus VAT).
Unofficial, bottom-up initiatives by lawyers
•
Some lawyers are not at all interested in court-ordered or court-induced
mediations, but they do actively promote and practice voluntary mediation for
clients, in different areas of the law.
•
For instance, a grass-roots movement was started in October 2006 by some Paris
lawyers to have business lawyers and law firms subscribe to a pledge in favour of
commercial mediation.
•
Since it was launched, several hundred lawyers subscribed to this pledge
Conclusion
To summarise, there are six steps which any Bar Association could and should take, if
it is serious about fostering a mediation culture among its members, and beyond:
1.
Insert specific provisions on mediation and its practice by lawyers into the
Bar's Ethics Rules.
2.
Create within the Bar Association a Mediation Institute or Mediation
Commission, to bring together the already trained lawyers who wish to
spread the gospel of mediation
3.
Have the President or Dean of the Bar Association appoint a delegate among
the Bar councillors who will be in charge of mediation and will report to the
President or dean any suggestions to do better or any difficulties
encountered.
Conclusion
To summarise, there are six steps which any Bar Association could and should take, if
it is serious about fostering a mediation culture among its members, and beyond:
1.
Insert specific provisions on mediation and its practice by lawyers into the
Bar's Ethics Rules.
2.
Create within the Bar Association a Mediation Institute or Mediation
Commission, to bring together the already trained lawyers who wish to
spread the gospel of mediation
3.
Have the President or Dean of the Bar Association appoint a delegate among
the Bar councillors who will be in charge of mediation and will report to the
President or dean any suggestions to do better or any difficulties
encountered.
4.
Create a Mediation Training School within the Bar Association to
increase the number of lawyers who are trained as mediators
5.
Devise Mediation Rules within the Bar Association which conform to the
Bar's Ethics Rules, and start applying them to solving professional disputes
among lawyers with the assistance of a few selected Bar Councillors or
Former Bar Councillors acting as mediators.
6.
Create a Mediation Center within the Bar Association which applies these
Bar-devised Mediation Rules, with a body of certified mediators, and
develop an offer to other professionals (such as doctors, architects, etc.) to
come to this Center to have their professional disputes mediated.
Thank you for your attention!
Any questions ?

Mediation and Lawyers

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