Is pre-mediation a goal of the roadmap for the continuous modernization of the judicial system? For an increasing number of people, mediation is now associated with freedom of decision. This idea and its implications are not easy to follow for people who usually belong to the harem of tradition. This new concept stems from the systematic development of professional mediation in opposition to the traditional practices of mediation, which are often confused with conciliation, arbitration and logical negotiation, under the influence of concepts that promote benevolence, ethics and reminders of rights and obligations.
Evolution of the concept of compulsory mediation
However, it should be noted that the mediating mechanisms are not only reproduced and attempts at obstruction are resolutely bypassed. Discrimination is advancing and the definition of mediation is beginning to be better and more appropriate by text writers and legislators. Thus, the idea of compulsory mediation has gained ground and we can see that the concept of “right to mediation” is becoming increasingly understood.
Despite resistance to the suggestion of prior mediation in low-value disputes, eliminating the use of prior mediation did not discourage editors committed to this possibility. Article 750-1 of the Code of Civil Procedure has been restored, allowing the judge to decide whether or not a direct referral is lawful. Although the text presents stylistic ambiguities, suggesting the possibility of arbitration by a judge and exemption from prior obligation under certain circumstances, it testifies to a general desire to promote mediation in low-value disputes.
Thus, amicable methods of settling “small disagreements” returned. They again become a prerequisite and to circumvent any susceptibility of counsel they are ultimately subject to the decision of the judge who, in a direct referral, can restore the parties to an amicable situation if they do not take this route.
New questions will arise, particularly about the reliability of some friendly approaches to competition. Why choose one mode over another? What if resorting to a situation means losing an opportunity to resolve the conflict? From now on, the discussion can revolve around what is relevant or not. Suppose the lawyers chose an amicable method at their convenience and the process failed, would it not be appropriate to recommend professional mediation, as well if any other attempt failed?
Indeed, with the variety of amicable methods, it seems possible to reduce the burden of the courts, speed up the proceedings and guarantee satisfactory results for all parties involved. However, apart from the fact that it is important to ensure that alternative modes are not used in a veiled manner, even if relatively legal proceedings have hardly shown an example of speed, it may be a matter of better defining what can promote the resolution of a dispute without recourse to arbitration, and thus leaving the parties responsible for their agreement.
We have to define what these patterns are and separate professional mediation, which is characterized by a specific frame of reference, relational quality, authentic tools, relational architecture, and its own paradigm, which is social understanding.
While Alternative Dispute Resolution Methods – MARD or MARC (When We Choose Disputes) – are defined in the legal field, with the principles of legal compliance and the principle of guardianship, professional mediation has been extracted from it since its inception. These alternative modes are linked to the same societal paradigm as the judicial system and the law, which is the contract and the social contract. This foundation makes a huge difference and everyone offers their own perspectives. From this perspective, professional mediation constitutes an initial extension of the exercise of freedom of decision, while the judicial system and its associated modes constitute alternative paths that can be taken when the parties find themselves unable to exercise their capacity to think, think, and their freedom. of resolution.
That is, the reference for professional mediation is precisely the structuring of its integrated processes, the use of rationality, methodology and modern technologies, and not charitable relations, normative concepts and reminders of legal rules or concepts. Thus, professional mediation is a practice based on the identification of individual and group mechanisms for the deterioration of relationships and the establishment, restoration and maintenance of the quality of relationships. The transactional approach associated with it is not that of the traditional and commercial forms of rational negotiation, but an approach that contributes resolutely, both to the construction of a moral agreement and to the realization of the project when the investigation continues over time.
The roadmap for the continuous modernization of the justice system should include compulsory mediation as a primary goal. This requires a constitutional reform aimed at promoting the development of mediation in all areas. This reform will establish the right to mediation as a support for the exercise of freedom, thus promoting independent decision-making and concrete conflict resolution.
To obtain mediation from traditional constraints, it is also necessary to put an end to the devaluation of this approach, which seeks to promote agreement between the parties, but is often considered a simple “attempt” by legal professionals, even if the judicial decision can be seen as an attempt to regulate. Thus, it is prudent to recognize the use of mediation as a right and an initial step aimed at preserving relational and contractual freedom, whether to define a relational project or to establish a renewed agreement in order to resolve the conflict. With this in mind, parties to a dispute who cannot reach an agreement must be informed that recourse to a judge entails giving up their freedom of decision and then placing them under guardianship.
Compulsory mediation, combined with the requirements in the White Paper on the mediator’s profession, is such a threshold of dialogue that it may seem unimaginable. However, with the structured processes, and challenging techniques practiced by the mediation specialist, renewed agreement becomes possible. There is no question of emphasizing an alternative method, which is easy to place under the jurisdiction. It is the judicial path that remains an alternative to free agreement, free understanding, and freedom of decision, because the new devices have spread to all areas of life outside the judicial system, from what we generally call civil life. This innovative approach to the 21st century profession opens unexpected doors to conducting relationship projects and finding concrete conflict resolution.
- The White Paper on the Profession of the Broker, Mass Publisher, and Broker
- White papers on relational and group quality and publisher mediators
- Encyclopedic Dictionary of Mediation, Jean-Louis Lacaux, ESF
- Professional Mediation Practice, Jean-Louis Lascaux, ESF
- A Guide to Consumer Mediation, Jerome Messingweral, Edith Delberel Sikorsinski, Jean-Louis Lascaux, ESF