Decree n° 2023-686 introduces two new mechanisms for the amicable settlement of disputes applicable to proceedings brought before the judicial courts from 1 November 2023.
Amicable settlement hearing
New article 774-2, paragraph 1 of the Code of Civil Procedure introduces an amicable settlement hearing, aiming at “resolving a dispute amicably through a balanced confrontation of the parties’ points of view, an assessment of their respective needs, positions and interests, and an understanding of the legal principles applicable to the dispute“. In concrete terms, in the words of the Minister of Justice, Mr Dupond-Moretti: “For the judge, they consist of bringing the parties to the table and inviting them to find a solution to their dispute, thereby avoiding a trial“.
The amicable settlement hearing is convened by the judge hearing the case on his or her own initiative or at the request of one of the parties. The hearing itself is held by a judge who cannot later sit on the bench. This means that an additional judge will be appointed for the same case. At a time when the courts are overloaded, the rationale is that there is every hope that this first hearing will enable many cases to be settled at the very start of proceedings.
The parties must appear in person, and everything said or written during the hearing is confidential.
If the outcome of the hearing is an agreed settlement, the parties will ask the judge to record their total or partial agreement. In this case, the judge presiding this hearing will inform the Court and record of the agreement. Otherwise, the proceedings will follow their normal course, as the confidential exchanges that took place during the settlement hearing cannot be communicated to the court by the parties, nor (in theory…) by the judge who held the hearing.
Bifurcation
Under the terms of articles 807-1 et seq. of the Code of Civil Procedure, in ordinary written proceedings, the parties may request that the dispute be bifurcated.
The purpose of the bifurcation is to split the trial into two parts: (i) dealing first with questions of law, such as the application of the principles of liability, in a “partial judgment“, and (ii) sending then the parties back to mediation to deal with questions of fact arising from this first judgment, including the liquidation of damages.
Assessing damages is a delicate and essential task, but one that is often rushed through by the claimant. Court decisions on compensation are therefore unpredictable, and the parties are naturally encouraged to take up this subject once the substantive issue of the dispute has been decided. Where appropriate, the parties will use a mediator profile tailored to the scope of the discussions and may prefer an accountant or auditor. And if a mediation had already been pursued prior to the trial, the parties may return to the same mediator, with the first judgment acting as an accelerator and catalyst for the discussion.
Bifurcation is up the parties who must send the Pre-Trial Judge, in support of their application, a document countersigned by lawyers setting out the claims in respect of which they are seeking a partial judgment.
The partial judgment may be appealed immediately. This appeal is subject to the summary procedure.
This reform is not completely new. In practice, such bifurcations are already put in place in our most complex cases, notably on questions of jurisdiction and admissibility, particularly in construction, unfair competition and counterfeiting. This is also already the case for the rare group actions.
For the time being, these new procedures are only applicable before the Judicial Court (Tribunal judiciaire), which will enable judges and litigants to familiarise themselves with and test these new mechanisms before their likely extension to other Courts.
