Conciliation

The conciliation belongs to the alternative modes of resolution of the conflicts. It consists in intervention of third which after having listened to the parts and having analyzed their point of view proposes a solution to them to settle their disagreement, which distinguishes it from the Médiation, which remains an accompaniment and arbitration which is constraining. The parts are naturally free to accept or refuse. The recourse to a conciliator is thus free.

It is generally agreed to call mediator that which entremet at the request of the parts within the framework of a mission of organization of appointment to seek the resolution of a disagreement, while the conciliating use of is on the way to become a title reserved for the legal system, by the conciliating fact of the seniority of the expression of justice , while one does not speak about mediator of justice , but of legal Médiateur , in the same spirit that one speaks about Legal expert . In their mandatement respective, all the three are auxiliary of justice.

In Justice

In France: The conciliator in bond with the Judge of authority

Methods of designation

The conciliators of justice are the voluntary ones indicated by ordinance of the first president of the Court of Appeal in the spring of which they will exert their functions, on a proposal from the judge of authority and after opinion of the Public prosecutor close the aforementioned court.

The ordinance of nomination for first a one year period indicates the canton (S) in (S) the which (S) conciliator will exert his mission and the magistrates' court auprès of which it will have to deposit his official reports of conciliation.

At the conclusion of this first one year period, the conciliator can, at his request and on opinion of the judge of authority and the public prosecutor, being renewed in his functions for new a two years period, always by ordinance of the first president of the Court of Appeal.

Jurisdiction ratione materiae

The conciliator has the role of regulating the different ones by amicable agreement relating to the rights of which the interested parties have the free provision .

Consequently, the conciliator cannot in no case to treat questions:

  • concerning the state of the people (i.e: civil statue, right of the family….) which is exclusive competence of the courts

  • concerning litigations with the Administration which fall within the competence of the Médiateur of the Republic.

the sasine of the conciliator

The conciliator of Justice can be seized:

  • is directly by the parts , by all means (telephone, mail or more frequently visit with the one of its permanences).

  • is by the judge of authority which then delegates to him its power of conciliation pursuant to the provisions of the laws of the February 8th, 1995 and December 28th, 1998.

the unfolding of the conciliation'

It is described by the circular of March 16th, 1993: " When the interested parties are in front of him, if necessary accompanied by a person of their choice, out the presence of any public, the conciliator listening successively and tries by a suitable dialog to lead them to release the solution which will appear the meilleure"

The elements characterizing the conciliation are, in addition to the need for respecting the principle of contradictory, to seek a compromise within the framework of confidential debates in which the conciliator will have to adopt an impartial behavior.

When the conciliator is seized by the judge of authority, the agreement of the parts necessary, is collected most generally to the audience of the judge. In this case, the mission of conciliation cannot exceed one month, renewable, on request of the conciliator, once for the same duration.

At the conclusion of a successful conciliation, the conciliator writes - obligatorily if it is seized by the judge of authority, optionally in the event of sasine by the parts safe in the event of renunciation of a right - a report of agreement.

This report of agreement, established in as many specimens as of parts, is signed by the parts and the conciliator.

A specimen is transmitted to the judge of authority which affixes the executory formula there - obligatorily if it seized itself the conciliator and optionally in the event of direct sasine of the conciliator by the parts: the report of agreement acquires value of judgment then.

Text of the executory formula: " Consequently, the French Republic mande and orders with all bailiffs to put, on this necessary, the aforementioned judgment with execution, the public prosecutors and the public prosecutors close the Courts of Bankruptcy to hold the hand to with it, with all commanders and officers of the police force to lend to it hand-strong when they are legally requis"

With the trade

This procedure is proposed with the companies having failed in their negotiations. It can be concluded by the homologation by the President from the Bankruptcy court from a draft-agreement suggested by the conciliator and, obviously, accepted by the parts.

There exist two practices which are distinguished at this stage from the procedure: the Mandate ad' hoc and the conciliation.

Matrimonial businesses

The parts are received by Judge (JAF), initially the applicant then the defendant and then the two husbands, assisted their lawyers or of their common lawyer. The presence of the two husbands is essential. In France, article 1107 and following of the NCPC.

With the Court of arbitration (France)

Paragraph of the article, to see: the office of conciliation

In Switzerland: Jurisdiction of the conciliation boards (Geneva)

See article:

References

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