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Debate – The mediator, the lawyer’s new best friend?

Lawyer mediator – Mediation by the lawyer. Even if the latest figures are encouraging, lawyers still sometimes have difficulty adopting the mediation reflex. However, they must be an integral part of the process for the full development of this alternative method to legal litigation which has many advantages that have long been proven, including time saving, confidentiality, cost control and consensual pacification of disputes. A look back at two key players in conflict resolution.

The lawyer mediator, at the heart ofan alternative amicable dispute resolution process

Whether judicial or conventional, mediation and the lawyer mediator remains a possibility open to the parties to find a solution to the resolution of their conflict upstream of the dispute and, when the courts are already seized, to constitute a complementary option to the judge capable of allowing the parties to find a solution to the dispute themselves. The advantages are well known: essentially pacification of the conflict; and resolution (quick and less expensive, €8 on average to be shared between the parties) of the dispute if it is successful.

As a reminder, judicial mediation, established by Law No. 95-125 of February 8, 1995, was inserted by Decree No. 96-652 of July 22, 1996 in the new Code of Civil Procedure, under articles 131-1 and following which govern it. Since then, governments have continued to promote it, most recently through the 2018-2022 justice programming law.

Indeed, the advantages of mediation are numerous. The main ? Reestablish communication between the parties and ensure that they find common ground before the trial. Be careful, it is not up to the mediating lawyer to find the solution but to the parties in conflict. The latter must simply ensure that the agreement is in good faith and that it reflects the will of the parties. The mediation agreement is not drawn up by the mediator but by the parties or their lawyers. And if no agreement is reached, the mediator simply informs the judge that the parties have not been able to agree.

Finally, the advantage of mediation with a lawyer, as we can clearly see, is to find a middle ground between two parties in conflict, before a trial, under the neutral eye of a third person, who will not favor either party. It is also a quick process, since, with some exceptions, a deadline of 3 months maximum must be respected. The latest statistics show in this regard that on average 70% of cases result in an agreement, after around fifteen hours.

The role of the lawyer mediator in mediation

Mediation and especially the perception of mediation by lawyers has evolved significantly in recent years. The proof: many bars today have their own mediation centers and these centers have generally entered into agreements with the courts facilitating the implementation of mediations. This training is logically not without consequences on the use of mediation, better trained, the lawyer concedes more easily and has better control of the process, from the opportunity to resort to it to the conclusion of the agreement in passing through the entire mediation process with which it is necessarily associated. And the figures show this since 68% of lawyers admit to practicing it*. And an indication of the favors of mediation, some lawyers today see in it a potential for development of their professional activity*.

Also, as we can clearly see, the role of the lawyer is major here in the resolution upstream of the dispute: he must not only inform his client of the interest of mediation before the trial, but he is thus also associated. This is not anecdotal: statistics have shown that mediation with the presence of the lawyers of the parties concerned had a 70% chance of succeeding, compared to 30% for that excluding it.

Informing, supporting his client, the lawyer must finally contribute to the drafting of the memorandum of understanding. Here again, its role is not trivial. It is in fact the only one capable of guaranteeing that the parties have concluded the agreement with full knowledge of their rights.

What if everyone got along?

Mediation is not the prerogative of the judge, the lawyer, or even the mediator. On the contrary, it must be the revelation and the outcome of collective work. Taken in isolation, it is of limited interest; however, it will prove to be terribly effective if the different protagonists work together. The conductor here is undoubtedly the magistrate, we must not forget the clerks either, who are in direct contact with the litigants, perhaps more than any other. As we have seen, the role of the lawyer is also decisive. Finally, obviously, mediation will be more likely to succeed with a qualified mediator who guarantees a fair balance. Here again, things are changing, since today 51% of designated mediators come from the legal professions compared to 49% from the business world.

* Survey on Lawyers and Mediation 2020, Justice Village. Please note that the percentages presented here correspond to the percentage of respondents.

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Macron scale – The revolt is getting organized

Macron scale: the revolt is organized 

We remember the judgment of the Rouen Court of Appeal, which, on September 25, 2019, a little over a year ago now, was the first to speak out against “rigidity” (we we will return to it) of the Macron scale, noting in passing that "the control of conventionality does not exempt, in the presence of a system deemed conventional, from assessing whether it does not cause a disproportionate attack on the rights of the employee concerned. that is, by imposing burdens on it that are disproportionate to the desired result.” The statement is not trivial and must be underlined, it in fact establishes an analysis in concreto, an analysis which allows the judge to set the severance pay of the injured employee himself, thus freeing himself from neither more nor less from the said scale and to take into account the reality of the damage suffered, to use an expression widely used since. Compensation for the damage proportional to the damage overall. Logic. Not so much.

The Macron scale at the heart of judicial vindictiveness

For the record, since the entry into force of the so-called Macron orders of 2017, the severance without real and serious cause are capped and locked into a scale which only takes into account two criteria: the employee's seniority in the company and its size. From this reading alone, we clearly understand the rigidity, even the inadequacy of such a scale to the reality of the harm suffered by the employee unfairly dismissed, age, family responsibilities, state of health, state of the job market, etc. . For example, if we recall that we are counting here in months of gross salaries, the first figure corresponding to the minimum compensation and the second to the maximum compensation, an employee with 1 year of seniority will receive, again time regardless of the damage suffered, between 1 month and 2 months of salary in severance pay, a dismissal deemed without cause and real and serious, for a company with more than 11 employees; between half a month and two months for a company with fewer than eleven employees. The minimum compensation does not change, for companies with more than eleven employees, and remains fixed at 3 months, regardless of the seniority of the employee, and ranging between 2 and 20 months for the maximum compensation, 20 months valid for employees with thirty years of seniority. The same goes for companies with fewer than 11 employees.

The assessment in concreto new spearhead of the trial judges

It is from this legal context, set out in article L. 1235-3 of the Labor Code, that the revolt was born. Ignoring this barometer, the trial judges thus decided to continue to determine for themselves the amount of industrial tribunal compensation due in the event of dismissal without real and serious cause. Reims, Grenoble, Angoulême, Bobigny and now Bourges, concrete analysis seems to be on the rise. We will put aside here the more ambiguous decision of the Parisian judges, just evoking the idea of ​​adequate reparation.

What criteria come into play? They will logically depend on the specific situation of each employee. But, typically, some “major” criteria emerge. Judges generally take into consideration the age of the dismissed employee, their family situation, and their state of health as well, but not only. The judgment of November 6, delivered by the Bourges Court of Appeal, is most revealing in this regard. The judges in fact ruled out the application of the Macron scale by taking into account the classic criterion of the employee's age, but also adding their job searches and the tensions of the current job market. The reasoning is initially identical to that of the Rouen judges: "when a dismissal is unjustified, the control of conventionality does not exempt, in the presence of a system deemed conventional, from assessing whether it does not harm disproportionate to the rights of the employee concerned by imposing on him disproportionate burdens in relation to the result sought, in this case full compensation for the damage he suffered. And subsequently clarified: “However, in this case, it appears that Mr. B was 59 years old on the day of his dismissal and had 5 years of seniority within the company. He has an impressive number of unsuccessful job searches without being able to blame him for not having limited them to his area of ​​expertise, logistics. Indeed, given his age and the French job market, it was in his interest to extend his research well beyond his main area of ​​expertise. He cannot be blamed for the lateness of his research since, over the period from October 2019 to July 2020, he has submitted at least 177 applications.

The decision is implacably logical. The difficulty in finding a job, especially given the context of the health crisis, risks becoming an essential criterion in the concrete assessment of the trial judges. And the modus operandi that is the appreciation in concreto finds its full meaning here.

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