An examination and some comments on the speech of 5 January 2023 by the French Keeper of the Seals, Eric Dupond Moretti

Emanuela Pucci, lawyer in Milan until 2010, then legal consultant and certified mediator Italy/France, commercial, civil, family and now international.

Published Jan 12, 2023

"Seul le prononcé fait foi." The speech of 5 January 2023 by the French Keeper of the Seals, Eric Dupond Moretti, bears this traditional French expression in the header. So be careful, we are faced with the commitments, expressed orally and publicly, by the Minister of Justice for the second five-year period of the Macron Presidency, with the launch of an important plan of action and reforms of the French Justice, preceded by extensive consultations of experts and citizens (I was there too!).

Today, the guidelines of this reform could be of some interest to the Italian legislator, but the Cartabia reform could also be enough for a development of ADR in the next period, albeit with some adjustments, if really applied and with all the necessary funds.

As a specialist and connoisseur of the French legal world, I fully grasp the technical, cultural, historical and political interest of this great French reform, which however does not speak of mediation, but of procedures that have little to do with it, managed by magistrates, however categorized as a development of the policy de l'amiable (of the amicable solution), but only apparently out of courts, I would say.

Credit must be given to the Minister himself, who on 14 October 2022 participated in the general assembly of the FFCM (Fédération fran?aise des Centres de médiation, to which the Lyon body to which I am a member also belongs) with a speech of great appreciation for the FFCM, showing awareness for the legitimate aspirations of French mediators and the "de l'accord" culture.

I know "my French" well, which I have learned to appreciate over the years, and I fear that either the mediation procedure will fall, together with the mediators, within the scope of institutional state management, or will continue to be underestimated by the state in its real alternative potential of democratization and pacification of society, of creation of decision-making autonomy and accountability of the parties in identifying and satisfying their interests. In my opinion, the Italian reform already marks a strong processualisation of the mediation procedure; French mediation, hitherto poor but free, could be tempted to institutionalize itself. We'll see.

With this speech, the minister does not pay much attention to mediation itself, thinking only of procedures managed by judges and lawyers together, destined to have a strong deflationary impact. Furthermore, a national morning conference on alternative ways of amicable settlement of conflicts (composition à l'amiable) is scheduled for 13 January 2023. The very formal invitation distributed to specialists is motivated by the intention of the Minister to make Justice closer to citizens, especially in matters of family law and civil law. Therefore, in the continuation of the action plan in favor of the reform of the Justice elaborated by the General States of Justice, all the highest offices of the judicial institution are invited to the official launch of the "politique de l'amiable" at theMinistry of Justice, Place Vendome: I dwell on these details because they are the sign of the importance of the event and the resonance that we want to give this plan to relaunch Justice, also through three round tables on the so-called new alternative instruments, ie the hearing for amicable settlement, the participatory procedure agreement and the caesura of the process. When will we talk about mediation? Among the recipients of the invitation, the "Médiateurs" are in third from last place, well after the lawyers, after the "conciliateurs de justice" and before only the representatives of institutional organizations, groups with collective interests and ordinary citizens: nomina sunt omina.

In the speech of January 5, great attention is paid to the human and financial resources destined for justice. It is clearly acknowledged that for 30 years French justice has been in political, budgetary and human abandonment. So, in the last 5 years the budget has become a priority and has seen an increase of 44%: from 7.6 billion in 2020 it went to 9.6 billion in 2023 and will continue to increase as planned, so that in 2027 it will be of 11Md.

Obviously, many financial resources correspond to an investment plan to improve the effectiveness of justice, improve the organization of the work of employees, including magistrates, the decentralization of the Courts of Appeal, which will have autonomous budgets, the training of magistrates in culture of the amicable agreement, with the possible provision of external teachers, even mediators, in their schools. The deflationary intent is always present, assuming interesting internal organizational aspects, which, in focusing attention on the figure of the Magistrate and his revaluation in the purely decision-making role, leaves the role of administrative support to the future team that will assist him. Particularly interesting is the need to introduce even more expert magistrates to the Courts of First Instance,

There's even a digital challenge! For 2027 we want a "zéro papier" (zero paperwork or wastepapers) states the Ministry of Justice with all the consequences of the case. It should be underlined that French mediators use the ODR very little and, to my knowledge, there are not many problems for the remote subscriptions of the parties, since there are lawyers; otherwise there is always a remedy.

Pedagogical action is then envisaged in middle schools to promote justice in all its articulations, as an institution in which to trust and the law as a means of communication and an instrument of peace in the daily life of students and citizens; again mediation is not mentioned.

Deflationary purpose. Starting from the observation that 60% of the decisions at the national level are in civil matters, the Minister contemplates the launch of a true political plan of the amiable in a deflationary sense as indispensable.

This program must involve citizens on a participatory level, for which new ways of amicable and agreed procedures will be developed, where the work of the lawyer will be valued who will actively contribute to reaching an agreement (!) and therefore the dossiers thus treated will have priority in the treatment of the judge; but in these procedures the judge will continue to have a central role.

In the first place, let us mention the césure: this is nothing new for us, already trained in an and quantum. That is, separation of the question of law and that of liquidation of the damage. The novelty is perhaps that the first phase, i.e. the question of law that the judge will have to decide, can be identified in agreement by the parties, while the second phase will not be dealt with in that judgment and the parties will be postponed to agree on the quantum. Having chosen this caesura procedure, the case will be called immediately, the judge will immediately issue his decision on the fund; but the right of appeal will return to the parties only at the end of the mediation procedure (médiation is the textual data here!), a contradictory term because the purpose of this suspension ofthe right of appeal would be, according to the Minister,verbatim). The declared objective is to halve the duration of the trials. It will be interesting to see its application.

Secondly, another new means of procedure à l'amiable is the amicable settlement hearing, which is very popular in the Courts of Québec, French-speaking Canada, with a success rate of 72%. the Minister states that he has spoken with the judges and lawyers involved and that all have declared themselves satisfied; Let's hope the citizens are too! However, the procedure is still before a judge who plays the role of a conciliator with the collaboration of lawyers.

Then there is the intention to codify in a single chapter of the code all the rules that have followed one another over time and are in force relating to alternative ways of amicably settling disputes; this in the context of the need to simplify information and access to these procedures. A sensible intention, I think.

Other areas of civil law will be reformed; that of the prudommal institutions that decide the procedures in the matter of labour, in the economic sector with the Tribunaux de Commerce, in which the Minister envisages the inclusion of professional judges as a positive element to extend their technical skills in the economic field and the creation of the Tribunaux des activités economiques who will have the competence, albeit on an experimental basis, of all the procedures à l'amiable and of the collective ones.

The discussion continues with the examination of the criminal law reform, which I will not deal with here.

In my exposition I tried not to include too many personal evaluations, also because it will only be possible to know the Minister's official plan on 13 January for the relaunch of a policy of alternative procedures for the solution of civil disputes (politique de l'amiable), which hopes it will also include "true mediation" in the budgetary plans, as known to us Italians and Europeans, whether delegated or conventional, which perhaps is not so effective in terms of deflation or is so indirectly, but helps to transform the animus of the litigants in dealing with the dispute and brings them to maturity with the best understanding of the conflict itself. (A suivre-continued).

Emanuela Pucci, lawyer in Milan until 2010, then legal consultant and certified mediator Italy/France, commercial, civil, family and now international.

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