August 3, 2021

A court (wrongly) sanctions a litigant who has not appealed to a conciliator

Mediation was designed to speed up the resolution of certain disputes, and relieve congestion in the courts. However, the following case shows that it can contribute to bottlenecking them: on March 12, 2019, Hervé X seized the Grenoble (Isère) district court by simple “Declaration to the registry” (procedure which does not require the intervention of a bailiff). He asks that his former lawyer be ordered to reimburse him the sum of 3,000 euros; he considers that she has wrongly defended him in a condominium dispute, which she disputes.

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On May 10, 2019, when her case arrived at the hearing, the president of the court refused to examine it: she declared it inadmissible ex officio. She recalls that the law modernizing the justice of the XXIe century, said « J21 », entered into force on December 20, 2016, provided for this sanction (article 4), for disputes of less than 4,000 euros, when the referral to the court has not been “Preceded by an attempt at conciliation led by a conciliator of justice”. It considers that Mr X should have contacted a court conciliator before going to court, who would have tried to bring the parties together.

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Hervé X is appealing in cassation. His lawyer, Me Bruno Le Griel, recalls that the J21 law allows exceptions, when, in particular, “At least one of the parties justifies the diligence undertaken with a view to reaching an amicable resolution of the dispute”. However, he argues, Mr. X has, in his “Declaration to the registry”, specified having “Sent a letter to the other party with a view to an agreement”. The court, which did not take this into account, did not “No legal basis” to its decision.

The Court of Cassation ruled in his favor on April 15, 2021 (n ° 20-14.106). It thus seems to consider that a letter to the opposing party represents a “Diligence in order to reach an amicable resolution of the dispute”. It is still necessary to examine its content… This will be done by the Grenoble judicial court, before which the parties are referred. (Read the box “Four couriers and“ three faults ”.)

Corinne Bléry, professor of private law, who comments on the cassation judgment for the Dalloz editions, notes that the amicable procedure itself becomes “Subject of litigation”, when “Its outlines are not clear”. What is the case, with this notion of“Other diligences”. It has disappeared from the texts now in force, but the 2018-2022 justice programming law, known as the “Belloubet law”, also contains some inaccuracies. Its article 3, entered into force on 1is January 2020, extended the obligation to go through mediation to disputes of less than 5,000 euros and neighborhood conflicts. However, it also provides for exceptions, in particular in the case of “Legitimate reason”, such as “The unavailability of justice conciliators within a reasonable time”.

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