The decree of 29 July 2023 (Decree no. 2023-686, Official Journal of 30 July) brings significant advances for the amicable resolution of a dispute where judicial proceedings are already under way. Two new amicable settlement tools will thus apply to proceedings brought before the Tribunal judiciaire from 1 November 2023 onwards. The amicable settlement hearing (1) and the splitting of proceedings (2) give effect to the « major amicable settlement policy » announced by the Minister of Justice in January 2023.
The amicable settlement hearing (ARA)
The ARA is a free-of-charge procedure which makes it possible, at any time during written or summary proceedings before the Tribunal judiciaire, to bring in another judge to try to settle all or part of the dispute amicably (articles 774-1 to 774-4 of the Code of Civil Procedure).
The judge hearing the dispute may decide to summon the parties to an ARA: at the request of one of the parties, or on the judge’s own initiative after obtaining their views. This decision to summon the parties is a judicial administration measure that is not open to appeal. It does not divest the judge of the case but opens an amicable sequence (the judge’s decision to summon the parties to an ARA constitutes a new ground for interrupting the proceedings and for interrupting the limitation period for lapse of the proceedings).
The ARA is held by a judge who does not sit on the trial bench. As a result, should the parties fail to reach an agreement, the impartiality of the judge ultimately responsible for deciding the dispute will be preserved.
The provisions on the ARA provide for the confidentiality of exchanges, whether oral or written and whether they come from the judge or the parties.
The judge in charge of the ARA may bring it to an end at any time by a simple judicial administration measure. Should the parties reach an agreement (even a partial one), they may decide to have their agreement recorded by the judge or set out in a deed countersigned by lawyers. The judge in charge of the ARA then informs the judge hearing the dispute that the ARA has ended and, where appropriate, sends them the record of the agreement.
Our analysis. The ARA is a notable development in amicable methods, since this mechanism takes place during judicial proceedings and does not require the agreement of all the parties to the case. In other words, this hearing dedicated to amicable settlement may be imposed by the judge, including in summary proceedings, which may be of interest in order to break the pace set by the claimant and regain the composure needed to settle. It could also be used for dilatory purposes, to better prepare one’s defence, or even to obtain information which, if supposedly confidential, could serve to understand the underlying situation (financial difficulties, for example) or even to redirect certain arguments. The principle of confidentiality is indeed not an absolute guarantee, as is seen in mediation, for example. All these reasons call for the ARA to be prepared intelligently.
The splitting of proceedings
The splitting of proceedings is a controversial mechanism suited to lengthy and complex disputes, since it is intended to allow the dispute to be clarified (articles 807-1 to 807-3 of the Code of Civil Procedure).
In practical terms, within the framework of ordinary written proceedings before the Tribunal judiciaire, all of the constituted parties may ask the pre-trial judge to partially close the investigation in order to argue certain points of the dispute. In other words, the parties may adapt their proceedings to their needs, assuming of course that these procedural needs coincide.
To this end, the parties must produce a deed countersigned by lawyers setting out the claims, which must be particularly well identified, in respect of which they are seeking a partial judgment. If their request is granted, the judge orders the partial closure of the investigation and refers the case to the court so that it rules on the merits of the claim or claims determined by the parties. An appeal is available against the partial judgment that will be handed down, the appeal procedure then being on an expedited basis. The pre-trial phase continues before the Tribunal judiciaire in respect of the claims that have not been subject to the partial closure.
Our analysis. The splitting of proceedings appears useful for complex cases, such as compensation claims brought by victims’ associations in healthcare matters or, more broadly, certain collective actions. The splitting of proceedings could lead to a ruling on the principle of the professional’s liability while leaving the question of the assessment of any damages to a later phase. The idea is to encourage a settlement on the consequences of the points decided. It remains to be seen how lawyers will approach this new possibility, which requires the unanimity of the parties. Indeed, in the event of an imbalance between the respective weight of the parties involved, the defendant might wish to delay any judicial decision by refusing the splitting, with the aim of seeking to « wear down » the claimant in their efforts.