Cross-border family mediation is promoted by international and European cooperation instruments in order to facilitate the peaceful and rapid settlement of disputes. France has set up a unit within its central authority designed to promote the use of mediation in cross-border cases. It is important to also present national rules governing mediation, which also apply in cross-border cases.
National legal framework:
Law No 95-125 of 8 February 1995, followed by Decree No 2012-66 of 22 July 1996, enshrined judicial mediation in French law. Any judge hearing a dispute may, with the agreement of the parties involved, appoint a qualified, impartial and independent third party mediator.
Order No 2011-1540 of 16 November 2011, transposing Directive 2008/52/EC of 21 May 2008, amended the Law of 8 February 1995. This law defines mediation as any structured process by which two or more parties attempt to reach an agreement, with the aim of amicably resolving their dispute with the assistance of a third party. It establishes a common system for all mediation.
There is a state diploma for family mediation, created by the Decree of 2 December 2003 (Articles R.451-66 et seq. of the French Social Action and Family Code (Code de l’Action Sociale et des Familles)) and the Orders of 12 February 2004 and 19 March 2012. However, at the present time, this diploma is not mandatory to be able to practise as a family mediator, family mediation not being a regulated profession.
Family mediation may take place:
1. without legal intervention: this is what is called family mediation by agreement (médiation familiale conventionnelle); in this case, the mediator is appointed directly by the parties involved;
2. in the course of legal proceedings: Article 1071 of the French Code of Civil Procedure (code de procédure civile), Article 255 and Article 373(2)(10) of the French Civil Code (code civil);
The agreement reached at the end of family mediation can be subject to approval by a family judge (Articles 1534 and 1565 et seq. of the Code of Civil Procedure). The judge approves the agreement unless they find that it does not safeguard the interests of the child sufficiently or the parents’ consent was not given freely (Article 373(2)(7), second paragraph, of the Civil Code) or more generally if it could threaten public order.
International family mediation:
International family mediation is provided for in international cooperation instruments in family matters (Hague Convention of 25 October 1980 and Brussels IIa Regulation), in order to facilitate amicable solutions for the return of the child in cases of international child abduction, or agreement on exercising the right of access of one parent.
Interested parties may:
1. Contact mediators practising on a self-employed basis or in the voluntary sector: a list of mediators able to intervene in international family matters is available online at the following address: http://www.justice.gouv.fr/26139 (or click here).
2. Request mediation through the dedicated International Family Mediation Unit in the office of the French Ministry of Justice, which acts as the French central authority for the Hague Conventions of 25 October 1980 and 19 October 1996 and for the Brussels IIa Regulation. The central authority proposes the use of mediation in the cooperation cases referred to it, but may also intervene in other cases, depending on the situation, such as cases relating to the wrongful removal of children, cross-border access rights and the protection of cross-border minors.
To begin the mediation process, at least one of the parents must reside in France and the other overseas, whatever their nationality may be. The mediation unit will receive an application for international family mediation from one parent, and will then propose mediation to the other parent. The application must be voluntary: there can be no coercion in an international family mediation process. The mediators in the unit carry out their duties with impartiality and diligence, and mediation is subject to the principle of confidentiality.
The mediation carried out by the International Family Mediation Unit of the Ministry of Justice is free of charge. The application, accompanied by documents concerning ongoing or previous proceedings conducted in France or overseas, must be sent by post to the following address:
Ministère de la Justice
Direction des Affaires Civiles et du Sceau – BDIP
Cellule de médiation familiale internationale
13 Place Vendôme
F – 75 042 Paris Cedex 01
It can also be sent by e-mail: firstname.lastname@example.org
Link to the French Ministry of Justice (International Family Mediation Unit): http://www.justice.gouv.fr/justice-civile-11861/enlevement-parental-12063/la-mediation-21106.html
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