Mediation and Justice (FR0017)

STAKES
Justice aims at being responsive to the needs of social relations. More effective justice, different avenues of appeal, and rules for amicable litigation, contribute to an open government. Nowadays, justice must be open to society in order to explain its operation, its constraints, and its priorities. Justice must also incorporate the needs and feedback of citizens in order to improve itself.
CONTEXT & AIM
The “Justice of the 21st century” reform is a commitment of the French Minister of Justice developed with magistrates, justice officials, the legal professions, academia, members of Parliament, local elected officials, and trade union organizations.
After 18 months of joint work, a national debate brought together close to 2,000 people on January 10th and 11th 2014 at the head office of UNESCO in Paris. Following these two days of analysis, scenarios for judicial reform were sent to legal jurisdictions and professions. On
September 10th 2004, the French Minister of Justice presented fifteen actions to the Council of Ministers to ensure that justice is more accessible, more effective, and provides a greater protection.
One of the measures announced was the ability for citizens to help improve their access to justice by forming jurisdiction councils, which will include association representatives.
Another objective for improving the public justice system is to strengthen conciliation and mediation25 across France, so as to allow citizens to settle disputes without automatically going to court.
Finally, results and information on decisions made by national courts will be made available to the public so that citizens can have greater autonomy in their relationship with the justice system and better assess the appropriateness of taking legal action.
ROADMAP
• Opening up justice to society via the formation of jurisdiction councils
- Create jurisdiction councils within courts of first instance and courts of appeal to facilitate a joint analysis of common issues such as jurisdictional assistance, access to the law, access to justice, conciliation, mediation, and assistance to victims. Chaired by jurisdiction leaders, these jurisdiction councils will bring together public prosecutors and magistrates, jurisdiction and prison management officials, judicial protection for young persons, local elected representatives and representatives from trade union organizations, local government representatives, and representatives from the legal professions, local authorities, and associations
• Facilitate access to mediation and conciliation based on the report published by the interministerial mission for the evaluation of mediation and conciliation services in April 2015
• Enable citizens to better assess their chances of success in taking legal action
- In certain civil litigation cases (those relating to alimony, compensatory allowance, compensation for bodily harm, etc.), information on judgments usually handed down by national jurisdictions will be made available to the public
- On a local level, pilot jurisdictions have formed a partnership with universities in order to analyze their jurisprudence. Useful to magistrates to ensure that their judgments are consistent, these analyses will also provide lawyers and citizens with a document that facilitates their procedures and a possible amicable resolution to their dispute

14. Strengthen mediation and citizens' ability to act in matters relating to justice

Commitment Text:

ROADMAP

· Opening up justice to society via the formation of jurisdiction councils

o Create jurisdiction councils within courts of first instance and courts of appeal to facilitate a joint analysis of common issues such as jurisdictional assistance, access to the law, access to justice, conciliation, mediation, and assistance to victims. Chaired by jurisdiction leaders, these jurisdiction councils will bring together public prosecutors and magistrates, jurisdiction and prison management officials, judicial protection for young persons, local

o elected representatives and representatives from trade union organizations, local government representatives, and representatives from the legal professions, local authorities, and associations.

· Facilitate access to mediation and conciliation based on the report published by the interministerial mission for the evaluation of mediation and conciliation services in April 2015

· Enable citizens to better assess their chances of success in taking legal action

o In certain civil litigation cases (those relating to alimony, compensatory allowance, compensation for bodily harm, etc.), information on judgments usually handed down by national jurisdictions will be made available to the public

o On a local level, pilot jurisdictions have formed a partnership with universities in order to analyze their jurisprudence. Useful to magistrates to ensure that their judgments are consistent, these analyses will also provide lawyers and citizens with a document that facilitates their procedures and a possible amicable resolution to their dispute

Editorial Note: This is a partial version of the commitment text. For the full commitment text please see France's national action plan: https://bit.ly/2MTYhsR.

Responsible Institution: Ministry of Justice

Supporting Institution(s): N/A

Start Date:Not Specified

End Date:Not Specified

Commitment Aim

This commitment aimed to improve citizens' access to justice by forming jurisdiction councils and publishing civil case judgments by national courts. Specific commitment activities form part of the broader “Justice of the 21st Century” agenda led the Ministry of Justice. The agenda includes reinforcing access to legal information and the courts, improving transparency in court procedure, and developing alternative modes for dispute resolution. It includes the creation of councils within courts of first instance and courts of appeal to facilitate a joint analysis between citizens and magistrates of issues, including jurisdictional assistance, access to justice and assistance to victims. These councils will facilitate dialogue between civil society members and members of the court. The commitment also involves follow-up on an evaluation of mediation and conciliation services. This report assessed how citizens might settle disputes outside of court, thereby relieving the overburdened judicial system. Lastly, the commitment aimed to publish information on national court judgments on certain civil or administrative litigation cases, and at forming partnerships between jurisdictions and universities to analyse the consistency of jurisprudence practices across different courts.

Status

Midterm: Substantial

This commitment was substantially implemented by the midterm. After a pilot experiment of jurisdiction councils in January 2015, the Ministry of Justice issued a decree extending the establishment of the councils to all courts. The midterm assessment notes that the only permanent members on these councils are the judges, thus there is little possibility for other members to collect support and push an agenda since their participation is ad hoc.

On mediation and conciliation, completion was only limited. A law to modernise 21^st century justice was in draft form as of June 2016 but was not passed until November 2016, outside the midterm assessment period. This law includes the development of mediation services and, in certain instances, it is now mandatory and free to try a conciliation before going to court. The law also facilitates mediation in administrative courts and an administrative judge may require parties to try mediation before going before the court. On experimental grounds, mediation has a requirement, for a four-year test, for very specific cases relating to civil servants' personal situation^{[Note115: Association des Médiateurs des Collectivités Territoriales. Mediation et justice administrative. Available at http://www.amct-mediation.fr/m%C3%A9diation-et-justice-administrative (accessed 13 April 2018)]}. At the end of the first year of action plan implementation, the Ministry of Justice indicated that conciliators were being hired. The commitment was thus completed in legal terms but was not yet implemented.

Lastly, the publication of certain civil and administrative judgements was limited. The Ministry of Justice created an information portal, justice.fr, for litigants as part of this commitment. This was the first stage of the PORTALIS project for reforming the Ministry's civil case applications. The portal offers three simulators (maintenance/alimony, legal aid and seizure of remunerations) that allow a potential plaintiff to estimate the amount she or he might be awarded if successful. Court decisions had not yet been published as the Digital Republic Law, defining the relevant data and facilitating the publication of judicial decisions in open data format, had not yet been adopted. One problem identified in the midterm assessment was the lack of provision for anonymisation and identification risk assessment prior to publication, that had raised concerns both from CSOs and Axelle Lemaire, then minister in charge of the law. By the midterm assessment, the decrees necessary for these provisions to be implemented had not yet been published or submitted to the Commission for Information and Liberties (CNIL) and the Council of State, which must give their opinion on the draft decree.

According to the government self-assessment, local-level partnerships are developing to publish some case law. However, the report does not name any universities that have formed such partnerships to carry this work forward.

End of Term: Substantial

This commitment remains substantially implemented by the end-of-term assessment due to the lack of public information on the implementation of the law to modernise justice.

As noted in the midterm assessment, Decree n° 2016-514, issued 26 April 2016, generalises the creation of jurisdiction councils to all regional courts (tribunaux de grande instance) and courts of appeal. The IRM researcher did not find any public information on the extent to which these jurisdiction councils had been created but found scattered evidence of the creation of such councils in various courts.^{[Note116: E.g. TGI d'Evry, http://unafam.91.free.fr/04-lettres%20adherents/2016/2016-09-00-lettre.pdf; TGI de Draguignan, Une nouvelle présidente au tribunal de grande instance de Draguignan; http://www.varmatin.com/justice/une-nouvelle-presidente-au-tribunal-de-grande-instance-de-draguignan-170152; TGI de Toulouse, https://www.ladepeche.fr/article/2017/09/29/2654990-conseil-juridiction-doit-ouvrir-justice-vers-exterieur.html (accessed 2 Oct. 2017).]} An interview with a magistrate revealed that the jurisdiction councils were still largely unknown to judicial officials.^{[Note117: Magistrate, member of Anticor. personal communication with IRM researcher, 11 Oct. 2017.]} An internal note from the Ministry of Justice gives a positive evaluation of these jurisdiction councils, provides details on how to organise them, and encourages their expansion.^{[Note118: Bulletin, “Officiel du Ministère de la Justice, Note du 26 juillet 2016 relative à la mise en œuvre des dispositions du décret n° 2016-514 du 26 avril 2016,” http://www.textes.justice.gouv.fr/art_pix/JUSB1622161N.pdf. (accessed 29 September 2017)]}

Decree n° 2017-566, implementing the law on modernising 21st century justice, issued 18 April 2017, provides for mediation in litigation before an administrative judge. The implementation schedule for this law states that the list of mediators should have been published in January 2017,^{[Note119: Légifrance, Echéancier de mise en application de la loi (23 Aug. 2017), https://www.legifrance.gouv.fr/affichLoiPubliee.do;jsessionid=2B1AB79A526C62E128619EEEED095E24.tpdila08v_3?idDocument=JORFDOLE000030962821&type=echeancier&typeLoi=&legislature=14 (accessed 2 Oct. 2017).]} but no additional public information could be found.

The government self-assessment does not provide any new information since the midterm assessment. Regarding the publication of judicial decisions, the assessment of Commitment 12 in this report provides an overview of the current situation. In brief, Articles 20 and 21 of the Digital Republic Bill provide for open access to judicial decisions and the new Minister of Justice commissioned a study on the implementation of these articles in May 2017, which should be handed in by the end of October 2017.^{[Note120: La Gazette des communes, Où en est l'ouverture des données de jurisprudence ? (29 Sept. 2017), http://www.lagazettedescommunes.com/526366/ou-en-est-louverture-des-donnees-de-jurisprudence/ (accessed 1 Oct. 2017).]}

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Did Not Change

Public Accountability: Did Not Change

The law on modernising justice and the Digital Republic Law contain major steps forward regarding access to judicial decisions and access to justice. However, the clauses relevant to this commitment have not yet been implemented and, as noted in the midterm assessment, the implementation of this commitment will reveal its impact. Questions remain. Will civil society be able to permanently participate in the jurisdiction councils? Will judicial decisions be opened and provide sufficient information? As such, this commitment has not yet opened government regarding access to information, civic participation or public accountability.

Jurisdiction councils have only started to form in various courts during Summer 2017. It is thus too early to assess if they will change government practices. As noted in the midterm assessment, the two key judicial trade unions, the Syndicat de la Magistrature (SM) and Union Syndicale de la Magistrature (USM), both expressed reservations as to the usefulness of these councils for improving access to, and information about justice.

Regarding the enabling of citizens to assess their chances of success in taking legal action, some jurisdictions had established partnerships with universities before the development of the action plan, such as the court of appeal of Montpellier and Reims.^{[Note121: Ministère de la Justice, Synthèse des contributions des juridictions, (16 Jun. 2014), http://www.justice.gouv.fr/publication/justice21-synthese-contributions-juridictions.pdf (accessed 2 Oct. 2017).}

] However, the government self-assessment does not provide any additional information on the extension of these partnerships. The IRM researcher thus considers that this sub-commitment did not contribute to change government practice in this policy area.

Carried Forward?

This commitment was not carried over to the next action plan.

Theme III: Open Digital Resources