Lumers who have a dispute with a professional no longer have the right to go to court without going through a mediator when their dispute is worth less than 5,000 euros. However, in the event that the mediation fails, they cannot, without the professional’s consent, send the statement made by the mediator to the judge. If they do, they risk a lot, as the following case shows.
On January 10, 2018, Mr. X paid 120 euros on the broker’s website Auto Escape to rent a car in Italy. On 4 May 2018, the Italian rental company refused him the vehicle: the Visa Premier card with which he paid was in fact a debit card and not a credit card, which would allow blocking of a deposit.
Mr. X rents somewhere else, then asks Auto Escape to refund him the 120 euros. The company owned by the American Expedia denies it on the grounds that its general conditions of sale clearly state that “credit card only [seraient] accepted”.
Mr. X then seized the tourism and travel agent, as required of him by the law modernizing justice in the 21st century.e century (Article 4); he argues that Auto Escape’s warning is not sufficient for French customers, who use the generic term “credit card” to refer to all bank cards. It shows, with statements and press clippings to support, that since 2016 they have been “ trap abroad, without the company reacting. He accuses the latter of “does not fulfill its obligation to provide comprehensible information” required by the Consumer Code (L 111-1).
Precisely, the broker noted in its annual report for 2017 that the wording used could “leads to confusion” and asked that she be “specified”. Seized by a dispute, he recommended that the rental agency give his client “a credit of 100 euros”. Proposal that he repeats, but that Auto Escape declines. Sir. X therefore brought proceedings at the district court in Marseille (Bouches-du-Rhône). He presents the details of the recommendation as well as the documents exchanged during the mediation.
Neutrality of the judge
But he has no right. Mediation in France – unlike many large European countries, such as Germany, Spain or Italy, according to a study by Marielle Cohen-Branche, mediator for the Autorité des marchés financiers – is subject to a duty of confidentiality, which is supposed to promote the parties’ freedom of speech and in order to preserve the neutrality of the judge.
This is what the Consumer Code says (article L 612-3). “mediation is subject to the duty of confidentiality pursuant to article 21-3 of the law of February 8, 1995”according to which “the results of the mediator and the statements collected during the mediation may not be disclosed to a third party or relied upon or presented in connection with a lawsuit or arbitration procedure without the consent of the parties”.
Auto Escape therefore requests that this violation be sanctioned by the invalidity of the procedure or at least by the withdrawal of the illegal documents. The court rejects both parts and only answers that publication of the notice does not entail “no complaint” to society – which it disputes, given that it is intended to influence the judge. On 26 June 2019, he ordered the latter to compensate Mr X by repaying him the amount of his two leases and paying him 1,000 euros in damages: he considered that she was in fact obliged “a mistake”fails to change its contractual documentation.
The Court of Cassation, seized by Auto Escape, overturns and annuls its judgment, June 9 (2022, 19-21,798). She thinks he should have “relieved from office” (that is, even if no one had asked him) the parts covered by confidentiality, and therefore illegal. It orders Mr X to pay €3,000 to his opponent and sends the parties back to the court in Marseille. Nothing will then prevent this unfortunate claimant from taking up the mediator’s arguments… but above all without citing him!