Lumers having 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. But, in case of failure of the mediation, they cannot transmit to the judge, without the agreement of the professional, the opinion rendered by the mediator. 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, in order to rent a car in Italy. On May 4, 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 the blocking of a deposit.
Mr. X rents elsewhere, then asks Auto Escape to reimburse him for the 120 euros. The company owned by the American Expedia refuses it, on the grounds that its general conditions of sale clearly specify that “only credit cards [seraient] accepted ».
Mr. X then seized the tourism and travel mediator, as imposed on him by the law modernizing justice in the 21st century.e century (section 4) ; he asserts that Auto Escape’s warning is not sufficient for French customers, who use the generic term “credit card” to designate all bank cards. It shows, testimonials and press clippings in support, that, since 2016, they have been “ trap abroad, without the company reacting. He accuses the latter of “failing in its obligation to provide understandable information” required by the consumer code (L 111-1).
Precisely, the mediator has, in his 2017 annual report, found that the wording used could ” lead to confusion “ and asked that she be “specified”. Seized of a dispute, he recommended that the rental agency grant his client “a credit of 100 euros”. Proposal that he reiterates, but that Auto Escape refuses. Mr. X therefore seized the district court of Marseille (Bouches-du-Rhône). He produces the details of the recommendation as well as the documents exchanged during the mediation.
Neutrality of the judge
But he has no right. Mediation is, in France – unlike many large European countries, such as Germany, Spain or Italy, according to a study by Marielle Cohen-Branche, mediator of the Autorité des marchés financiers – subject to an obligation of confidentiality, supposed to promote the freedom of speech of the parties and, above all, to preserve the neutrality of the judge.
The consumer code (article L 612-3) says that “mediation is subject to the obligation of confidentiality provided for by the21-3 of the law of February 8, 1995 »according to which “the findings of the mediator and the statements collected during the mediation may not be disclosed to third parties nor invoked or produced within the framework of a legal or arbitration proceeding without the agreement of the parties”.
Auto Escape therefore requests that this violation be sanctioned by the nullity of the procedure or, at least, by the withdrawal of the litigious documents. The court refuses both, answering only that disclosure of the notice does not cause “no grievance” to society – which it disputes, considering that it aims to influence the judge. June 26, 2019he orders the latter to compensate Mr. X, by reimbursing him for the amount of his two rentals and by paying him 1,000 euros in damages: he judges, in fact, that she has committed ” a fault “refraining from modifying its contractual documentation.
The Court of Cassation, seized by Auto Escape, breaks and annuls its judgment, June 9 (2022, 19-21.798). She thinks he should have “exempt from office” (that is to say even if no one had asked him) the parts covered by confidentiality, and therefore illicit. It orders Mr. X to pay 3,000 euros to his adversary and sends the parties back to the Marseilles court. Nothing will then prevent this unfortunate litigant from taking up the mediator’s arguments… but, above all, without citing him!