Since 1er January 2020, any consumer having a dispute with a professional must, before taking legal action, prove that he has tried to resort to an “alternative mode of dispute settlement”, if the amount of the dispute is less than 5,000 euros.
This obligation, intended to unclog the courts, was imposed by the law 2018-2022 justice programming program. The consumer must appeal to the mediator appointed by the professional. It therefore has every interest in it being competent and impartial.
In principle, this is the case: he can only be a consumer mediator if he has been approved by the Commission Consumer Mediation Assessment and Control (CECMC), made up, in particular, of senior judges and representatives of consumer associations. This has been chaired, since March 25, 2019, by a State Councilor, Marc El Nouchi. “We have a very high degree of requirement”, assured this “gendarme” of the mediation, Monday, October 11, in Bercy, on the occasion of the presentation of his activity report 2019-2021.
Withdrawal of approvals
The Commission endeavors to monitor the activity of mediators in office, every three years, or when they are the subject of reports. In 2021, it withdrew two approvals from “ two entities ” which were not, according to Mr. El Nouchi, “Neither in the letter nor in the spirit of the mediation”.
This is, on the one hand, the Mediation-net association, and on the other hand the platform Medicys, created by the National Chamber of Judicial Officers. The latter had been appointed as mediator by companies such as Ikea or Lapeyre, mutual societies such as the Mutuelle Générale de l’Education Nationale (MGEN), and sectors of activity, such as outdoor accommodation where the building.
Although, under the effect of the law in particular, the number of referrals to mediators increased by more than 60% between 2017 (104,000) and 2020 (168,400), the amicable settlement mechanism remains ” underused “, observed Mr. El Nouchi. It is indeed “Insufficiently known From consumers. In addition, in certain sectors such as the automotive industry, garage owners or car rental companies manifest “Cultural resistance”: although they have designated a mediator, as the law requires them, they refuse to enter into mediation.
In addition, regulated professions (notaries, lawyers, architects, in particular) tend to settle disputes “Within the framework of internal procedures that do not offer the same guarantees of independence and impartiality as consumer mediation”.
Escalation procedure
Another phenomenon “Disturbing”, according to the president: in 2020, “More than half of the referrals were inadmissible”. In most cases, this was due to the fact that the consumer had appealed to the mediator without having first followed the so-called “Climbing”, provided by the professional. This requires him to make a double written complaint: first, to his usual contact (“customer advisor” or “customer service”), and, secondly, to the dedicated service (“recourse” or “service”). claim “).
Mr El Nouchi – followed in this by all the members of the Commission – proposes to put an end to this system: he suggests that the mediator be “Seized validly at the end of a period of two months following the sending, by the consumer, of a written complaint, whatever the service to which this complaint is addressed”.
To do this, the legislator should delete, in the consumer code (article L 612-2) , the provision which authorizes the professional to set an escalation procedure in his contract. This proposal is based on the recommendation made, June 22, by the Financial Sector Advisory Committee (CCSF) for banking and insurance mediation.
Independence
The approximately 130 consumer sectors are covered by mediators at the different statuses : alongside the three public mediators (energizede, online games, financial markets), appointed by a public authority and financed by the State, there are in particular twenty-four sectoral mediators (water, insurance, tourism, etc.), employed and financed by professional federations, and forty company mediators (RATP, Engie, EDF, La Poste, Société Générale, etc.) employed and financed by their company. The latter are the ones that consumer associations most strongly suspect of tipping the balance in favor of the professional.
To guarantee the independence of company mediators, the CECMC proposes, like the CCSF, that they be subject to a “Two-year validity period “. Employees of the company, they could no longer, overnight, become its mediators. They should leave for at least two years – consumer associations would have preferred five – so as to “Cut ties with their former colleagues or hierarchical superiors”. These proposals will have to be validated by the legislator.