Mediation in consumer law

Design your own consumer mediation process

Article L. 612-1 of the Consumer Code offers the consumer the right to use a consumer mediator free of charge for the amicable resolution of the dispute between him and a professional.

Professionals have the obligation to guarantee their consumer clients an effective, optional and free recourse to the mediation procedure.

The trader may set up his own consumer mediation system or offer the consumer the use of any other consumer mediator whose contact details he must specify. He may be a natural or legal person.Professional organizations or federations may also set up their own mediation mechanism.

Which consumer mediator?

The following criteria are common to all mediators:

• Any mediator must be diligent, competent, independent and impartial;
• The mediator must have skills in the field of mediation as well as good legal knowledge, particularly in the field of consumer law;
• He/she is appointed for a minimum period of 3 years and paid regardless of the outcome of the mediation;
• The mediator must not be in a situation of conflict of interest, which he has an obligation to report.

The professional may propose the use of an internal mediator, possibly a person who is part of the company. In this case, the mediator must meet certain specific criteria in order to guarantee the requirements of independence and impartiality:

• it is appointed, according to a transparent procedure, by a collegial body set up by the company comprising representatives of approved consumer associations and representatives of the trader, or a collegial body under a national consultative body in the field of consumption or specific to the sector of activity, composed of at least 2 representatives of approved consumer associations and 2 representatives of the trader;
• for at least 3 years at the end of his mandate, he cannot be hired by the professional or by a federation to which this professional is affiliated;
• no hierarchical or functional link must exist between the professional and the mediator during the exercise of his mediation mission. The Ombudsman must be clearly separated from the professional’s operational bodies and must have a separate and sufficient budget to carry out his mission.

When the consumer mediator is employed or remunerated exclusively by a professional body or federation, he must also have a separate and sufficient budget to carry out his mission, except in the case where he belongs to a collegial body, composed equally of representatives of approved consumer associations and representatives of professionals.

Any mediator must be approved by the mediation evaluation and monitoring committee

Mediators are registered on the national list of mediators, notified to the European Commission and accessible on the European Commission’s online dispute resolution platform.

The choice of a consumer mediator external to the company

If a mediator external to the company is chosen, several options exist:

• Public ombudsmen: ombudsmen appointed by a public authority that determines their status, scope of competence and modalities of intervention. The Ordinance provides that where a public mediator is competent to mediate a consumer dispute, this dispute may not give rise to other conventional mediation procedures, subject to the existence of an agreement, notified to the Mediation Evaluation and Control Commission, which allocates disputes between the mediators concerned.

• Sectoral mediators: mediators whose competence extends to all companies in a field of economic activity. The professional allows the consumer to use the existing sectoral mediator in the field of activity to which he belongs, despite the existence of a conventional mediator.

• Other mediators: any other person meeting the conditions provided for by the Consumer Code to act as mediator of consumer disputes, with whom a mediation agreement is concluded.

Any professional is obliged to communicate to the consumer the contact details of the competent mediator, under penalty of a fine of a maximum amount of 3,000 euros for a natural person and 15,000 euros for a legal person.

Several media can be used to inform the consumer of the mediation process set up by the professional (internet, in writing, etc.). The contact details and address of the mediator’s website must be easily accessible, as must the consumer’s information on the existence of a European online dispute resolution platform whose link must be mentioned (http://ec.europa.eu/odr).

Any mediator must set up a website dedicated to mediation with direct access to information relating to the mediation process.

Gouache Avocats assists you in setting up your consumer mediation procedure

Gouache Avocats assists you in setting up your mediation procedure, and in complying with your information obligations through an adapted contractualisation, in particular of your General Terms and Conditions of Sale, and the information required on your website.

Our intervention will allow you to:
• to bring you into compliance with your information obligations,
• to set up an appropriate internal mediation procedure,
• to secure you as to a possible control of the Economic Administration.