Mediation in the tourism sector
Mediation is an alternative means of settling disputes amicably, without resorting to legal proceedings.
It is often faster, less costly and more flexible than legal proceedings.
In the tourism sector, mediation can be used to settle disputes between consumers and industry professionals, such as hotels, airlines, travel agencies, etc.
Applicable legal framework
Mediation is governed by the law of December 23, 2016 on the promotion of mediation and the amicable resolution of disputes. In particular, this law requires tourism professionals to offer their customers a mediation procedure in the event of a dispute.
Travelers are generally consumers. Consequently, disputes between a consumer and a professional arising from a contract of sale or supply of services are subject to mediation of consumer disputes.
Article L.612-1 of the French Consumer Code provides that “every consumer has the right to have recourse, free of charge, to a consumer mediator with a view to the amicable resolution of a dispute opposing him or her to a professional…“.
As a result of these provisions, before any dispute with a tourism professional is settled by the courts, the traveling consumer may, if he or she so wishes, have recourse to a mediation solution offered free of charge by the tourism professional.
In the field of tourism law, mediation can cover various types of dispute, such as booking or accommodation problems, flight cancellations or delays, damage suffered during a trip, and so on.
Mediation enables the parties to discuss their respective positions and find a mutually acceptable solution.
How to use mediation
Tourism professionals must inform their customers of the existence of this mechanism and how to access it.
This obligation derives from article L. 616-1 of the French Consumer Code, which states that: “All professionals must inform consumers (…) of the contact details of the competent mediator(s) to whom they are answerable“, and that “… they are also required to provide the same information to consumers when a dispute has not been settled by means of a prior complaint lodged directly with their services“.
To trigger this obligation, the traveler must first contact the tourism professional concerned by the dispute, either internally, i.e. by contacting his or her sales department, or the department authorized to deal with customer disputes, or the legal department.
This presupposes that the consumer has first attempted to resolve the dispute directly with the professional, by means of a written complaint. The complainant must have exhausted all internal remedies before referring the matter to the mediator, who can only intervene in the event of a negative response or lack of response from the relevant department of the tourism professional.
Identity of the mediator chosen by the tourism professional
In practice, the choice of mediator is often made by the tourism professional themselves.
Indeed, most tourism professionals designate a reference mediator in their general terms and conditions of sale or on their website, in application of the aforementioned article L. 616-1 of the French Consumer Code, which requires professionals to appoint a mediator in the event of a dispute with a consumer.
The choice of the mediator by the tourism professional could be perceived by the consumer as an advantage for the professional, in the belief that he or she would be more inclined to support the latter in settling the dispute.
However, this fear is unfounded, since the mediator must be impartial and independent, and has been chosen for his or her competence and experience in the field concerned, i.e. the tourism sector.
In addition, the mediator must be able to propose a fair and appropriate solution to the dispute and, in this context, he or she undertakes to respect the ethical rules of mediation.
How the mediator intervenes
The mediator receives the consumer’s request and, after determining that it is admissible, must rule on the settlement of the dispute between the parties within a maximum of 60 days by issuing an opinion.
The opinion is based on equity and law, and the parties are free not to follow it.
This opinion is not legally binding on the parties, who may decide not to follow it.
The mediator sets a deadline for the parties to accept or refuse.
If the parties agree, the tourism professional must comply with the mediator’s decision.
If the consumer refuses the decision, he or she can always take the matter to the competent courts.
The mediation procedure is confidential and cannot be used against either party in any subsequent legal proceedings.
What are the results of mediation in the tourism sector?
The results of mediation in the tourism sector to resolve disputes between travel professionals and consumers are generally positive.
Indeed, according to the annual report of the Tourism and Travel Ombudsman, over 80% of disputes submitted to mediation result in an amicable settlement, thus avoiding legal proceedings.
The advantages of mediation for stakeholders are manifold:
- For tourism professionals, mediation helps preserve their brand image and build customer loyalty by handling disputes quickly and efficiently.
- For consumers, mediation is a free and rapid means of redress, enabling them to obtain a response to their complaint and, if necessary, compensation.
- Finally, tourism mediation helps to build confidence between professionals and consumers, by encouraging constructive dialogue and finding satisfactory solutions for all parties.
In any event, if you would like to obtain a legal opinion specific to your case, or further information on how to set up mediation to resolve disputes with your consumer customers, or, should mediation fail, to defend your interests in any legal proceedings that may follow, our lawyers are at your disposal to answer all your questions and advise you.
Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Tourism Law Department
09 72 34 24 72