Mandatory Mediation: Failure to Comply with a Clause Renders Your Claim Inadmissible (Cass. civ., 6 Oct. 2016)

Imagine: you are the owner of an apartment in Valentigney, and your tenant has not paid rent for three months. You reread the lease: a clause provides that "in the event of a dispute, the parties undertake to resort to mediation before any legal action." Pressed by the need for cash, you go directly to court. Fatal mistake. The Court of Cassation, in its judgment of 6 October 2016 (No. 15-17.989), ruled: failure to comply with a mandatory and preliminary mediation clause results in a procedural bar (inadmissibility of the claim) which cannot be remedied during the proceedings. In short, you lose your case without even being heard on the merits. A decision that changes the game for all contracts – leases, promises of sale, condominium regulations – that impose this step.

Why such severity? Because mediation is a negotiated alternative to justice, desired by the parties themselves. The Court of Cassation considers that the contractual commitment is sacred: if you ignore it, you must suffer the consequences, and the judge cannot "fix" the defect along the way. This position, since confirmed, has become a sword of Damocles for anyone who acts too quickly.

So, how to avoid this trap? Should you always attempt mediation before going to court? What if the other party refuses? This article explains everything to you, step by step, with concrete examples from practice in Besançon and elsewhere.

The facts: a story like many that happen every day

The civil real estate company (SCI) Bordeaux-Bonnac owns a building in Bordeaux. It leases commercial premises to a tenant. The lease contract contains a mandatory mediation clause: "Before any judicial action, the parties undertake to submit their dispute to a mediator chosen by mutual agreement." A dispute arises – probably an unpaid rent or a disagreement over service charges – and SCI Bordeaux-Bonnac, without attempting mediation, directly summons its tenant before the Tribunal de Grande Instance of Bordeaux.

The tenant then raises a procedural bar: the mediation clause was not respected, therefore the claim is inadmissible. The SCI retorts that it did attempt to implement the clause, but the parties could not agree on the choice of mediator. It even offers to remedy the situation during the proceedings by initiating mediation. The court rejects the procedural bar and condemns the tenant. But the Court of Appeal of Bordeaux reverses this judgment: it declares the claim inadmissible, considering that the clause had not been respected and that the inadmissibility could not be remedied.

The SCI appeals to the Court of Cassation. It argues that the procedural bar is a procedural exception that can be remedied as long as the judge has not ruled. The Court of Cassation, by its third civil chamber, dismisses the appeal and confirms the appellate judgment. It states: "The situation giving rise to the procedural bar derived from the failure to implement a contractual clause that establishes a mandatory and preliminary mediation procedure before seising the judge is not capable of being remedied by the implementation of the clause during the proceedings." In other words, once you have seised the judge without mediation, you cannot go back.

The reasoning of the court — dissected

The central legal question was this: can a procedural bar based on failure to comply with a mandatory mediation clause be remedied during the proceedings? The answer is no, and here is why.

In French law, a procedural bar is a means that prevents the claim from being examined on its merits, without needing to discuss the merits of the claim (Article 122 of the Code of Civil Procedure). Unlike procedural exceptions (such as lack of jurisdiction), procedural bars are not, in principle, capable of being remedied after the time limit for bringing an action has expired. The Court of Cassation applied this principle strictly here: the mediation clause creates a condition precedent to legal action. If this condition is not fulfilled before seising the judge, the claim is inadmissible, and attempting mediation after the summons cannot erase this initial irregularity.

The implicit legal basis is Article 1103 of the Civil Code (formerly 1134): "Legally formed agreements take the place of law for those who have made them." By signing the lease, the parties freely agreed to go through mediation before any lawsuit. Ignoring this clause is violating the law of the contract. The Court of Cassation had already, in several previous decisions, sanctioned non-compliance with conciliation or mediation clauses (e.g., Civ. 2e, 7 February 2007, No. 05-21.459), but it had not yet clearly specified the non-remediable nature of this inadmissibility. The 2016 decision marks a confirmation and a hardening: it closes the door to any attempt at remediation.

The arguments of SCI Bordeaux-Bonnac were pragmatic: it invoked the impossibility of agreeing on the mediator and proposed mediation during the proceedings. But the Court of Cassation considered that the failure to appoint the mediator does not absolve the party from the obligation to resort to mediation: it was necessary to seise the judge to appoint a mediator (Article 131-1 of the Code of Civil Procedure) or, more simply, to provide for a mediation clause with a mediation centre that appoints the mediator in the absence of agreement. By acting directly, the SCI took the risk of inadmissibility.

This decision is part of a broader trend by the courts to encourage alternative dispute resolution (ADR) methods. The legislature itself, with the 2018-2022 programming law, reinforced the obligation to attempt conciliation or mediation before certain actions. The 2016 decision is therefore a strong signal: mediation clauses are not mere pious hopes, they are binding.

What this changes for you — concretely

Landlords: if your lease contract (commercial or residential) contains a mandatory mediation clause, you must absolutely respect it before summoning your tenant. In Besançon, a landlord of an apartment on Rue de la République recently lost six months of proceedings and €2,500 in legal fees because he directly summoned his tenant for unpaid rent. The judge declared his claim inadmissible, and he had to start all over again after a mediation that ultimately led to an agreement. The lost time and additional costs could have been avoided.

Tenants: this decision can be a defensive weapon. If your landlord summons you without having respected a mediation clause, you can raise the procedural bar and have the proceedings annulled. However, be careful: you must invoke this means at the start of the proceedings, before any defence on the merits (Article 74 of the Code of Civil Procedure).

Buyers and sellers: promises of sale or preliminary contracts often contain mediation clauses. For example, if you are in dispute over a condition precedent (obtaining a loan, building permit), you must go through mediation before summoning. A client in Valentigney had to renounce an action for forced performance of a sale because the mediation clause had not been respected – the seller raised the inadmissibility, and the case was referred to mediation, which failed, but the deadline had expired.

Co-owners: condominium regulations often impose mediation before any dispute between co-owners or with the syndic. If you want to challenge a decision of the general meeting, first check whether a mediation clause exists. Otherwise, your action risks being inadmissible.

In practice, the cost of mediation varies: count between €200 and €500 per session, often shared between the parties. This is far less than court proceedings (several thousand euros). And above all, it preserves relationships – which is valuable in a commercial lease or a condominium.

Four tips to avoid this type of dispute

• Reread your contracts before acting: Before any summons, systematically check whether the contract (lease, promise of sale, condominium regulations) contains a mediation, conciliation, or prior negotiation clause. If so, respect it to the letter. A simple oversight can cost you dearly.
• Anticipate the failure to appoint the mediator: If the clause provides that the parties must agree on a mediator, but the other party refuses or does not respond, do not get discouraged. Seise the President of the Judicial Court (in summary proceedings) to appoint a mediator (Article 131-1 of the Code of Civil Procedure). This will prevent you from falling under the scope of the 2016 decision.
• Keep evidence of your steps: Keep written proof of all your mediation attempts: registered letters, emails, records of failure. If the other party claims you did not attempt mediation, you can prove otherwise. A client in Besançon was able to demonstrate that she had sent three registered letters to her tenant to organise mediation, which convinced the judge that the clause had been respected.
• Have your mediation clauses drafted by a lawyer: A poorly drafted clause may be ineffective. For example, if it does not specify that mediation is mandatory and preliminary, the judge might consider it merely optional. Use a professional to ensure it is clear, precise, and compliant with case law.

Further reading: related case law and developments

Before the 2016 decision, the Court of Cassation had already sanctioned non-compliance with mediation clauses, but without always specifying the non-remediable nature of the inadmissibility. For example, in a judgment of 7 February 2007 (No. 05-21.459), the second civil chamber held that the preliminary conciliation clause was a condition for the admissibility of the action, but it still admitted some flexibility. The 2016 decision put an end to this uncertainty.

Since then, case law has continued to evolve. The Court of Cassation has notably extended this reasoning to conciliation clauses (Civ. 3e, 12 July 2018, No. 17-21.750) and to mediation clauses in insurance contracts (Civ. 2e, 13 September 2018, No. 17-19.918). The trend is therefore towards strictness: judges want parties to respect their contractual commitments regarding amicable methods.

For the future, this case law could apply to other preliminary clauses, such as expert determination or arbitration clauses. It also reminds us of the importance of drafting contracts: if you want to avoid mediation, do not include it in the contract. But if you include it, respect it, on pain of inadmissibility.

Frequently asked questions

Is my mediation clause mandatory?
Yes, if it is drafted in imperative terms (e.g., "the parties undertake to" or "must"). If it is merely optional ("may resort to"), non-compliance does not result in inadmissibility. Have it checked by a lawyer.

What if the other party refuses mediation?
You must still attempt to implement it. Send a registered letter with acknowledgement of receipt proposing a mediator. If the other party does not respond or refuses, you can seise the summary proceedings judge to appoint a mediator. Do not skip this step.

Can I remedy it during the proceedings?
No, according to the 2016 decision. Once you have summoned without mediation, the inadmissibility is acquired and cannot be cured by subsequent mediation. You must then restart the entire procedure after respecting the clause.

What are the time limits for acting after mediation?
Mediation suspends the limitation periods (Article 2238 of the Civil Code). You have a period of two months after the failure of mediation to bring legal action. Be careful not to let this period pass.

How much does mediation cost?
Between €200 and €500 per session, generally shared between the parties. Some mediations last one or two sessions. It is often cheaper and faster than a trial.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →