Any stage
Mediation may be initiated at any point in the class action procedure — before the first judgment, after it, or even during the compensation phase when the group is already constituted.
2 parties
Only the initiating consumer association and the professional may participate in the mediation — individual consumers are excluded even after the group has been formally constituted.
Public
Unlike conventional pre-litigation mediation, class action mediation is subject to mandatory publicity — confidentiality is not available once the action is under way.

When Mediation Can Be Proposed

Mediation is available at every stage of the action de groupe procedure (Art. L 623-22). Neither the parties nor the court are restricted as to when they may raise it. The judge can propose mediation to the parties at any point; equally, either party may take the initiative themselves at any moment — from the day the summons is served through to the compensation phase, even after the group of consumers has been formally constituted by the adhesion window.

The breadth of this temporal availability is one of mediation's most strategically significant features. A defendant business that negotiated from weakness during the litigation phase may find itself in a stronger position after the first judgment — if, for example, the court defined a narrower group than the association had sought, or assessed harm amounts at lower levels than expected. The mediation window never closes, which means the strategic calculus can be revisited at every phase.

Who Participates: A Two-Party Room

Despite the fact that a consumer class action is ultimately about compensating individual consumers, only two parties may sit at the mediation table:

The Consumer Association The initiating approved association(s)
The approved national consumer association that initiated the action de groupe. Where multiple associations jointly initiated the action, all initiating associations may participate. The association negotiates the agreement on behalf of consumers whose interests it represents, but without requiring their prior consent for the negotiations themselves.
The Professional The defendant business
The professional defendant — the company whose conduct is alleged to have harmed the consumer group. The professional negotiates directly with the association and ultimately decides whether to accept a settlement. Any agreement binds the professional to pay the compensation terms agreed, subject to judicial homologation.
Individual Consumers Excluded — even after group formation
Individual consumers cannot participate in the mediation (Art. L 623-22). This applies even where the mediation is considered after the group of consumers has already been constituted — for example, because a dispute arose during the execution of the first judgment. The consumers' interests are represented by the association alone.
Agreement of All Parties Required to Order Mediation

The court cannot impose mediation unilaterally: the agreement of all parties to the proceedings is necessary before the court can order mediation (Art. L 623-22 and general rules on court-ordered mediation). Either party may refuse. The judge may suggest or encourage mediation, but the professional or the association can decline without consequence for the litigation.

The Conditions: Loi 95-125 Framework

The mediation must be organised under the conditions fixed by the loi n° 95-125 du 8 février 1995 governing civil and commercial mediation (Art. L 623-22). This means, in particular:

  • The mediator must be chosen by the court seized of the action de groupe, with the agreement of the parties. Neither party can impose their preferred mediator.
  • The court fixes the provision to be applied against the mediator's remuneration and designates the party or parties who must pay it.
  • The mediation has a defined objective: it must aim to obtain compensation for the individual harm suffered by consumers (Art. L 623-22). The parties cannot use the class action mediation framework to negotiate outcomes unrelated to consumer compensation.

The Agreement: Content, Publicity, and Homologation

Mandatory Content of the Agreement

If the mediation produces an agreement, it must specify two things (Art. L 623-23, al. 2): the publicity measures necessary to inform affected consumers of the possibility of joining the agreement; and the deadlines and modalities for that consumer adhesion. The parties cannot simply sign a private settlement — the agreement must be structured to allow identified consumers to benefit from it.

No Confidentiality: Class Action Mediation Is Public

Unlike a conventional pre-litigation mediation — which may remain confidential unless the parties agree otherwise — class action mediation is subject to mandatory publicity. Since consumers must be informed of the possibility of joining the agreement, the agreement's existence and terms necessarily become public. A professional seeking to resolve a class action through mediation "will often be forced to forgo confidentiality when the victims are not all known, so that they can be informed and benefit from the agreement." This is a significant commercial consideration for businesses concerned about reputational exposure.

Mandatory Judicial Homologation

Any agreement negotiated in the name of the consumer group is subject to mandatory judicial homologation (Art. L 623-23, al. 2). The court must: verify that the agreement is consistent with the interests of those to whom it is intended to apply; and then give it executory force. The court retains the discretion to refuse homologation if it finds the agreement does not meet the conformity standard.

The Mediation Sequence in the Class Action

1
Mediation Proposed (by either party or the court)

At any stage of the action de groupe, mediation is proposed. The agreement of all parties is required before the court can order it.

Art. L 623-22 — any stage, any initiator
2
Mediator Appointed

The court appoints the mediator chosen with the parties' agreement. The court fixes the provision on the mediator's remuneration and designates which party or parties must pay it.

Loi 95-125 du 8 Feb 1995, Arts. 22 and 22-2, al. 4
3
Negotiation Between Association and Professional

The association and the professional negotiate, with the mediator's facilitation, an agreement on the terms of compensation. Individual consumers do not participate. The objective must be the repair of consumers' individual harm.

Art. L 623-22 — consumers excluded
4
Agreement Drafted: Publicity Measures and Adhesion Modalities

If an agreement is reached, its terms must include the publicity measures to inform consumers of the possibility of joining, and the deadlines and modalities for that adhesion.

Art. L 623-23, al. 2 — mandatory content
5
Judicial Homologation

The court verifies that the agreement is consistent with the interests of the consumers to whom it applies, and gives it executory force. The court retains discretion to refuse homologation if the agreement does not satisfy the conformity standard.

Art. L 623-23, al. 2 — mandatory verification and executory force
6
Consumer Information and Adhesion Window

The agreed publicity measures are implemented to inform consumers of the possibility of joining the agreement. Consumers who join benefit from the agreed compensation terms and, by joining, give the association a mandate for compensation purposes.

Art. L 623-23, al. 2 — by analogy with standard adhesion procedure

The Effects of a Homologated Mediation Agreement

Effect 1 Res Judicata for Compensated Consumers The homologated mediation agreement acquires res judicata authority as against each member of the group whose harm has been repaired at the conclusion of the procedure (Art. L 623-28). This mirrors the rule for a standard class action judgment: once a consumer's harm has been compensated under the agreement, that consumer cannot bring a fresh individual action against the professional for the same harm. The matter is definitively settled for compensated consumers.
Effect 2 Inadmissibility of Any Further Class Action on the Same Facts Once a homologated mediation agreement has been reached, no consumer association can bring a further action de groupe founded on the same facts, the same breaches, and the repair of the same harm (Art. L 623-30). This is the class action bar: the professional is protected against repetition of the same collective litigation by any association, including associations that were not parties to the original proceedings or the mediation. The inadmissibility is absolute on the same factual and harm basis.

The Residual Risk: Dissenting Consumers Who Refuse the Agreement

The most strategically complex aspect of mediation in the action de groupe is what happens to consumers who refuse to join the mediation agreement. This situation is legally uncertain — and the answer creates a genuine residual risk for the professional.

The Revocation Route: Safe Exit for Both Parties

A consumer who does not want to join the mediation agreement may revoke their mandate to the initiating association. Once the mandate is revoked, that consumer is considered to have left the action de groupe (Art. R 623-21). The consequence for the consumer is significant: any later judicial decisions obtained by the association will no longer benefit them. For the professional, this consumer becomes a private litigant — they may still bring an individual action, but they are no longer part of the class action dynamic.

The Uncertain and Risky Scenario: Refusing Without Revoking

The legally uncertain and commercially problematic scenario arises where a consumer refuses to join the agreement but does not revoke their mandate. In this situation:

  • The refusal to join the mediation agreement does not constitute a tacit renunciation of the mandate.
  • Article R 623-22 provides only one case of implicit renunciation: where the consumer has not been compensated by the professional and has not provided the documents supporting their claim before the court-set deadline expires. A mere refusal of the agreement is not that case.
  • Therefore, a consumer who refuses the mediation agreement while retaining the mandate can require the association to continue defending their interests against the professional in judicial proceedings.
The Residual Risk That Can Unravel a Mediation Settlement

The practical consequence of this analysis is stark. A professional who negotiates and successfully homologates a mediation agreement with the consumer association may find that the association — bound by the mandates of dissenting consumers who refused the agreement but did not revoke their mandates — is required to continue judicial proceedings against the professional for the account of those consumers. The agreement is not a total release; it is a release only for consumers who joined it. Consumers who refused while retaining their mandate retain the ability to drive further litigation. The source text explicitly acknowledges that this risk is likely to discourage professionals from engaging in mediation, since the association with whom an agreement has been negotiated may, notwithstanding that agreement, continue the proceedings against the professional.

Pre-Litigation Mediation vs. Class Action Mediation: A Critical Comparison

Before the Action de Groupe Is Filed
✓Confidentiality available unless parties agree otherwise
✓No judicial homologation required for a purely contractual settlement
✓No mandatory content requirements for the agreement
✓No exposure to a group of dissenting consumers holding mandates
If victims are not all known, confidentiality may have to be waived so all can benefit
Does not prevent a subsequent action de groupe on the same facts unless all victims are included
During the Action de Groupe
✓Homologated agreement acquires res judicata for compensated consumers
✓Any further action de groupe on same facts inadmissible (Art. L 623-30)
✓Available at any stage — even post-first judgment when exposure is quantified
✗No confidentiality — subject to mandatory publicity
✗Mandatory judicial homologation required; court may refuse
✗Consumers who refuse agreement and retain mandate may force association to continue proceedings against the professional
The Pre-Litigation Window: The Most Commercially Attractive Option

A business aware that consumer dissatisfaction is building — following a systemic pricing error, a product recall, or an unlawful fee application — has an interest in initiating discussions with the relevant consumer associations before any action de groupe is filed. Pre-litigation mediation or a direct settlement can be confidential, avoids judicial homologation, and does not generate the mandate-retention residual risk. Once an action de groupe is filed, all of those advantages are lost. The practical lesson is that the window before filing is commercially the most valuable window for negotiation.

Business Strategy Checklist for Class Action Mediation
Mediation is available at any stage of the proceedings and can be initiated by either the professional, the association, or the court. There is no deadline after which it becomes unavailable.
Only two parties negotiate: the initiating association(s) and the professional. Individual consumers are excluded from the mediation itself, even if the group has already been constituted.
The agreement of all parties is required before the court can order mediation — either side can decline without procedural consequence.
Any homologated agreement must specify the publicity measures and adhesion modalities to inform consumers of the possibility of joining it. There is no possibility of a purely private class action settlement once the action is under way.
The court verifies conformity with consumer interests before homologation and may refuse it. Structure the settlement terms to withstand this conformity review.
A homologated agreement produces two key protective effects: res judicata for compensated consumers; and inadmissibility of any further action de groupe on the same facts (Art. L 623-30).
The dissenting-consumer-retaining-mandate risk is legally uncertain but real: a consumer who refuses the agreement without revoking their mandate may require the association to continue litigation against the professional on their behalf. This risk limits the finality that class action mediation can realistically offer.
Pre-litigation settlement remains the most commercially attractive resolution path: confidentiality is available, no judicial homologation is required, and the mandate-retention risk does not arise. Businesses should assess their exposure early and engage proactively before any action de groupe is filed.
If mediation is being considered post-first judgment, note that liability is already established and the group is defined. The mediation at this stage negotiates compensation within a framework already set judicially — narrowing room for negotiation but making settlement amounts more predictable.
Considering Mediation to Resolve a French Consumer Class Action?

The mediation framework in the action de groupe offers a route to procedural finality that litigation alone cannot always deliver — but it comes with specific legal conditions, a mandatory publicity obligation, compulsory judicial approval, and the residual risk of dissenting consumers. Our articles and contacts are here to help businesses navigate the strategic choices at every stage.

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This article is for general information and educational purposes only. It does not constitute legal advice. The information reflects the state of the law as updated to April 2024, including the legally uncertain position on consumers who refuse a mediation agreement without revoking their mandate. Always seek qualified legal advice before making strategic decisions in active class action proceedings.