Tuesday 10 November 2020
The failure of most notaires to participate in the government sponsored mediation service is "unacceptable" says the mediator.
As we have previously reported on these pages, complaints against notaires by their clients are not uncommon. We receive a regular flow of mails from readers about their alleged incompetence or tardiness, and sometimes more serious allegations of bias and corruption. Complaints are also widespread on French and English language social media channels and there are routinely cases in the courts.
Although we consider that most notaires can be relied upon to undertake their duties with competence and probity, when things go wrong it is often serious and costly for their clients.
Reliable figures on the number of complaints about notaires are not available but some indication of the scale of discontent can be obtained from the recently published annual report of the médiateur-notariat.
The médiateur has been in place since 2016, when the government, in compliance with European law, established a mediation procedure to resolve disputes with a notaire.
In his report for 2019, the médiateur stated that 1,400 complaints had been made to them, an increase of 30% on the previous year.
Not all such complaints were taken forward, but shockingly, of nearly 1,000 cases activated, in 28% of them the notaire refused to co-operate with the process, with a further 28% who failed to respond to a request by the mediateur to engage in it.
In short, 56% of complaints could not be considered because the notaire rejected or ignored the mediation process.
In his report, the médiateur stated that such an attitude was "unacceptable", and that it "reveals how little consideration some notaries give to this new method of dispute resolution."
The explanation of why so many notaires refuse to participate is not entirely clear, but the médiateur speculated that many notaires are likely to fear that it was equivalent to a disciplinary process in which they might be held responsible and liable to sanctions.
That is a surprising conclusion, as the médiateur cannot impose sanctions; the process is voluntary mediation, pure and simple.
Separately, an internal disciplinary process for notaires does exist, which is run by the professional body of notaires, the Chambre Departemental, but it is widely criticised for a lack of transparency and enforcement.
It is also possible to bring a legal action against a notiare, but the process is likely to take several years, with significant legal costs.
Nevertheless, as the médiateur himself points out, if notaires are unwilling to participate in the mediation process, many clients will be obliged to resort to making a formal complaint to their professional body or to commence legal action.