The European Parliament recently adopted a Resolution on the implementation of the EU Mediation Directive (2008/52/EC). The new legislation contains recommendations further encouraging the use of mediation in the EU for civil and commercial disputes.
Initiatives include increasing the number of cases where courts invite parties to use mediation; urging a greater focus on best practice - including requiring parties to state that ADR has been attempted before proceeding in court, and financial incentives to make mediation more economically attractive.Other areas of focus include information campaigns, an emphasis on quality standards and the development of national registers of mediators.
Though non-binding, the new Resolution is a welcome step towards implementing the objectives of the EU Mediation Directive across the European Union in a more harmonised fashion. It enables European institutions to suggest guidelines for the coordination of national legislations or administrative practices. Commentators suggest that this could initiate a cultural shift towards ADR throughout the region.
The Mediation Directive, the story so far…
The adoption of the new Resolution comes after a 2016 report by the European Commission found the Mediation Directive had been pivotal in triggering legislative changes in a number of Member States.
It is worth noting that the extent of the effect on Member States varies in accordance to the level of their existing national mediation systems. As many as 15 Member States already had a comprehensive mediation system in place before the Directive was adopted. Here the Directive has brought about limited or no changes to the system.
According to the report, several Member States currently either have “scattered rules” regulating mediation, or mediation in the private sector relies on self-regulation. In these Member States, the implementation of the Directive has triggered the adoption of substantial changes to the existing mediation framework.
In contrast, for a small number of Member States, the transposition of Directive led to mediation systems being adopted for the first time, and in turn triggering the creation of appropriate legislative frameworks for regulating mediation. The Commission noted that these developments provided an important step forward in promoting wider access to ADR and building a balanced relationship between mediation and judicial proceedings.
However, the report also identified persistent difficulties regarding the current national mediation systems in practice and noted significant inconsistencies in the extent of the impact of the Directive on different Member States.
The problems relating to its effective implementation were mainly attributed to the lack of “mediation culture” - including insufficient knowledge and experience in dealing with cross-border cases, a low level of awareness of mediation and minimal quality control mechanisms for mediators, and a reluctance by courts to propose mediation as an option.
On the national level, the Directive has provided EU Member States with added value by raising awareness among domestic legislators on the advantages of mediation, introducing mediation systems, or prompting the extension of existing ones. The report stated that the Directive has given “impetus to a wider take-up of mediation also in a purely domestic context across the EU”. The degree of the Directive’s impact on Member States also depends on the pre-existing level of their national mediation systems.
Difficulties concerning the functioning of the national mediation systems in practice are mainly related to the prevalence of adversarial dispute resolution in many Member States, often coupled with a low level of awareness of mediation and effective quality control mechanisms. The Commission concluded that there is currently no need to revise the Directive, but that a number of improvements can be made to its application - making the subsequent Resolution a welcome step in doing so.
In the report, the Commission urged Member States to further promote the use of mediation, where necessary. Especially at the national level - for example by increasing the number of cases in which courts invite parties to use mediation to settle their disputes.
The report also noted a number of best practices, such as requiring parties to state whether mediation has been attempted in their applications to courts, or financial incentives which make it more attractive economically for parties to use mediation instead of adjudicative processes, as well as ensuring enforceability without necessarily requiring the consent of all parties to the agreement.
The Resolution contains a number of key recommendations, including that EU Member States should step up their efforts to encourage the use of mediation in civil and commercial disputes, such as through information campaigns, improved cooperation between legal professionals and an exchange of best practices. It also recommends that the Commission assesses the need to develop EU-wide quality standards in regards to the provision of mediation services, as well as the prospect of establishing national registers of mediated proceedings in Member States (subject to data protection rules).
It remains to be seen if this Resolution will provide the necessary push for Member States to embrace mediation within a more rigid legal framework and whether this will lead to a more harmonised approach to mediation in the EU. Even if difficulties remain in some areas, there is clear demand to establish mediation as a viable and trusted option for resolving commercial disputes in the region.