President. – The first item is the report by Arlene McCarthy, on behalf of the Committee on Legal Affairs, on the implementation of the directive on mediation in the Member States, its impact on mediation and its take-up by the courts (2011/2026(INI)) (A7-0275/2011).
Arlene McCarthy, rapporteur. – Madam President, firstly, I would really like to thank my colleagues and the committee staff for supporting my work on this report on mediation. This report was drawn up to check on how the 27 Member States are implementing the 2008 European mediation law and its guidelines. When we drafted this law in 2008, I know that some Members were not convinced of the need for a European directive, but I believe that the hearings and consultations we conducted demonstrated that we do need EU-wide guidelines on mediation.
I am receiving an increasing number of requests for assistance from my constituents who are involved in cross-border disputes: family disputes over custody, access to children and maintenance payments, property, housing problems, and businesses chasing payments they are owed in another EU Member State.
Going to court is costly; in fact, 45% of small businesses said they would not pursue a claim in another EU court if the money owed was less than EUR 50 000, because they would end up paying more in costs. What a massive loss for our small businesses across Europe.
Our findings in drawing up this report demonstrated that mediation is a very valuable tool for consumers and businesses. I think that the message to Member States today is that they need to do more to promote the benefits of mediation. They should provide more training for mediators and encourage the drawing up of voluntary codes of conduct. I believe this is the case because best practice in mediation shows that across Europe, there is a 70% success rate with mediation cases and, in fact, this rises to 80% if the parties voluntarily choose mediation.
However, still only 1% of parties are taking up mediation in Europe. Again, the figures speak for themselves: going through the courts took, on average, an extra 331 to 446 days, involving extra legal costs of between EUR 12 000 and EUR 13 000 to settle the case. The experience in my own Member State is that litigation worth EUR 200 000 took 333 days, costing on average EUR 51 000, where mediation would have taken a mere 87 days and cost a fraction at EUR 9 000.
One mediator told me that last year, he mediated 115 disputes in the UK. He had solved them within one week, and 30 were cross-border. Mediation is therefore a flexible, speedy and cost-effective way to resolve disputes; it allows the parties greater control; it gives them more responsibility in resolving their disputes; and I believe it is especially beneficial in family disputes concerning children, because it can dramatically shorten the period of time required to reach agreement, and this is better for children’s well-being and reduces anxiety, conflict and stress in the family.
To quote another very convincing case: a dispute over an estate and will worth GBP 10 million, involving four parties, three jurisdictions – the UK, Switzerland and France – was solved by a mediator in one day. But by the time they reached mediation, EUR 5 million had already been swallowed up by the courts and lawyers across three different states, and it would have taken another two years to try and solve that problem in court.
So today I want to encourage the Commission and Member States to continue to strengthen and implement the EU law and give consumers and businesses an alternative to costly legal disputes. Given the number of disputed property cases we have in the EU, I would also like to use today as an opportunity to ask the Commission and the Member States to make more use of mediation systems to assist our constituents in disputes such as the numerous cases we have in Spain and Cyprus. Establishing a mediation procedure to bring an end to these costly and lengthy disputes will, of course, increase these citizens’ access to justice.
To conclude, we are largely satisfied with the work of the Member States in implementing this law, even though at the time of drafting, only 17 Member States had transposed the legislation. And we welcome, Commissioner Reding, the fact that you are starting infringement proceedings against nine Member States. We note that some Member States have gone further than the EU guidelines, but we hope that our committee report, based on practitioners’ and users’ views, will provide useful input so that we can better serve our citizens with an affordable and efficient system for access to justice.
Viviane Reding, Vice-President of the Commission. – Madam President, I would like to thank the rapporteur. She has presented a very comprehensive report on something which I believe could be a wonderful alternative to court cases.
Access to justice is a cornerstone of the European area of justice, but mediation offers an important alternative to going to court in a cross-border dispute, as well as helping us to reach amicable settlements. As the rapporteur so rightly says, it saves time and money and also spares the parties involved in family cases the additional trauma of going to court.
Ms McCarthy’s report provides a political assessment of the way in which some Member States have implemented the provisions of the directive. I agree with the rapporteur that we have to aim for a strict application of the provisions. I am pleased that, through this report, more Member States will probably go for a smooth application.
The rapporteur is correct that not all Member States have put in place measures to transpose the directive. Nine countries have not yet notified the national measures needed to fulfil the implementation of the directive. That is why, in July this year, the Commission began infringement proceedings by sending letters of formal notice to these nine countries. They have two months to reply. We will follow up these nine cases and also follow up the way in which the other Member States have already implemented the directive. We will check the conformity of national implementation.
In 2012, I intend to present a communication on the way this directive has been implemented. It will focus on the effect of the directive with regard to the promotion of mediation. I absolutely agree with Parliament that it is not enough merely to have a directive: you must make people aware that this possibility exists. I would like to add that nothing in the directive should prevent Member States from applying similar provisions to internal mediation processes at home. It is not intended only for cross-border cases – where it is obligatory – but also for national purposes.
I would like to thank Ms McCarthy, her collaborators and teams and the other parliamentarians very much. The proposal which is on the table is a great help in pushing for mediation to become more popular and more widely taken up.
Paulo Rangel, on behalf of the PPE Group. – (PT) Madam President, Commissioner, Ms McCarthy, I should like, naturally, to begin by greeting the rapporteur and congratulating her, since I believe that this report is extremely useful and that it, in fact, enables us to take new steps in the field of mediation. The report presents an overview, a selection of the solutions adopted by the various Member States in the implementation and application of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
We all know the benefits of mediation. On the one hand, it is an extrajudicial means of dispute resolution, which contributes to decongestion of the courts and the streamlining of the justice system, whilst, at the same time, providing the parties with the chance to reach an amicable solution that is faster, less costly and less burdensome than the disputes in which they are engaged. It is therefore appropriate to reaffirm the objective of Article 1 of the directive, which calls for the adoption of measures encouraging the use of alternative means of dispute resolution, particularly mediation.
Promoting access to and the use of extrajudicial means of dispute resolution contributes to improving and simplifying our justice system, and to making it more accessible. It is, therefore, a very important challenge for the European Union and for the establishment of the area of freedom, security and justice; and even for the concept of rule of law within the European Union.
That is why, in this context of crisis too, I consider it very important, as the report says, to be able to increase understanding of this area amongst the public and those involved in the judicial system, and I call here on the Commission, and on you, Commissioner, for a legislative proposal on alternative dispute resolution to be tabled quickly.
Lidia Joanna Geringer de Oedenberg, on behalf of the S&D Group. – (PL) Madam President, cross-border mediation in legal disputes can be effective only when Member States enact appropriate legislation at national level. The European Commission reiterated this again on 20 August this year, because at present, EU legislation on mediation has still not been implemented in every country, although the deadline for transposition passed on 21 May this year.
By promoting and facilitating access to alternative forms of justice for ordinary people, we are giving the citizens an instrument which is both effective and cheap. Recent research financed by the European Commission estimates that the amount of time wasted in the EU by not using mediation in disputes comes to between 331 and 446 days, and that the average extra legal costs associated with this reach a level in excess of EUR 13 500 per case.
In Poland, mediation in civil cases was introduced to the national legal system as long ago as July 2005 by amendment of the Code of Civil Procedure. The changes made concur with the directive in the main objectives and the method of creating a separate institution of mediation in procedural law, as well as in the need for doing so. Unfortunately, the statistics from my country show that mediations are attempted in only a tiny percentage of all court cases – it is estimated that on average, only anywhere from 20 to 40 mediations are undertaken in civil cases each year.
The inadequate education of society and the lack of promotion of this relatively new form of justice are hindering its development. Most citizens do not know of the existence of mediation and simply do not make use of it. Therefore, in the interests of the citizens, the Member States should intensively develop programmes which promote this form of resolving disputes. The benefits of mediation, both in financial terms and in terms of reducing the burden on the justice system, as well as the time savings involved, are invaluable.
Finally, I would like to congratulate the rapporteur, Ms McCarthy, on her excellent work.
Diana Wallis, on behalf of the ALDE Group. – Madam President, I wish to thank Mrs Reding for her words. It is so good to see Parliament doing a report on implementation, especially at this stage in the life of a directive – almost contemporaneous with the moment that it comes into force. I would like to pay tribute to the work that Mrs McCarthy has done. Parliament has shown itself at its best in looking at what has happened in the various Member States and highlighting what needs to be done, and also what has been done well.
I have to admit that I was one of those sceptics that Mrs McCarthy referred to. I was nervous when a directive was first proposed, because Parliament, when looking at the Green Paper, had said first of all that we did not want legislation because we were concerned that this would threaten the diversity and experimentation which we saw taking place in mediation across the Member States. I have to say we have seen, through our workshop and through this report, that nothing could be further from the truth. The directive has done a good job in providing a framework – a framework which allows experimentation and the diversity of approaches to flourish across the Member States. It is not a straitjacket, but it does provide sufficient legal certainty.
There are problems. Clearly not everybody has implemented as they should; some practitioners mutter about problems to do with the confidentiality of the process. However, we should take heart from the fact that mediation is now seen as a method which is much more modern, and more contemporaneous, in providing access to cross-border justice. If one looks back at medieval ways of providing answers to legal disputes – trial by battle, trial by ordeal – traditional justice looks almost as medieval by comparison to mediation, which provides an easier solution, with less stress to the parties and to society as a whole.
Raffaele Baldassarre (PPE). – (IT) Madam President, Commissioner, ladies and gentlemen, the successful implementation of Directive 2008/52/EC shows that mediation is a viable alternative to the traditional adversarial approach, in that it allows for the amicable settlement of disputes and thus reduces the workload of the courts. This is confirmed by the various initiatives taken by some Member States, which are encouraging, where possible, the use of mediation through financial incentives or legislative provisions.
In view of that, I should like to draw attention to certain aspects that I believe deserve further thought and consideration, starting with the issue of costs: we should follow the example of Member States that have tackled this problem by providing financial incentives to use mediation.
I also believe that we need to explore other possibilities, such as the use of awareness campaigns to promote the use and understanding of alternative forms of dispute resolution, especially on the part of businesses. In order to achieve this objective, it is necessary also, and above all, to involve members of the legal system, who must see the added value of mediation as something that enhances, rather than competes with, their work.
Lastly, looking ahead to the forthcoming Commission communication on the implementation of the directive and, in particular, to the imminent legislative proposal on alternative dispute resolution, I should like to emphasise the way in which mediation complements other reforms of EU law, in particular, the approach to forms of collective redress and to contract law.
Indeed, as a preliminary measure, mediation can be an excellent alternative to forms of collective redress and can make an important contribution to the future instrument on contract law, significantly reducing the use of dispute resolution mechanisms.
Kinga Göncz (S&D). – (HU) Madam President, I am pleased to see that the European Parliament is paying special attention to alternative dispute resolution mechanisms and the implementation and transposition of the directive. A key feature of democracy is that it allows for conflicts to be resolved within a regulated institutional framework. After their interests have been identified, the parties involved can reach agreements which they will be likely to adhere to, and which can preserve their relations despite their prior involvement in conflict. Mediation is one means of achieving this, and has proven itself effective in numerous areas: from family and child custody disputes to issues of child custody litigations and out-of-court settlement of judicial affairs. Moreover, economic and financial, or community and minority disputes also often find effective resolution in this way.
Despite all this, it appears that mediation is not known widely enough among European citizens; maybe the current debate and the current report can contribute to a broader awareness and application of this mechanism. Perhaps one of the most important aspects of mediation is that it is accessible to vulnerable persons who would otherwise have difficulty asserting their rightful interests. Of course, the points mentioned here, such as relieving courts, shortening the duration of civil actions, saving on costs and so on, are all important. The report also reveals that there are considerable differences between individual Member States as to the progress made in transposing and applying the directive.
In my opinion, there are many areas where further integration is necessary. While we must obviously maintain diversity, it would still be useful if Member State practices in the field of educational accreditation could be coordinated, and the same goes for confidentiality rules and the agreement becoming final. These are some of the reasons why we are looking forward to the communication the Commission has promised for 2013.
Alexandra Thein (ALDE). – (DE) Madam President, securing better access to justice is one of the main objectives of the European Union’s policy of creating an area of freedom, security and justice. In a modern, globalised and digital economy, the confidence of the citizens in justice is a crucial factor. The Mediation Directive represents a milestone in this connection.
Now, every judge in the EU has the opportunity to ensure, in every phase of the process, that two parties to a dispute voluntarily and on their own responsibility strive, with the assistance of a mediator, to settle their differences amicably. The directive ensures that utilisation of the mediation process will prevent the expiry of limitation and prescription periods. Moreover, the agreements reached as a result of limitation and prescription could be given the status of enforceable official documents. Also important are sound training of the mediators in the field of quality assurance and the strengthening of citizens’ trust in this system.
Most Member States announced transposition after the deadline for transposition had already passed. However, it is not only the fact that transposition takes place that is important – how transposition is effected is the most important thing. To that end, specialists and legal practitioners must be consulted in order to ensure the greatest possible improvement of the directive.
Roberta Angelilli (PPE). – (IT) Madam President, ladies and gentlemen, first of all, I should like to thank the rapporteur for her work. As the European Parliament Mediator for International Parental Child Abduction, I particularly welcomed paragraph 14 of the motion for a resolution, which emphasises that parties are more willing to consider the other party’s position and to work on the underlying issues of the dispute through the mediation process, and that this often has the added benefit of preserving the relationship the parties had before the dispute, which is of particular importance in family matters involving children.
As well as preventing lengthy court cases, the use of mediation, where practicable, actually results in an agreement between parties – and personally I hope that this practice can be extended as much as possible, including for family mediation.
As Commissioner Reding pointed out, mixed marriages are on the increase in Europe: every year in the EU, there are more than 350 000 cross-border marriages and 170 000 divorces, which equates to 20% of all divorces in the European Union. When a marriage ends, the children can become the subject of dispute. Often the parent who has custody keeps the children without the consent of the other parent, or the parent who does not have custody of the children abducts them or refuses to give them back after a scheduled visit.
Unfortunately, there has been a dramatic increase in the number of international parental child abductions in recent years. In many cases, however, the mediation process has enabled those children to resume contact with both parents. An agreement reached between parties through a mediation process can actually stop children from suffering unnecessarily and enables parents to address all their family issues without having to face long, costly and painful court proceedings.
Oldřich Vlasák (ECR). – (CS) Madam President, I firmly believe that mediation, just like other forms of alternative dispute resolution, is a useful thing. Its benefits are undisputed. I would like to emphasise the main advantage of mediation, which is to bring about amicable, and therefore mutually acceptable, solutions. On the other hand, however, there are a number of disadvantages associated with mediation. Its chief characteristic, in other words, its voluntary nature, can also work in a negative way. The other party cannot be forced to complete the process until it has reached its final form.
In my opinion, the adoption of the directive on certain aspects of mediation in civil and commercial cases by the European Parliament and the Council in 2008, following four years of tough negotiations, broke another taboo of European integration. Although this directive did not have the aim of harmonising or even of creating the uniform regulation of mediation throughout the EU, it does regulate the field of mediation. At the same time, it exerts indirect pressure on states that lack any regulation of the mediation process. Article 5 of the directive also provides for the mandatory use of mediation, which, in my opinion, is contrary to the fundamental principle of mediation, which is its voluntary nature. Just like mediation itself, the European directive does not bring only positive results.
All EU Member States should have introduced measures by now implementing the EU legislation into their law. Nine countries, however, including the Czech Republic, have yet to announce all of the internal measures necessary for full implementation of the directive. Why is this? Mediators are, in fact, already operating in the Czech Republic, but they work on the basis of a trading licence as advisers. A mediation act was debated by Parliament some years ago, but the bill was not passed by MPs. They were unhappy about a passage under which couples unable to reach an agreement would have to use the services of a mediator. In mid-June this year, the government passed a bill on mediation in non-criminal cases. Controversial points in the act included, for example, insurance for mediators, the method for testing them and the qualification requirements they would have to fulfil. We must therefore wait a while longer for the statutory regulation of mediation in non-criminal cases in the Czech Republic. We ought to consider whether it is really necessary to put pressure on states through a European regulation to adopt something which is already working in those states and which should rather, as a matter of principle, be of a voluntary nature.
Salvatore Iacolino (PPE). – (IT) Madam President, ladies and gentlemen, what Ms Reding said just now is undoubtedly correct and a step in the right direction: charging non-compliant States with failure to notify their implementing measures and potentially launching infringement proceedings against them suggests that in a single market such as the European market, we should have common legal rules, too.
Making mediation compulsory is certainly an important objective but, at the same time, we should acknowledge the role of cost in the mediation process. There is no doubt that mediation costs can add to the costs of a court case if mediation itself does not work out, and this is another particularly relevant issue. It is also important for mediators to be skilled, capable and knowledgeable, just as it is clear that the poor take-up of mediation is probably due to insufficient information from the Member States themselves.
Mediation means relieving congestion in the courts, especially with regard to civil cases, and it is equally important that it should have the scope to become a key instrument in matters involving children, which are obviously of particularly great interest to us.
Jaroslav Paška (EFD). – (SK) Madam President, the practice of dispute resolution in the civil and commercial sphere through mediation under the EC directive of 2008 is bringing its first results, as it helps to resolve disputes without burdening the courts directly. Substantial reductions are being achieved in the burden on courts, particularly in those countries where dispute resolution via mediation is also supported by a system of incentives. The fact that agreements on the recognition of disputes via mediation are given equal weight in most countries to court rulings, and that the mediation process is far cheaper for the parties involved in the procedure from a financial perspective, gives this practice good prospects for further expansion. In the future, we should perhaps, as well as promoting this method of dispute resolution, aim for a proper definition of the requirements for access to the profession of mediator, particularly in terms of the necessary professional training and qualifications and the relevant accreditation within an EU framework.
Andrew Henry William Brons (NI). – Madam President, I am in favour of alternative dispute resolution mechanisms being available to the parties in a civil dispute. Indeed, I am in favour of incentives with regard to the cost of using them and disincentives for those refusing to use them. However, I am not in favour of the European Union passing legislation, even in the form of a directive. It is for Member States to decide on procedural law as well as substantive law.
I prefer the use of arbitration to mediation. Arbitration inevitably leads to a decision, whereas mediation simply might facilitate a negotiated settlement – but if it does not, it will simply add to costs. Nevertheless, in matrimonial and custody cases, I believe mediation is suitable, largely because in such cases, negotiated settlements are desirable in themselves, as they are more likely to be observed.
Viviane Reding, Vice-President of the Commission. – Madam President, I would again like to thank the rapporteur for her good work and for the very objective and constructive discussion we have had in this plenary.
I agree with you that mediation is a good example of modern justice. This directive is not a straitjacket for Member States, but a framework under which they can develop their own systems. It is very important in dealing with the hugely complicated area of cross-border affairs, which we are trying to solve with one European measure after another.
Mediation is also very important for the parties involved because it is a win-win situation, as compared to lengthy court procedures – most of all (as has been said several times in this Chamber) for family affairs. We need to have a broad information campaign in order to inform citizens that mediation is possible and to train the mediators so that they can be very efficient in carrying out mediation between the parties.
There have been questions about alternative dispute resolution (ADR). I would like to inform the Chamber that in March 2011, a public consultation on commercial transactions took place. The responses we received show very strong support mostly for ADR schemes in consumer disputes and also many demands for ADR in online disputes. As a reaction to this, my colleague, Commissioner Dalli, will, by the end of this year, prepare a legislative proposal on ADR in B2C and then, in the context of the digital agenda, there will be a regulation on online ADR in 2012.
I have asked my services to examine the issue of ADR in B2B (business-to-business) questions, and here legislation is foreseen in 2012. Because there is a lot of interest in the House with regard to family affairs – and rightly so – a working group on family mediation has been set up as a follow-up to the ministerial conference on family mediation held under the Belgian Presidency in December 2010 and a discussion in the Council. We are taking this very seriously and are trying to bring the matter forward. You are absolutely right: particularly in the case of children, mediation is a much better solution than a court procedure.
Arlene McCarthy, rapporteur. – Madam President, I want to thank my colleagues for their comments. In response to Mr Brons, I would just say this: you clearly have no idea of the numbers of cross-border disputes that are eating up your constituents’ savings and time in court. You would rather cling to an anti-European ideology than see your citizens actually benefit from EU guidelines. Perhaps I will put you in touch with some UK mediators who will help you understand the value of European guidelines in this area.
I would like to say to Mrs Reding that we look forward to receiving the Commission proposal on ADR and, of course, your communication on the implementation of the Mediation Directive. I also want to stress the point Mrs Wallis made that we need to maintain the diversity and differences between Member States, and so I would encourage you in drafting both this communication and the directive to look at and talk to practitioners and users. They know best what works, and they can help us create a very effective and useful legislation which, I believe, will give our citizens better access to justice.
President. – The debate is closed.
The vote will take place at 11.30 on Tuesday, 13 September 2011.