'Rebooting' the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU

15-01-2014

Five and a half years since its adoption, the Mediation Directive (2008/52/EC) has not yet solved the ‘EU Mediation Paradox’. Despite its proven and multiple benefits, mediation in civil and commercial matters is still used in less than 1% of the cases in the EU. This study, which solicited the views of up to 816 experts from all over Europe, clearly shows that this disappointing performance results from weak promediation policies, whether legislative or promotional, in almost all of the 28 Member States. The experts strongly supported a number of proposed nonlegislative measures that could promote mediation development. But more fundamentally, the majority view of these experts suggests that introducing a ‘mitigated’ form of mandatory mediation may be the only way to make mediation eventually happens in the EU. The study therefore proposes two ways to “reboot” the Mediation Directive: amend it, or, based on the current wording of its Article 1, request that each Member State commit to, and reach, a simple “balanced relationship target number” between civil litigation and mediation.

Five and a half years since its adoption, the Mediation Directive (2008/52/EC) has not yet solved the ‘EU Mediation Paradox’. Despite its proven and multiple benefits, mediation in civil and commercial matters is still used in less than 1% of the cases in the EU. This study, which solicited the views of up to 816 experts from all over Europe, clearly shows that this disappointing performance results from weak promediation policies, whether legislative or promotional, in almost all of the 28 Member States. The experts strongly supported a number of proposed nonlegislative measures that could promote mediation development. But more fundamentally, the majority view of these experts suggests that introducing a ‘mitigated’ form of mandatory mediation may be the only way to make mediation eventually happens in the EU. The study therefore proposes two ways to “reboot” the Mediation Directive: amend it, or, based on the current wording of its Article 1, request that each Member State commit to, and reach, a simple “balanced relationship target number” between civil litigation and mediation.

External author

Giuseppe De Palo (ADR Center - Member of JAMS International , Hamline University School of Law), Leonardo D’Urso (ADR Center - Member of JAMS International), Mary Trevor (Hamline University School of Law), Bryan Branon (ADR Center - Member of JAMS International), Romina Canessa (ADR Center - Member of JAMS International), Beverly Cawyer (ADR Center - Member of JAMS International) and L. Reagan Florence (ADR Center - Member of JAMS International)