The European Parliament and the EU’s Council on 23 April 2008 gave the go-ahead for an EU law to encourage mediation for cross-border legal disputes. The directive promotes the use of mediation as a faster and cheaper alternative to going to court in civil and commercial cross-border disputes.
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Mediation is seen as an effective method of resolving disputes. Mediation is usually faster and cheaper than ordinary court proceedings. It avoids the confrontation between parties that is inherent in judicial proceedings and allows the parties to maintain their professional or personal relationships beyond the dispute. Mediation also enables the parties to find creative solutions to their dispute which they could not obtain in court. Finally, recourse to mediation helps to free up of court time and to reduce the costs of justice for citizens and businesses.
Accordingly, the Heads of State or Government of the European Union’s Member States, meeting in Tampere in October 1999, called for the creation of alternative, extra-judicial procedures for dispute resolution in the Member States in order to improve access to justice in Europe. The European Commission in 2002 presented a Green Paper on alternative means of dispute resolution, which led to broad consultation among interested parties on how best to promote alternative means of dispute resolution in Europe. A large number of stakeholders from a variety of different backgrounds participated in the consultation process and supported the idea of developing a Community instrument on mediation.
As a result of the consultation process, in October 2004, the Commission adopted a proposal for a Directive on certain aspects of mediation in civil and commercial matters. As the title suggests, the Directive does not regulate the entire range of issues pertaining to mediation but establishes rules on civil procedure to ensure a sound relationship between mediation and judicial proceedings. The Commission notably excluded provisions concerning the mediation process or the appointment or accreditation of mediators from the proposal. In the light of the reactions to the Green Paper, legislation did not seem to be the best policy option to address these matters. Instead, the Commission invited a group of experts to develop a self-regulatory instrument, the European Code of Conduct for Mediators, which was launched in July 2004.
The Directive applies to processes where two or more parties to a cross-border dispute of a civil or commercial nature attempt by themselves, on a voluntary basis, to reach an amicable settlement to their dispute with the assistance of a mediator. The Directive only applies to cross-border disputes, although it does not prevent Member States from applying the provisions of the Directive to internal mediation processes. Given the broad definition of cross-border disputes, the Directive’s provisions on confidentiality and on limitation and prescription periods also apply in situations which are purely internal at the time of mediation but become international at the judicial proceedings stage, e. g. if one party moves abroad after mediation fails.
The new Directive contains five key rules.
1. The Directive obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conducts and other effective quality control mechanisms concerning the provision of mediation services. These mechanisms may include market-based solutions provided that they aim to preserve the flexibility of the mediation process and the autonomy of the parties and to ensure that mediation is conducted in an effective, impartial and competent way.
2. The Directive gives every judge in the Community, at any stage of the procedure, the right to invite the parties to have recourse to mediation if he considers it appropriate in the case in question. The judge can also suggest that the parties attend an information meeting on mediation.
3. The Directive obliges Member States to set up a mechanism by which agreements resulting from mediation can be rendered enforceable if both parties so request. This can be achieved, for example, by way of approval by a court or certification by a public notary. The choice of mechanism is left to the Member States. This provision will enable parties to give an agreement resulting from mediation a status similar to that of a judgment without having to commence judicial proceedings. This possibility, which currently does not exist in all Member States, can provide an incentive for parties to resort to mediation rather than go to court. Although parties will in most cases voluntarily comply with the terms of an agreement reached in mediation, the possibility of obtaining an enforceable title can be desirable for obligations, such as child maintenance, which require regular payments over a fairly long period, in the course of which the willingness of the debtor to fulfil his obligations voluntarily may deteriorate.
4. The Directive also ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is essential to give parties confidence in, and to encourage them to make use of, mediation. To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.
5. Finally, the Directive contains a rule on limitation and prescription periods which ensures that, when the parties engage in mediation, any such period will be suspended or interrupted in order to guarantee that they will not be prevented from going to court as a result of the time spent on mediation. Like the rule on confidentiality, this provision also indirectly promotes the use of mediation by ensuring that parties access to justice is preserved should mediation not succeed.
Once the Directive has entered into force, it will have to be transposed into the national laws of the EU Member States. The transposition period for the Directive is 36 months after the date of adoption, with the exception of the provision concerning information on competent courts and authorities, where Member States will have to comply within 30 months of adoption of the Directive. When Member States transpose the Directive, they will have to decide whether they want to limit their implementing legislation to cross-border cases or whether they also want to apply the provisions of the Directive to internal cases. The Commission will closely monitor the transposition of the Directive by the Member States and ensure that the requirements of the Directive are met.
