The European Mediation Directive

AutorSteven Friel
Cargo del AutorAbogado y Solicitor

See note 1

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1. Introduction

Directive 2008/52/EC of the European Parliament and of the Council on Certain Aspects of Mediation in Civil and Commercial Matters ("the European Mediation Directive", or "the Directive") was adopted on 21 May 2008. The Directive applies to all EU member states apart from Denmark2 and aims "to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings"3 .

Although certain European member states, for example the United Kingdom, have a relatively long and successful history of using mediation as a means of civil dispute resolution, some other member states, for example Spain, have a less developed mediation culture, and it is expected that the Directive will have the greatest effect in those jurisdictions. The aim of this chapter is to examine the history and background to the Directive, as well as to consider its future.

2. Evolution of the European Mediation Directive

When read together, articles 61(c), 65 and 67(5) of the Treaty Establishing the European Community provide that "in order to establish progressively an area of freedom, security and justice, the Council shall adopt... measures in the field of judicial cooperation in civil

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matters... having cross-border implications... and... necessary for the proper functioning of the internal market...".

The decision of the European authorities to use the above mandate to develop mediation goes back to at least 1998, when the Vienna Action Plan4 called for "the possibility of drawing up models for non-judicial solutions to disputes with particular reference to transnational family conflicts. In this context, the possibility of mediation as a means of solving family conflicts should be examined". It is notable that this early narrow focus on the use of ADR and mediation in family disputes in particular has been broadened, with most civil and commercial disputes now covered.

Subsequent to the Vienna Action Plan, the European Council held a special meeting on 15 and 16 October 1999 in Tampere. The Council stated that the enjoyment of freedom that lies at the heart of the European Union requires a "genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own"5. As part of this support for better access to justice across Europe, the Council recommended that "[a]lternative, extra-judicial procedures should also be created by Member States". The foundation was therefore laid for pan-European rules on ADR generally, and mediation specifically.

In April 2002, the European Commission Green Paper on ADR in civil and commercial law6 described ADR as "a political priority". The Commission considered that access to justice, which is a fundamental right enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), was faced with three growing problems: the volume of disputes brought before national courts, the length of time taken by the proceedings, and the associated costs. These problems are even more pressing in cross-border disputes. ADR is presented as one of the key solutions to these problems, as a complement, rather than as a competitor, to judicial procedures.

The European Commission highlighted the following advantages to ADR:

  1. Often better suited to the nature of the disputes involved;

  2. Helps to achieve social harmony, by requiring the parties to engage in a process of rapprochement, rather than confrontation;

  3. The consensual approach increases the likelihood that, once the dispute is settled, the parties will be able to maintain their commercial or other relations;

  4. Flexibility; and

  5. Reduced costs.

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The main purpose of the Green Paper was to seek out a balance between flexibility, quality of results, and harmony between ADR and court procedures, and to encourage ongoing debate. It also highlighted the existing achievements in this area by member states, and also the EU in such areas at legal aid7, family law8, consumer protection9, telecommunications10 and electronic communications11.

In July 2004, in an initiative that ran parallel to the development of the Directive, the European Commission launched a Code of Conduct for Mediators12. In line with an overall philosophy of self-regulation, the Code is voluntary, although it has been approved and adopted by a number of mediation experts and organisations, including the Centre for Effective Dispute Resolution (CEDR). The Code sets out a number of principles for mediators, under the following headings:

· Competence, appointment and fees of mediators and promotion of their services;

· Independence and impartiality;

· The mediation agreement, process and settlement; and

· Confidentiality.

In October 2004, the draft European Mediation Directive was published13. There followed a lengthy period of consultation, before the final version was published in May 2008.

From the perspective of European law, the evolution of the European Mediation Directive provides an example of how the EU's sphere of competence has gradually extended over the years. It has been said that there has been a "slow but steady creep of EU competence into areas of 'classic' private law and civil procedure"14. Who would have thought at the time when articles 61(c), 65 and 67(5) of the Treaty Establishing the European Community were first drafted that they would eventually have led to promulgation of rules on pan-European mediation and ADR?

3. The provisions of the Directive

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What is "mediation" for the purposes of the Directive?

The terms 'mediation' and 'mediator' are given broad definitions by the Directive. Article 3 provides:

"(a) ‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.

It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question.

(b) ‘Mediator’ means any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation."

There is often a debate within national legal systems over whether mediation should be compulsory, i.e. should national courts be able to force litigants to mediate. As the above definitions make clear, the Directive provides only for voluntary mediation, but Article 5(2) makes clear that the "Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions..."15 .

The issue of mandatory mediation has recently been considered by the European Court of Justice (ECJ). In a judgment for a preliminary ruling issued on 18 March 201016 the ECJ held that EU directives and general principles do not prevent national law from providing for mandatory out-of-court mediation procedures as a condition of admissibility to court proceedings, provided that such procedure:

· Does not result in a decision that is binding on the parties;

· Does not cause a substantial delay in bringing legal proceedings;

· Suspends the period for the time-barring of claims; and

· Does not give rise to more than minimal costs for the parties.

That case related to disputes in the Italian telecoms sector. The defendants claimed that the actions before the Italian magistrates' court were inadmissible because the plaintiffs had not first attempted mediation according to the rules of the

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Communications Regulatory Authority. The ECJ held that...

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