(Edited press release)
On 23 April 2008, the European Parliament formally approved the new Mediation Directive. The purpose of the Directive is to facilitate access to dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a viable connection between mediation and judicial proceedings.
It is widely acknowledged that mediation is 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.
Following a Green Paper in 2002, broad consultation among interested parties took place. A large number of stakeholders from a variety of different backgrounds participated in the consultation process and supported the idea of developing a Community directive on mediation.
As a result of the consultation process, in October 2004, the Commission adopted a proposal on certain aspects of mediation in civil and commercial matters (IP/04/1288). The Directive does not regulate the entire range of issues pertaining to mediation but establishes rules on civil procedure. The Commission excluded provisions concerning the mediation process or the appointment or accreditation of mediators.
What is the scope of the new Directive?
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. What are the key rules of the new Directive?
The five key rules of the Directive
- The Directive obliges Member States to encourage the training of mediators and the development of 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.
- 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.
- 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.
- 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.
- 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.