6 Oct 2017
EU Parliament Resolution on the Implementation of the Mediation Directive
On 12 September, 2017, the European Parliament adopted a resolution on the implementation of Directive 2008/52/EC (the Mediation Directive). The resolution, based on a 2016 report by the Commission put forth recommendations aimed at the growth of mediation in civil and commercial cases throughout the European Union.
The 2016 report concluded that the Directive had a positive impact beyond merely cross-border mediations. It noted the Directive has both raised awareness of mediation and in particular its benefits and given impetus to Member States to implement or extend further mediation within their national jurisdiction as a means of Alternative Dispute Resolution. However, the Commission identified a number of issues with the functioning of many national mediation systems, citing: the varied pre-existing knowledge of mediation among Member States, difficulties in the functioning of mediation owing to the adversarial tradition prevalent throughout Europe, and problems with quality control mechanisms.
Responding to this, the European Parliament formulated the following recommendations:
- Member States to increase their efforts to encourage the use of mediation in civil and commercial disputes through: appropriate and comprehensive information campaigns, improved cooperation between legal professionals and exchange of best practices among jurisdictions.
- Assess the need for the Commission to develop EU-wide quality standards for the provision of mediation services.
- Consider the need for Member States to create and maintain national registers of mediated proceedings.
- The Commission should undertake a detailed study on the obstacles to free circulation of foreign mediation agreements and options to promote the use of mediation.
- Upon review, the Commission should find solutions to effectively extend the scope of mediation, where possible, to other civil and administrative matters.
CEDR welcomes the development of mediation that has taken place throughout Europe as a result of the 2008 Mediation Directive. Mediation in commercial and civil cases enjoys a greater presence than ever before and this is set to rise through promotion, sharing of best practices and as professionals and clients alike become increasingly aware of its benefits. However, as touched upon by the Parliament, it is important not to impose a single commercial mediation model on all Member States. Europe is a diverse cultural, commercial and legal landscape and therefore the expansion of mediation needs to be alive to these differences.
With the Brexit negotiations underway and the future of Britain’s relationship with the European Union uncertain, nevertheless, given the development of mediation and the scale of its use in the UK (including cross-border mediation), it is likely that the UK Government will affectively comply with any future specific directions through procedural rule amendments when necessary and possibly through further encouragement of court sponsored ADR initiatives.
In working with international governments, justice ministries and funding agencies, such as the World Bank, who provide better justice systems. CEDR can point to the practical achievements that can be realised through promotional campaigns, education programmes and common standards of quality practice. We encourage the Commission to take up the Parliament’s recommendations and build on the modest success of the Mediation Directive.
Access to the full EU Parliament Resolution can be found here.
Access to the full Commission Report can be found here.