European Union Mediation Directive Aims to Improve Access to ADR

Mediation has long been a common way of resolving disputes.  In fact, many sources trace the use of mediation to at least 500 BC.  Whether through the courts or conducted by a tribal elder, mediation has been an effective tool for centuries.  Today, the use of mediation as an extension of the legal system continues to grow.  The vast majority of civil cases in the United States are resolved in this way, and now the practice is gaining new momentum throughout the world.

The European Union enacted its Directive on Mediation in May 2008 to “simplify and improve access to justice.”  While directed primarily at cross-border disputes, it encourages all 27 member states (excluding Denmark, which opted out) to adopt laws and regulations to comply with the directive prior to full implementation in May 2011. The theory is that parties should have access to the same methods of resolving disputes wherever disputes arise in the EU.

Although the implementation of the Directive has been uneven, some states have taken a relatively aggressive stance.  In Italy, the new law requires mediation by an accredited provider before a lawsuit can be filed in about 60 percent of civil and commercial disputes. In other countries including the United Kingdom, Sweden and the Netherlands, mediation remains voluntary but is already an accepted part of the legal process and local laws were already in compliance with the EU Directive.

Although established organizations offering mediation services have existed in the EU for some time, there will undoubtedly be an increase in cases and providers over the next several years to handle both cross border and domestic mediations.  Similarly, the need for more trained and experienced mediators will grow.  In some countries, including the United Kingdom, mediation in domestic cases is already well established.  But inall cases, the conduct and enforcement of mediation agreements in cross-border cases will be greatly enhanced as a common framework is implemented throughout the EU.

The demand for mediation in civil and commercial disputes will be further increased by offering a fast and inexpensive alternative to the long backlogs in many European court systems. With the backlog of cases in some EU countries in the thousands – or as in Italy, almost 6 million – the expediency of mediation is an attractive alternative.

The various implementations of the EU Directive smooth the way for more mediation by ensuring confidentiality for parties and mediators, providing for the enforceability of mediation agreements, and allowing access to the courts in the event that mediation does not result in a settlement.  In most cases, the new laws and regulations also allow or even encourage courts to refer cases to mediation if an attempt at resolution has not been made.

To be sure, the emphasis on the EU Directive and corresponding laws being rolled out in member countries is concentrated on cross-border disputes more than domestic disputes.  This adds a layer of complexity for ADR practitioners in the EU who may not be familiar with the laws and customs of multiple countries.  ADR provider organizations that can build competent panels of mediators from multiple countries will have a definite advantage.Forthe sake of full disclosure, we recently launched JAMS International with headquarters in London. The group was formed in partnership with JAMS in the United States and ADR Center in Italy and also includes Result ADR in the Netherlands.  We are adding panelists from additional EU countries as well.

Since the 1970’s, mediation has been an integral part of the legal system in the United States and there are now hundreds of thousands of such cases year.  The UK is not far behind in terms of the maturity of mediation and ADR in general.  Time will tell, but count on the ADR market in Europe and elsewhere to blossom in the coming years.