Consideration of draft report on the implementation of Directive 2008/52/EU on certain aspects of mediation in civil and commercial matters
It is clear that the principle of access to justice is fundamental and its realisation is one of the main objectives of the EU-policy in the field of civil justice cooperation. Effective and efficient justice systems are of great importance, inter alia, to the proper functioning of the internal market, to economic stability, to investment and to competitiveness. In line with this principle, mediation could be seen as a means to improve the efficiency of justice system and to reduce the hurdles that lengthy and costly judicial procedures create for citizens and businesses. It can therefore contribute to economic growth. Mediation may also contribute to maintaining good relationship between the parties as, contrary to judicial proceedings, there is no ‘winning’ or ‘losing’ party, which is particularly important, e.g. in family law cases.
For these reasons the european legislator introduced the Mediation Directive (2008/52/EC). Its central objective is the facilitation of access to alternative dispute resolution and the promotion of amicable settlement of disputes, as well as a balanced relationship between mediation and judicial proceedings. Although compulsory mediation would promote the use of mediation as an alternative to in-court-dispute resolution, such a development could be viewed as being contrary to the voluntary nature of mediation. As the European Court of Justice has already held , prior implementation of an out-of-court settlement procedure for specific disputes would not be problematic. However a series of safeguards would need to be put in place to ensure that effective judicial protection is not hampered.
As a result adequate safeguards need to be put in place in mediation processes to limit the risk that weaker parties, such as consumers and unrepresented litigants, are being deprived of their right to an independent judicial determination or have the perception that they are being deprived of it. It is therefore of utmost importance that mediations ensure that weaker parties do not settle a dispute without understanding their proper legal rights and that more powerful parties do not use speedy dispute resolution procedures, including mediation, as a means of avoiding their legal obligations or improving improperly their legal position against other parties.
Throughout the last years the implementation of this Directive was assessed by several studies and reports. Some of the main findings of these studies are the following:
Almost all Member States opted to extend the Directive’s requirements transposing measures to domestic cases too. However the objectives of the mediation directive towards encouraging the use of mediation and especially achieving a “balanced relationship between mediation and judicial proceedings” have not been achieved. Mediation is used in less than 1% of the cases in court on average in the majority of Member States.
A number of Member States allow the use of mediation in civil and commercial matters, including family and employment matters, while not explicitly excluding mediation for revenue, customs or administrative matters or for the liability of the State for acts and omissions in the exercise of State authority.
All Member States foresee the possibility for courts to invite the parties to use mediation, with fifteen Member States introducing the possibility for courts to invite parties to information sessions on mediation.
Less than half of the Member States have introduced an obligation in their national laws to spread information about mediation.
Eighteen Member States introduced binding quality control mechanisms.
Nineteen Member States require the development of and adherence to codes of conduct.
Seventeen Member States encourage training or regulate it in their national legislation.
In this regard it shall be also highlighted that at present there is no reliable and comprehensive statistical data on mediation. Furthermore there is a lack of information regarding mediation and its advantages in most Member States. That is why data collection and information on mediation matters shall be efficiently improved (for example through well organised information campaigns and through the obligatory creation of national registers of mediated proceedings) to further promote mediation and increase public trust in its effectiveness, as well as to achieve improved cooperation between legal professionals.
In this perspective I would like to recommend the competent authorities to assess the need to develop EU-wide quality standards for the provision of mediation services, especially in the form of minimum standards ensuring consistency, while taking into account the fundamental right of access to justice as well as local differences in mediation cultures.
Moreover the Commission shall undertake a detailed study on the obstacles to the free circulation of foreign mediation agreements in the Union, as well as to provide financial incentives for the parties, in order to use mediation as an affordable and effective way to solve conflicts in internal and cross-border disputes in the EU. In any case the rule of law and ongoing international developments shall be taken into account also in this field.
Thank you for your attention
(deadline for tabling amendments is 08.04.2017 AT 12:00 ...)
23.3.2017