For some time now, the European Union has been interested in promoting mediation as part of its general policy of supporting access to justice and providing freedom and security for all citizens. The EU’s most explicit intervention is the Mediation Directive of 2008,[i] whose purpose is to support mediation as an alternative means of out-of-court settlement for civil and commercial disputes. Mediation advocates consider the directive a significant milestone, but their dream of seeing mediation solidly established in Europe has not yet been realized: Each year, only a small number of cases actually go to mediation.
This article examines the reasons for the limited use of mediation in EU states: the patchwork application of the directive, the lack of consistency among the EU states, and the directive’s failure to provide what disputants actually need.
Member states of the European Union were required to implement the Mediation Directive by May 2011, but anyone who looks at EU member states’ mediation regulations and expects to see a unified framework will be disappointed. Regulation is a patchwork of colors and patterns, not a coherent framework.[ii]
This patchwork is a consequence of the character of the directive, which opted for minimum, not maximum, harmonization. Minimum harmonization means that member states must meet the basic standards of the directive but can exceed those terms if they wish. Some member states, for instance, opted for extensive regulation on mediation and the professional training of mediators.
Austria, for example, enacted the EU Mediation Directive for cross-border mediation but also has implemented extensive and detailed mediation regulations for both cross-border and domestic mediation. Domestic mediation, however, is separately regulated by the Austrian Mediation Act, and both these acts are supplemented by regulations on the professional training and qualification of mediators. In addition, Austrian law includes many isolated provisions on the use of mediation; one provision, for example, requires parties in neighbor disputes to try mediation before filing a court proceeding.
In contrast, England and the Netherlands opted for a more restrained approach. England introduced a minimum level of compliance with the EU Mediation Directive for cross-border disputes, but all other aspects of mediation, including the professional training and qualifications of mediators, are almost entirely in the hands of the private sector. In the Netherlands, despite strong governmental promotion of mediation by means of court-annexed mediation programs, the Dutch Ministry of Justice has, until recently, abstained from regulating mediation as a matter of principle. Members of the Dutch legislature were concerned that extensive regulation would hinder practitioners and mediation associations from developing mediation methods, so the Netherlands currently has the minimum standards for cross-border disputes, although new legislative initiatives on mediation for both domestic and cross-border disputes were submitted in June 2013. The proposed regulation includes a register for qualified mediators and confidentiality rules for those mediators as well as the parties involved in their mediations.
This patchwork approach means that different rules are applied to different kinds of disputes. The directive itself focuses on civil, commercial, family, and employment disputes, but only if these conflicts are so-called “cross-border disputes,” those in which at least one of the parties is domiciled or habitually resident in a member state other than that of any of the other parties. Including domestic disputes would have been a significant extension of the scope of the directive, but according to Article 65 of the EU Treaty, the European Union is allowed to take measures only in civil matters that have cross-border effects. Member states, however, do have permission to broaden the scope to domestic disputes. Some member states, including Austria, France, Germany, and Belgium, have chosen to include domestic as well as cross-border disputes in their mediation regulation. Others, such as the Netherlands, England, and Luxembourg, have not.
The text of the Mediation Directive covers the following topics:
• The quality of mediation
• The courts and mediation
• Enforceability of agreements resulting from mediation
• Limitation and prescription periods
• Information on mediation[iii]
Each member states’ mediation regulations must address these topics, but because each member state – and sometimes even different jurisdictions within one member state – has different rules, the directive has not succeeded in creating a unified and consistent legal framework for mediation.
Quality of Mediation
The directive aims to ensure the quality of mediation without prescribing any concrete measures, and within the European Union, member states differ on whether the market or the state is better equipped to ensure the quality of mediation. As a result, methods to ensure quality vary widely.[iv] England, for example, leaves quality control mostly to private organizations, while in the Netherlands state referral and legal aid programs will use only mediators who belong to a certain association. Austria has an incentive system: Mediation practice is open to anyone, but disputants who choose registered and certified mediators enjoy favorable legal consequences, such as the protections in the rules on confidentiality. Germany also has what could be called an incentive model, but unlike Austria, it offers no favorable legal consequences if disputants choose to work with a certified mediator. Instead, policy makers expect that disputants will prefer certified mediators and that courts and insurance companies will recommend their use. The directive also requires member states to encourage the training of mediators to ensure that mediation is conducted in an effective, impartial, and competent way, but it leaves the challenge of coming up with concrete measures to the member states.
Courts and Mediation
The directive allows courts to invite parties to use mediation, to make the use of mediation compulsory, or to develop incentives to use mediation. Italy has opted for compulsory mediation: In 2011, Italy introduced mandatory mediation for a large number of case types as a means of handling a heavy caseload.[v] Italy’sConstitutional Courtinvalidated the law in 2012, finding that the legislature had unconstitutionally exceeded its delegation of power.[vi] In 2013, the Italian government responded by adopting an amended compulsory mediation scheme, with provision for lawyers’ participation and required evaluation of the program after four years.[vii]
Other member states, however, introduced mandatory mediation only for specific types of conflict. Germany and Austria, for example, introduced mandatory mediation for neighbor disputes, while Norway made mediation mandatory for family disputes involving children.
Some member states have opted to impose sanctions on parties who do not want to use mediation. Judges in England, for instance, can assess cost sanctions on litigants who reject mediation without a good reason.
Other member states use incentives. Austria, for example, gives financial assistance in the form of reimbursement for most of the costs of the mediator for parties who use mediation in family matters. For a few years, the Netherlands offered a fixed amount of money for every mediation for parties to use mediation for many case types; nowadays, it provides legal aid, reimbursement of most of the costs of the mediator, to parties whose income is below a certain threshold.
The Netherlands has invested heavily in court-annexed mediation. Every court has a special mediator coordinator who helps parties find a mediator suitable for their dispute, and judges have been trained to diagnose the conflict during a hearing and discuss with the disputants the options that best suit their needs.[viii] Based on this diagnosis, the judge then discusses referral to mediation as one of the options for dispute resolution (the other options are a court order, a settlement, or an expert opinion). Judges do not mediate, but in their diagnosis and follow-up discussions, they do use some basic mediation techniques.
Enforceability of the Agreements
According to Article 6 of the directive, member states must ensure that the content of a written agreement resulting from mediation can be made enforceable with the consent of the parties. Again, there are significant differences between the member states, the majority of which do not provide for direct enforceability. Instead, most member states require some further procedural steps. Usually the parties have a choice between several means of enforcement, including a court order, certification of a notary, or a declaration of an arbitration tribunal.[ix]
Article 7 of the directive requires the member states to ensure that neither the mediators nor those involved in the administration of the mediation process (e.g. experts, translators, legal clerks) are compelled to give evidence in judicial proceedings or arbitration regarding information arising from a mediation, unless the disputants agree otherwise. The directive allows member states to enact stricter measures to protect the confidentiality of mediation, including a limitation of the rights of the parties to testify. In France, unlike in most other member states, the mediator, others involved in the administration of the mediation process, and the parties are all protected by confidentiality rules.[x]
Responsive to the Needs of Disputants?
The Mediation Directive “seeks to ensure a balanced relationship between mediation and judicial proceedings,” but the European Commission, as policy-maker in the European Union, has become interested in mediation primarily as a way to relieve pressure on justice departments’ budgets. I would argue that one goal of the directive is to keep people in civil disputes as far away from judicial proceedings as possible, regardless of their needs and what mediation can offer. Rather than promoting mediation to encourage or require citizens to use mediation services, the European Commission should explore what disputants want and how an improved judicial program can meet those needs. The directive is a policy instrument that does not sufficiently take notice of what disputants want and what mediation can and cannot offer.[xi]
Mediation and Court Proceedings: Toward a New Balance
For many years, judges in the Netherlands have been trained to ask parties what they want and need before referring them to mediation. If the parties indicate that a legal ruling will resolve their dispute, the judge provides such a ruling rather than referring the parties to mediation. With encouragement from the Ministry of Justice, the Netherlands’ judiciary has now taken the next step by developing a court-organized online dispute-resolution mechanism (Burenrechter.nl) that serves as an example of a new balance between mediation and court proceedings.
Mrs. Jansen and Mrs. Jones
A Typical Burenrechter.nl Dispute
Mrs. Jansen and Mrs. Jones are neighbors who have lived in peace for about 10 years. The problems arose after Mr. Jones died. Mrs. Jones, unable to maintain the couple’s garden, did not see a problem in the overhanging tree branches, while Mrs. Jansen did. Mrs. Jansen tried talking to her neighbor several times without success. After months of miscommunications and misunderstandings, Mrs. Jansen decides to go online and log in on http://www.burenrechter.nl. She completes the online questionnaire about the problem, the solution she herself has in mind, and the other people involved in the conflict. A judge then invites Mrs. Jones to do the same. The judge then establishes what the neighbors agree to (and what they don’t), requests additional information, and provides information on legal provisions that apply and solutions that other people in comparable circumstances have chosen. In essence, the judge helps parties find an appropriate solution on their own. He or she visits the place of conflict to see the dispute firsthand, and if the parties do not settle, issues a decision online within 3 to 4 months. A few months later, the judge asks the parties whether the court order (or the agreement) provided a lasting solution; if not, the online procedure continues.
Burenrechter.nl will be available for Dutch neighbor disputes starting in early 2014.[xii] The disputants can easily access this online mechanism, which focuses on what the parties have in common, not on their differing views, from an early stage of the conflict. Burenrechter.nl integrates mediation techniques, but in this process the disputants can also ask for a quick decision on legal aspects of their situation. A judge also will monitor the commitments of the disputants after the procedure has ended.
This online mechanism is probably not what policymakers envisioned when drafting the EU Mediation Directive. It is, however, an example of what a new balance between mediation and court proceedings can look like. More important, it embraces the idea that civil disputes can be effectively and efficiently resolved with the help of the court.
The Mediation Directive has had a positive impact, triggering thought and discussion on the structure and practices of alternative dispute resolution. Judges and lawyers have become more aware of the disadvantages of claim-based approaches, which has paved the way for other European initiatives on the field of alternative dispute resolution. In November 2011, the European Commission published two proposals that are worth mentioning: The Proposal for a Directive on Consumer Alternative Dispute Resolution and a Proposal for a Regulation on Consumer Online Dispute Resolution.[xiii] In the near future, all the member states will be obliged to ensure ODR entities for consumer disputes for both cross-border and domestic disputes, which will surely help work toward the noble goal of expanding all citizens’ access to justice – and, one hopes, might also encourage consistency in applying regulation to assure high-quality mediation for everyone in the European Union.
Machteld W. de Hoon is Associate Professor in the Private Law Department of Tilburg University and a Judge at the District Court of Oost-Brabant in the Netherlands. She can be reached at email@example.com.
[i] Council Directive 2008/52, 2008 O.J. (L 136) 3 (EC).
[ii] See generally Mediation: Principles and Regulation in Comparative Perspective (Klaus J. Hopt & Felix Steffek eds., 2013). See also Nadja Alexander, International Comparative Mediation: Legal Perspectives (2009).
[iii] The scope of the application has been discussed in the previous section. See Hopt & Steffek, supra note 2, at 34–37 (discussing the limitation and prescription periods). As for the issue of information: The EU invested heavily in providing an online information program on mediation (e-mediator). The results of this project are expected at the end of 2014.
[iv] See Hopt & Steffek, supra note 2, at 80–93.
[v] Francesca de Paolis, Italy Responds to the EU Mediation Directive and Confronts Court Backlog: The New Civil Courts Mandatory Mediation Law, N.Y. Disp. Resol. Law., Spring 2011, at 41-43.
[vi] See Corte Cost., 6 Dec. 2012, n. 272, Racc. uff. corte cost. (It.); Giuseppe de Palo & Ashley E. Oleson, Regulation of Dispute Resolution in Italy: The Bumps in the Road to Successful ADR, in Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads 239 (Felix Steffek & Hannes Unberath eds., 2013).
[vii] See Legislative Decree 22 June 2013, n. 69 (It.). See also Alessandro Bruni, The New Law on Mandatory Attempt of Mediation in Italy, Bus. Conflict Blog (Dec. 12, 2013, 05:32PM), http://businessconflictmanagement.com/blog/2013/12/italy-update/.
[viii] This program (along with the theory of conflict diagnosed by judges) was successfully developed by Machteld Pel. See Machteld Pel, Referral to Mediation, A Practical Guide for An Effective Mediation Proposal (2008).
[ix] See Hopt & Steffek, supra note 2, at 45-46.
[x] See Alexander, supra note 2.
[xi] See also Hazel Genn, What is Civil Justice For? Reform, ADR, and Access to Justice, 24 Yale J.L. & Human. 397 (2012).
[xii] See Burenrechter; State of the Art Resolution for Neighbour Disputes, http://www.hiil.org/project/neighbour-disputes.
[xiii] Commission Proposal for a Directive of the European Parliament and of the Council on Alternative Dispute Resolution for Consumer Disputes and Amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on Consumer ADR), COM (2011) 793 final (November 29, 2011); Commission Proposal for a Regulation of the European Parliament and the Council on Online Dispute Resolution for Consumer Disputes (Regulation on Consumer ODR), COM (2011) 794 final (Nov. 29, 2011).