EU directive on mediation in civil and commercial matters

The European Commission has published a proposal for a directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters.

The draft directive is a positive step for mediation in Europe in that it seeks to establish uniform and qualitative standards in mediation across all European member states.

The objective of the directive is to facilitate access to dispute resolution by promoting the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings.

With the entry into force of the Treaty of Amsterdam, the EU set itself the objective of establishing an area of security, freedom and justice, enabling the free movement of persons but also ensuring that individuals are not discouraged or prevented from exercising their rights by the incompatibility or complexity of legal and administrative systems in member states.

The Tampere European Council of 1999 called for alternative, extra-judicial procedures to be created by member state to ensure enhanced access to justice in Europe.

A number of Community acts also promote extrajudicial procedures for the solution of disputes arising under their application, such as the Brussels IIbis Regulation on matrimonial matters and parental responsibility and the recommendations adopted by the Commission in the context of consumer policy.

The Council adopted conclusions on alternative methods of settling disputes under civil and commercial law in 2000 and invited the Commission to present a Green Paper taking into consideration the existing situation and initiating wide-ranging consultation with interested parties to prepare the measures to be taken.

In 2002, the Council presented a Green Paper on Mediation in Civil and Commercial Matters. The Green Paper attracted considerable interest from the member states and other countries, mediation organisations and other groups.

About 160 responses were received and, following the expiration of the consultation period, the Commission organised a public hearing in February 2003, which was attended by about 130 mediation representatives to further debate the issues raised.

The responses highlighted practically unanimous agreement on the value of mediation as a dispute resolution mechanism and on the potential to develop its use further both in terms of market-driven developments as well as regulatory and/or policy initiatives from national governments and international organisations.

Besides the preparation of this proposal, the Commission also organised a number of meetings with stakeholders to stimulate self-regulation of mediation in Europe. This initiative resulted in the development of a first code of conduct for mediation in the EU.

Work on the code of conduct was finalised and adopted by member states in 2004. The code could serve to raise the quality of mediation in the EU as well as to promote best practices between member states.

Court-annexed schemes

The proposed directive encourages the use of court-annexed schemes or the use of mediation by a court judge to ensure that the parties consider the possibility of using mediation for solving their dispute.

No reference to mandatory mediation is made and parties retain the right to decide whether or not to have recourse to mediation. However, the court will have the right to oblige parties to attend an information session.

While the proposed directive does not make mediation compulsory, it does not exclude the possibility that member states provide for Court Rules, so long as they do not impede the parties' right to access the judicial system.

Quality control

While the directive considers measures to maintain quality standards of mediation necessary, the proposed directive leaves a large degree of freedom to the member states as to how the provision of quality mediation services should be ensured.

Emphasis is placed on the promotion of self-regulation, which the Commission has found to be the most appropriate policy instrument at this stage.

The Commission has already sought to stimulate the development of a European Code of Conduct for Mediators and is committed to continue to see what further measures could be taken to contribute to the implementation of this article.

To enhance the quality of mediation and public confidence, it is not only codes of conduct that need to be encouraged, but also other quality control mechanisms, including disciplinary rules and grievance procedures.

Confidentiality

The article on confidentiality proposed in the draft directive has been modelled on the corresponding provision of the UNCITRAL model law on commercial conciliation, which not only provides a good model in itself but also allows for providing consistency between different rules on mediation.

Having said that, a basic shortcoming of this section of the draft is that confidentiality applies only to the mediator and the administrators of mediation. "Mediators as well as any other person involved in the administration of mediation services shall not in civil judicial proceedings give testimony or evidence...", but not the parties or other participants.

The biggest threat to the confidentiality of mediation is breach by the parties not by the mediator. This can be corrected by reinstating the full language from the UNCITRAL model law so that it includes "the parties and any third person involved in mediation" as well as the mediator and the administrators of mediation.

Enforceability

The article on enforceability of settlement agreements requires member states to devise means by which settlement agreements reached in mediation can be enforced in a manner similar to the judgment of a court, provided that the agreement is not contrary to European Law or to national law in the member state where the request is made.

The possibility of rendering a settlement agreement enforceable already exists in a number of member states, either by submitting the agreement to a notary, a public authority or court.

The possibility of making settlement agreements enforceable is of particular interest in cross-border disputes, where the non-respect of a settlement agreement may force the parties to initiate judicial proceedings in another member state.

Rendering the settlement enforceable directly after mediation prevents this risk by placing mediation on an equal footing with judicial proceedings.

The adoption of a directive along the lines of the Draft Directive will be a significant step forward in promoting mediation in general within the EU and also in increasing legal certainty and predictability on confidentiality principles and the relationship between mediation and civil proceedings.

Audrienne Spiteri Gonzi, CEDR Accredited Mediator (Lon.), Family Mediator Practitioner MII (Dub.), is a member of the European Commission working group on ADR. For more information on the draft directive and mediation send an e-mail to agonzi@maltanet.net