Ten years since its adoption, the EU Mediation Directive remains very far from reaching its stated goals of encouraging the use of mediation and especially achieving a “balanced relationship between mediation and judicial proceedings” (Article 1). The paradox of mediation – universally praised and promoted, but still used in less than 1 percent of the cases in civil and commercial litigation in the EU – grows disturbingly bigger as official
data and multiple studies have clearly shown that the best way, if not the only one, to increase significantly the number of mediated disputes is to require that litigants make a serious and reasonable initial effort at mediation.
During this initial stage, they will be allowed the freedom to decide whether or not to continue their efforts at mediation (so called “required mediation with easy opt-out”). Behavioral science, in particular, has long demonstrated the limits of any policy approach based on “opt-in” models, such as those underlying all forms of voluntary mediation. Italy is the only Member State that has adopted an opt-out mediation model, applicable to about 15% of all civil and commercial cases. In those cases mediation is now playing a very significant role in the effective resolution of disputes. This is not the case for the remaining 85%, where mediation remains “optin” and, as a result, mediations are extremely rare. In other Member States, renewed regulatory attempts at – simply – encouraging mediation are most likely to prove ineffective (again), while – simply – requiring mediation before trial, without offering an easy opt-out option, is equally likely to be later ruled unconstitutional (again).
Presented in late 2016 with the proposal to adopt the opt-out mediation model, in 2017 the European Parliament unfortunately decided to leave the Directive unchanged, thus continuing to leave national legislators without directions as to how to achieve the Directive’s ultimate goals, and EU citizens and businesses without the financial and other benefits that the increased use of mediation would generate. (Extrait de http://www.europarl.europa.eu/thinktank/fr/document.html?reference=IPOL_BRI%282018%29608847)
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