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Toward a harmonious European mediation system?

(This post is co-authored by Peter R. Slowinski, a Fellow in Stanford SPILS program)

The German Act for the Promotion of Mediation and Other Methods of Alternative Dispute Resolution has been recently adopted by the Bundestag, on November 30, 2011. Unfortunately, in February 2012, the second Chamber of the German Parliament stopped the process whereby the bill would come into effect, based on the fear that the law would end or at least complicate court-annexed mediation programs initiated by most of the German states. To date, the law is not in effect and the two Chambers of Parliament will need to find a compromise. Similarly, in Spain, the Ley de Mediacion en Asuntos Civiles y Mercantiles (the Law on Certain Aspects of Mediation in Civil and Commercial Matters) was approved in April 2011, but has yet to be signed by the Prime Minister into law. The main objective of both these legislations is to transpose the European Mediation Directive (No. 2008/52/EC), the deadline for which was set for May 2011.

This Directive is a major component of the European Union’s strategy vis-à-vis alternative dispute resolution, which dates back to the Vienna Action Plan adopted in the late 1990s. The development of ADR in the EU is considered a political priority, and possibly the only way to establish a uniform forum for individuals in Europe without infringing on the “traditional” justice systems of the member states. The ultimate goal is to eliminate the barriers to trade – within the EU market – which are caused specifically by the unknown and the differences between the legal systems of the 27. The objectives and tools of the Directive are quite laudable: better access to justice (especially for low-value claims), better coordination with domestic courts, the professionalization of mediators, direct enforceability of settlement agreements reached via mediation, stricter confidentiality, and the suspension of the applicable statutes of limitation during the mediation proceedings so as not to penalize those who elect to mediate their disputes rather than inundate the court rooms.

But the examples of Germany and Spain, which both failed to implement the Directive within the deadline and who might not implement it within a reasonable period of time, clearly illustrate the difficulties that the Union might encounter in the future with the realization of its objectives. Indeed, even when the member states do implement the Directive, they often do so partially, or in different manners. As a result, far from creating a harmonious cross-border system, early evidence suggests that the legal differences among states will remain. One reason for these difficulties might be seen in the limited powers of the EU to implement highly detailed uniform rules. Other reasons for this problem seem to lie in the very different efficiency and perceived trust in the legal structures of the various European countries. Countries with a well-functioning judicial system fear to establish an alternative to litigation with limited regulation while countries with a high backlog in their courts see mediation as a chance to get rid of pressing problems.

For instance, the level of required training for mediators vary greatly from one country to another. In Austria, mediators are required to complete a theoretical training composed of an introduction to the history of problems and the development of mediation including their basic assumption and models; procedural development, methods and phases of mediation with special regard to dispute-oriented and solution-oriented approaches; basis of communication techniques, the conduct of meetings and moderation with special regard to conflict situations; conflict analysis; theories of personality and psycho-social forms of intervention; ethical problems in mediation, in particular the position of the mediator. Thereafter, Austria requires completion of a practical training which covers inter alia individual self-awareness and practical experience seminars, role play, simulation and reflection. This is quite a comprehensive training regimen, and by contrast, many other countries either remain much more vague about the required training, or simply ignore such requirements. It seems that Austria with a fairly efficient court system weights the quality of future mediation higher than the need for fast and low-cost alternative dispute resolution procedures on a wide scale.

Additionally, although many countries simply implemented the Directive – albeit partially – a few states took the opportunity to salvage what they could of their judiciary by going further than strictly necessary to comply with the Directive. Italy is the most striking example of this phenomenon: the average duration of civil cases was the longest in Europe and reflected the congestion in the courts. The Italian legislator, quite ably, decided to make mediation mandatory. Lawyers now have an obligation to inform their clients about mediation, failing which the court may forfeit their legal fees altogether, and mediation is a condition of admissibility for certain types of disputes. If the parties fail to agree on a settlement, the mediator will make a “conciliation proposal” and communicate it to the judge if the parties reject it. If the dispute brought in court is the same than the one mediated, the judge can sanction the parties for not having reached an agreement. More specifically, the prevailing party in the trial, if it rejected the mediator’s proposal, will have to pay all the legal fees of its counterpart (the idea being that the same outcome could have been reached without involving the courts).

These are all but isolated examples of the discrepancies that arise in the implementation of the exact same text by the European member states. So, how can Europe address the issues of discrepancies in the members’ legal systems when the very instrument designed to bring uniformity creates more differences? For one thing, the EU could try to make sure that the Directive is properly implemented in order to create a European-wide solid legal base for mediation, with countries remaining free to go beyond the Directive requirements. Another solution is the implementation of online dispute resolution (ODR) services. Indeed, by offering a unique and free decentralized electronic platform that can manage disputes all across Europe, the impact of national legislative differences in the field of ADR is rendered nonexistent. The latter seems to be the solution preferred by the EU institutions, who recently adopted the Regulation on Online Dispute Resolution for Consumer Disputes. However, cynics will – rightly – point out that if the EU leaves the design and implementation up to the member states, the same issues encountered with the implementation of the Mediation Directive will occur with this regulation. If the traditional European legislative process has clearly shown its limits here, it may be time to try something new, a different approach. For instance, in the case of ODR, rather than legislating from above, it might be more efficient to encourage the development of private ODR in Europe from the ground up, without governments mandating it. Once a European-wide platform has grown organically, through the demand of consumers, it will be easier to ask member states to adopt common rules vis-à-vis the use of ODR. One argument against ODR as a solution for the dilemma of creating a uniform ADR framework in Europe might be that ODR is an excellent solution for online disputes but that it might be difficult to use for what is still the majority of cases in court rooms: disputes arising outside the internet. However, the percentage of contracts formed on the internet is rising, especially between consumers and businesses. In addition the main problem for ADR seems to be the reluctance of parties to accept it as an equal or better alternative to traditional litigation. Existing ODR systems show a high degree of acceptance and the use of ODR on a wide scheme could work as a catalyst for ADR in general: If it works for disputes online why not try something similar outside the internet.

(This post is co-authored by Peter R. Slowinski, a Fellow in Stanford SPILS program)

One Response to “Toward a harmonious European mediation system?”

  1. Tom McGinn says:

    I have great hope that the project will help thousands of European save time and money in resolving their disputes. This is a great post, thanks!

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