The effectiveness of harmonising mediation across Europe
You mediate. No, EU mediate.
When the EU Commission first suggested harmonising mediation across Europe, there was much sucking of teeth. It seemed counter-intuitive to take key parts of a voluntary process and make them compulsory.
When, after lengthy consultation, a draft directive finally emerged in 2004, the proposals were unsurprisingly modest. There were none dealing with the mediation process itself or with the appointment or accreditation of mediators. What remained to be harmonised? In truth, not much.
First, courts could invite parties to mediate. They could make them attend an information session on the benefits of mediation but compulsion ended there.
Second, voluntary codes of conduct and quality control mechanisms were generally to be encouraged as a good idea, but shouldn’t interfere with the parties’ right to a mediator of their choosing.
Third, any settlement reached through mediation must be enforceable through the courts as long as it was legal and above board.
Fourth, what happened within the four walls of the mediation must remain confidential and not be used in evidence.
Finally, limitation periods must be suspended during the mediation process.
However inoffensive it may be, the directive faces a struggle for survival. It was not well received when presented to the European Parliament: MEPS apparently prefer to slash ‘red tape’ which is still in draft form than the many million miles of it already in force.
Sadly, the legal basis for the directive is suspect. Article 65 of the Treaty of Amsterdam allows harmonisation of civil judicial systems. However, changes must have cross-border implications and be necessary to make the internal market function properly. The draft directive applies to mediation used to resolve national as well as cross-border disputes. The burden of reconciling the required changes with fundamentally different legal systems across the EU may be disproportionate to any benefit in making the internal market function properly.
With or without a directive, the benefits of mediation are now so well recognised that it will continue to flourish in its own particular market in each member state. Lack of harmonisation in cross border disputes can also be mitigated by choosing a governing law, such as English law, which protects the confidentiality of the mediation process.
This article first appeared in our Litigation Annual Review January 2006. To view this publication, please click here to open a new window.
