European Mediation Directive

In May 2008, the European Council adopted the Directive of the European Parliament and Council on certain aspects of mediation in civil and commercial matters (2008/52/EC) (the European Mediation Directive or the “Directive”) governing various mediation issues within Member States. All Member States (apart from Denmark, which has opted out of the Directive) were obliged to bring the provisions of the Directive into force by 21 May 2011.

The objective of the Directive is “to facilitate access to dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings”. It applies where two or more parties to a cross-border dispute of a civil or commercial nature voluntarily attempt to reach an amicable settlement with the assistance of a mediator. It does not extend to revenue, customs or administrative matters, or to disputes involving the liability of the state, nor to those areas of family law where the parties do not have a choice of applicable law. However, the broad definition of “cross-border disputes” means that the Directive’s provisions on confidentiality, limitation and prescription periods also apply in situations which are purely internal at the time of mediation but become international at the judicial proceedings stage, e.g. if one party moves abroad after mediation fails.

The Directive does not impose an obligation on parties to mediate, nor does it contain detailed guidelines for the conduct of a mediation. Rather, it provides high level principles and envisages that Member States will create their own mediation guidelines in accordance with their own procedures.

The key provisions of the Directive include:

  • providing that agreements reached through mediation may be made enforceable should the parties request it. Any agreement which has been made enforceable in one member state should be recognised and declared enforceable in other Member States in accordance with Community or national law;
  • giving judges the right to invite the parties to have recourse to mediation if, at any stage of the procedure, the judge considers it appropriate. Member States are not prevented from introducing legislation to make mediation compulsory or subject to incentives or sanctions, provided that such legislation does not prevent access to the judicial system;
  • providing that, to preserve confidentiality, submissions and disclosures made in the course of a mediation may not be used in any subsequent legal proceedings and mediators may not be compelled to give evidence in any subsequent legal proceedings except in certain limited situations;
  • ensuring that parties’ claims will not be statute-barred as a result of time spent on mediation by obliging Member States to suspend relevant limitation periods while the parties are engaging in mediation;
  • advocating the development and use of voluntary codes of conduct and quality control mechanisms.

A European Commission report of August 2016 on the impact of the Directive and its implementation across member states found that although the Directive did not need revising, its application could be improved if member states increased their efforts to promote and encourage mediation. A study published in January 2014 had found that mediation was still being used in fewer than 1% of cases in the EU, most likely due to the retention of a voluntary approach to mediation in almost all of the 28 Member States.

Following the report, in September 2017 the European Parliament adopted a resolution on the implementation of the Mediation Directive. The resolution included recommendations that member states increase their efforts to encourage mediation through information campaigns, improved cooperation between legal professionals and the exchange of best practice among jurisdictions. It recognised the differing cultures across member states with regard to mediation but recommended that the European Commission develop EU-wide quality standards for mediation services, perhaps including national registers of mediated proceedings, and examine the obstacles to the free circulation of foreign mediation agreements across the EU.

The resolution will be forwarded to the European Council, Commission and member states, although no date has yet been set for implementation for any of the recommendations.