Mediation development in Europe: progress and problems (a report) | Popgen Tech
Non-judicial forms of dispute resolution are widespread in legal systems, (i) within the Western legal tradition, or (ii) based on religion and tradition.
Furthermore, over the past 50 years, mediation has found a prominent place in legal systems based on the rule of law.
Accordingly, a report on mediation developments in Europe [fn. 1] provide relief for us all. What follows is an attempt to summarize portions of that report.
While the US is often considered the motherland of mediation movements, the European Union has promoted its own mediation policies over the past decades:
- first, it improved public awareness of access to legal issues and benefits of mediation, including efficiency compared to a trial and benefits for those with little legal or economic power; and
- secondly, it introduced non-binding mediation legislation and then required member states to legislate mediation for civil and commercial disputes.
Mediation in Europe arose mainly through consumer protection legislation:
- the establishment of new consumer rights has led to the need for new non-judicial dispute resolution systems, especially in cross-border circumstances;
- the non-judicial focus stems from overworked courts and costs of a judicial trial; and
- the growth of consumer rights makes the consumer’s access to justice more and more critical, especially for small claims and cross-border disputes.
In addition, the need for improvements in access to justice stems from the following:
- a growth of commerce and e-commerce and an increasing circulation of goods, services, people and capital;
- a corresponding growth of disputes between people of different states and consequent jurisdictional conflicts and language/logistical difficulties; and
- in such a context, mediation offers an opportunity to improve everyone’s access to justice.
Mediation is considered in Europe as a tool aimed at:
- facilitating a dialogue between disputants that would otherwise be impossible; and
- maintaining the opportunity for a judicial decision if and when mediation fails.
Furthermore, European interest in mediation stems from both, (i) the inherent autonomy and consensual values of mediation processes, and (ii) the crisis and collapse of traditional forms of judicial justice.
International commercial activity tends to reduce the differences between modern legal systems. In Europe this means a harmonization and unification of legal models.
The political choices for mediation therefore orient in the direction of, (i) the promotion of mediation, without devaluing litigation, (ii) the improvement of institutional cooperation between states, and (iii) the facilitation of access to justice for all citizens .
It creates tension. For example, states in Europe take different approaches under the Mediation Directive of 2008:
- Germany, France and Italy promulgate new, sweeping laws and regulations; but
- England and Austria limit their legislative reforms to cross-border disputes.
Such differences reflect a disparity in national attitudes and traditions – so that calls for harmonization are not always shared or welcomed.
A consequence is that studies show a skepticism towards and disapproval of mediation among some legal professionals and potential users of mediation. Such skepticism and disapproval creates a strong opposition among lawyers, judges and others and a barrier to discussion of mediation possibilities.
Such skepticism and disapproval also cause a paradox:
- on the one hand, the legal sector is overloaded; but
- on the other hand, litigation is considered the unique way to resolve a dispute.
The experience in Italy, regarding progress and difficulties for mediation, is illuminating:
- reconciliation has been used since its first codification in 1865;
- mediation was introduced in civil procedure law in the late 1900s—for labor law, the commercial area, and small claims disputes;
- judicially supervised settlement discussions existed in the civil procedure code, but such discussions were a discretionary and rarely used option;
- mediation began to be widely used in 2003 and received a stimulus in the commercial field from the entry into force of the Legislative Decree / 2003—but mediation remained unknown to the majority of potential users, and its use did not increase;
- more recent developments in mediation stem from animated discussions about its scope, limits and above all obligation;
- European legislation in 2008, 2009 and 2010 establishes a mandatory mediation system for many civil and commercial disputes;
- then the constitutional court of Italy declares the mandatory nature of mediation to be illegal – the result is that mediation has rarely taken place since then, and mediations that do take place have low settlement rates; and
- lawyers oppose mediation and raise doubts about its legitimacy (as a limitation of access to justice in the courts), which leads to a serious limitation on discussions of mediation possibilities.
Here’s a thank you to the European Union and all concerned for their report on mediation in Europe. It offers many lessons for all of us!