The European Council issued Directive 2008/52/CE of the European Parliament and the Council on May 21, 2008 dealing with different aspects on mediation in civil and commercial matters as an attempt to encourage the use of mediation. Directives are binding norms for all Member States in terms of the results to be achieved, but each State is free to develop its own domestic legislation to achieve this. We analyse the situation of the mediation in each country of the European Union and we see that using mediation is not equal in each nation although rare in practically all of them. The Council, aware of the numerous advantages and benefits of mediation for both individuals and the Administration, is rightly thinking to take measures that will oblige the Member States to start encouraging mediation in a serious and efficient way.
Keywords: Compulsory Mediation. Incentives. Costs. European Union. European Situation
More than five years have gone since the European Union passed Directive 2008/52/CE of the European Parliament and the Council on May 21, 2008, on certain aspects of mediation in civil and commercial matters, in an attempt to promote Mediation among the Member States. Directives urge the States to accept these norms and incorporate them into their legislation but, unlike Regulations that are binding legislative acts and must, therefore, be applied throughout the European Union, Directives are legislative acts in which a goal is set that must be complied with by all the EU countries by accepting these norms and incorporating them into their own legislation but it is up to each country to decide how to do this; this is precisely what happened with mediation, each State decided to follow its own path which gave way to different results.
Moreover, in view of the «disappointing» results obtained after the passing of the Directive, and given that Mediation is used in less than 1% of the Union’s matters, the European Parliament has published a survey, after having consulted 816 experts from all Europe, in which a kind of «Mitigated Compulsory Mediation» is proposed, given that mediation is yielding very negative results in the Member States, despite the clear benefits produced by its application not only for the parties but also for the States themselves in terms of costs and time savings and in terms of alleviating the workload of Judges and the Courts (De Palo, et al., 2014).
The survey proposes two ways to «reinitiate» the directive: amend it or balancing the relation between mediation and litigation.
Situation of the Mediation in Europe9:
According to the survey carried out by the European Union, a situation emerges in terms of the number of mediations conducted in the Union, which is as follows: Chart 1
Chart 1 shows that in practically half of the European Union territory less than 500 mediations per year are conducted, and if we add to this percentage 21% of the territory where 500-2000 mediations are conducted, we can see that in almost 70% (el 68% to be exact) less than 2000 mediations are conducted per year, which is clearly very poor.
The distribution can be seen on Table 1:
Obviously, as acknowledged by the European Parliament, Article 1 of the 2008 Directive (Directive 2008/52/CE) has not been met. The goal of this Directive is to facilitate access to alternative modes of conflict resolution and to encourage friendly resolution of disputes, promoting the use of mediation, insuring a balanced relation between mediation and judicial process.
Apart the little success of the Directive, attention is also drawn to the great spreading of data, which shows that: each country has accepted the Directive, and that application has been at their convenience without apparently meeting the expected goal of implementing mediation and benefitting from its many advantages.
What could then be done to encourage mediation? What the European Union proposes is, like mentioned above, «mitigated obligation», based on the evidence that only when mediation is somehow obligatory results are satisfactory.
In fact, only in Italy the result was of over 200,000 mediations per year, and the three following countries: Germany, the Netherlands and the United Kingdom could only conduct a little over 10,000 (De Palo, et al., 2014).
Italy, a different case:
The case of Italy is unique in Europe. In order to reduce the number of files in courts, mediation was made obligatory in Italy and there was even the risk to declare a case null and void if no prior attempt to settle was tried with the intervention of a mediator. Thus, disputes for:
- Rents and gratuitous loan
- Renting a company
- Family pacts
- Medical liability
- Defamation by the press
- Insurance, bank and financial contracts
were required to try mediation before starting the litigation during these months10.
But the Italian legislation went beyond this in order to implement mediation by facilitating the fact that the mediator could make its own settlement proposal in the event the parties didn’t reach it by themselves, and it established tax incentives that were truly interesting and motivating as a tax deduction was offered of an amount equivalent to the fee paid to the mediator of up to Euro 500 in case a settlement is achieved. As to the executive efficacy of the mediation settlement, the Italian norm required that the mediation process be conducted in an institution registered at the Ministry of Justice of Italy by a mediator trained according to specific criteria, upon acceptance by the Court where the Institution to which the mediation process was bestowed had its legal residence.
During the time this norm was effective, only nineteen months, the number of voluntary mediations dramatically increased from the few 45,000 to over 220,000, and the European Parliament itself recognises that Italy is the only country that didn’t yield a disappointing result after the incorporation of the 2008 Directive.
In view of the increase in the use of mediation while it was effective, Italy is thinking to return to its obligation, at least in some fields, given the savings experienced in both time and money, and the relieve of the Justice workload.
Analysis and Conclusions:
The European Justice portal11 conducted a survey to collect data on the situation of mediation in the Member States of the European Union.
Based on this survey, it could be stated that of the 27 countries of the Union about which data have been collected, only 8 have any kind of economic incentive in the form of tax exemption or gratuity of the process: the Czech Republic, Slovenia, France, Hungary, Italy (at least for the time it was obligatory), Malta, Poland, and Portugal. Below is how the situation would be: Chart 2
That is, less than 30% of the countries of the European Union offer some economic incentive to use Mediation, and incentives are rather weak.
As to procedural incentives, that is, the obligation to resort to mediation, at least in some fields, the result are even more disappointing as only six countries have implemented this option. These countries are: Germany, Slovenia, Spain, France, Italy and Malta. Chart 3
The percentage of countries of the European Union that in a more or less effective way go beyond a mere recommendation even if they seldom send the parties to mediation is less than 23%.
Lastly, for the following countries: Austria, Bulgaria, Cyprus, Denmark, Slovakia Estonia, Finland, Ireland, Latvia, Lithuania, Luxemburg, the Netherlands, the United Kingdom, Romania and Sweden, mediation is a totally voluntary procedure with no remarkable incentives, and its costs are agreed upon by the mediator and the parties involved.
All of the above lead us to affirm that mediation is implemented in an uneven way throughout the European landscape even if no Member State (except for Italy during the time it was obligatory) has done it in a satisfactory way. We can see that the States offer few incentives whenever they are possible. Mediation should be somehow paid for in order to encourage its dissemination, be it as cost reduction, or through grants or any kind of remuneration.
Below are suggestions made by relevant people in the world of mediation during a Panel Discussion held at the Official Association of Architects of Madrid, on April 22, 2015.
According to Ana Carrascosa, member of the General Council of the Judiciary of Spain, it is indispensable to educate in peace culture. The Council has an agreement with the Ministry of Education to bring Justice to children; and they try to raise awareness about mediation as they know that Judges can be a driver for the development of mediation. The Council has also signed agreements with the Regions in Spain to exchange data and experiences and to cooperate for training and allocation of resources.
Javier Garbayo, General Manager of Signum Notarial Foundation for Alternative Conflict Resolution and a representative of Institutions for the Dissemination of Mediation (IDM); when asked what he thinks about what can be done to disseminate mediation, the response is that society does not know its advantages and benefits because, unfortunately, it has been impossible to convince policymakers that its dissemination could bring many benefits. In his opinion, dissemination campaigns should be launched, as well as incentives should be created to foster the use of mediation before trials.
Luis Aurelio González Martín, Judge of the Court of First Instance Number 73 of Madrid emphases that encouraging mediation before the beginning of the legal litigation would be a success as, once the litigation is started, the situation becomes more complicated. He considers that the Spanish policymakers need to make efforts to disseminate mediation further.
Considering the obligation of mediation and the parties own will to participate as the essence of mediation, we can affirm that these are not incompatible terms as obligation means approaching mediation, knowing it and learning more about its advantages.
We agree with the European Council in that efforts should be made to disseminate mediation not only because of the many benefits for the parties but also because of the economic benefits it can entail for the States; these benefits are, specifically, reduction in the number of litigations that reach the Courts, more agile procedures and a reduction in the costs of administering justice.