New EU directive promoting Mediation
- European Union
- 07/13/2008
Creating an area of security, freedom and justice. This directive aims to provide a key element for access to justice which should include alternative dispute resolution methods, which moreover releases the pressure on the Member States Courts.
In May of 2000 the Council adopted conclusions on alternative methods of settling disputes in civil and commercial law matters intending to create basic principles to facilitate a suitable development and process of dispute settlement outside court; as well as facilitating and advancing the access to justice.
A Green Paper on Alternative Resolution in civil and commercial matters was presented in the year 2000, determined to take a stand in regard with Alternative Dispute Resolution methods in the European Union and prompt consultations with Member States in order to promote the use of mediation.
The European Parliament and the Council have published a directive on certain aspects of mediation and civil and commercial matters, dated May 21st of 2008 on the official Journal of the European Union.
The directive’s objective is the promotion of mediation and the introduction of a legal framework attempting to particular key aspects of civil matters.
The terms of the directive are intended to apply only to cross border mediation disputes, however not preventing their application to internal mediation processes. It is directed to two or more parties to a cross-border dispute pursuing to reach an amicable agreement with the assistance of a mediator in civil and commercial matters, they should not apply to family and employment law or to pre-contractual negotiations, adjudicatory or processes administered by persons or bodies issuing a formal recommendation.
The directive should apply to cases where the national law prescribes mediation or where the court refers parties to mediation. The directive should also apply to panel and the mediations conducted by a judge who is not responsible for the judicial proceedings relating to the matter of dispute, in the case that a judge may act as a mediator under national law. Furthermore, the directive should not extend to the effort made by the judge or court within the context of trial procedures concerning the dispute.
The directive provides that Member States should encourage training of mediators by the necessary means to ensure mutual trust with respect to privacy, effect on restriction
and prescriptions periods and enforcement, as well as the provision for introduction of
effective quality control mechanisms. The Member States should define these mechanisms and they may include resource of market-based solution and should not be required to provide any funding for that matter.
The mechanisms to promote mediation should ensure the flexibility of the mediation process and the total autonomy of the parties and the assuring that the mediation is conducted impartial and effectively.
The directive also provides, that Mediators should be made aware of the existence of an
European Code of Conduct for mediators, and this should be made available to the public. Also, the directive provides for a consumer protection criteria; regarding this matter, the commission has adopted a Recommendation establishing a minimum quality protection criteria, which out-of court bodies should adopt and should be used and respected by the mediation or organization involved in the consensual resolution of consumer disputes.
The mediation directive also establishes that mediation should not be regarded as a poorer resource to juridical proceedings but rather as an alternative, thus the Member States must ensure that the parties’ written agreement can make this enforced. The written agreement resulting from mediation should also be recognized and declared enforceable by the other Member States according to the Community or national law.
The Member States should ensure that their rules on prescription and limitation do not prevent the parties from going to court or arbitration, in the case that the attempt for settling the matter through mediation should fail.
The directive will come into force 20 days posterior to its publication in the Official Journal of the European Union. Once the directive comes into force, the Member States have three years to implement the directive in to their internal national law.
Regarding the directive of certain aspects for mediation in civil and commercial matters, the nationality of the parties subject to the dispute, remains very important, because as it is mentioned the directive applies to cross-border disputes within the European Union, with the exception of Denmark who has not adopted of this directive. If one of the parties to the dispute is a national of a country other than a EU Member States, the European party or parties should not take for granted that the principles of the European Union directive are the same as those of the legal order of the national outside the European Union, so this should be considered before opting for a legal forum outside the EU.
Various material and general considerations, which are not expressedt in the directive’s text, are to yet be analyzed, in order to pursue its fair application and the use of the right methods.
