New European Directive on Mediation

The European Parliament recently adopted a Directive on certain aspects of mediation in civil and commercial matters. The purpose 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 sound relationship between mediation and judicial proceedings.

The Directive addresses a number of important aspects, such as training, quality, judicial encouragement of the use of mediation, the confidentiality of the process, the enforcement of agreements resulting from mediation and the effect of mediation on limitation and prescription periods.

The Directive applies to cross-border disputes, although it may well encourage Member States to apply the provisions of the Directive to internal mediation processes.

In general terms, the key components of the Directive are:

• The Directive obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conducts and other effective quality control mechanisms concerning the provision of mediation services.
• The Directive gives every judge in the Community, at any stage of the procedure, the right to suggest that the parties attend an information meeting on mediation and, if he deems it to be appropriate, to invite the parties to have recourse to mediation.
• The Directive enables parties to give an agreement concluded following mediation a status similar to that of a judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules.
• The Directive ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is essential to give parties confidence in, and to encourage them to make use of, mediation. To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.
• The provision of the Directive on periods of limitation and prescription will ensure that parties that have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation. The Directive thus preserves the parties’ access to justice should mediation not succeed.
• Following adoption of the Directive, Member States will be given 36 months to convert the new rules into national law.
• The Directive applies to processes where two or more parties to a cross-border dispute of a civil or commercial nature attempt by themselves, on a voluntary basis, to reach an amicable settlement to their dispute with the assistance of a mediator. The Directive only applies to cross-border disputes, although it does not prevent Member States from applying the provisions of the Directive to internal mediation processes.

See the EU Commission press release