European Commission promotes mediation in the EC

14 January 2005

Ewan Grist

The purpose of this article is to provide a general overview of the recent steps taken by the European Commission to promote the use of mediation in civil and commercial matters throughout the Member States.

On 19 April 2002, the EU Commission published a Green Paper on Alternative Dispute Resolution (“ADR”) to take stock of the current use of ADR within the EU. On the back of the Green Paper, the Commission held various consultations with interested parties to discuss what could be done to encourage the use of ADR and to improve its efficacy on a community level. As a result of the consultations, a European Code of Conduct for Mediators (the “Code”) was developed. The Code was launched on 2 July 2004.

The Code sets out a number of principles to which individual mediators and mediation organisations may adhere. The Code is a voluntary instrument and adherence to it is without prejudice to national legislation or rules regulating individual professions. Those mediators or mediation organisations that decide to commit to the Code can register with the Commission, whereupon they will be added to a list which is available through the Commission to prospective clients.

On 22 October 2004, the Commission put forward a proposal for a Directive seeking to promote the use of mediation for all civil and commercial disputes. The proposed Directive (which is due to be implemented by 1 September 2007), covers all processes where two or more parties to a dispute are assisted by a mediator to reach an amicable settlement.

The proposed Directive is designed to provide a clear legal framework whilst safeguarding the flexibility of the mediation process using two key types of provision:

i. provisions to ensure a healthy relationship between mediation and judicial proceedings by establishing minimum common rules throughout the Member States on key aspects of mediation, such as the enforcement of settlement agreements.

ii. provisions to enable the courts of the Member States to actively promote the use of mediation without making it compulsory, such as mediation “information” sessions

The Commission believes that the Code and proposed Directive, when taken together, provide a full response to the issues arising out of the Green Paper consultation process.