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When a directive needs to be more … directive

26 Feb 2019 / mediation Print

When a directive needs to be more … directive

A recent report from the European Parliament (PE 608.847 – November 2018) on the impact of Directive 2008/52/EC (the Mediation Directive) in the EU shows that, over ten years since its adoption, the directive is far from achieving its stated objectives of encouraging the use of mediation and, in particular, of achieving a ‘balanced relationship between mediation and judicial proceedings’.

Balanced relationship

The directive does not prescribe a particular balance or state how to determine whether a ‘balanced relationship’ has been achieved, simply providing that “the objective of this directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings” (article 1.1).

The report sets out the findings of studies concerning the use of mediation in the member states and makes some notable observations regarding how best to achieve the directive’s objective, in particular, citing Italy’s mandatory ‘opt-out’ approach.

Report findings

In 2011, three years after the enactment of the directive, the European Parliament commissioned a study (Quantifying the Cost of Not Using Mediation) to measure the impact of the Mediation Directive.

The report observes that the results were disappointing, showing that, of the top countries that were top performers in terms of numbers of mediations, a majority of these countries were experiencing around 2,000 or fewer mediations per year.

A further study was conducted at the end of 2013, which showed that only four countries – Italy, Britain, the Netherlands and Denmark – reported more than 10,000 mediation cases.

The majority of the countries (13) reported less than 500 cases per year. Only one country registered around 200,000 mediation cases per year (Italy), which is also the only country to have adopted an opt-out mediation model (see below).

That study also required respondents to indicate what they thought would be the single most effective legislative measure to increase the number of mediations.

The majority of respondents indicated, with one exception, that no current legislative measures in place to promote mediation were seen as particularly effective. For example, the study showed that confidentiality protection does not appear to increase the number of mediations.

In fact, the majority of respondents from all EU member states, even those with less than 500 mediations per year, reported strong confidentiality protection in their countries. In addition, countries that implemented incentives for people to mediate failed to see an increase in the number of mediations.

The 2013 study reveals that the regulatory features currently in place to promote mediation are not decisive factors in favouring the use of mediation. However, responses to that same question showed that the introduction of a mandatory system would be desirable and did correspond to a higher frequency of mediations taking place.

Recourse to mediation

As to recourse to mediation, it is notable that article 5.2 of the directive provides: “This directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system”.

It follows that member states are permitted to provide for mandatory mediation provided that that does not prevent the parties from exercising their right of access to the courts.

The report observes that Italy is the only member state to have adopted an opt-out mediation model, applicable to about 15% of all civil and commercial cases.

Italian approach

The report states that, in Italy before 2011, despite pro-mediation legislation that was in force since 1993, there were virtually no commercial mediations (either mandatory or voluntary).

Things changed dramatically in 2011, when a government decree made mediation a condition precedent to trial in certain cases, including banking and insurance contracts, real estate, medical malpractice, and a few others.

With the decree, several hundred thousand mediations were started on an annual basis, 20% of which were voluntary cases.

In late 2012, however, the rate of mediations declined drastically from 200,000 to a few thousand per year when Italy’s Constitutional Court ruled that a parliamentary statute was needed – not a governmental decree – to require litigants to try mediation before going to court.

Constitutionality

The constitutionality per se of mandatory mediation was thus not addressed by the decision, which left the matter in the hands of the legislators. Italy reintroduced the mandatory requirement.

This time it was done by way of an act of parliament, with another notable change: Italy removed the obligation to go through, and pay for in advance, a full mediation process in the above-mentioned categories of cases. Under the new law, parties must participate at the first meeting with the mediator; if not, they can both face certain sanctions.

However, at the first meeting, either party may stop the mediation immediately, by paying only a nominal fee (from €40 to €80). Under this system, Italy has since been experiencing upwards of 150,000 mediations a year, bearing in mind that the obligation to attempt mediation first only applies to less than 10% of the country’s civil litigation cases.

Concrete example

The report suggests that, in effect, the Italian experience provides a concrete example for the proposition that introducing mandatory elements, more specifically mandatory mediation with the ability for parties to opt out easily, will likely increase the number of mediations in any member state.

It also observes that experience has also shown that the incidence of voluntary mediation is increased by the introduction of mandatory mediation when provided in a single regulatory framework.

The European Parliament was presented with a proposal to adopt the ‘opt-out’ mediation model in late 2016; however, in 2017, the parliament decided to leave the directive unchanged.

The report nonetheless argues that, instead of a simplistic binary option of voluntary mediation or mandatory mediation, the ‘required mediation model with easy opt out’ offers a more thorough and refined analysis and appears to produce far better results.

James Kinch
James Kinch
James Kinch is a solicitor in the Chief State Solicitor's office