Latest News
Enhancing Legal Dispute Resolution through Mediation in the European Union
Enhancing Legal Dispute Resolution through Mediation in the European Union
Through mediation, parties can settle their legal disagreement amicably and outside of court. Mediation is an alternative extrajudicial process created to settle conflicts swiftly and effectively. Although several EU Member States have passed special laws, and courts have encouraged parties to use extrajudicial processes to resolve disputes, mediation is still not widely used in the EU because there is a dearth of organized information on mediation and its benefits over litigation. Litigation is not as convenient, quick, efficient, or economical as mediation, which offers all these advantages over litigation.[1] Without going to court, it is also used to settle labour, family, and other civil and business problems. The Mediation Directive, which focuses on specific areas of mediation in civil and commercial disputes, emphasizes that access to out-of-court conflict resolution methods is seen to improve access to justice.
Many member nations have tried mediation for decades, with varied degrees of success. The European Union's policy to establish an area of freedom, security, and justice included access to judicial as well as extrajudicial dispute resolution methods. In 2002, the European Commission presented a Green Paper on ADR in civil and commercial disputes, which paved the way for Directive 2008/52. This document is thought to have contributed to the proper operation of the internal market. But despite its potential benefits, mediation is still not as popular as it could be. In Poland alone, data on mediation use show a sharp decline. Although the situation ought to have improved over time, mediation is still comparatively underutilized as a conflict resolution tool since there is a dearth of organized information regarding its benefits over litigation.[2]
Through the voluntary process of mediation, parties can try to resolve their differences through an alternate conflict resolution process. It is predicated on the idea of self-determination, which gives parties the freedom to choose whether or not to engage in the process. The parties may end the mediation at any moment and without explanation. Rules in this regard may be found in the Member States' domestic laws, although the Mediation Directive makes no mention of them. A Member State may enact laws requiring mediation, provided that it does not interfere with the parties' ability to use their right to access the courts. In certain situations, the requirement to use the mediation process by law makes involvement in out-of-court conflict settlement anything else than fully voluntary. The mediator's duties include helping parties understand the nature of the issue, the underlying interests of each party, and the many solutions that may be available to assist settle all or part of the issue.[3] They also include facilitating the dispute resolution process and providing enough framework for resolution. The European Mediators Code, which describes the requirements under which the mediator must be aware of the mediation process, discloses the mediator's competence.[4]
The mediator's authority to end the dispute resolution process if they think a settlement is being achieved that will guarantee mediation's efficacy appears unenforceable or illegal, or if continuing the mediation is unlikely to result in a settlement. EU mediation provides practicality, effectiveness, and ease of use, but its acceptance is constrained by legal simplification and a dearth of public data. Low rates of conflict settlement are reported, with parties frequently favouring the judicial system. Information must be widely shared, data must be gathered and published, and the nature, scope, and cost of the dispute must be examined to highlight mediation's benefits over litigation as well as its ease and efficiency.
References
[1] Chereji, Christian-Radu. "Mediation in the European Union: The Directive 2008/52/EC and its Effects on National Legislations." Conflict Studies Quarterly 15 (2016).
[2] Nolan-Haley, Jacqueline. "Evolving paths to Justice: Assessing the EU directive on mediation." Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2011). Brill Nijhoff, 2012. 407-421.
[3] Benichou, Michel. "Mediation and Europe." URL: https://www. ccbe. eu/document/PECO_Portal/Seminaire-Minsk-sept (2015).
[4] Shtefan, Anna, and Yurii Prytyka. "Mediation in the EU: Common Characteristics and Advantages over Litigation." InterEULawEast: journal for the international and European law, economics and market integrations 8.2 (2021): 175-190.
- Despite its advantages, mediation is not widely embraced in the EU due to a lack of organized information about its benefits over litigation.
- The directive emphasizes the importance of out-of-court conflict resolution methods, aiming to improve access to justice by promoting mediation in civil and commercial disputes.
- Legal complexities and insufficient public data hinder the widespread acceptance of mediation, with low rates of conflict settlement reported as parties often prefer the traditional judicial system.
