The European Commission today reiterated the potential of existing EU-rules on mediation in cross-border legal disputes, reminding Member States that these measures can only be effective if put in place by Member States at national level.

The European Commission today reiterated the potential of existing EU-rules on mediation in cross-border legal disputes, reminding Member States that these measures can only be effective if put in place by Member States at national level. Settling disputes and disagreements through court is not only costly and time-consuming, it can also destroy profitable business relationships. Cross-border cases are more complex due to different national laws and jurisdictions as well as practical matters like cost and language. Alternative dispute resolution (ADR) through impartial mediators can address these problems and build constructive solutions. But it needs skilled mediators and clear rules that both parties can trust. Cross-border mediation is trickier, as it needs to span different business cultures and both sides need common rules they can rely on. That is why EU rules on mediation entered into force in May 2008, and have to be in place by May 2011. They create legal guarantees to mediation and ensure a high-quality process by applying codes of conduct or mediator training. So far, four countries (Estonia, France, Italy and Portugal) have informed the Commission that they have implemented the EU-rules on mediation in national legislation.

“These EU measures are very important because they promote an alternative and additional access to justice in everyday life. Justice systems empower people to claim their rights. Effective access to justice is protected under the EU Charter of Fundamental Rights. Citizens and businesses should not be cut off from their rights simply because it is hard for them to use the justice system and because they cannot afford it, cannot wait for their time in court, or cannot deal with the red tape,” said Vice-President Viviane Reding, EU Commissioner for Justice. “I call on Member States to be ambitious in putting the EU rules on mediation in place swiftly: the bare minimum is to allow cross-border disputes to find amicable settlements. But why stop there? Why not make the same measures available at national level? In the end, it is citizens and businesses, societies and economies, and the legal system itself that will benefit.”

The EU Mediation Directive applies when two parties who are involved in a cross-border dispute voluntarily agree to settle their dispute using an impartial mediator. Member States are to make sure mediated agreements can be enforced. According to a recent EU-funded study, the time wasted by not using mediation is estimated at an average of between 331 and 446 extra days in the EU, with extra legal costs ranging from €12,471 to €13,738 per case.1

Mediation can solve problems between businesses, employers and employees, landlords and tenants, or families, so that they can maintain and even strengthen their relationship in a constructive way – a result that cannot always be achieved through court proceedings. Settling disputes out of court spares justice systems' resources and can potentially cut legal costs. Online dispute resolution makes long distance mediation more and more accessible. All that is missing are cross-border rules giving parties certainty about the process and its enforceability.

A crucial element in any mediation is trust in the process, especially when two parties come from different countries. EU rules therefore encourage Member States to provide quality control, establish codes of conduct and offer training to mediators to make sure there is an effective mediation system in place. A European Code of Conduct for Mediators has been developed by a group of stakeholders with the assistance of the European Commission and was launched on 2 July 2004. The European Code of Conduct sets out a number of principles to which individual mediators can voluntary decide to commit; these principles refer to the competence, appointment and fees for mediators, the promotion of their services, their independence and impartiality, the mediation agreement and the confidentiality rule.

The list of organisations subscribing to the European Code of Conduct is published at: http://ec.europa.eu/civiljustice/adr/adr_ec_list_org_en.pdf

If mediation fails, disputes can always revert to traditional court proceedings.

By May 2011, the Commission expects that 26 Member States will have put these EU- rules in place (Denmark, has opted not to enforce these rules – a prerogative it can take under a protocol annexed to the EU Treaties). So far, four countries (Estonia, France, Italy and Portugal) have informed the Commission that they have put the rules in place. Furthermore, Lithuania and Slovakia have notified the names of competent courts for enforcing cross-border mediation settlements.

Even though most of the Member States already had similar rules in place at national level before the adoption of the Directive, they should, before 21 May 2011, notify the Commission of the measures they adopt to put the Directive in place (these national measures should specifically mention the Directive). Some countries already have rules for mediation in certain sectors; for example, Ireland and Denmark in labour relations, Finland for consumer disputes, Sweden for traffic accidents or France and Ireland for families. Portugal has been training mediators since 2001.

Member States are to provide information on courts competent to make mediated agreements enforceable by an earlier date (21 November 2010), so that the Commission can publicise this information to make it easier for citizens and businesses to use mediation.