Mediation: harmonisation across Europe

The recent expansion of the EU added 15 new legal systems to the European mix. Naturally, each new legal system has its own approach to dispute resolution. Since harmonisation has always been a pillar of the European project, the European Commission has moved swiftly to introduce a directive on mediation.

The directive is the first step on a long and winding road to acceptance of mediation across all 25 member states. Although the cause of mediation is championed by several, others are less convinced of its usefulness.

Within England and Wales, the directive will have little or no effect. English law already goes further than the directive in encouraging mediation both before and during the court process. The directive has equally little effect in other parts of Europe where there is mandatory mediation process for certain types of disputes, such as in Italy and some states in Germany.

Certainly, anyone contemplating mediation outside the UK should not assume that all European approaches are the same. Some aspects of the process will be familiar. One area of similarity introduced by the directive is that, where requested by the parties, all settlements reached through mediation will be binding, giving a right of recourse through the courts where the terms of resolution are not honoured.

However, there are many differences across Europe reflecting a number a different approaches. Some countries rely on a system of conciliation. If, for example, you are bringing a claim in the Netherlands, you should expect the judge to try to settle your case before mediation is even contemplated.

Equally, the confidentiality of mediation is not protected in certain countries. The directive goes half-way towards addressing this by imposing a duty of confidentiality on the mediator but does not do the same for the parties. Those wishing to protect themselves against unwanted disclosure should therefore reach a confidentiality agreement before they start.

It is also not safe to assume that mediators across the EU will be of a uniform standard. There are no quality control or training requirements in the directive, only encouragement that member states give due consideration to these crucial aspects. All candidates should therefore be asked about the training they have received. In Greece, for example, mediation is very much in its infancy. The only mediators with the desired quality of training are likely to have been trained abroad.

Far from making mediation compulsory across all 25 member states, the directive could be described as nothing more than an awareness-raising exercise. Perhaps the irony of imposing mediation as a solution on disputing parties was not lost on the Commission.