Mediation in civil and commercial matters

A predictable legal framework can enable European Union (EU) citizens to benefit fully from the advantages of mediation* as a dispute resolution process, particularly in terms of cost-effectiveness and speed.

ACT

Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters

SUMMARY

WHAT DOES THE DIRECTIVE DO?

The directive aims to encourage the use of alternative methods of dispute resolution, particularly the use of mediation. It seeks to ensure a balanced relationship between mediation and judicial proceedings.

KEY POINTS

The directive applies to cross-border disputes in civil and commercial matters. It does not extend to:

• revenue, customs or administrative matters;
• the liability of an EU country for acts and omissions in the exercise of State authority;
• disputes where one or more parties is domiciled or resident in Denmark.

EU countries must establish a procedure allowing parties to request the confirmation of an agreement. This confirmation can be by a judgment, decision or authentic act of a court or public authority. It will allow the mutual recognition and enforcement of an agreement throughout the EU under the same conditions as those established for court decisions in civil and commercial matters and in matrimonial matters and matters of parental responsibility.

Mediators* or those involved in the mediation process are not obliged to give evidence in judicial proceedings regarding information obtained during that process, except if:

• necessary for overriding considerations of public policy, particularly to protect the physical integrity of a person;
• disclosure of the content of the agreement is necessary to implement or enforce that agreement.

EU countries must encourage the training of mediators as well as the development and application of voluntary codes of conduct for the profession.

BACKGROUND

In 2013 the EU published 2 new pieces of legislation on alternative dispute resolution:

• Directive 2013/11/EU on alternative dispute resolution which ensures that consumers have access to quality alternative dispute resolution (ADR) entities for all kinds of contractual disputes with traders. To ensure such access, EU countries must establish national ADR infrastructures by January 2016. Mediation is one out of several forms of ADR on which EU countries can rely for establishing that infrastructure;
• Regulation (EU) No 524/2013 on online dispute resolution (ODR), under which an EU-wide online platform will be set up for disputes that arise from online transactions. The platform will allow consumers to submit their disputes online and will operate in all EU official languages. It is scheduled to be accessible as of January 2016.

For more information see the Alternative and Online Dispute Resolution (ADR/ODR) on the European Commission’s website.

KEYWORDS

* Mediation: a structured process in which 2 or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. It may be initiated by the parties or suggested or ordered by a court or prescribed by the law of an EU country.

* Mediator: a third person who is asked to conduct mediation in an effective, impartial and competent way. The status or occupation of this person in the EU country concerned is not relevant, nor is the way in which the third person has been appointed or requested to conduct the mediation.

RELATED ACTS

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, pp. 63-79)

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, pp. 1-12)

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Towards a European Horizontal Framework for Collective Redress (COM(2013) 401 final of 11.6.2013)

last update 17.08.2015