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Alternative dispute resolution: mediation

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Alternative dispute resolution: mediation

This Directive facilitates the use of mediation as a method of settling disputes in civil and commercial matters.

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

Through this Directive the European Union intends to encourage amicable dispute resolution, particularly through the use of mediation The Directive requires the Member States to authorise the courts to suggest the use of this method to the litigants, without, however, compelling them to use it.

Scope

The Directive applies to cross-border disputes in civil and commercial matters, with the exception of revenue, customs or administrative matters or the liability of the State for acts or omissions in the exercise of state authority. It does not apply in Denmark.

Enforcement of agreements reached through mediation

Although the agreements reached through mediation are likely to be implemented voluntarily, the Directive requires all the Member States to establish a procedure whereby an agreement may, at the request of the parties, be confirmed in a judgment, decision or authentic act by a court or public authority.

This will allow mutual recognition and enforcement throughout the EU of agreements reached through mediation, under the same conditions as those established for the recognition and enforcement of court decisions in civil and commercial matters and in matrimonial matters and matters of parental responsibility.

Suspension of limitation periods

Member States must ensure that the parties are not prevented from initiating judicial proceedings or arbitration following mediation due to the expiry of the prescription periods.

Confidentiality and mediation

Neither mediators nor those involved in the mediation process are compelled to give evidence in judicial proceedings regarding information obtained during the mediation process. This is permissible only in the following cases:

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

Member States must also encourage the training of mediators, as well as the development and application of voluntary codes of conduct for the profession.

Context

This Directive follows the 2002 Green Paper on alternative dispute resolution and the code of conduct for mediators produced in 2004.

REFERENCES

Act

Entry into force

Date of transposition in the Member State

Official Journal

Directive 2008/52/EC

12.6.2008

21.5.2011 (Article 10: 21.11.2010)

OJ L 136 of 24.5.2008

RELATED ACTS

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 - Not published in the Official Journal].

This communication reports the main opinions expressed in the context of public consultation, organised by the Commission in 2011, entitled Towards a European Horizontal Framework for Collective Redress. It also sets out the Commission's position on certain fundamental aspects and is accompanied by a recommendation, in which the Commission invites all Member States to introduce national mechanisms of collective redress inspired by several European principles.

The Commission particularly considers that consensual resolutions of disputes, mediation being one of them, may have a useful additional function with regard to legal action. It therefore recommends that the Member States introduce these collective Regulation mechanisms.

Last updated: 27.03.2014

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