A recent study commissioned by the European Parliament’s Committee on Legal Affairs observes reluctance towards mediation in almost all of the 28 EU Member States. The authors call the phenomenon the “EU Mediation Paradox”, as inspite of its numerous advantages mediation is still used only very rarely for the resolution of civil and commercial disputes.

Detailed compilation from the EU Member States

The study deserves credit for collecting information on the use of mediation from 816 participants. From every Member State at least five persons completed the questionnaire. The authors have only limited information on the identity of the participants; however, the survey period of only three weeks most likely ensures that the questionnaire was mainly answered by those mediation professionals it was circulated to. The picture outlined by the study is thus highly plausible: Except in few Member States with mandatory mediation such as Italy the use of mediation grew only slightly after the Mediation Directive 2008/52/EG.

More mandatory mediation?

Against the background of low mediation figures in the majority of member states, the authors of the study recommend more mandatory mediation rules to keep conflicts away from the courts and make the parties see the light. This is, however, a doubtful conclusion: The finding that mediation regularly brings about multiple advantages for the involved persons does not necessarily implicate that those have to be forced upon them. Apart from the fact that one of the core principles of mediation and its success in the existing cases is its voluntariness there is a procedural acquis in the Member States to guarantee its citizens widely free access to courts. Mandatory mediation critically curtails this right to the disadvantage of the parties. If a legislator wants to call in mandatory mediation in defiance of this fact this policy turn should be thoroughly deliberated but not hastily inferred from low mediation figures.