This study, which solicited the views of up to 816 experts from all over Europe, clearly shows that this disappointing performance results from weak promediation policies, whether legislative or promotional, in almost all of the 28 Member States.
The experts strongly supported a number of proposed nonlegislative measures that could promote mediation development. But more fundamentally, the majority view of these experts suggests that introducing a ‘mitigated’ form of mandatory mediation may be the only way to make mediation eventually happens in the EU.
The study therefore proposes two ways to “reboot” the Mediation Directive: amend it, or, based on the current wording of its Article 1, request that each Member State commit to, and reach, a simple “balanced relationship target number” between civil litigation and mediation.
A thorough comparative analysis of the legal frameworks of the 28 Member States, combined with an assessment of the current effects of the Mediation Directive in terms of its produced results throughout the EU, shows that only a certain degree of compulsion to mediate (currently allowed but not required by the EU law) can generate a significant number of mediations.
Only one country, Italy, has a reported number of mediations exceeding 200.000 annually. The next three countries probably exceed 10.000 only, while a significant number of EU Member States report less than 500 mediations per year.
In Italy, for example, when mediation was not mandatory (until 2011), there were no more than 2.000 mediations per year. At the time mediation became mandatory (March 2011-October 2012), the number of voluntary mediations climbed to almost 45 000, out of over 220 000 proceedings as a whole.
When mediation ceased to be mandatory (October 2012 – September 2013), along with that of mandatory mediations also the number of voluntary mediations fell to almost zero. Now that mediation is again a pre-requisite to litigation in certain cases (since September 2013), both mandatory and voluntary mediations are being initiated at a rate of tens of thousands per month.
Italy, actually, features a ‘mitigated’ mandatory mediation system. Indeed, in certain categories of cases litigants are only required to sit down with a mediator for a preliminary meeting, at no cost, in lieu of having to go through, and pay for, a full-blown mediation. If any of the parties is not persuaded that mediation has good chances to succeed, they can ‘opt-out’ from the process during the preliminary meeting and go directly to court without negative consequences.
Based on the study results, the choice between ‘opt-out’ and ‘opt-in’ appears to be easy: by comparing the number of mediations generated by the two models, and considering the strong preference by experts based in ‘opt-in’ countries (such as Romania) for stronger mandatory elements, the opt-out model appears clearly the preferable one.