directorate general for internal policies

DIRECTORATE GENERAL FOR INTERNAL POLICIES

LEGAL AFFAIRS

‘Rebooting’ the Mediation Directive: Assessing the Limited Impact of its Implementation and

Proposing Measures to Increase the Number of Mediations in the EU

1) Update the “Costs of Non Mediation” survey

2) Analyze the legislation implementing the Mediation Directive in a number of Member States

3) Propose legislative and non legislative measures to increase the use of mediation across the EU

The EU Parliament’s Study Goals: Resolving the “EU Mediation

Paradox”

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Copertina Studio

http://www.europarl.europa.eu/document/activities/cont.pdf

Time and Cost Savings: Break-Even Point in the EU

Time Savings

Cost Savings

19% Success Rate

24% Success Rate

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High Performance Even at Low Success Rates

Savings of successful mediation are much greater than extra costs (ie, mediation then litigation) when mediation fails

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816 Responses From Across the EU

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Estimated Annual Number of Mediations in the EU

Over 10 000: DE, UK, IT, NL

Between 5 000 and 10 000: HU, PL

Between 2 000 and 5 000: BE, FR, SL

Between 500 and 2 000: AT, DK, RO, SK, ES

Less than 500: BG, HR, CY, CZ, EE, FI, GR, LV, LT, LU, MT, PT, SE

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Estimated Annual Number of Mediations in the EU

Over 10 000: DE, UK, IT, NL

Over 200 000 Italy

A bit more than 10 000 Germany United Kingdom

Netherlands

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Average Time of a Dispute in Days

566

Average time of litigation in the EU

326

Average time of mediation then litigation (with 50% mediation success rate)

212

Average time of mediation then litigation (with 70% mediation success rate)

Savings240 days

Savings354 days

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Average Cost of a Dispute in Euro

9 179

Average Cost of Litigation in the EU

7 960

Average cost of litigation if trial is preceded by succesful mediation in 50% of the cases

6 124

Average cost of litigation if trial is preceded by succesful mediation in 70% of the cases

Savings

1 219 Savings

3 055

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Direct Costs Saved in Euro

Aprox. nr. of civil and commercial litigious cases at 1st instance courts (Cepej 2012)

Saved costs with mediation preceding

each case (50% of success rate)

Saved«direct costs» (conservative

estimate)

13 000 000 x 1 219 = 15 847 000 000

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1)Strong confidentiality protection2)Judges pro-activity3)Easy enforceability4)Financial incentives5)Lawyer duty to inform clients6)Robust mediator accreditation systems

Legislative Measures That Have Not Made Mediation Happen

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The Single Most Effective Legislative Measure

Mandatory mediation in certain cases

Mandatory mediation info sessions

Financial incentives to mediate

Require counsel to inform parties of mediation

Economic sanctions

Judges power to order mediation

Mandatory mediation with opt-out

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110

97

72

54

51

45

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The Single Most Effective Legislative Measure

Mandatory mediation in certain cases

Mandatory mediation info sessions

Financial incentives to mediate

Require counsel to inform parties of mediation

Economic sanctions

Judges power to order mediation

Mandatory mediation with opt-out

132

110

97

72

54

51

45

155

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The article found that in an experimental federal court program over 80% of the attorneys whose cases were required to use ADR said they would select a form of ADR for use in other cases if it were available, but no attorney whose case was not assigned to ADR requested to participate on their own. Although attorneys could request to have their cases removed from the ADR track, very few opted out. According to the authors, "[T]his indicates that litigants and their attorneys often followed the path of least resistance, simply staying on the [ADR] track into which they were initially slotted regardless of their judgments about the suitability of that track for their case. What may appear to be complete freedom of choice to participate in alternative dispute resolution may actually result in no real choices being made at all."

Alternative Dispute Resolution: An Empirical Analysis, Joshua Rosenberg and Jay Folberg (46 Stanford Law Review 1538, July 1994)

The Single Most Effective Non-Legislative Measure

Mediation advocacy education

Pilot projects

EU-wide ‘settlement week’ programs

EU-wide mediation pledge

National mediation «champions»

EU ADR agency to promote mediation

EU certification of mediators

4,3

4,2

4,2

4,0

4,0

3,9

3,8

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Going Beyond Voluntary Mediation….

I will drink only if someone leads me to water!

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Fight Flight

The Two «Fs»

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Will a «Culture of Safe Driving» Alone Do it?

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1) Introduce “mitigated mandatory mediation” in Mediation Directive and other EU legal instruments on ADR (in force and being proposed), albeit on a temporary basis, as a trial.

2) Insist that the MS accept the “Balanced Relationship Target Number” theory (given the poor results of all other pro-mediation legislative measures, alone or combined, it should lead the MS to do the same as above)

Legislative Measures to Solve the «EU Mediation Paradox»

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Each MS must determine its own BRTN = minimum percentage of cases to be mediated to arrive at “balanced relationship” with that of litigated cases.

Each MS free to choose the appropriate policy tools to reach its BRTN (mandatory mediation, information sessions, financial incentives etc.)

Failure to set and reach BRTN = failure to comply with the Directive

Art. 1 of the Mediation DirectiveThe objective … is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.

The «Balanced Relationship Target Number» Theory

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Subtitle

New York County Commercial Division Mandatory Mediation Pilot

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French Senate Report N. 404 (February 2014)

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Proposal n. 14

Extending the trial programs of «double summons» and of the attempt of preliminary mandatory mediation to two courts of first instance of different jusrisdictions each year, for three years, and at the end of this period to make an assesment, before proceeding to expand these programs

Mediation Information and Assessment Meetings (MIAMs) If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings. But from April 2014, before an application can be made to court, you will be required to attend a Mediation Information Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be used to resolve your difficulties, rather than going straight to court. Courts are required to know that mediation has been considered

before they are able to proceed with your application.

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«The Emperor Has No Clothes!»

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Thank you !

giuseppe.depalo@adrcenter.com

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