By: Donald L Swanson
Non-judicial forms of dispute resolution are widespread in legal systems, (i) within the western legal tradition, or (ii) based on religion and tradition.
Further, over the past 50 years, mediation has found a prominent place in legal systems based on the rule of law.
Accordingly, a report on mediation developments in Europe [fn. 1] provides enlightenment for us all. What follows is an attempt to summarize portions of that report.
While the USA is often considered the mother–country of mediation movements, the European Union has promoted its own mediation policies over the past decades:
- first, it improved public awareness of access to justice issues and benefits of mediation, including efficiencies compared to a trial and benefits to those with little legal or economic power; and
- second, it enacted non–binding mediation legislation and then required member states to legislate mediation for civil and commercial disputes.
Mediation in Europe arose mainly through consumer protection legislation:
- the establishment of new consumer rights resulted in the need for new non-judicial dispute resolution systems, especially in cross–border circumstances;
- the non-judicial focus arises from overworked courts and costs of a judicial trial; and
- the growth of consumer rights makes the consumer’s access to justice more and more critical, especially for small claims and cross–border disputes.
Moreover, the need for improvements in access to justice arise out of the the following:
- a growth of trade and e-commerce and an increasing circulation of goods, services, people and capital;
- a corresponding growth of disputes between people of different states and resulting jurisdictional conflicts and language/logistic difficulties; and
- in such a context, mediation provides an opportunity to improve everyone’s access to justice.
Mediation is conceived in Europe as a tool aimed at:
- facilitating a dialogue between disputants that would otherwise be impossible; and
- maintaining the opportunity for a judicial resolution if and when mediation fails.
Moreover, European interest in mediation arises from both, (i) the inherent autonomy and consensual values of mediation processes, and (ii) the crisis and collapse of traditional forms of judicial justice.
International commercial activity tends to reduce the differences between modern legal systems. In Europe, that means a harmonization and unification of legal models.
The political choices for mediation, therefore, orient in the direction of, (i) promoting mediation, without devaluing litigation, (ii) improving institutional cooperation between states, and (iii) facilitating access to justice for all citizens.
This creates tension. States in Europe, for example, take different approaches under the mediation Directive of 2008:
- Germany, France and Italy promulgate new, comprehensive laws and regulations; but
- England and Austria limit their legislative reforms to cross–border disputes.
Such differences demonstrate a disparity in national attitudes and traditions—so that calls for harmonization are not always shared or welcome.
A result is that studies show a skepticism toward and disapproval of mediation, among some legal professionals and potential users of mediation. Such skepticism and disapproval produce a strong opposition among lawyers, judges and others and a hindrance to discussion of mediation possibilities.
Such skepticism and disapproval also raises a paradox:
- on one hand, the legal sector is over–loaded; but
- on the other, litigation is viewed as the unique way to solve a dispute.
The experience in Italy, on progress and problems for mediation, is enlightening:
- conciliation has been utilized since its first codification in 1865;
- mediation was introduced in the civil procedural law in the late 1900s—for labor law, the commercial area, and small claims disputes;
- settlement discussions under judicial supervision have existed in the civil procedure code, but such discussions have been a discretionary and rarely-used option;
- mediation began in 2003 to be widely used and received a stimulus in the commercial area from enactment of the Legislative Decree / 2003—but mediation remained unknown to the majority of potential users, and its use did not increase;
- more recent developments in mediation arise from animated discussions about its scope, limits and, above all, compulsoriness;
- European legislation in 2008, 2009 and 2010 establish a mandatory mediation system for many civil and commercial disputes;
- then, Italy’s Constitutional Court declares the compulsory character of mediation to be illegitimate—the result is that mediation has rarely occurred since then, and mediations that do occur have low settlement rates; and
- lawyers oppose mediation and raise doubts about its legitimacy (as limiting access to justice in the courts), resulting in a severe limitation on discussions of mediation possibilities.
Here’s a thank you to the European Union and all involved for their report on mediation in Europe. It provides many lessons for us all!
Footnote 1. The report is, Mediation in Europe at the cross-road of different legal cultures, edited by Antonello Miranda, Dean of the Faculty of Political Science of the University of Palermo, and co-funded by the Civil Justice Programme of the European Union (2014).
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