Publications

Achieving a balance relationship between mediation and judicial proceedings

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The 2008 EU Directive on Mediation has been a key milestone for all Member States in introducing various national legislation on mediation in civil and commercial matters. However, the goals stated in Article 1 of the Directive, towards encouraging the use of mediation and especially achieving a “balanced relationship between mediation and judicial proceedings” have clearly not been realized. This paper, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs upon request by the JURI Committee, examines this issue in detail.
Despite the lack of homogeneous statistics, in almost all of the Member States mediation is used in less than 1% of the cases in court: for 1 mediation, 100 cases go to court. The only exception is the result of the Required Initial Mediation Session model currently used in Italy in a small portion of civil cases which is emerging as a best practice. The EU legislator should consider revising Article 5.2 of the Directive, requiring parties, in certain disputes, to participate at least in an initial mediation session with a trained mediator.
This mediation attempt should be fast and inexpensive. As an alternative, the EU should require the Member States to use the current version of Article 5.2 to a fuller extent, taking into consideration the type of dispute.

Mediation as Alternative Dispute Resolution – the functioning of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters

Mediation as ADR Cover - ADR DevelopmentMediation as a form of Alternative Dispute Resolution (the functioning of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters offers substantial quantifiable and non-quantifiable benefits. The EU has played a valuable role promoting it among Member States, particularly through the Mediation Directive (2008/52/EC). Studies show that the most effective way to build reliance on mediation is to integrate a mediation step into appropriate civil and commercial cases. Yet, in its current form, the Mediation Directive leaves this to Member States to decide. Mediation levels are a fraction of what they could be, resulting in tens of billions of Euros wasted each year. Seven years after its adoption, it may be time to upgrade the Directive to incorporate an integrated mediation obligation for Member States.

 

 

 

Rebooting the Mediation Directive

REBOOTING THE MEDIATION DIRECTIVE - ADR Development

Rebooting the mediation directive: assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU.

Five and a half years since its adoption, the Mediation Directive (2008/52/EC) has not yet solved the ‘EU Mediation Paradox’. Despite its proven and multiple benefits, mediation in civil and commercial matters is still used in less than 1% of the cases in the EU. This study, which solicited the views of up to 816 experts from all over Europe, clearly shows that this disappointing performance results from weak pro-mediation.

policies, whether legislative or promotional, in almost all of the 28 Member States. The experts strongly supported a number of proposed non-legislative 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.

 

Ecorys – Study on the use of Alternative Dispute Resolution for Business to Business disputes in the European Union

Ecorys - Study on the use of Alternative Dispute Resolution for Business to Business disputes in the European Union - ADR CenterIn the EU there was an absence of uniformity in legislation across the Member States, particularly when it came to mediation. The different individual frameworks failed to fully address the increasing levels of cross-border Business to Business (B2B) disputes. At the request of the European Commission Directorate General for Justice, a study was  carried out by  ADR Center jointly with Ecorys , as part of the preparation of possible new initiatives dealing with ADR in B2B disputes, complementing the instrument on ADR for B2C disputes, and complementing the Mediation Directive and the Brussels I Regulation. The general policy objective of this study was to provide the European Commission with an accurate and comprehensive view of European businesses’ use of Alternative Dispute Resolution (ADR). To achieve this, the study had the following specific objectives:

  • An overview of the B2B ADR legal frameworks in the EU;
  • An overview of existing ADR schemes and their main characteristics;
  • An analysis of the problems encountered by businesses which face a B2B dispute;
  • An estimate of the use of B2B ADR schemes;
  • A review of costs and savings of ADR schemes;
    • demand (businesses and particularly SMEs);
    • supply (State and private providers)

 

Video on mediation: 22 languages

MAKING INFORMATION SESSIONS ON THE USE OF MEDIATION EASILY AVAILABLE THROUGHOUT THE EU. A VIDEO GUIDE TO FACILITATE SETTLEMENTDespite the passage of the Mediation Directive in 2008, in many jurisdictions, lawyers, jurists and litigants were not yet familiar with mediation, making it difficult for advocates to counsel clients or for parties to make informed decisions on their dispute resolution options.

This project aimed at contributing to the overall objective of increasing the use of mediation in resolving cross-border commercial and civil disputes. It did so by assisting courts in implementing Article 5 of the Directive on mediation in civil and commercial matters, which deals with information sessions about mediations being “held and easily available” to parties and advocates. The specific objective of the project was to create a specialized, multi-language video about cross-border mediation, allowing the persons responsible for providing mediation information sessions to easily make these sessions available.

The Cost of Non ADR – Surveying and Showing the Actual Costs of Intra-Community Commercial Litigation

The Cost of Non ADR – Surveying and Showing the Actual Costs of Intra-Community Commercial LitigationIn order to explore and quantify the impact that litigation has on the time and costs to the 26 Member States’ judicial systems, ADR Center implemented a study in the context of the European Commission-funded project “The Cost of Non ADR-Surveying and Showing the actual costs of Intra-Community Commercial Litigation”. The study measures the financial and time costs of not using mediation.

 

 

 

 

 

 

Quantifying the cost of not using mediation – a data analysis

Quantifying the cost of not using mediation – a data analysisIn order to explore and quantify the impact that litigation has on the time and costs to the 26 Member States’ judicial systems, ADR Center implemented a study in the context of the European Commission-funded project “The Cost of Non ADR-Surveying and Showing the actual costs of Intra-Community Commercial Litigation”. The study measures the financial and time costs of not using mediation.

 

 

 

 

 

Arbitration and Mediation in the Southern Mediterranean Countries

Arbitration and Mediation in the Southern Mediterranean Countries - ADR Development

In this highly informative and very useful book, thirty-three local experts describe the ongoing process of adopting and adapting modern techniques of dispute resolution for economic and commercial matters in Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia, Turkey, and the West Bank and Gaza Strip. Each chapter illustrates multiple techniques, including court processes as well as arbitration and mediation processes, against the backdrop of economic and legislative changes that have occurred region-wide since the late twentieth century. The country-by-country presentations are especially valuable for their emphasis on how local ADR practices deal with, or are affected by, such factors as the following:

  • civil procedure codes
  • international conventions
  • international enforcement of awards
  • appeals
  • qualifications of arbitrators and mediators
  • rules of local, regional, and international ADR institutions
  • costs
  • involvement of the judiciary
  • cultural aspects
  • regional and international trade agreements

 

Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching Series

Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching SeriesIn October 2009, more than 50 of the world’s leading negotiation scholars gathered in Istanbul, Turkey for the second in a series of three international conferences designed to critically examine what is taught in contemporary negotiation courses and how we teach them, with special emphasis on how best to “translate” teaching methodology to succeed with diverse, global audiences. In organizing the Istanbul conference, we took particular note of a consistent strain of criticism of the artificiality of a classroom environment, which became a running theme of many of our authors in the project’s first year, captured in the previously published RETHINKING NEGOTIATION TEACHING: INNOVATIONS FOR CONTEXT AND CULTURE (DRI Press 2009). It would be hard to imagine a better environment for trying something new and different outside the classroom environment than Istanbul, and we tried to do honor to one of the world’s greatest trading cities in our design for the conference. In brief, we dispatched small teams of scholars into the city’s famous bazaars, for one exercise in studying how negotiation might be taught more actively, and dispatched teams into the city’s less touristy neighborhoods on another occasion, with instructions that required each team to negotiate internally. The resulting rich collection of scholarship is gathered in our current title – VENTURING BEYOND THE CLASSROOM.

Rethinking Negotiation Teaching

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In May 2008, more than 50 of the world’s leading negotiation scholars and trainers gathered in Rome, Italy to embark on a multi-year effort to develop “second generation” global negotiation education. The participants’ post-conference writings – the 22 chapters contained in RETHINKING NEGOTIATION TEACHING -critically examine what is currently taught in executive style negotiation courses and how we teach it, with special emphasis on how best to “translate” teaching methodology to succeed with diverse, global audiences. Collectively, the chapters provide a blueprint for designing courses to take account of the most recent discoveries in the growing, multi-disciplinary science of negotiation and confronting the challenges of teaching negotiation in cross-cultural settings.

 

 

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