Is Europe Headed Down the Primrose Path with Mandatory Mediation?

32 Pages Posted: 25 Feb 2012

Date Written: February 10, 2012

Abstract

Civil justice systems are having their share of troubles in Europe as costs and delays associated with courts and the litigation process have significantly impacted citizens’ access to justice. As a result of multiple, systemic problems in accessing justice, the alternative dispute resolution (ADR) movement has experienced a steadily growing presence in both civil and common law jurisdictions. Over the last two decades, the European Union (EU) has intentionally promoted mediation and other forms of ADR to advance access to justice goals and has done so with a high degree of intensity. Of all the ADR processes, mediation in particular, is at the forefront of EU discussions about access to justice and efficient dispute resolution. The shift toward mediation suggests that in many respects, mediation is capturing the access to justice movement. Its prominence as an access to justice vehicle in the EU was enhanced by a Mediation Directive issued in 2008 by the European Parliament and the Council. The Directive required Member States to implement structures to support mediation of cross-border commercial disputes in the EU by May 2011.

Europe’s experience with mediation parallels that of the U.S. in many respects. In the U.S. expense and delays associated with litigation, citizen alienation and dissatisfaction with the justice system, and the pervasive notion that there must be a better way to manage civil justice, led to large-scale adoption of mediation programs. Continued enthusiasm for mediation led to its institutionalization in state and federal courts, and with institutionalization came compulsory mediation programs. While mandatory mediation is moving at a slower speed in Europe, it is still making progress. At this juncture, based on the U. S. experience with mandatory mediation, it is useful to inquire, whether Europe should be heading in the direction of compulsory mediation regimes or whether it should step back, and be more cautious about following what could end up to be a primrose path to justice. The central ideology of mediation is voluntariness. Tampering with this principle could play havoc with access to real justice.

Keywords: EU Directive, mediation, comparative mediation, compulsory mediation

Suggested Citation

Nolan-Haley, Jacqueline M., Is Europe Headed Down the Primrose Path with Mandatory Mediation? (February 10, 2012). North Carolina Journal of International Law and Commercial Regulation, Vol. 37, 2012; Fordham Law Legal Studies Research Paper No. 2010615. Available at SSRN: https://ssrn.com/abstract=2010615

Jacqueline M. Nolan-Haley (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6849 (Phone)
212-636-6899 (Fax)

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