Mediation in the EU after the Transposition of the Directive 2008/52/EC on Mediation in Civil and Commercial Matters
Civil and Commercial Mediation in the E.U. after the transposition of the Directive 2008/52/EC on Mediation in Civil and Commercial Matters, in Civil and Commercial Mediation in Europe: Cross-Border Mediation Vol II. (ESPLUGUES, C., ed.), Cambridge, Intersentia, 2014, 485-771
133 Pages Posted: 4 Jan 2016
Date Written: 2014
The analysis of the situation in the EU after the implementation of the 2008 Directive on Mediation generates mixed feelings. Although the Directive has led to the presence of the institution in the several Member States many important differences can still be ascertained not only in relation to the legal framework developed, its scope and solutions provided, but also -- and this seems to be more relevant -- regarding the commitment to the institution by the several Member States. The Directive has provided such a minimum level of harmonisation that almost everything has been left up to the Member States. The persistence of such a variety of different approaches casts into doubt the validity of the option of using Directives instead of Regulations to harmonise this area of law. This article analyses in depth the existing situation in the several member States of the European Union after the transposition of the Directive of 2008 on mediation.
The 2008 Directive must be approached as a first step towards the consolidation of the institution as a real complement to State courts in Europe. It has been a successful step, we should say, insofar as the institution has now gained a legal presence that had previously been nonexistent in many Member States. But for the institution to obtain full endorsement by citizens in the future, at least as regards cross-border disputes, full circulation of the settlement reached in the Member States across the Union should be ensured. And for this to be done, not only should a minimum set of basic common private international law rules on key aspects of cross-border mediation exist, but also quick, affordable and simple ways to achieve cross-border settlements should be ensured for citizens.
Keywords: Civil and commercial mediation, interantional mediation, international civil and commercial mediation, cross-border civil mediation, cross-border mediation, civil and commercial mediation in the European Union, Directive 2008/52/EC, Directive on mediation, ADR, Mediation, Mediation Directive
JEL Classification: D63, D74, J52, K41, F13
Suggested Citation: Suggested Citation