EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 22.10.2004 
COM(2004) 718 final 
2004/0251 (COD)   
Proposal for a 
DIRECTIVE OF THE EUROPEAN PA RLIAMENT AND OF THE COUNCIL  
on certain aspects of mediation in civil and commercial matters 
{SEC(2004) 1314} 
(presented by the Commission) 
 
EN 2   EN EXPLANATORY MEMORANDUM  
1. S COPE AND OBJECTIVES OF THE PROPOSAL  
1.1. Objective 
1.1.1. Ensuring better access to justice 
Better access to justice is one of the key obj ectives of the EU’s policy to establish an 
area of freedom, security and justice, wh ere individuals and bu sinesses should not be 
prevented or discouraged from exercising their rights by the incompatibility or 
complexity of legal and administrative systems in the Member States. The concept of access to justice should, in this context, in clude promoting access to adequate dispute 
resolution processes for indivi duals and business, and not ju st access to the judicial 
system.  
The proposed directive contributes to this  objective by facilitating access to dispute 
resolution through two types of provisions: fi rst, provisions that aim at ensuring a 
sound relationship between mediation and j udicial proceedings, by establishing 
minimum common rules in the Community on a number of key aspects of civil 
procedure. Secondly, by providing the necessa ry tools for the courts of the Member 
States to actively promote the use of mediation, without nevertheless making 
mediation compulsory or subj ect to specific sanctions.  
Provisions touching the media tion process or the appoint ment or accreditation of 
mediators have been excluded from the pr oposed directive. Having regard to the 
reactions to the Green paper of  2002 and current developments  at national level, it is 
not clear that legislation is the preferre d policy option as re gards this type of 
provision. While excluding regulatory meas ures concerning the mediation procedure 
itself from this proposal the Commission has instead sought to encourage self-
regulatory initiatives and is seeking to continue to do so through the proposed 
directive also. 
In the consultations on th e preliminary draft of this  proposal most respondents 
endorsed the overall approach of the draft concerning the issues covered as well as 
the issues excluded from it. Compared to  the preliminary draft certain changes, 
mainly of a technical nature, have been made to specific provi sions and are further 
explained in the annex.  
1.1.2. A sound relationship between mediation and civil proceedings 
What have been retained for this proposal  are essentially matters which cannot be 
adequately addressed through market-based solutions. This concerns notably civil 
procedural rules which may impact on th e use of mediation as well as on its 
effectiveness. The interaction between mediation and traditional civil proceedings can take place at several occasions, for example: 
– The parties consider use of mediation imme diately after the dispute has arisen, as 
an alternative to launching civil proceed ings; if the parties do chose to use 
 
EN 3   EN mediation and fail to reach a settlement agreement, civil proceedings are launched 
after the termination of the mediation;  
– If a settlement agreement is reached thr ough mediation, one of the parties may fail 
to honour the agreement, calling for civil proceedings to be launched anyway; 
– The parties launch civil proceedings immediately after the dispute has arisen, 
without having (yet) considered the possibility of mediation. 
At present the interaction between medi ation and civil proceedings presents a 
number of uncertain elements, due to th e absence of or discrepancies between 
national procedural laws, elements which make themselves known with particular 
force in situations involving cross-border elements. Even if mediation may be the 
most suitable form of dispute resolution in  a given case the parties may therefore opt 
for traditional civil proceedings in view  of these uncertain ties. A stable and 
predictable legal framework should contri bute to putting mediation on an equal 
footing with judicial proceedings where fact ors related to the specific dispute play 
the most significant role for the parties in determining their choice of dispute resolution method. Such a framework should also  help to preserve the possibility for 
the parties to solve their dispute through j udicial proceedings ev en if mediation is 
attempted.  
1.1.3. Promoting the use of mediation 
The value of increasing the use of mediation rests principally in the advantages of the 
dispute resolution mechanism itself: a quicker, simpler and more cost-efficient way to solve disputes, which allows for taking into account a wider ra nge of interests of 
the parties, with a greater chance of r eaching an agreement which will be voluntarily 
respected, and which preserves an amicab le and sustainable relationship between 
them. The Commission believes that media tion holds an untapped potential as a 
dispute resolution method and as a means of providing access to justice for 
individuals and business.  
The role of the Community in directly pr omoting mediation is however by necessity 
limited and the only concrete measure to  promote mediation contained in the 
proposal is the obligation for Member States to allow cour ts to suggest mediation to 
the parties. Ensuring a sound relatio nship between mediation and judicial 
proceedings will however indirectly cont ribute to promoting mediation also. 
The pursuit of the objectives of this propos al can not take in place in isolation 
without regard to the very provision of me diation services. The question of quality of 
mediation services must therefore be addr essed together with, and as a function of, 
the other provisions of the proposed direc tive which must operate with a sufficient 
level of mutual trust between the Member  States in cross-bo rder situations.  
1.1.4. The relationship with the organisation of the judicial systems of the Member States 
One of the often quoted benef its of mediation is that its  increased use can offload 
pressure on the court system, thereby reduc ing what are often long delays in case-
handling and possibly allowing for savings  of public resources. As the proposed 
directive seeks to promote the use of mediation, it coul d indeed have a positive 
 
EN 4   EN impact in this sense. This is however not  pursued as an independent objective, for 
several reasons. First, the organisation of th e judicial system is the sole competence 
of the Member States. Secondly, and most  importantly, mediation has a value in 
itself as a dispute resolution method, to wh ich citizens and business should have easy 
access and which deserves to be promoted i ndependently of its value in off-loading 
pressure on the court system. The Comm ission does not see mediation as an 
alternative to court proceedings ; it is rather one of seve ral dispute resolution methods 
available in a modern society and which may be the most suited for some, but certainly not all, di sputes. Moreover, it should be stre ssed that the availability of 
ADRs in general can not in any way detract from the obligation of Member States to 
maintain an effective and fair legal system that meets the requirements of the European Convention of Human Rights, whic h forms one of the cen tral pillars of a 
democratic society.  
1.1.5. Impact assessment 
A preliminary impact assessment of this pr oposal was carried out in the context of 
the Commission’s annual policy strate gy for 2004. The proposal has not been 
selected for an extended impact assessment. The proposed directive aims at increasing the use of mediation in the EU, which will have beneficial economic 
effects by lowering transaction costs for i ndividuals and business, through a quicker 
and more cost-efficient resolution of disputes . Mediation can also contribute to more 
sustainable economic and social trends in  preserving the relationship between the 
parties after the dispute has been solved, in contrast to the often disruptive effects of 
solving a dispute through an adjudicator y process. The consultation process and 
other preparatory steps are described in the annex. In terms of alternative policy 
options the proposed directive contains ma inly rules on civil procedure, and the 
results can not be achieved using another policy instrument.  
1.2. Legal basis 
The objective and content of this proposed di rective fall squarely within the scope of 
Article 65 TEC since it concer ns civil procedur al rules, where the provision on 
quality and training in Article 4 is anci llary to the other provisions. The proposed 
directive is necessary for the proper functioning of the intern al market in view of the 
need to ensure access to dispute resoluti on mechanisms for individuals and business 
exercising the four freedoms and in view of the need to ensure the freedom to 
provide and to receive mediation services. 
As has been stressed in the description of  the objectives of the proposal the need for 
Community action in this field stems from  the need to ensure legal certainty 
throughout the duration of a dispute regard less of the presence of cross-border 
elements at one stage or another. To ensure  a coherent legal framework it is therefore 
necessary to address key aspects of the whole chain of possible events that can 
follow after the dispute has arisen, havi ng regard to any possible scenario 
(success/failure of the mediation, settleme nt agreement followed by both parties or 
not, etc). 
In the context of ADR the impact of cross- border elements is poten tially greater than 
when considering measures relating to civil proceedings in isolation, since it is necessary to have regard to relevant factors at the time of the mediation as well as at 
 
EN 5   EN the time of any subsequent civil proceedi ngs, including the circumstance that these 
factors may change in the meantime. For example, cross-border elements may come from the domicile or place of business of one  or both of the parties, the place of the 
mediation, or the place of the competent court. The agreement to mediate may in 
itself be governed by a different law than that which governs the original legal or 
contractual relationship between the partie s, and an ensuing settlement agreement 
may be governed by the law of yet anothe r third country. The settlement agreement 
may have to be enforced in yet another Member State dependi ng on, for example, the 
location of the debtor’s assets at the time when enforcement is sought.  
However, it would not be feasib le to restrict the scope of  the proposal so as to only
 
aim at removing obstacles created by cross-bo rder elements or to ease the resolution 
of only those disputes displaying a cr oss-border element, however defined. 
In assessing the suitability of mediation as a dispute resolution method for a given 
dispute, cross-border elements make up for only one of several relevant 
circumstances to be taken into account. Othe r circumstances include the nature of the 
dispute and the merits of the case as well as factors related to costs, delay and 
prospects of success. Promoti ng mediation in relation to th ose disputes that display a 
cross-border element only would therefore be arbitrary and create a risk of discriminatory effects, since the courts w ould suggest mediation to some parties only 
depending on their place of residence. A restriction of this type will undoubtedly 
entail a substantial reduction in the practic al impact of the pr oposed directive also. 
Making the applicability of the civil procedural rules contained in the proposed 
directive subject to the presence of cro ss-border elements would rather lead to 
increased legal uncertainty. Alternatively such a restriction in scope may leave the applicability of the directive in the hands of the parties, who could introduce cross-
border elements through their ch oice of mediator or court for the dispute in order to 
benefit from the rules laid  down by the directive.  
The proposed directive will form an important part of the legal framework for 
mediation services in the Community, as con cerns the freedom to provide services in 
another Member State as well as the freedom to receive services. A limitation in scope to cross-border situati ons would lead to the crea tion of two parallel legal 
regimes, possibly even different standard s as concern the provision and receipt of 
mediation services, with a risk  of discriminatory effects fo r users as well as providers 
of mediation services. Such effects run c ounter to the principl es of the internal 
market as well as the efforts of the Community to simplify the regulatory framework for individuals and business. 
In conclusion the Commission considers th at introducing an e xplicit condition of 
cross-border implications would invalidat e the objectives of th e proposed directive 
and be counterproductive to the proper f unctioning of the internal market. The 
directive must therefore apply to all situa tions regardless  of the presence of cross-
border elements at the time of the medi ation or at the time of the judicial 
proceedings. 
1.3. Subsidiarity and proportionality 
In view of the need for legal certainty a nd predictability in s ituations involving the 
relationship between mediation and civil proceedings in s ituations displaying a cross-
 
EN 6   EN border element and the need to ensure the proper functioning of the internal market 
for the provision of and receipt of mediati on services the objectives of this proposal 
cannot be sufficiently accomplished by the Member States. Measures taken at 
Community level will be more effective co mpared to individual initiatives taken by 
each Member State, for reasons of cohere nce and reasons of providing certain basic 
uniform rules applicable in cross-border situ ations as well as in domestic cases.  
The provisions of the proposal are strictly lim ited to what is necessary to reach the 
objectives. A directive has been chosen as the most appropriate instrument since the 
provisions are designed to achieve certain specific objectives while leaving the means for how to reach those objectives to  Member States’ discretion. The proposal 
also confines itself to issues which can  only be solved through legislation while 
inversely issues where market-based solutio ns are feasible have been excluded from 
the scope. 
2. B
ACKGROUND TO THE PROPOSAL , CONSULTATION WITH INTERESTED PARTIES , AND 
COMMENTS ON MAIN PROVISIONS  
The staff working paper annexed to this  proposal provides further information on 
these issues. 
 
EN 7   EN 2004/0251 (COD) 
Proposal for a 
DIRECTIVE OF THE EUROPEAN PA RLIAMENT AND OF THE COUNCIL  
on certain aspects of mediation in civil and commercial matters 
THE EUROPEAN PARLIAMENT AND THE CO UNCIL OF THE EUROPEAN UNION, 
Having regard to the Treaty establishing the Eu ropean Community, and in particular Article 
61 (c) and the second indent of Article 67(5) thereof, 
Having regard to the proposal from the Commission1, 
Having regard to the opinion of the Eu ropean Economic and Social Committee2, 
Acting in accordance with the procedure laid down in Article 251 of the Treaty3, 
Whereas: (1) The Community has set itself the objective of maintaining and developing an area of 
freedom, security and justice, in which th e free movement of persons is ensured. To 
this end, the Community is to adopt, inter alia, measures in the field of judicial 
cooperation in civil matters th at are necessary for the prope r functioning of the internal 
market. 
(2) The European Council meeting in Tamper e on 15 and 16 October 1999 called for, in 
relation to better access to justice in Europe, for alternative, extra-judicial procedures 
to be created by Member States. 
(3) The Council adopted conclu sions on alternative methods of settling disputes under 
civil and commercial law in 2000, stating that the establishmen t of basic principles in 
this area is an essential step towards enabling the appropriate development and operation of extrajudicial procedures for the settlement of disputes in civil and commercial matters so as to simplify and improve access to justice. 
(4) The European Commission presented a Gr een paper in 2002, taking stock of the 
existing situation as concerns ADRs in  Europe and initiating wide-spread 
consultations with Member States and in terested parties on possible measures to 
promote the use of mediation. 
(5) The objective of ensuring better access to just ice, as part of the policy of the European 
Union to establish an area of freedom, secu rity and justice should encompass access to 
                                                
 
1 OJ C , , p. . 
2 OJ C , , p. . 
3 OJ C , , p. . 
 
EN 8   EN judicial as well as extra-judicial disput e resolution methods. Th is directive should 
contribute to the proper functioni ng of the internal market, in particular as concerns 
the provision and receipt of mediation services. 
(6) Mediation can provide a cost-efficient and quick extra-judicial re solution of disputes 
in civil and commercial matters  through processes tailored to the needs of the parties. 
Settlement agreements reached through medi ation are more likely to be enforced 
voluntarily and are more likely to preserve an amicable and sustainable relationship 
between the parties. These benefits become even more pronounced in situations 
displaying cross-border elements.  
(7) Framework legislation, addr essing key aspects of civil pr ocedure in particular, is 
therefore necessary to promote the further us e of mediation and to ensure that parties 
having recourse to mediation can rely  on a predictable legal framework.  
(8) This directive should cover processes wh ere two or more part ies to a dispute are 
assisted by a mediator to reach an amicable agreement on the settlement of the dispute, 
but exclude processes of an adjudicator y nature such as arbitration, ombudsmen 
schemes, consumer complaint schemes, expert determination or processes administered by bodies issuing a formal reco mmendation, be it le gally binding or not, 
as to the resolution of the dispute. 
(9) A minimum degree of compatibility of civ il procedural rules is necessary as concerns 
the effect of mediation on limitation peri ods and how the conf identiality of the 
mediator will be protected in any subsequent judicial proceedings. The possibility for the court to refer the parties to mediation should also be covere d, while retaining the 
principle that mediation is a voluntary process. 
(10) Mediation should not be rega rded as a poorer alternative to  judicial proceedings in the 
sense that settlement agreemen ts are dependant on the good will of the parties for their 
enforcement. It is therefore necessary to en sure that all Member States provide for a 
procedure whereby a settlement  agreement can be confirmed in a judgment, decision 
or authentic instrument by a court or public authority. 
(11) Such a possibility will allow for a settle ment agreement to be recognised and enforced 
across the Union, under the conditions la id down by Community instruments on 
mutual recognition and enforcemen t of judgments and decisions. 
(12) To ensure the necessary trust between the Member States in the respect of 
confidentiality, suspension of limitation periods, and recognition and enforcement of settlement agreements, effective quality c ontrol mechanisms must be put in place 
concerning the provision of mediation se rvices and training of mediators.  
(13) These mechanisms and measures, which shall be defined by the Member States and 
may include having recourse to market-based  solutions, should aim at preserving the 
flexibility of the mediation process and th e private autonomy of the parties. The 
Commission shall encourage self-regulatory measures at Community level through, 
for example, development of a European code of conduct addressing key aspects of 
the mediation process. 
 
EN 9   EN (14) In the field of consumer protectio n, the Commission adopted in 2001 a formal 
recommendation4 which establishes minimum quality criteria that out-of-court bodies 
involved in the consensual resolution of cons umer disputes should offer to their users. 
It is advisable that any mediators or organisation concerned by the recommendation 
respect its principles. In order to ensure the dissemination of information concerning 
these bodies, the Commission is setting up a database of out-of-court schemes that 
Member States consider as respecting  the principles of the recommendation. 
(15) This directive respects the fundamental rights and observe s the principles recognised 
in particular by the Charter of Fundament al Rights of the European Union. In 
particular, it seeks to ensure full respect for the right to a fair tr ial as recognised in 
Article 47 of the Charter. 
(16) Since the objectives of this directive cannot be suffici ently achieved by the Member 
States and can therefore, by reason of the scale of effects of the action, be better 
achieved at Community level, the Community  may adopt measures in accordance with 
the principle of subsidiarity as set out in Ar ticle 5 of the Treaty. In accordance with the 
principle of proportionality, as  set out in that Article, this Directiv e does not go 
beyond what is necessary in orde r to achieve those objectives. 
(17) [In accordance with Articl e 3 of the Protocol on the position of the United Kingdom 
and Ireland, annexed to the Treaty on Europ ean Union and the Trea ty establishing the 
European Community, the United Kingdom and Ireland have notifie d their wish to 
take part in the adoption and application of  this Directive. / In accordance with 
Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, 
annexed to the Treaty on European Union and the Treaty establishing the European Community, the United Kingdom and Ireland do not take part  in the adoption of this 
Directive, which is therefore not binding on those Member States.] 
(18) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark 
annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is 
therefore not bound by it or s ubject to its application. 
HAVE ADOPTED THIS DIRECTIVE: 
Article 1 – Objective and scope 
1. The objective of this directive is to facilitate access to dispute resolution by 
promoting the use of mediation and by ensuring a sound relationship between 
mediation and judicial proceedings. 
2. This directive shall apply in civil and commercial matters. 3. In this directive, “Member State” shall mean Member States with the exception of 
Denmark. 
                                                
 
4 Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies in the 
consensual resolution of consumer disputes (OJ L 109, 19.4.2001, p. 56). 
 
EN 10   EN Article 2 – Definitions 
For the purposes of this Directive the following definitions shall apply: 
(a) “Mediation” shall mean any process, how ever named or referred to, where two or 
more parties to a dispute are assisted by a third party to reach an agreement on the 
settlement of the dispute, and regardless of whether the process is initiated by the 
parties, suggested or ordered by a court or prescribed by the national law of a 
Member State. 
It shall not include attempts made by the judge  to settle a dispute within the course of 
judicial proceedings co ncerning that dispute. 
(b) “Mediator” shall mean any third part y conducting a mediation, regardless of the 
denomination or profession of that third pa rty in the Member State concerned and of 
the way the third party has been appointe d or requested to conduct the mediation. 
Article 3 – Referral to mediation 
1. A court before which an action is brought may, when appropriate and having regard 
to all circumstances of the case, invite the parties to use mediation in order to settle 
the dispute. The court may in any event require the parties to attend an information session on the use of mediation. 
2. This directive is without prejudice to  national legislation making the use of 
mediation compulsory or subject to incenti ves or sanctions, whether before or after 
judicial proceedings have st arted, provided that such legi slation does not impede on 
the right of access to the judicial system, in particular in situations where one of the 
parties is resident in a Member St ate other than that of the court. 
Article 4 – Ensuring the quality of mediation 
1. The Commission and the Member Stat es shall promote and encourage the 
development of and adherence to volunt ary codes of conduct by mediators and 
organisations providing mediation services , at Community as well as at national 
level, as well as other effective quality control mechanisms concerning the provision 
of mediation services. 
2. Member States shall promote and encourag e the training of medi ators in order to 
allow parties in dispute to choose a mediat or who will be able to effectively conduct 
a mediation in the manner expected by the parties. 
Article 5 – Enforcement of settlement agreements  
1. Member States shall ensure that, upon reque st of the parties, a settlement agreement 
reached as a result of a mediation can be confirmed in a judgment, decision, 
authentic instrument or any other form by a court or public authority that renders the 
agreement enforceable in a similar ma nner as a judgment under national law, 
 
EN 11   EN provided that the agreement is not contrary to European la w or to national law in the 
Member State where the request is made. 
2. Member States shall inform the Commission of the courts or pub lic authorities that 
are competent for receiving a request in accordance with paragraph 1. 
Article 6 – Admissibility of eviden ce in civil judicial proceedings 
1. Mediators, as well as any person invol ved in the administration of mediation 
services, shall not in civil judicial proceedings give testimony or evidence regarding 
any of the following: 
(a) An invitation by a party to engage in mediation or the fact that a party was 
willing to participate in mediation; 
(b) Views expressed or suggestions made by a party in a mediation in respect of a 
possible settlement of the dispute; 
(c) Statements or admissions made by a pa rty in the course of the mediation; 
(d) Proposals made by the mediator; (e) The fact that a party had indicated its willingness to accept a proposal for a 
settlement made by the mediator; 
(f) A document prepared solely for purposes of the mediation. 
2. Paragraph 1 shall apply irrespective of th e form of the information or evidence 
referred to therein. 
3. The disclosure of the information referred to in paragraph 1 shall not be ordered by a 
court or other judicial authority in civil ju dicial proceedings and, if such information 
is offered as evidence in contravention of paragraph 1, that evidence shall be treated 
as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence 
(a) to the extent required for the purposes  of implementation or enforcement of a 
settlement agreement reached as a direct result of the mediation, 
(b) for overriding considerations of public policy, in particular  when required to 
ensure the protection of children or to prevent harm to the physical or 
psychological integrity of a person, or 
(c) if the mediator and the parties agree thereto. 
4. The provisions of paragraphs 1, 2 and 3 shall apply whether or not the judicial 
proceedings relate to the dispute that is or was the subject matter of the mediation. 
5. Subject to paragraph 1, evidence that is otherwise admissible in judicial proceedings 
does not become inadmissible as a conseque nce of having been used in a mediation.  
 
EN 12   EN Article 7 – Suspension of limitation periods 
1. The running of any period of prescription or  limitation regarding the claim that is the 
subject matter of the mediation shall be su spended as of when, after the dispute has 
arisen:  
(a) the parties agree to use mediation,  (b) the use of mediation is  ordered by a court, or 
(c) an obligation to use mediation arises under the national law of a Member State. 
2. Where the mediation has ended without a settlement agreement, the period resumes 
running from the time the mediation ended wi thout a settlement agreement, counting 
from the date when one or both of the pa rties or the mediator declares that the 
mediation is terminated or effectively withdraws from it. The period shall in any event extend for at least one month from  the date when it resumes running, except 
when it concerns a period within which an action must be brought to prevent that a 
provisional or similar measure ceases  to have effect or is revoked. 
Article 8 – Implementing provisions 
The Commission shall publish information on the competent courts and authorities 
communicated by the Member Stat es pursuant to Article 5(2). 
Article 9 - Transposition 
1. Member States shall bring into force the laws, regulations and administrative 
provisions necessary to comply  with this Directive by 1 September 2007 at the latest. 
They shall forthwith inform the Commission thereof. 
2. When Member States adopt those provisions, they shall contain a reference to this 
Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determin e how such reference is to be made. 
Article 10 – Entry into force 
This Directive shall enter into force on the tw entieth day following that of its publication in 
the Official Journal of  the European Union . 
 
EN 13   EN Article 11 - Addressees 
This Directive is addressed to the Member States. 
Done at Brussels, 
For the European Parliament For the Council 
The President The President