REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters
Date: 2016-08-26
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: alternative dispute resolution, civil law, civil proceedings, commercial law, cross-border cooperation, family law, judicial cooperation, mediator, national implementing measure, trade dispute

EUROPEAN 
COMMISSION 

Brussels, 26.8.2016  
COM(2016) 542 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of Directive 2008/52/EC of the European Parliament and of the 
Council on certain aspects of mediation in civil and commercial matters 

EN 

   EN 

 
 
 
 
  
 
1. 

INTRODUCTION 

Objective  

1.1. 
Directive  2008/52/EC  on  certain  aspects  of  mediation  in  civil  and  commercial  matters,1 
including  the  area  of  family  law,  seeks  to  facilitate  access  to  alternative  dispute  resolution 
(ADR)  and  to  promote  the  amicable  settlement  of  disputes,  by  encouraging  the  use  of 
mediation and by ensuring a sound relationship between mediation and judicial proceedings. 
It applies in cross-border disputes to civil and commercial matters and had to be transposed 
into  national  law  by  21  May  2011.  This  evaluation  of  the  application  of  the  Directive  is 
carried out in accordance with Article 11 of the Directive. 

The objective of securing better access to justice, as part of the European Union's policy to 
establish  an area of freedom,  security  and justice, encompasses access to judicial as well as 
extrajudicial  dispute  resolution  methods.  Mediation  can  provide  a  cost-effective  and  quick 
extrajudicial resolution of disputes in civil and commercial matters through processes tailored 
to the needs of the parties. It is more likely that parties voluntarily comply with agreements 
resulting from mediation. These benefits are even more pronounced in cross-border situations.   

While  mediation  is  generally  beneficial  in  civil  and  commercial  matters,  its  particular 
importance  should  be  highlighted  in  the  area  of  family  law.  Mediation  can  create  a 
constructive atmosphere for discussions and ensure fair dealings between parents. Moreover, 
amicable  solutions  are  likely  to  be  long-lasting  and  can  address  in  addition  to  the  child’s 
primary  residence  also  visitation  arrangements  or  agreements  concerning  the  child’s 
maintenance. 

1.2. 

Context 

The  Directive  has  been  the  first  measure  to  encourage  mediation  generally  in  civil  and 
commercial  disputes.  Following  the  adoption  of  the  Directive,  further  work  related  to 
mediation has been carried out at EU level:  

• 

• 

Since  2012,  improving  the  quality,  independence  and  efficiency  of  judicial  systems 
has been a central feature of the European Semester. The EU Justice Scoreboard feeds 
the European Semester and assists Member States to improve the effectiveness of their 
justice  systems.  The  Scoreboard  also  contains  data  on  activities  undertaken  by 
Member  States  to  promote  the  voluntary  use  of  ADR  methods.  The  Commission 
encourages the collection and sharing of information on the practices and methods to 
promote  the  voluntary  use  of  ADR.  The  promotion  of  ADR  includes  tailor-made 
publicity (brochures, information sessions), the collection and publication of data, and 
the evaluation of the effectiveness of ADR methods and of the availability of legal aid 
for ADR.2 

In the framework of the European Judicial Network in civil and commercial matters, a 
working  group  elaborated  a  set  of  recommendations  aimed  at  enhancing  the  use  of 
family  mediation  in  a  cross-border  context,  in  particular  in  child  abduction  cases.  A 

1 OJ L 136, 24.5.2008, p. 3. 

2 See http://ec.europa.eu/justice/effective-justice/files/justice_scoreboard_2016_en.pdf 

2 

 
 
 
 
                                                            
• 

• 

separate section in the European e-Justice Portal dedicated to cross-border mediation3 
in  family  matters  was  created  to  provide  information  on  the  national  mediation 
systems.  
Furthermore,  through  its  "Justice  Programme"4  the  Commission  co-finances  various 
projects  concerning  the  promotion  of  mediation  and  training  for  judges  and 
practitioners. 

Finally, Directive 2013/11/EU on alternative dispute resolution for consumer disputes 
(the  “ADR  Directive”)5  and  Regulation  (EU)  No  524/2013  on  online  dispute 
resolution for consumer disputes (the “ODR Regulation”)6 ensure that consumers can 
turn  to  quality  alternative  dispute  resolution  entities  for  all  kinds  of  contractual 
disputes with traders and establish an EU-wide online platform for consumer disputes 
that arise from online transactions with traders (www.ec.europa.eu/odr).  

1.3. 

Sources of information 

This report is based on information gathered from different sources: 

• 

• 

• 

• 

In 2013,  a  study  on the implementation of the Directive was carried out.7 The  study 
was updated in 2016.8 

A working group in the European Judicial Network in civil and commercial matters in 
2014  prepared  a  paper  on  advancing  international  family  mediation  in  cases  of 
international child abduction. 

The  results  of  the  study  and  Member  States´  experiences  with  the  application  of  the 
Directive were discussed at a meeting of the European Judicial Network in Civil and 
Commercial Matters in July 2015. 
Finally,  a  public  online  consultation9  was  conducted  from  18  September  until  18 
December  2015.  562  answers  were  submitted  by  interested  individuals,  mediators, 
judges, attorneys, other legal practitioners, academics, organisations, public authorities 
and Member States.  

2. 

GENERAL ASSESSMENT  

The  evaluation  shows  that  overall,  the  Directive  has  provided  EU  added  value.  By  raising 
awareness amongst national legislators of the advantages of mediation, the implementation of 

3 https://e-justice.europa.eu/content_crossborder_family_mediation-372-en.do  

4 See for more information: http://ec.europa.eu/justice/grants1/programmes-2014-2020/justice/index_en.htm 

5 OJ L 165, 18.6.2013, p. 63. 

6 OJ L 165, 18.6.2013, p. 1. 

7 
mediation-directive--pbDS0114825/ 

http://bookshop.europa.eu/en/study-for-an-evaluation-and-implementation-of-directive-2008-52-ec-the-

8 http://bookshop.europa.eu/is-bin/INTERSHOP.enfinity/WFS/EU-Bookshop-Site/en_GB/-
/EUR/ViewPublication-Start?PublicationKey=DS0216335 

9 http://ec.europa.eu/justice/newsroom/civil/opinion/150910_en.htm 

3 

 
 
 
                                                            
the  Mediation  Directive  has  had  a  significant  impact  on  the  legislation  of  several  Member 
States.  The  extent  of  the  Directive’s  impact  on  Member  States  varies  according  to  the  pre-
existing level of their national mediation systems:  

• 

• 

• 

15 Member States already had a comprehensive mediation system in place prior to the 
adoption  of  the  Directive.  In  these  Member  States,  the  Directive  has  brought  about 
limited or no changes to their system. 

9  Member  States  either  had  scattered  rules  regulating  mediation  or  mediation  in  the 
private sector was based on self-regulation. In these Member States, the transposition 
of the Directive triggered the adoption of substantial changes to the existing mediation 
framework. 

4 Member States adopted mediation systems for the first time due to the transposition 
of the Directive. In these Member States, the Directive triggered the establishment of 
appropriate legislative frameworks regulating mediation. 

Where the transposition of the Directive triggered the adoption of substantial changes to the 
existing  mediation  framework  or  the  introduction  of  a  comprehensive  mediation  system,  an 
important step forward in promoting access to alternative dispute resolution and achieving a 
balanced relationship between mediation and judicial proceedings has been made. 

However,  certain  difficulties  were  identified  concerning  the  functioning  of  the  national 
mediation systems in practice. These difficulties are mainly related to the lack of a mediation 
"culture"  in  Member  States,  insufficient  knowledge  of  how  to  deal  with  cross-border  cases, 
the  low  level  of  awareness  of  mediation  and  the  functioning  of  the  quality  control 
mechanisms  for  mediators.  A  number  of  respondents  in  the  public  consultation  argued  that 
mediation  was  not  yet  sufficiently  known  and  that  a  "cultural  change"  is  still  necessary  to 
ensure that citizens trust mediation. They also stressed that judges and courts remain reluctant 
to refer parties to mediation. 

Respondents  in  the  public  consultation  recognised  the  important  role  of  mediation  in 
particular  in  family  law  matters  (especially  in  proceedings  concerning  the  custody  over 
children, access rights and child abduction cases), besides the commercial disputes.   

3. 

SPECIFIC POINTS OF ASSESSMENT 

3.1. 

Statistical data on mediation 

The study and the public  consultation show that it is very difficult to obtain comprehensive 
statistical  data  on  mediation,  e.g.  the  number  of  mediated  cases,  the  average  length  and 
success  rates  of  mediation  processes,  with  a  special  focus  on  cross-border  mediation.  In 
particular, there is no comprehensive and comparable data for entire jurisdictions. However, 
in the consultation many mediators provided data concerning their own activity, in particular 
the number of mediations conducted, and - often impressive - success rates. Others stated that 
success rates depended on the number of parties, the subject matter at stake and the individual 
situation,  factors  which  they  consider  to  have  also  an  impact  on  the  length  of  proceedings. 
Others regret the fact that without a reliable database it is very difficult to make the case for 
mediation and its effectiveness and to gain public trust. Overall, respondents seemed to agree 
that  mediation  achieves  significant  cost  savings  in  a  wide  range  of  civil  and  commercial 
disputes and in many cases significantly reduces the time required to resolve a dispute. 

Whilst it is acknowledged that due to the "unofficial" nature of mediation compared to formal 
4 

 
 
 
 
court  proceedings,  it  is  more  difficult  to  obtain  comprehensive  data  on  mediation,  a  more 
solid data basis would be of significant importance to further promote the use of mediation. 
The European Judicial Network in civil and commercial matters has started work to improve 
national  data  collection  on  the  application  of  Union  instruments  in  civil  and  commercial 
matters, including Directive 2008/52/EC. 

3.2. 

Scope (Article 1(2)) 

Almost  all  Member  States  have  extended  the  scope  of  their  measures  transposing  the 
Directive  beyond  cross-border  to  domestic  cases.  Only  3  Member  States  have  chosen  to 
transpose  the  Directive  with  respect  to  cross-border  cases  only,  using  the  "cross-border" 
definition of the Directive. The extension of the scope to domestic cases is to be welcomed 
since the number of domestic cases exceeds that of cross-border cases by far. The rules of the 
Directive thus extend beyond its scope, to the benefit of the users of mediation. The extension 
to internal cases also  shows  that  Member  States  have  generally  wanted  to treat  internal  and 
cross-border cases alike. Taking into account the content of the rules of the Directive, there is 
indeed no reason to differentiate between the two types of cases. 

Furthermore,  it  should  be  noted  that  whilst  in  practice,  family  law  appears  to  be  the  area 
where  mediation  is  used  to  the  greatest  extent,  the  Directive  applies  to  all  civil  and 
commercial matters. One area where mediation remains underdeveloped is that of insolvency 
proceedings. It should be recalled that in its Recommendation on a new approach to business 
failure  and  insolvency,  the  Commission  has  encouraged  the  appointment  of  mediators  by 
courts  where  they  consider  it  necessary  in  order  to  assist  the  debtor  and  creditors  in  the 
successful running of negotiations on a restructuring plan. 

3.3. 

Quality control mechanisms (Article 4(1)) 

3.3.1.  Codes of Conduct 

The  adoption  of  codes  of  conduct  at  national  level  is  perceived  by  stakeholders  as  an 
important tool to ensure the quality of mediation. 19 Member States require the development 
of and adherence to codes of conduct whereas in other Member States providers of mediation 
set  their  own  codes  of  ethics.  In  some  cases,  Member  States  went  beyond  the  minimum 
requirements  of  the  Directive,  making  adherence  to  codes  of  conduct  compulsory  for 
mediators and mediation organisations. The European Code of Conduct for Mediators10 plays 
a  key  role  in  this  context,  either  because  it  is  directly  used  by  stakeholders  or  has  inspired 
national  or  sectorial  codes.  In  some  Member  States,  adherence  to  the  European  Code  is 
prescribed  by  law,  whereas  in  other  Member  States  the  Code  is  applied  in  practice  without 
being prescribed by law. Most stakeholders were of the opinion that the encouragement of the 
development of and adherence to voluntary codes of conduct by mediators and organisations 
providing mediation services required by the Directive has been effective. It therefore appears 
that  with  regard  to  codes  of  conduct,  the  implementation  of  the  Directive  is  overall 
satisfactory.  

3.3.2.  Quality standards for the provision of mediation services 

18 Member States have rules relating to quality control mechanisms concerning the provision 

10 http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf 

5 

 
 
 
 
 
 
                                                            
of  mediation  services.  Most  Member  States  have  obligatory  accreditation  procedures  for 
mediators  and  run  registries  for  mediators.  Where  the  legislation  does  not  provide  for 
registries or accreditation procedures, mediation organisations have usually set up their own. 
There currently exists a great variety of quality control mechanisms in the EU.  

In  the  consultation,  a  large  number  of  respondents  were  in  favour  of  developing  EU-wide 
quality  standards  for  the  provision  of  mediation  services,  among  them  in  particular  many 
mediators. There was, however, hardly any support from Member States.  

Respondents in favour of developing European-wide quality standards were divided between 
those  in  favour  of  EU-wide  uniform  standards  which  they  consider  necessary  in  order  to 
further  promote  the  take-up  of  mediation  and  those  in  favour  of  minimum  standards  which 
would ensure consistency,  but which would also make  it  possible to take into account local 
differences in mediation cultures. Others stressed that European standards should be based on 
the  highest  existing  national  standards  in  order  to  avoid  that  they  become  a  product  of  the 
lowest common denominator.  

Respondents against developing European-wide quality standards argued that such standards 
are not necessary for the success of mediation, that national standards are too different, that 
the development of these standards should be left to Member States, or that self-regulation in 
each  national  market  is  sufficient.  They  also  stressed  that  Member  States  have  significant 
cultural  and  legal  differences  concerning  dispute  resolution  which  affect  the  way  in  which 
parties use mediation. Uniformity would restrict consumer choice and lead to disputes. At the 
most, the European Union should promote and facilitate the sharing of good practices. 

Taking  into  account  the  reluctance  of  Member  States  against  binding  EU-wide  quality 
standards, but also the significant support from stakeholders, one way forward may possibly 
consist  in  the  provision  of  EU  funding  for  a  stakeholder-driven  development  of  EU-wide 
quality  standards  for  the  provision  of  mediation  services  in  the  context  of  the  work  of  the 
European  Committee  for  Standardization  (CEN)  on  the  basis  of  Regulation  (EU)  No 
1025/2012 on European standardisation, for instance for a CEN Workshop agreement (CWA). 
Despite the fact that in principle CWA work should be fully market-driven, such funding is 
possible  if  considered  as  "necessary  and  suitable  for  the  support  of  Union  legislation  and 
policies".11  

3.4. 

Training of mediators (Article 4(2)) 

17  Member  States  encourage  training  or  regulate  it  in  part  or  in  detail  in  their  national 
legislation. Going beyond the minimum requirements  of  the  Directive,  most  Member  States 
regulate  the  initial  training  of  mediators  and  make  it  mandatory.  Many  also  impose  a 
requirement for further training. In Member States where training is not regulated, mediation 
organisations usually provide training on a voluntary basis.  

In  the  consultation,  a  large  majority  of  respondents  considered  that  the  encouragement  of 
initial and further training of mediators required by the Directive had been effective. Others 
stressed the levels of disparity and divergence between different Member States as regards the 
creation, recognition, growth and development of the profession of mediator. In their opinion, 

11 See Article 15(1)a) of Regulation (EU) No 1025/2012, OJ L 316, 14.11.2012, p. 12. 

6 

 
 
 
 
 
 
 
 
                                                            
there is some common ground, but little synergy between the various jurisdictions as regards 
training  and  the  setting  of  standards.  They  consider  that  the  training  of  mediators  across 
Europe varies substantially as regards the hours required and the content of the training.  

In cases concerning mediation in family matters, the European Judicial Network in civil and 
commercial matters has highlighted the importance for citizens of an access to mediators who 
have been trained specifically in international family mediation and in child abduction cases. 

In  order  to  further  promote  the  training  of  mediators,  the  Commission  will  continue  to  co-
finance various projects concerning training on mediation through its "Justice Programme".  

3.5. 

Recourse to mediation (Article 5(1)) 

All Member States foresee the possibility for courts to invite the parties to use mediation or at 
least  to  attend  information  sessions  on  mediation.  In  some  Member  States,  participation  in 
such information sessions is obligatory, on a judge’s initiative (e.g. in the Czech Republic) or 
in  relation  to  specific  disputes  prescribed  by  law,  such  as  family  matters  (Lithuania, 
Luxembourg, and England and Wales). Some Member States require lawyers to inform their 
clients  of  the  possibility  to  use  mediation  or  that  applications  to  the  court  confirm  whether 
mediation has been attempted or whether there are any reasons which would stand in the way 
of such an attempt. In some Member States, schemes for mediation were developed to meet 
the  requirements  of  specific  proceedings,  for  example  where  strict  time-limits  apply.  For 
instance,  in  the  Netherlands,  the  pre-trial  judge  will  mainly  discuss  the  possibility  of  cross-
border mediation with the parents who want to engage in mediation in cases of parental child 
abduction. Cross-border mediation starts the day after the pre-trial hearing and is concluded 
within three days. In case of a successful outcome, the results are then immediately presented 
to  the  judge  dealing  with  the  case.  In  the  United  Kingdom,  at  any  time  during  judicial 
proceedings  judges  must  consider  whether  alternative  dispute  resolution  systems,  including 
mediation, could be appropriate to settle the dispute. In such cases, the judge will invite the 
parties to refer their dispute to that system. 

A significant majority of stakeholders considered practices aimed at motivating parties to use 
mediation as not effective. They stated that such invitations happen too rarely because judges 
do  not  know  or  trust  mediation.  Respondents  who  considered  practices  as  effective  referred 
mainly to the family law area.  

The  above  shows  that  practices  to  incentivise  parties  to  use  mediation,  apart  from  some 
specific instances set out above, are not yet generally satisfactory. Further efforts at national 
level  –  in  line  with  the  respective  mediation  systems  in  place  –  should  therefore  be  made. 
Respondents  highlighted  the  following  measures  in  national  law  as  particularly  useful: 
requiring parties to state in their applications to courts whether mediation has been attempted 
which  would  not  only  remind  judges  examining  court  applications,  but  also  lawyers  who 
advise the parties of the possibility to use mediation, obligatory information sessions within 
the  framework  of  a  judicial  procedure  and  an  obligation  of  courts  to  consider  mediation  at 
every stage of judicial proceedings, in particular in family law matters.  

7 

 
 
 
 
 
 
 
 
 
 
3.6. 

Legislation making the use of mediation compulsory or subject to incentives or 
sanctions (Article 5(2)) 

It follows from the study that mediation is compulsory in certain specified cases in 5 Member 
States. For instance, in Italy mediation is compulsory in many and various types of disputes, 
in Hungary and Croatia in certain family matters.  

Many Member States promote the use of mediation by providing financial incentives for the 
parties. 13 Member States provide financial incentives for mediation through reductions or a 
full  reimbursement  of  the  fees  and  costs  of  court  proceedings  if  an  agreement  is  reached 
through mediation during suspended court proceedings. For instance, in Slovakia 30%, 50% 
or 90% of court fees are refunded, depending on at what stage of the proceedings a mediated 
settlement is reached. In some Member States, mediation itself is offered free of charge or at 
low costs, according to the economic situation of the parties.  

There  are  also  financial  incentives  in  the  form  of  legal  aid.  Member  States  apply  different 
rules for different types of disputes or mediation processes. For example, in Germany, legal 
aid always applies to court mediation, but is limited with regard to out-of-court mediation. In 
Slovenia, it applies only to court mediation. In Luxembourg, legal aid is available for court 
mediation  and  family  mediation  conducted  by  a  certified  mediator.  In  Italy,  legal  aid  is 
available  for  compulsory  mediation.  In  this  context,  it  should  be  stressed  that  Article  10  of  
Directive  2003/8/EC  extends  the  right  to  legal  aid  in  cross-border  disputes  to  extrajudicial 
procedures, including mediation, if the law requires the parties to use them, or if the parties to 
the dispute are ordered by the court to have recourse to them. 

5 Member States impose sanctions as a means to promote the use of mediation. In Hungary, 
there  are  sanctions  for  parties  which  after  having  concluded  a  mediation  agreement,  go  to 
court  nevertheless  or  do  not  fulfil  the  obligations  assumed  under  a  mediation  agreement.  In 
Ireland,  sanctions  apply  for  an  unjustified  refusal  to  consider  mediation.  In  Italy,  the 
successful  party  in  litigation  proceedings  cannot  recover  costs  if  it  has  before  rejected  a 
mediation  proposal  that  had  the  same  terms  as  the  court  judgment.  Sanctions  exist  also  in 
cases  where  mediation  is  compulsory  and  the  parties  do  not  make  use  of  it,  but  go  to  court 
instead. In Poland, if a party which had previously agreed to mediation without justification 
refuses  to  participate  in  it,  the  court  may  order  it  to  pay  the  costs  of  the  proceedings, 
irrespective  of  the  outcome  of  the  case.  In  Slovenia,  the  court  may  order  a  party  which 
without justification rejects the referral of the case to a court-annexed mediation to pay all or 
part of the judicial expenses of the opposing party.  

The  question  whether  mediation  should  be  compulsory  or  not  is  controversial.  Some 
stakeholders  conclude  that  the  lack  of  compulsory  mediation  impedes  the  promotion  of 
mediation.12 Others on the other hand consider that by its very nature mediation can only be 
voluntary in order to  function  properly and that it would lose  its attractiveness compared to 
court proceedings if it was rendered compulsory. 

It  is  important  to  remind  that  compulsory  mediation  affects  the  exercise  of  the  right  to  an 
effective remedy before a tribunal as enshrined in Article 47 of the Charter of Fundamental 

12 See the European Parliament's study: "‘Rebooting’ the mediation directive": 
http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL-JURI_ET(2014)493042 

8 

 
 
 
 
 
 
 
                                                            
 
Rights of the European Union.  

A  majority  of  stakeholders  is  in  favour  of  a  more  compulsory  approach  towards  mediation. 
However, a majority of Member States and academics are opposed. Among those in favour of 
a  more  compulsory  approach,  one  group  of  respondents  advocated  making  mediation 
compulsory  for  certain  categories  of  cases  (such  as  commercial  cases,  family  law, 
employment law or small claims). To a lesser extent, making mediation compulsory for any 
type of case was supported.  

There was generally little support for sanctioning the lack of use of mediation, although there 
was some support for imposing the costs on parties which reject mediation without reasons. 
Incentivising  parties  to  use  mediation  was  more  generally  supported.  Examples  of  useful 
incentives mentioned by respondents are lower court fees for parties that have tried mediation 
prior to filing their claim, effective and attractive fiscal deductions, mediation free of charge 
or at least financial support of mediation services by the State. 

The use of incentives seems helpful to motivate parties to use mediation. The costs related to 
the  resolution  of  a  dispute  are  an  important  factor  for  parties  when  deciding  whether  they 
attempt  mediation  or  go  to  court.  Therefore,  financial  incentives  which  make  it  more 
attractive  in  economic  terms  for  parties  to  use  mediation  instead  of  resorting  to  judicial 
proceedings,  can  be  considered  as  best  practice.  The  imposition  of  mediation  within  the 
framework of a judicial procedure  might be considered where the parties may - because of 
the  nature  of  their  relationship  -  have  reasons  for  repeated  disagreements  or  even  court 
litigation, such as in certain family matters (e.g. rights of access to children) or in neighbour 
disputes. It should be stressed that also in such cases, the right of access to the judicial system 
which  is  guaranteed  by  Article  47  of  the  Charter  of  Fundamental  Rights  of  the  European 
Union must be respected. 

In light of the above, Article 5(2) of the Directive can be considered appropriate.  

3.7. 

Enforceability of agreements resulting from mediation (Article 6) 

All  Member  States  provide  for  the  enforceability  of  mediation  agreements  as  prescribed  by 
the Directive. Some Member States went beyond the requirements of the Directive: Belgium, 
the Czech Republic, Hungary and Italy do not explicitly require the consent of all parties to 
the  dispute  for  a  request  for  the  enforceability  of  the  mediation  agreement.  In  Greece  and 
Slovakia, an enforceability request can be made by one of the parties without explicit consent 
from  the  others.  Under  Polish  law,  by  signing  the  agreement,  parties  give  their  consent  to 
request the court’s approval for enforcement.  

There  may  be  exceptions  to  the  general  enforceability  of  mediated  agreements.  Such 
exceptions may be, for instance, when the agreement is contrary to public order or against the 
interest of children in family disputes.  

A  majority  of  stakeholders  considers  practices  concerning  the  enforceability  of  agreements 
resulting  from  mediation  as  effective.  They  argued  that  a  need  for  the  enforcement  of  a 
settlement  arising  from  mediation  is  extremely  rare.  In  their  view,  the  very  nature  of 
mediation makes it likely that having given their assent, parties will abide by the agreement. 
Some  respondents  who  consider  practices  as  not  effective  are  of  the  opinion  that  all 

9 

 
 
 
 
 
 
 
 
 
 
agreements  resulting  from  mediation  should  be  enforceable  regardless  of  the  will  of  the 
parties. Indeed, in order to ensure the effectiveness of mediation, best practice could consist in 
allowing  one  party  to  request  the  enforceability  of  the  agreement  even  without  an  explicit 
consent of the other party.   

3.8. 

Confidentiality of mediation (Article 7) 

Confidentiality  of  mediation  is  protected  in  all  Member  States  as  required  by  the  Directive 
and  the  Directive  has  therefore  been  correctly  implemented.  Some  Member  States  went 
beyond the requirements of the Directive and introduced stricter rules. For instance, in Malta, 
mediators  must  keep  confidential  whether  an  agreement  was  reached  during  mediation  and 
that information may only be divulged if the parties expressly agree to it in writing.   

A large number of stakeholders consider practices concerning the confidentiality of mediation 
as  effective.  However,  an  issue  mentioned  by  several  respondents  is  that  whilst  mediators 
have  a  duty  of  confidentiality,  there  is  no  general  right  to  refuse  to  give  evidence  for 
mediators like for other legal professions such as lawyers. There are, however, no indications 
that in practical terms, Article 7 would not sufficiently protect confidentiality of mediation.  

3.9. 

Effect of mediation on limitation and prescription periods (Article 8) 

All  national  laws  ensure  that  that  parties  who  choose  mediation  are  not  subsequently 
prevented  from  initiating  judicial  proceedings  by  the  expiry  of  limitation  or  prescription 
periods during the mediation process. The Directive has therefore been correctly implemented 
in this respect.  

The suspension of limitation and prescription periods is particularly important in cases where 
strict deadlines apply in the judicial proceedings, for example in child return proceedings in 
the context of parental child abduction.  

A large number of stakeholders consider practices concerning the suspension of limitation or 
prescription  periods  during  the  mediation  process  as  effective.  Among  them,  some  stressed 
that in their jurisdictions this was guaranteed thanks to the transposition of the Directive into 
national law. 

3.10. 

Information for the general public (Article 9) 

13 Member States have included the obligation to spread information about mediation in their 
national  legislation.  A  variety  of  measures  were  adopted  to  inform  citizens  and  businesses 
about mediation (e.g. online information on the websites of competent national bodies, public 
conferences,  public  promotion  campaigns,  TV  spots,  radio  broadcasts,  posters,  etc.).  In  all 
Member States, information on the advantages of mediation and useful practical information 
on costs and procedure is also provided by associations of mediators, bar associations, or the 
mediators themselves. 

Nonetheless,  the  study  shows  that  awareness  regarding  mediation  remains  low  and  that 
information  remains  lacking  for  potential  parties.  This  affects  the  efficiency  of  mediation 
services  negatively,  as  confirmed  by  stakeholders  in  18  Member  States.  Information  is  not 
only lacking for parties but also for legal professionals; this constitutes an additional obstacle 
to the potential widespread use of mediation in at least 10 Member States. In the consultation, 

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a majority of respondents consider the provision of information for the general public as not 
effective.  Among  those  who  consider  it  as  effective,  many  stated  that  information  made 
available  on  the  internet  e.g.  by  courts,  ministries,  mediation  organisations  or  chambers  of 
commerce  is  most  effective.  Other  effective  mechanisms  mentioned  are  information 
brochures, personal court visits or information events such as mediation days. 

The  European  Commission  is  co-financing  projects  concerning  the  promotion  of  mediation 
through  its  "Justice  Programme".  Furthermore,  on  the  website  of  the  European  e-justice 
Portal13 there is a significant amount of information available on the mediation systems of the 
Member  States  and  about  whom  to  contact.  It  should  be  explored  through  the  European 
Judicial  Network  in  civil  and  commercial  matters  how  knowledge  of  the  available 
information could be further disseminated. 

4. 

CONCLUSIONS 

The Mediation Directive was introduced to facilitate access to alternative dispute resolution, 
promote  the  amicable  settlement  of  disputes  and  ensure  that  parties  having  recourse  to 
mediation  can  rely  on  a  predictable  legal  framework.  This  policy  objective  remains  valid 
today and for the future: mediation can help to avoid unnecessary litigation at the taxpayers' 
expense  and  reduce  the  time  and  cost  associated  with  court-based  litigation.  It  can  in  the 
longer  term  create  a  non-litigious  culture  in  which  there  are  no  winners  and  losers,  but 
partners.  The  Mediation  Directive  has  introduced  different  ways  to  promote  the  amicable 
settlement of cross-border disputes in civil and commercial matters and provided a European 
framework for mediation as a form of out-of-court or alternative dispute resolution.  

Based on the study, the public online consultation and the discussion with Member States in 
the  European  Judicial  Network  in  civil  and  commercial  matters,  it  appears  that  the 
implementation of the Mediation Directive has had a significant impact on the legislation of 
many Member States. Apart from setting certain key requirements for the use of mediation in 
cross-border  disputes  concerning  civil  and  commercial  matters,  the  Directive  has  given 
impetus to a wider take-up of mediation also in a purely domestic context across the EU. This 
is  due  in  particular  to  the  fact  that  most  Member  States  have  extended  the  scope  of  their 
measures transposing the Directive to domestic cases. Overall, the Directive has provided EU 
added  value  by  raising  awareness  amongst  national  legislators  on  the  advantages  of 
mediation,  introducing  mediation  systems  or  triggering  the  extension  of  existing  mediation 
systems. 

The  extent  of  the  Directive’s  impact  on  Member  States  varies  according  to  the  pre-existing 
level  of  their  national  mediation  systems.  Difficulties  concerning  the  functioning  of  the 
national  mediation  systems  in  practice  are  mainly  related  to  the  adversarial  tradition 
prevailing  in  many  Member  States,  an  often  low  level  of  awareness  of  mediation  and  the 
functioning of quality control mechanisms.  

The  evaluation  shows  that  there  is  no  need  at  this  time  to  revise  the  Directive  but  that  its 
application can be further improved: 

13 https://e-justice.europa.eu/content_mediation_in_member_states-64-en.do 

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• 

Member  States  should,  where  necessary  and  appropriate,  increase  their  efforts  to 
promote  and  encourage  the  use  of  mediation  through  the  various  means  and 
mechanisms  foreseen  in  the  Directive  and  addressed  in  this  report.  In  particular, 
further  efforts  at  national  level  should  be  made  to  increase  the  number  of  cases  in 
which  courts  invite  the  parties  to  use  mediation  in  order  to  settle  their  dispute.  The 
following can be considered as examples of best practice in this regard: requirements 
for  parties  to  state  in  their  applications  to  courts  whether  mediation  has  been 
attempted,  in  particular  in  family  law  matters  obligatory  information  sessions  within 
the  framework  of  a  judicial  procedure  and  an  obligation  on  courts  to  consider 
mediation  at  every  stage  of  judicial  proceedings,  financial  incentives  making  it 
economically  more  attractive  for  parties  to  use  mediation  instead  of  resorting  to 
judicial proceedings, ensuring enforceability without necessarily requiring the consent 
of all parties to the agreement. 

The  Commission  will  continue  to  co-finance  mediation-related  projects  through  its 
"Justice  Programme".  It  is  also  in  principle  open  to  provide  EU  funding  to  a 
stakeholder-driven development of European-wide quality standards for the provision 
of  mediation  services.  Furthermore,  the  Commission  will  continue  to  consult  the 
European  Judicial  Network  in  civil  and  commercial  matters  to  further  promote  the 
take-up  of  mediation,  e.g.  in  order  to  obtain  a  more  solid  data  basis  on  the  use  of 
mediation  and  to  increase  awareness  of  the  public,  in  particular  of  the  information 
available on the website of the European e-justice Portal on the mediation systems of 
Member States.  

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