Member states must do more to promote mediation
by Arlene McCarthy
03 October 2011
Extending EU mediation law to cover cross-border property disputes could offer a viable alternative to endless court cases and legal fees
In April 2008, following extensive consultation with practitioners and experts in the field of mediation, the European Parliament adopted a directive 2008/52/EC on certain aspects of mediation in civil and commercial matters, which I drafted.
Mediation is a form of Alternative Dispute Resolution that can be used to resolve a wide range of disputes, from child custody issues to overseas property problems. For both individuals and businesses, going to court is often a long, drawn out and costly affair.
Forty-five per cent of small businesses have said that they would not pursue a claim in another European Union court if the money owed was less than €50,000, which year-on-year amounts to massive losses to EU small businesses. Mediation can be a flexible, speedy and cost-effective solution to resolving these kinds of issues.
But the fact remains that citizens across the EU remain largely unaware of its existence. If parties embark on the mediation route the rate of success is around 70 per cent across the EU. This rises to 80 per cent if the parties voluntarily opt to take part, but currently only 1 per cent of parties involved in disputes are taking it up.
On 13 September 2011, the parliament adopted my report focussing on the implementation of the mediation directive. The aim of the report was to assess the impact of the 2008 directive in the member states, and examine how it had been implemented. Member states had until 21 May 2011 to implement the directive.
The Legal Affairs committee again considered the opinion of both practitioners and users of mediation while compiling the report, in addition to identifying how the directive could be improved, paying particular attention to its scope, confidentiality agreements, enforceability, incentives and the idea of mandatory mediation.
We were convinced that mediation is a valuable tool for consumers and businesses alike, and that member states need to do more to promote the benefits of mediation.
The parliament welcomed the European Commission's initiation of infringement proceedings against nine member states who have failed to meet the 21 May implementation deadline. It is important that the United Kingdom and all member states conclude the process as soon as possible in order to reap the financial benefits.
In the UK, litigation worth €200,000 takes around 333 days to solve via the courts, and costs an average of €51,000. In contrast, mediation would take around 87 days and cost only a fraction of the price, €9,000.
However, the time and monetary benefits of mediation are not the only important aspects that need to be considered. While the 2008 directive only relates to civil and commercial cross-border matters, it is also important to recognise the benefits that mediation can bring to family disputes – in both domestic and cross-border cases.
Mediation allows the parties involved greater control over the process, what issues are discussed and, of course, the final outcome. By enabling the parties involved to get and take more responsibility in the process, mediation empowers them to control their access to justice as they are far less dependant on factors such as court timetables, lawyers' availability or cost restraints. This can result in the preservation of a relationship, which might otherwise deteriorate due to a number of reasons associated with court cases, primarily heavy financial burdens.
Mediation is of particular benefit in cases involving children as the dramatically shorter periods of time spent exploring agreements relating to their well-being can reduce levels anxiety, conflict and distress within the family.
I want to encourage member states and the commission to strengthen and implement the EU law on mediation and give consumers and businesses an alternative to costly legal disputes. In my experience as an MEP, I have encountered numerous constituents embroiled in cross-border court cases. In particular, I deal with many of foreign property cases each year, a majority of which involve companies in Cyprus and Spain.
These cases are often protracted and by the time my constituents come to me for advice, they may have spent thousands of pounds worth of their savings in foreign courts and on lawyers. Of course, mediation isn't the solution for every case; when a scam property company has deliberately defrauded EU citizens, recourse to the courts is essential. However, in cases involving bona fide property companies, mediation could offer a viable alternative to endless court cases and legal fees.
I have called on the commission to explore the possibility of using mediation in foreign property disputes in my speech to the Strasbourg plenary on the 13 September.
By voting in favour of this report by a massive majority, the parliament is sending a clear message to member states: we want them to assist their citizens in making use of mediation systems, and establish mediation procedures to bring an end to expensive court cases. We are now looking forward to the commission's legislative proposals on Alternative Dispute Resolution, the first of which is foreseen for the last quarter of the year, as well as the commission communication on the implementation of the mediation directive, scheduled for 2013.
I hope that my report will provide helpful input so that we can better serve our citizens with an affordable and efficient system for access to justice across the EU.
Arlene McCarthy is a British MEP and a member of the Progressive Alliance of Socialists and Democrats in the European Parliament
In April 2008, following extensive consultation with practitioners and experts in the field of mediation, the European Parliament adopted a directive 2008/52/EC on certain aspects of mediation in civil and commercial matters, which I drafted.
Mediation is a form of Alternative Dispute Resolution that can be used to resolve a wide range of disputes, from child custody issues to overseas property problems. For both individuals and businesses, going to court is often a long, drawn out and costly affair.
Forty-five per cent of small businesses have said that they would not pursue a claim in another European Union court if the money owed was less than €50,000, which year-on-year amounts to massive losses to EU small businesses. Mediation can be a flexible, speedy and cost-effective solution to resolving these kinds of issues.
But the fact remains that citizens across the EU remain largely unaware of its existence. If parties embark on the mediation route the rate of success is around 70 per cent across the EU. This rises to 80 per cent if the parties voluntarily opt to take part, but currently only 1 per cent of parties involved in disputes are taking it up.
On 13 September 2011, the parliament adopted my report focussing on the implementation of the mediation directive. The aim of the report was to assess the impact of the 2008 directive in the member states, and examine how it had been implemented. Member states had until 21 May 2011 to implement the directive.
The Legal Affairs committee again considered the opinion of both practitioners and users of mediation while compiling the report, in addition to identifying how the directive could be improved, paying particular attention to its scope, confidentiality agreements, enforceability, incentives and the idea of mandatory mediation.
We were convinced that mediation is a valuable tool for consumers and businesses alike, and that member states need to do more to promote the benefits of mediation.
The parliament welcomed the European Commission's initiation of infringement proceedings against nine member states who have failed to meet the 21 May implementation deadline. It is important that the United Kingdom and all member states conclude the process as soon as possible in order to reap the financial benefits.
In the UK, litigation worth €200,000 takes around 333 days to solve via the courts, and costs an average of €51,000. In contrast, mediation would take around 87 days and cost only a fraction of the price, €9,000.
However, the time and monetary benefits of mediation are not the only important aspects that need to be considered. While the 2008 directive only relates to civil and commercial cross-border matters, it is also important to recognise the benefits that mediation can bring to family disputes – in both domestic and cross-border cases.
Mediation allows the parties involved greater control over the process, what issues are discussed and, of course, the final outcome. By enabling the parties involved to get and take more responsibility in the process, mediation empowers them to control their access to justice as they are far less dependant on factors such as court timetables, lawyers' availability or cost restraints. This can result in the preservation of a relationship, which might otherwise deteriorate due to a number of reasons associated with court cases, primarily heavy financial burdens.
Mediation is of particular benefit in cases involving children as the dramatically shorter periods of time spent exploring agreements relating to their well-being can reduce levels anxiety, conflict and distress within the family.
I want to encourage member states and the commission to strengthen and implement the EU law on mediation and give consumers and businesses an alternative to costly legal disputes. In my experience as an MEP, I have encountered numerous constituents embroiled in cross-border court cases. In particular, I deal with many of foreign property cases each year, a majority of which involve companies in Cyprus and Spain.
These cases are often protracted and by the time my constituents come to me for advice, they may have spent thousands of pounds worth of their savings in foreign courts and on lawyers. Of course, mediation isn't the solution for every case; when a scam property company has deliberately defrauded EU citizens, recourse to the courts is essential. However, in cases involving bona fide property companies, mediation could offer a viable alternative to endless court cases and legal fees.
I have called on the commission to explore the possibility of using mediation in foreign property disputes in my speech to the Strasbourg plenary on the 13 September.
By voting in favour of this report by a massive majority, the parliament is sending a clear message to member states: we want them to assist their citizens in making use of mediation systems, and establish mediation procedures to bring an end to expensive court cases. We are now looking forward to the commission's legislative proposals on Alternative Dispute Resolution, the first of which is foreseen for the last quarter of the year, as well as the commission communication on the implementation of the mediation directive, scheduled for 2013.
I hope that my report will provide helpful input so that we can better serve our citizens with an affordable and efficient system for access to justice across the EU.
Arlene McCarthy is a British MEP and a member of the Progressive Alliance of Socialists and Democrats in the European Parliament
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