Why in Europe Mediation is Still Used in Less Than 1% of the Civil and Commercial Cases – and What to Do About It

Titled Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Measures to Increase the Number of Mediations in the EU, a new 235-page study explains why, five and a half years after its adoption, the Mediation Directive has not yet solved the “EU Mediation Paradox”. Despite its proven and multiple benefits, mediation in civil and commercial matters is still used in less than 1% of the cases in the EU.

This study, which solicited the view of up to 816 experts from all over Europe, clearly shows that this disappointing performance results from weak pro-mediation policies, whether legislative or promotional, in almost all of the 28 Member States.

The experts strongly supported a number of non-legislative measures that could promote mediation development. But more fundamentally, the majority view of these experts suggests that introducing a “mitigated” form of mandatory mediation may be the only way to make mediation eventually happen in the EU.

The study therefore proposes 2 ways to “reboot” the Mediation Directive: amend it or, based on the current wording of its Article 1, request that each Member State commit to, and reach, a simple “balanced relationship target number” between civil litigation and mediation.