DIRECTORATE GENERAL FOR INTERNAL

POLICIES

LEGAL AFFAIRS

‘Rebooting’ the Mediation Directive: Assessing the Limited Impact of its Implementation and

Proposing Measures to Increase the Number of Mediations in the EU

1) Update the “Costs of Non Mediation” survey 2) Analyze the legislation implementing the Mediation Directive in a number of Member States 3) Propose legislative and non legislative measures to increase the use of mediation across the EU

The EU Parliament’s Study Goals: Resolving the “EU Mediation Paradox”

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3 3

Copertina Studio

http://www.europarl.europa.eu/document/activities/cont.pdf

Time and Cost Savings: Break-Even Point in the EU

Time Savings

Cost Savings

-€ 4.000,00

-€ 2.000,00

€ 0,00

€ 2.000,00

€ 4.000,00

€ 6.000,00

€ 8.000,00

2% 3% 23% 25% 40% 43% 44,5% 45% 50% 75% 90%

Cos

t Sav

ings

Success Rate of Mediation

-100

0

100

200

300

400

500

5% 8% 8,5% 9% 10% 19,5% 20% 25% 30% 40% 40,5% 50% 75% 90%

Tim

e Sa

ving

s (d

ays)

Success Rate of Mediation

19% Success Rate

24% Success Rate

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High Performance Even at Low Success Rates

Savings of successful mediation are much greater than extra costs (ie, mediation then litigation) when mediation fails

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816 Responses From Across the EU

21 32 28 31

12 7 11 8 7 27 23

91

8 19

87

10 19

5 12 11 9 16

210

10 5 22

7

68

0

50

100

150

200

250

Nr. Responses

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Estimated Annual Number of Mediations in the EU

Over 10 000: DE, UK, IT, NL Between 5 000 and 10 000: HU, PL Between 2 000 and 5 000: BE, FR, SL Between 500 and 2 000: AT, DK, RO, SK, ES Less than 500: BG, HR, CY, CZ, EE, FI, GR, LV, LT, LU, MT, PT, SE 7

Estimated Annual Number of Mediations in the EU

Over 10 000: DE, UK, IT, NL Over 200 000 Italy A bit more than 10 000 Germany United Kingdom Netherlands

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Average Time of a Dispute in Days

566

Average time of litigation in the EU

326

Average time of mediation then litigation (with 50% mediation success rate)

212

Average time of mediation then litigation (with 70% mediation success rate)

Savings 240 days

Savings 354 days

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«Waiting Time» Saved in Years

Aprox. nr. of civil and commercial litigious cases at 1st instance courts (Cepej 2012)

Saved time with mediation

preceding each case (50% of success rate)

Saved «waiting time»

in days

Saved «waiting time»

in years (conservative

estimate)

13 000 000 x

240 =

3 120 000 000

8 547 945

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Average Cost of a Dispute in Euro

9 179

Average Cost of Litigation in the EU

7 960

Average cost of litigation if trial is preceded by succesful mediation in 50% of the cases

6 124

Average cost of litigation if trial is preceded by succesful mediation in 70% of the cases

Savings 1 219

Savings 3 055

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Direct Costs Saved in Euro

Aprox. nr. of civil and commercial litigious cases at 1st instance courts (Cepej 2012)

Saved costs with mediation preceding

each case (50% of success rate)

Saved «direct costs» (conservative

estimate)

13 000 000 x

1 219 =

15 847 000 000

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1) Strong confidentiality protection 2) Judges pro-activity 3) Easy enforceability 4) Financial incentives 5) Lawyer duty to inform clients 6) Robust mediator accreditation systems

Legislative Measures That Have Not Made Mediation Happen

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The Single Most Effective Legislative Measure

Mandatory mediation in certain cases

Mandatory mediation info sessions

Financial incentives to mediate

Require counsel to inform parties of mediation

Economic sanctions

Judges power to order mediation

Mandatory mediation with opt-out

132

110

97

72

54

51

45

14

The Single Most Effective Legislative Measure

Mandatory mediation in certain cases

Mandatory mediation info sessions

Financial incentives to mediate

Require counsel to inform parties of mediation

Economic sanctions

Judges power to order mediation

Mandatory mediation with opt-out

132

110

97

72

54

51

45

155

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The Single Most Effective Non-Legislative Measure

Mediation advocacy education

Pilot projects

EU-wide ‘settlement week’ programs

EU-wide mediation pledge

National mediation «champions»

EU ADR agency to promote mediation

EU certification of mediators

4,3

4,2

4,2

4,0

4,0

3,9

3,8

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Going Beyond Voluntary Mediation….

I will drink only if someone leads me to water!

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Fight Flight

The Two «Fs»

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1) Introduce “mitigated mandatory mediation” in Mediation Directive and other EU legal instruments on ADR (in force and being proposed), albeit on a temporary basis, as a trial.

2) Insist that the MS accept the “Balanced Relationship Target Number” theory (given the poor results of all other pro-mediation legislative measures, alone or combined, it should lead the MS to do the same as above)

Legislative Measures to Solve the «EU Mediation Paradox»

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Each MS must determine its own BRTN = minimum percentage of cases to be mediated to arrive at “balanced relationship” with that of litigated cases.

Each MS free to choose the appropriate policy tools to reach its BRTN (mandatory mediation, information sessions, financial incentives etc.)

Failure to set and reach BRTN = failure to comply with the Directive

Art. 1 of the Mediation Directive The objective … is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.

The «Balanced Relationship Target Number» Theory

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Subtitle

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«The Emperor Has No Clothes!»

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Stockholm, September 3, 1967

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Study Presentation By Giuseppe DE PALO, ADR Center – member of JAMS International;

Hamline University School of Law

Study co-authors Leonardo D’URSO, ADR Center - member of JAMS International Mary TREVOR, Hamline University School of Law Bryan BRANON, ADR Center - member of JAMS International Romina CANESSA, ADR Center - member of JAMS International Beverly CAWYER, ADR Center - member of JAMS International L. Reagan FLORENCE, ADR Center - member of JAMS International

Policy Department C Responsible Administrator: Rosa RAFFAELLI rosa.raffaelli@europarl.europa.eu

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