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DIRECTORATE GENERAL FOR INTERNAL POLICIES

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

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DIRECTORATE GENERAL FOR INTERNAL POLICIES

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  1. 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

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

  3. Copertina Studio http://www.europarl.europa.eu/document/activities/cont.pdf 3

  4. Time and Cost Savings: Break-Even Point in the EU 19% Success Rate Time Savings Cost Savings 24% Success Rate

  5. High Performance Even at Low Success Rates Savings of successful mediation are much greater than extra costs (ie, mediation then litigation) when mediation fails

  6. 816 Responses From Across the EU

  7. 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

  8. Estimated Annual Number of Mediations in the EU Over 10 000: DE, UK, IT, NL Over 200 000Italy A bit more than10 000 Germany United Kingdom Netherlands

  9. Average Time of a Dispute in Days 566 Savings 240 days Savings 354 days 326 212 Average time of litigation in the EU Average time of mediation then litigation (with 50% mediation success rate) Average time of mediation then litigation (with 70% mediation success rate)

  10. Average Cost of a Dispute in Euro 9 179 Savings 1 219 Savings 3 055 7 960 6 124 Average cost of litigation if trial is preceded by succesful mediation in 50% of the cases Average Cost of Litigation in the EU Average cost of litigation if trial is preceded by succesful mediation in 70% of the cases

  11. Direct Costs Saved in Euro

  12. Legislative Measures That Have Not Made Mediation Happen Strong confidentiality protection Judges pro-activity Easy enforceability Financial incentives Lawyer duty to inform clients Robust mediator accreditation systems

  13. The Single Most Effective Legislative Measure 132 Mandatory mediation in certain cases Mandatory mediation info sessions 110 Financial incentives to mediate 97 Require counsel to inform parties of mediation 72 54 Economic sanctions Judges power to order mediation 51 Mandatory mediation with opt-out 45

  14. The Single Most Effective Legislative Measure 132 Mandatory mediation in certain cases Mandatory mediation info sessions 110 Financial incentives to mediate 97 Require counsel to inform parties of mediation 72 54 Economic sanctions 155 Judges power to order mediation 51 Mandatory mediation with opt-out 45

  15. Alternative Dispute Resolution: An Empirical Analysis, Joshua Rosenberg and Jay Folberg (46 Stanford Law Review 1538, July 1994) The article found that in an experimental federal court program over 80% of the attorneys whose cases were required to use ADR said they would select a form of ADR for use in other cases if it were available, but no attorney whose case was not assigned to ADR requested to participate on their own. Although attorneys could request to have their cases removed from the ADR track, very few opted out. According to the authors, "[T]his indicates that litigants and their attorneys often followed the path of least resistance, simply staying on the [ADR] track into which they were initially slotted regardless of their judgments about the suitability of that track for their case. What may appear to be complete freedom of choice to participate in alternative dispute resolution may actually result in no real choices being made at all."

  16. The Single Most Effective Non-Legislative Measure 4,3 Mediation advocacy education Pilot projects 4,2 4,2 EU-wide ‘settlement week’ programs 4,0 EU-wide mediation pledge National mediation «champions» 4,0 3,9 EU ADR agency to promote mediation 3,8 EU certification of mediators

  17. Going Beyond VoluntaryMediation…. I will drink only if someone leads me to water!

  18. The Two «Fs» Fight Flight 18

  19. Will a «Culture of Safe Driving» Alone Do it?

  20. Legislative Measures to Solve the «EU Mediation Paradox» 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)

  21. The «Balanced Relationship Target Number» Theory 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 byensuring a balanced relationship between mediation and judicial proceedings. 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

  22. Subtitle

  23. New York County Commercial Division Mandatory Mediation Pilot

  24. French Senate Report N. 404 (February 2014) Proposal n. 14 Extending the trial programs of «double summons» and of the attempt of preliminary mandatory mediation to two courts of first instance of different jusrisdictions each year, for three years, and at the end of this period to make an assesment, before proceeding to expand these programs

  25. Mediation Information and Assessment Meetings (MIAMs) • If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings. • But from April 2014, before an application can be made to court, you will be required to attend a Mediation Information Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be used to resolve your difficulties, rather than going straight to court. • Courts are required to know that mediation has been considered before they are able to proceed with your application.

  26. «The Emperor Has No Clothes!»

  27. Thank you ! giuseppe.depalo@adrcenter.com

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