Rebooting the Mediation Directive: Assessing the Limited Impact of - PowerPoint PPT Presentation

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” 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 2

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

Time and Cost Savings: Break-Even Point in the EU 500 400 Time Savings (days) 19% Success Rate 300 Time Savings 200 100 0 5% 8% 8,5% 9% 10% 19,5% 20% 25% 30% 40% 40,5% 50% 75% 90% Success Rate of Mediation -100 € 8.000,00 Cost Savings 24% Success Rate € 6.000,00 Cost Savings € 4.000,00 € 2.000,00 € 0,00 2% 3% 23% 25% 40% 43% 44,5% 45% 50% 75% 90% -€ 2.000,00 Success Rate of Mediation -€ 4.000,00 4

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

816 Responses From Across the EU Nr. Responses 250 210 200 150 91 100 87 68 50 32 31 28 27 23 22 21 19 19 16 12 12 11 11 10 9 10 8 8 7 7 7 5 5 0 6

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 8

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

«Waiting Time» Saved in Years Aprox. nr. of civil Saved time with Saved Saved and commercial mediation «waiting time» «waiting time» litigious cases at preceding each in days in years 1st instance case (50% of (conservative courts success rate) estimate) (Cepej 2012) 13 000 000 x 240 = 3 120 000 000 8 547 945 10

Average Cost of a Dispute in Euro 9 179 Savings Savings 7 960 1 219 3 055 6 124 Average cost of Average Cost of Average cost of litigation if trial is Litigation in the EU litigation if trial is preceded by preceded by succesful mediation succesful mediation in 50% of the cases in 70% of the cases 11

Direct Costs Saved in Euro Aprox. nr. of civil and Saved costs with Saved commercial litigious mediation preceding «direct costs» cases at 1st instance each case (50% of (conservative courts success rate) estimate) (Cepej 2012) 13 000 000 x 1 219 = 15 847 000 000 12

Legislative Measures That Have Not Made Mediation Happen Strong confidentiality protection 1) Judges pro-activity 2) Easy enforceability 3) Financial incentives 4) Lawyer duty to inform clients 5) Robust mediator accreditation systems 6) 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 72 mediation 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 72 mediation 54 Economic sanctions 155 Judges power to order mediation 51 Mandatory mediation with opt-out 45 15

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 16

Going Beyond Voluntary Mediation…. I will drink only if someone leads me to water!

The Tw o «Fs» F ight F light 18 18

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) 19

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 by ensuring 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 20

Subtitle

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«The Emperor Has No Clothes!» 23

Stockholm, September 3, 1967 24

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 25