Resistance to Mediation in the EU: What's Going On?

It looks like EU companies, public institutions, law firms, and private individuals are not using mediation as much as they might. Although the well-worn cost arguments are strong (1), and the oft-quoted benefits of mediation are clear (2), there appears to be an ongoing resistance across the EU to this form of Alternative Dispute Resolution (ADR).

Is it that lawyers are standing in the way, possibly because of the quick (i.e. less chargeable) and uncomplicated nature of mediation: the ‘Acute Drop in Revenue’ argument? Or does the resistance to mediation come from the bill-payers: the litigants or disputants themselves?

There is no hard evidence that uptake across the EU is any less than elsewhere, although several sources report a ‘disappointing’ uptake in the EU, estimated to be around 1% of all eligible disputes (3). Comparing this to the UK, if self-reported case numbers, plus the proliferation of UK-based mediation providers are anything to go by, then mediation uptake is certainly growing there, albeit reliable figures are hard to come by.

The 2008 EU Mediation Directive had been expected to boost the number of mediations in the EU, but the directive seems to have caused more of a small ripple than a tidal wave of cases (4). So, why the reluctance to use mediation more?

The answers might well be different for different forms of mediation. If we just look at the two main varieties of mediation in common use: commercial mediation and workplace mediation, we can think about what might be people’s objections to each of these:

In commercial mediation, court proceedings around a financial or contractual dispute can be circumvented by having a specially-trained mediator facilitate a settlement discussion. The disputing parties could possibly feel that:

• The mediator will not be impartial and may favour the other side

• They will not be afforded their full legal entitlement

• The other side may leak sensitive information that is disclosed in the process

• The settlement agreement will be unenforceable

None of these objections has any basis in fact, and neither have we at EU Mediation ever seen any of these concerns play out.

And in workplace mediation, grievance or other formal procedures can be precluded through a simple process whereby a workplace mediator brings the parties together for a facilitated discussion in which they work out their interpersonal issues for themselves. In these cases, reluctant parties could feel that:

• As above, the mediator may be one-sided or less than impartial

• They will give up their right to pursue formal action against their adversary

• They know that they share the blame for the situation and don’t want this to be exposed

• They fear that things said in private or in anger may be leaked or made public

And again, there is no factual basis to any of these.

Education is key, where people perhaps are encouraged to give mediation a go: to be assured that a reputable mediation provider would always remain impartial and preserve confidences, to learn that using either commercial or workplace mediation does not require that anyone gives up their right to pursue other action, and to find out that commercial mediation agreements are just as enforceable as court orders.

So what's the answer?

Speak to EU Mediation, the mediation specialists, in confidence; let us know what your dispute is, and tell us why you might feel resistant to using mediation. Let’s see if we can put your mind at rest.


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(1) Quantifying the cost of not using mediation – a data analysis
https://www.europarl.europa.eu/RegData/etudes/note/join/2011/453180/IPOL-JURI_NT(2011)453180_EN.pdf

(2) ADR: resolving expenses and time-consuming disputes
https://www.keystonelaw.com/keynotes/adr-resolving-expensive-and-time-consuming-disputes

(3) ‘Rebooting’ the Mediation Directive: Assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU
https://www.europarl.europa.eu/thinktank/en/document/IPOL-JURI_ET(2014)493042

(4) EU: The impact of the EU Mediation Directive
https://libralex.com/slug-4/