The European institutions regard the promotion of mediation within the EU as being highly desirable. However, without formal legislation, it has proved difficult to establish predictable practices and equal opportunities for mediation across Member States.

The EU therefore adopted the European Mediation Directive 2008/52/EC (the “Mediation Directive”) in May 2008 to govern various mediation issues within Member States. All Member States (apart from Denmark, which has opted out of the Mediation Directive) were obliged to bring the provisions of the Mediation Directive into force by 21 May 2011.

The objective of the Mediation Directive is “to facilitate access to 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” (Article 1).

It applies where two or more parties to a cross-border dispute of a civil or commercial nature voluntarily attempt to reach an amicable settlement with the assistance of a mediator. It does not extend to revenue, customs or administrative matters, nor to disputes involving the liability of the state, nor to those areas of family law where the parties do not have a choice of applicable law. However, given the broad definition of “cross-border disputes”, the Mediation Directive’s provisions on confidentiality, limitation and prescription periods also apply in situations which are purely internal at the time of mediation but become international at the judicial proceedings stage, e.g. if one party moves abroad after mediation fails.

The Mediation Directive does not impose an obligation on parties to mediate, although it does identify a number of potential advantages of mediation. Neither does it contain detailed guidelines for the conduct of a mediation; rather it provides high level principles. It envisages that Member States will create their own mediation guidelines in accordance with their own procedures.

Under the Mediation Directive, a dispute is “cross-border” when at least one of the parties is domiciled or habitually resident in a Member State different to the other party on one of the following dates:

• when the parties agree to use mediation once a dispute has arisen;
• when a court invites or orders the parties to attempt mediation; or
• when the parties are obliged to use mediation under national law (Article 2, §1).

The key provisions of the Mediation Directive include:

• providing that agreements reached through mediation may be made enforceable.

The enforcement of agreements reached by way of mediation is perhaps the most important and novel aspect of the Mediation Directive. Under Article 6, Member States have a duty to “ensure that it is possible for the parties, or for one of them with the explicit consent of the others, to request that the content of a written agreement resulting from mediation be enforceable”. Compliance with agreements resulting from mediation should not “depend on the good will of the parties”.

As can be seen from the individual jurisdiction sections in this Review, settlement agreements, however reached, are generally considered to be contracts and enforceable under usual contract principles. Failure to comply with the agreed terms will be a breach of contract upon which the injured party may bring legal proceedings in accordance with local law. The Mediation Directive obliges Member States to set up a mechanism by which agreements resulting from mediation can be rendered enforceable if both parties so request. The choice of mechanism is left to the Member States. The Mediation Directive bolsters the status of a settlement agreement from cross-border mediation by providing that such agreements should be made enforceable unless either:

• the content of the agreement is contrary to the law of the Member State in which enforceability of the settlement agreement is requested; or
• the law of that Member State does not provide for the enforcement of agreements with that specific content.

Any agreement which has been made enforceable in one Member State should be recognised and declared enforceable in other Member States in accordance with Community or national law, for example, by way of recognition under Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

• acknowledging that judges have the right to invite parties to attempt mediation.

Article 5 of the Mediation Directive gives a judge the right to invite the parties to have recourse to mediation if, at any stage of the procedure, the judge considers it appropriate. A judge can also suggest that the parties attend an information meeting on mediation. The intention is to encourage parties to consider using mediation, without making it compulsory. However, individual Member States are not prevented from introducing legislation to make mediation compulsory or subject to incentives or sanctions, provided that such legislation does not prevent access to the judicial system.

The Mediation Directive does not specify sanctions for failure to mediate, but neither does it preclude individual Member States from introducing legislation for this purpose or prevent courts from imposing such sanctions.

• providing that, to preserve confidentiality, submissions and disclosure in mediation may not be used in any subsequent legal proceedings and mediators may not be compelled to give evidence in any subsequent legal proceedings.

Under Article 7 of the Mediation Directive, the general position is that, unless the parties agree otherwise, neither mediators nor those administering the process can be obliged to give evidence in relation to matters or information arising from, or connected with, the mediation. There are two exceptions to this:

• where overriding public policy considerations make it necessary; in particular, when it is necessary to prevent physical or psychological harm; and

• where disclosure of the content of an agreement resulting from mediation is necessary to implement or enforce that agreement.

Article 7, §2 expressly provides that nothing in the Mediation Directive prevents Member States from enacting stricter confidentiality measures to govern mediations.

• ensuring that parties’ claims will not be time-barred as a result of time spent on mediation.

The Mediation Directive proposes that any limitation period should be suspended while the parties are engaging in mediation, in order to guarantee that parties will not be prevented from going to court should the limitation expire while the, ultimately unsuccessful, mediation is taking place. This was, unsurprisingly, one of the most controversial Articles of the Directive.

• advocating the development and use of voluntary codes of conduct and quality control mechanisms.

It also obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services. The voluntary nature of Article 4, however, means that there is no process for monitoring or enforcing the recommendation and the emphasis is on self-regulation.

Fourteen years later, one must find that this Mediation Directive has fallen short of being a success story.

In January 2014, the European Parliament called for  “Rebooting the Mediation Directive” – as it appeared that mediation was being used in fewer than 1% of cases in the EU and that, in 46% of EU Member States, fewer than 500 mediations had taken place every year. A think tank was set up by the European Parliament. It came to the conclusion that there were two ways to “reboot” the Mediation Directive:

• either to amend it, or
• request that each Member State commit to, and reach, a simple “balanced relationship target number” between civil litigation and mediation.

Two years later, in August 2016, the Commission issued a Report with mixed feelings: finding on the one side that the Mediation Directive had raised awareness of the advantages of mediation amongst national legislators, and on the other side that there were areas for improvement.


A Resolution was subsequently adopted by the European Parliament in September 2017 in which it notably called on:


• EU Member States to step up their efforts to encourage the use of mediation in civil and commercial disputes;
• the Commission to assess the need to develop EU-wide quality standards and consistency in the provision of mediation services, while taking into account the fundamental right of access to justice and differences in mediation cultures; and
• the Commission to find solutions to extend the scope of mediation to other civil or administrative matters.

The European Parliament also requested the Commission to undertake a detailed study on the obstacles to the free circulation of foreign mediation agreements across the EU, and on various options to promote the use of mediation.

The shortcomings are manifold but the main flaw really is the full-voluntary model enshrined in Article 5, §2. Different amendments were considered to remedy the lack of “mandatory, reasonable but serious consideration of a mediation effort”. A suggestion was to include an opt-out mediation model. However, the European Parliament eventually decided not to amend.

2018 marked the tenth anniversary of the adoption of the Mediation Directive. In a short briefing, the Legal Affairs Committee of the European Parliament was forced to recognise that the Mediation Directive “remains very far from reaching its stated goals of encouraging the use of mediation”. After reiterating all the legislative history, the briefing comes to a daunting conclusion: “In light of this inaction, as well as the expected time it would take to have the [Mediation] Directive modified should that still be a possibility, Member States looking for guidance in developing effective mediation policy should simply assess carefully the mediation regulatory frameworks of other countries.” To put it differently, individual Member States are now on their own.

While mediation is perhaps the best established and most formalised method of alternative dispute resolution (“ADR”), the European Commission has been keen to strengthen other methods of out-of-court settlement. In its view, well-functioning ADR mechanisms are necessary to strengthen consumer confidence in the internal European market and as such Member States should ensure consumers are aware of the ADR opportunities available to them. Therefore, in April 2013, the European Council adopted a consumer ADR directive (“ADR Directive”) and a regulation for the online resolution of consumer disputes (“ODR Regulation”). The ODR Regulation came into force without the need for further implementation. However, Member States were obliged to enact measures to bring the ADR Directive into force by 9 July 2015.

The ADR Directive is an effort to address the concern that ADR was not sufficiently developed across the EU to provide consumers with low-cost, fast and simple out-of-court dispute resolution. The ADR Directive therefore aims to bolster the out-of-court resolution of contractual disputes arising from the sale of goods or supply of services by a trader to a consumer within the EU. The ADR Directive obliges Member States to ensure that there is appropriate access to good quality ADR facilities, which includes designating appropriate ADR bodies and monitoring their performance and by imposing requirements on traders to ensure their customers are aware of these facilities.

To facilitate the use of consumer ADR, the ODR Regulation establishes an online dispute resolution platform (“ODR Platform”) which provides a single point of entry for consumers and traders who are looking to resolve a dispute arising out of a cross-border online transaction. The ODR Platform has been operational since January 2016 and is an interactive website accessible by all consumers and traders operating in the EU. EU businesses that sell goods or services online to consumers, as well as online marketplaces, are required to provide an “easily accessible” link to the ODR Platform on their websites. The ODR Platform gives access to an electronic complaint form which can be completed online in any one of the 24 official languages of the EU. The ODR Platform will then transmit the dispute to an appropriate local ADR body included in the national lists provided by Member States. The whole procedure may be conducted online, including correspondence between the parties and the ADR body.

The application of the ADR Directive and the ODR regulation and their impact were reviewed by the Commission in a report submitted to the European Parliament in September 2019. The report found that the ADR Directive has led to increased and improved ADR procedures amongst consumer dispute resolution bodies, including increased transparency of their operations. However, overall, updates for the new ADR procedures have been patchy and the framework is still underused.

Conversely, the high number of visitors and complaints submitted to the ODR Platform and high number of direct settlements suggest that the online solution has proved popular.

In 2021, a Second ADR Assembly identified drivers behind the current insufficient uptake of ADR. They include:

• the low awareness;
• insufficient incentives for the traders to participate in ADR where the schemes are voluntary;
• access barriers, especially for vulnerable consumers;
• ADR competence limitations, e.g. not covering third country traders;
• the complexity of procedures especially for cross-border disputes; and
• the lack of financial and human resources and guidance.

Another relevant finding is that the “EU framework must recognise technical advancements as part of ADR processes and define some common technical terms.”

The Commission will finance actions such as to support ADR entities (digitalisation, awareness-raising, staff training, etc) in 2021 and 2022. It will carry studies on the ADR landscapes, evolution and the best ways to nudge the consumers to use ADR.

Thus, the Commission is still committed to developing ADR across the EU and pledges to further promote ADR and ODR in its campaigns on consumer law and improve the ODR platform, by providing targeted information on consumer rights and redress, better directing users to the most appropriate redress tools and better facilitating direct settlements. This commitment can be seen through more recent instruments (see below).

Down the road, the Mediation and ADR Directives did undoubtedly not reach their full potential. Nonetheless, the European Union has kept pushing for ADR in recent years:

• in 2017, Regulation 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws defined “Union laws that protect consumers’ interests” so as to include ADR and ODR – thereby giving extra powers to national authorities to protect them;
• in 2018, Directive 2018/1972 establishing the European Electronic Communications Code provided that national regulatory authorities could decline to resolve a dispute in connection with the obligations under that Directive “where other mechanisms, including mediation, exist that would better contribute to resolution of the dispute in a timely manner”; 
• in 2019, Directive 2019/2161 regarding the better enforcement and modernisation of Union consumer protection rules sets out that “The Commission shall ensure that citizens seeking information on their consumer rights or on out-of-court dispute resolution benefit from an online entry point, through the single digital gateway”;
• on 22 February 2021, in the framework of the New Consumer Agenda, the Council of the European Union called for “efficient alternative dispute resolution mechanisms, including the Online Dispute Resolution platform”.

• A report on the implementation of ODR/ADR framework is expected in 2023.