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Mediation and Cross-Border Civil and Commercial Disputes: Directive 2008/52/EC

By Bartolus

A new Directive - Directive 2008/52/EC of the European Parliament and of the Council of May 21st 2008 on certain aspects of mediation in civil and commercial matters - has just been published.

The purpose of Directive 2008/52/EC is to encourage and facilitate mediation as an alternative form of resolution of cross-border disputes in the EU (with the exception of Denmark). That sounds good in principle but a closer look at the Directive shows it does not aim to change existing national laws very much.

Directive 2008/52/EC applies when one party to the dispute is domiciled in a different member State from that of the other party and when national law requires mediation to be used in similar domestic disputes or when a court seised of the dispute invites the parties to have recourse to mediation.

The Directive allows the parties to request that the content of a written settlement resulting from the mediation process be made enforceable except when it would be contrary to the public policy of the member State in which the settlement was made or when the law of that State does not provide for its enforceability. The content of the settlement which has been made enforceable in one member State shall be recognized and enforced in the other member States on the basis for example of Regulation 44/2001 or Regulation 2201/2003.

The substantive provisions of Directive 2008/52/EC will enter into force in the member States by May 21st 2011.

This Directive is a follow-up of the Green Paper on alternative dispute resolution in civil and commercial matters. While we're at it, here's a link to a European code of conduct for mediators developed by a group of experts with the assistance of the European Commission and made public on July 2nd 2004. The code sets out a number of principles to which individual mediators can voluntarily decide to commit. It is intended to be applicable to all kinds of mediation in civil and commercial matters.

Full post as published by EU Law Blog on May 26, 2008 (boomark / email).