Euro Mediation

Alternative Dispute Resolution at the European Community Level

for the {JURI}Committee on Legal Affairs and the Internal Market on the Commission Green Paper on alternative dispute resolution in civil and commercial law

The {LIBE}Committee on Citizens' Freedoms and Rights, Justice and Home Affairs appointed Luís Marinho draftsman at its meeting of 2 October 2002{19/02/2002}.

The committee considered the draft opinion at its meetings of 10 December 2002, 20 January 2003 and 18 February 2003{17/01/2003}.

The following were present for the vote: Jorge Salvador Hernández Mollar (chairman), Robert J.E. Evans (vice-chairman), Johanna L.A. Boogerd-Quaak (vice-chairman), Giacomo Santini (vice-chairman), Luís Marinho (draftsman of the opinion, for Carmen Cerdeira Morterero), Kathalijne Maria Buitenweg (for Alima Boumediene-Thiery), Michael Cashman, Ozan Ceyhun, Carlos Coelho, Gérard M.J. Deprez, Adeline Hazan, Timothy Kirkhope, Eva Klamt, Ole Krarup, Alain Krivine (for Giuseppe Di Lello Finuoli), Baroness Sarah Ludford, Luís Marinho, Hartmut Nassauer, Bill Newton Dunn, Marcelino Oreja Arburúa, Hubert Pirker, Bernd Posselt, Martine Roure, Gerhard Schmid, Ilka Schröder, Joke Swiebel, Anna Terrón i Cusí, Maurizio Turco, Christian Ulrik von Boetticher, Olga Zrihen Zaari (for Walter Veltroni).

In a number of countries such as the United Kingdom and the United States new methods of settling disputes outside the strictly judicial sphere have been developed in the last few years. These methods have proved effective, swift and cheap and have thus been extremely successful.

These alternative dispute resolution methods in the areas of commercial and civil law are being used increasingly in the Member States of the Union, since using private justice procedures is a practical way of settling disputes as a response to the problem of access to justice encountered by European citizens in many of the Member States, owing to the slowness and costliness of court procedures, as well as the volume, complexity and technical nature of legislative texts.

In the Commission’s Green Paper the concept of alternative dispute resolution (hereinafter referred to by the acronym ‘ADR’) refers to extra-judicial procedures for resolving disputes implemented by an impartial third party, the mediator, from which actual arbitration is excluded.

Mediation may be defined as a voluntary procedure in which an impartial, neutral and independent third party helps the parties in a dispute to exchange their points of view and to find a solution to their differences of opinion.

Similarly, the Green Paper extends its scope to the field of civil and commercial law, including labour law and consumer law.

However, in this field there are profound differences between the Member States of the European Union, as regards both the specific legislative provisions adopted in the field of mediation, and the training required of mediators or the ethical rules they must respect:

(a) in Sweden, Portugal, Greece, Spain and

Finland

mediation is not highly developed, except in certain specific fields such as labour law;

(b) Germany, France, Austria, Italy, the United Kingdom and the

Netherlands

have substantially developed the structures favouring mediation.

Your draftsman therefore welcomes the Commission's Green Paper, both because it has highlighted the crisis in the efficiency of existing judicial systems and because it mentions the achievements made and initiatives adopted in the area of ADR by the Member States and at Community level.

Your draftsman considers that the European Union should harmonise the legislation of the Member States in this new field and establish the decisive elements of ADRs, especially as regards family law, since this will benefit European citizens and will considerably improve their access to justice.

The Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs calls on the {JURI}Committee on Legal Affairs and the Internal Market, as the committee responsible, to incorporate the following points in its motion for a resolution:

- having regard to the Commission Green Paper on alternative dispute resolution in civil and commercial law (hereinafter referred to as ‘ADR’) of 19 April 2002 (COM(2002) 196 – C5-0284/2002),

- having regard to the Vienna Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, in particular paragraph 41(b) - adopted by the Justice and Home Affairs Council on 3 December 1998[1],

- having regard to the conclusions of the Tampere European Council of 15 and 16 October 1999, in particular paragraph 30 thereof,

- having regard to the conclusions of the Lisbon European Council of 23 and 24 March 2000, in particular paragraph 11 thereof,

- having regard to the conclusions of the Santa María de Feira European Council of 19 and 20 June 2000, in particular paragraph 22, in which it endorses the ‘eEurope 2002 Action Plan’,

- having regard to the conclusions of the Laeken European Council of 14 and 15 December 2001, in particular paragraph 25 thereof,

B. whereas the Union should guarantee that its citizens may enjoy the right of freedom of movement throughout the Union in conditions of safety and justice accessible to all,

C. whereas a true European area of justice must enable European citizens and businesses access to the courts and to the authorities of all the Member States as easily as in their own country, without the incompatibility or complexity of the legal and administrative systems of the Member States preventing or discouraging them from exercising their rights,

D. whereas European citizens in certain Member States find it difficult to gain access to justice, since disputes before the courts have increased in number and procedures have tended to become longer and, in consequence, more expensive,

E. whereas European citizens are increasingly encountering a growing volume of legislative texts, the complexity and technical nature of which make their access to justice difficult,

F. whereas, with the completion of the internal market, the intensification of trade, the mobility of European citizens and the growth of electronic commerce, disputes between nationals of different Member States have increased exponentially and with them the number of cross-border disputes reaching the courts,

G. whereas alternative dispute resolution methods in the field of civil and commercial law (ADRs) in the context of policies to improve access to justice are an instrument serving social justice and a political priority for the institutions of the European Union,

1. Welcomes the fact that the Commission, exercising its right of initiative, has submitted a Green Paper on alternative dispute resolution in civil and commercial law, with a view to consulting the public concerned and to preparing tangible measures to be adopted on the subject and hence to fulfilling the political mandate laid down by the Tampere European Council inter alia;

2. Notes that the Member States of the Union do not have detailed framework legislation on ADRs, and their legal systems differ greatly in this area;

3. Notes that the measures adopted by the European Union in the sphere of ADR have been merely symbolic, mainly dealing with consumer law, family law and labour law;

4. Takes the view that the Union should adopt legislative measures at European level to establish a number of minimum rules on ADRs, in order to limit the unfair consequences of the great differences between the legal systems of the Member States;

5. Advocates that the initiatives to be adopted should not define the principles applicable to all spheres of civil and commercial law globally, but separately and specifically, at least those applicable to disputes in the spheres of consumer law, family law and labour law;

6. Advocates that the European Union should adopt specific Community legislative measures to promote dispute resolution in the sphere of cross-border family law by using ADRs, whether the disputes concern custody and visiting rights for children, the sharing of family assets or the allocation of alimony;

7. Considers that the structure of procedures is similar in both on-line dispute resolution methods (ODRs) (recently developed in the sphere of electronic commerce) and in the traditional methods (ADRs), and hence the initiatives adopted by the European Union should refer to both methods indiscriminately;

8. Takes the view that the European Union should adopt the measures necessary to harmonise the legal systems of the Member States to ensure that clauses concerning recourse to ADRs inserted in contracts have equivalent legal force;

9. Takes the view that the legislation of the Member States should be harmonised by the European Union with the aim of modifying the laws governing civil proceedings as far as statutory time-limits are concerned, establishing that these limits can be suspended when the alternative dispute resolution procedure (ADR) begins and be reinstated if the procedure fails to resolve the matter;

10. Maintains that the European Union should harmonise the legislation of the Member States in order to define the legal concept of "mediation";

11. Considers it desirable for the European Union to set the minimum criteria for the training of mediators as third parties responsible for the ADR process, as well as their status, accreditation and liability;

12. Is in favour of the European Union, in close collaboration with the organisations and institutions concerned, establishing a "European Charter of ethical rules or of good ethical conduct for mediators", applicable in all Member States, to guarantee that the ADR offer the parties concerned minimum guarantees and apply the principles of independence or impartiality, transparency, efficiency and respect for the law, as well as confidentiality.

[1] OJ C 19, 23.01.1999, p.1.