Lloyd's Maritime and Commercial Law Quarterly
Book review - De Palo and Trevor (Eds): EU Mediation: Law and Practice
EU MEDIATION: Law and Practice. Edited by Giuseppe De Palo, President, ADR Center, Member of JAMS International, International Professor of ADR Law and Practice, Hamline University School of Law, Minnesota, and Mary B Trevor, Director of Legal Research and Writing Department, Hamline University School of Law, Minnesota. OUP, Oxford (2012) lvii and 393 pp, plus 190 pp Appendices and 9 pp Index. Hardback £125.
Considering the strong presence of the EU in the civilian and commercial sphere, it is surprising that mediation and other methods of alternative dispute resolution became a part of EU-level discussions as late as 1999. That year, the Tampere European Council called the Member States to create alternative, extrajudicial procedures for dispute resolution. The process that started with this call ended up with the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters. This directive did not create a uniform procedure for the Union. Although it is primarily applicable to cross-border disputes, by the directive itself Member States are allowed to apply its provisions to internal disputes. The directive neither imposed domestic mediation processes nor did it require that Member States mandate or encourage mediation. With this rather minimalist approach of the directive, the differences between the Member States in terms of their mediation procedures and legislation are unlikely to disappear in the near future. It is on these differences that the present volume sheds light. The directive constitutes the backbone of the text, and special emphasis is made on the implementation of the provisions of the directive at national level.
The editors’ goal for this book are stated as “to describe the current state of mediation in the EU and to call for new approaches and tools capable of facilitating increased mediation use”.
The book has 28 chapters, including the introduction. The introduction underscores the developments in the field of mediation in the EU, ending up with the above-mentioned Mediation Directive, and considers the pros and cons of the directive and its effect on mediation policy-making as well as on mediation in the EU Member States. The introduction also focuses on the reasons why the mediation mechanism is not used more widely despite the fact that it has so many advantages. This chapter also touches upon such concepts as the principle of a “Balanced Relationship Target Number between Mediation and Judicial Proceedings”. This number, which is introduced by the editors, represents the minimum percentage of cases to be mediated in each country in order to arrive at an ideal “balanced relationship” with the percentage of litigated cases.
Each subsequent chapter covers one Member State, and sheds light on what has happened in that State after the challenge of implementing the EU provisions within three years, by the deadline of 21 May 2011. Even though Denmark is not bound by the directive, the book also includes a chapter on Danish mediation law.
Each chapter has 14 subsections, which are: Introduction, Court Referral to Mediation, Protections Provided to Ensure Confidentiality of Mediation Proceedings, Enforceability of Mediation Agreements, The Impact of Mediation on Statutes of Limitation, Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option, Requirements for Parties to Participate in Mediation, Accreditation Requirements for Mediators, Mediator Duties, Duties of Legal Representatives and Other Professional Mediation Participants, Statistics, Court-Annexed Mediation Schemes, Current Situation and a Conclusion. Using a uniform chapter structure for these chapters made the reader’s job easier.
In the book, there are no official statistics on the use of mediation in such Member States as Luxembourg, the Czech Republic, Cyprus, Belgium, Greece or Spain. On the other hand, the
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