Following on from the Vienna Action Plan in 1998 and the Conclusions of the Tampere European Council in 1999, the Council of Justice and Home Affairs Ministers called on the Commission to present a Green Paper on alternative dispute resolution in civil and commercial law other than arbitration, taking stock of the current situation and launching broad consultations on the measures to be taken. Priority was given to the possibility of laying down basic principles, either in general or in specific fields, which would offer the requisite guarantees that out-of-court dispute resolution will ensure the proper degree of security in the administration of justice.
In its Green Paper the Commission recalled that the development of these forms of dispute settlement was not to be regarded as a means of remedying deficiencies in the operation of the courts but as an alternative, more consensus-based form of social peace-keeping and conflict and dispute resolution which in many cases would be more appropriate than the resolution of disputes by a third party as through the courts or by arbitration.
Alternative dispute resolution techniques such as mediation allow the parties to resume dialogue and come to a real solution to their dispute through negotiation instead of getting locked into a logic of conflict and confrontation with a winner and a loser at the end. The importance of this is highly obvious, for instance, in family disputes, but it is potentially very valuable in many other types of dispute.
It is used increasingly in complex commercial disputes where the parties, whilst wishing to resolve a conflict, also wish to retain as far as possible a continuing commercial relationship. It is becoming increasingly common in disputes arising out of medical accidents where Mediation can lead to the adoption of an innovative resolution of what are often very sensitive conflicts and provide creative remedies which may be beyond the powers of the courts.
The Green Paper also provided a host of information and considered a wide range of questions, thereby setting out to familiarise the largest possible number of people with these alternative, often new, forms of dispute settlement. It was directed in particular towards litigants, the judiciary and the legal profession.
The main purpose of the Green Paper was to come up with answers to the delicate question of the balance to be achieved between the need for flexibility and the need to guarantee quality of results, and the harmonious relationship with court procedures. It also highlighted the existing achievements and initiatives in this area both in the Member States and in the Community.
Lastly, by publishing this Green Paper, the Commission contributed to the continuing debates in the Member States and internationally on the best way of ensuring that the best possible environment was available for the development of alternative dispute resolution.
The 21 questions put in the Green Paper concerned the decisive elements of the different forms of alternative dispute resolution, such as clauses providing agreements to go to ADR , the problem of periods of prescription and limitation, the need for confidentiality, the validity of consent, the effect of resulting agreements particularly for enforcement, training for mediators and other third parties, their accreditation and the rules governing their liability.
The Code of Conduct sets out a series of norms which can be applied to the practice of Mediation and which can be adhered to by Mediation organisations. It was elaborated in co-operation with a large number of organisations and individuals among whom are skilled practitioners of Mediation and others who are interested in seeing Mediation develop in the European Union. The Code was adopted by a meeting involving these experts in July 2004 and the Commission was very pleased to be involved in and to have the opportunity to assist this process.
The Commission's proposal was adopted by the College of Commissioners in October 2004 and sent immediately to the European Parliament and the Council. The proposal was prepared following the Green Paper and involved extensive consultation with those involved in Mediation. The preparation process worked in parallel with that for the Code of Conduct and involved many of the same people.
The proposal for a Directive seeks to further the use of Mediation by making certain legal rules available within the legal systems of the Member States. These rules cover the areas of confidentiality of the mediation process and of mediators as witnesses, enforcement of agreements for settling disputes as a result of mediation, the suspension of the running of periods of prescription and limitation of actions while mediation is in progress thus removing one potential disincentive to the use of mediation. As these rules do not attempt to regulate or harmonise the laws of the Member States they encourage the training of mediators and the adoption of norms of conduct to secure the quality of mediation on a consistent basis throughout the Union.
Alternative dispute resolution has already been recommended, directly or indirectly, in a number of Community instruments and proposals. Many of these encourage the Member States are recommended to introduce, or at least to promote the introduction and operation of ADR.
A few examples are shown here:
In some areas the Commission has gone further than simply encouraging the establishment of alternative dispute resolution. It has sought to promote the quality and effectiveness of alternative dispute resolution in consumer disputes.
Care is taken in the C ommunity to distinguish two major categories of alternative dispute resolution available to help consumers settle their disputes with tradespeople:
The Commission has taken an initiative to ensure that non-judicial consumer dispute settlement procedures respect a certain number of principles. On 4 April 2001 it published a Recommendation concerning procedures in which the third party does not express an opinion on the solution but simply helps the parties find the solution that suits them best. The Recommendation sets out four principles: impartiality, transparency, effectiveness and fairness.
The Commission has taken an initiative to ensure that these procedures respect a certain number of principles.
On 30 March 1998 it published a Recommendation concerning procedures in which the third party actually settles the dispute between the parties in a manner which may or may not be binding on them. This Recommendation also covers arbitration in consumer disputes. It contains seven basic principles: independence, transparency, the adversarial principle, effectiveness, legality, liberty and representation. Member States are asked to produce an inventory of bodies responsible for the out-of-court resolution of consumer disputes that they regard as compliant with the Commission Recommendation. The Commission has been notified of the national lists, which can be consulted on the website of the Directorate-General for Health and Consumer Protection (DG SANCO).
The Commission is behind the establishment of two European networks of judicial bodies sharing the objective of facilitating consumer access to non-judicial procedures for the settlement of cross-border disputes in cases where the tradesperson is established in a Member State other than the one where the consumer resides. They pursue the same objective but work in different ways:
In parallel with all this quasi-legislative activity, the European Union provides financial support for certain initiatives, in particular in the on-line settlement of consumer disputes. The Commission was financially involved in the launching of ECODIR (Electronic COnsumer DIspute Resolution Platform), an electronic dispute resolution platform.
Last update: 04-11-2009