It’s taken a while for mediation to catch on. I have heard many say that Europe is roughly 15 years behind the American movement towards mediation. In Europe, it is still a slow process as countries begin to adopt legislation that encourage courts and parties to seriously consider mediation. As mediation increases, the mindset of people must also shift.
In 2008, the European Union passed a directive that encouraged mediation. The directive has been in the works since 2004 and the member states have until 2011 to implement the directive. Bridget Prentice, Parliamentary Under Secretary of State at the Ministry of Justice said: “The government believes that courts should be the last resort for people involved in civil or family disputes and has supported this proposal as a means of encouraging the use of mediation in cross-border disputes throughout the European Union.” In short, the directive encourages mediation involving civil, commercial and family matters. It also encourages nations to train mediators and develop codes of conduct to ensure quality control mechanisms. It also gives every judge the right to suggest mediation at any stage of the proceeding. Likewise, it elevates a mediation agreement to that of an enforceable court judgment, assures parties of confidentiality during the mediation, and preserves parties’ access to the justice system if mediation does not succeed. Despite the merit of the directive, without implementation of statutes in each individual member state, the EU directive has no teeth.
I sat down with my supervisor from my internship at the Centre for Effective Dispute Resolution (CEDR). Over a Starbucks “flat white” (Australian inspired coffee beverages formed by “creamy stretched and spun whole milk” over double espresso), my supervisor and I discussed the movement towards mediation. I attended a multi-party mediation in London involving a fair amount of money. The parties were reluctant to settle and the evening ended in frustration and no settlement. As I observed the mediator doing shuttle diplomacy between each party, I wondered how much the “rights” involved were going to impede the settlement process. Would the plaintiffs ultimately refuse to settle because they wanted their voice heard in court and their “rights” determined by the judge? Although the parties will probably attempt mediation later, mediation failed on this day.
For mediation to become more popular, a shift away from “rights” must occur. Notions of “I’m right” and “You’re wrong” must be dispelled in order to reach resolution through mediation. My supervisor offered an interesting anecdote. He had recently attended a conference in Norway. Norway has taken the plunge. It has implemented statutes that require judges to use mediation more frequently. However, Norwegians are still hesitant. At the Oslo conference, judges and lawyers discussed the following question: “Is the mediation process the right thing to do?” Most of those who gathered were practitioners engaged in the construction industry. One problem in Norway is that the judges who initiate and encourage mediation usually become the mediator. In effect, a judge may mediate a family law case, a commercial case, and a construction case in the same week. When Judges serve as mediators, the lines between mediation and litigation are blurred; however, this is perhaps the best transition to get parties to move away from rights and more towards interests.
Moving people away from rights and towards mediated resolution is a long process. Working in London has given me insight into how mediation is progressing on this continent. Southern California is the birthplace of mediation (I’m biased!). What is happening in London and Europe happened years ago in California. Even though I have only been exposed to bits and pieces of the mediation world from my time in London and at CEDR, it is has been fabulous seeing how mediation is evolving here.