DRAFT REPORT
DRAFT REPORT
on the proposal for a directive of the European Parliament and of the Council
on certain aspects of mediation in civil and commercial matters
(COM(2004)0718 – C6-0154/2004 – 2004/0251(COD))
Committee on Legal Affairs
Rapporteur: Arlene McCarthy
PE 374.428v02-00 2/23 PR\629291EN.doc
EN
PR_COD_1am
Symbols for procedures
* Consultation procedure
majority of the votes cast
**I Cooperation procedure (first reading)
majority of the votes cast
**II Cooperation procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliament’s component Members, to reject or amend
the common position
*** Assent procedure
majority of Parliament’s component Members except in cases
covered by Articles 105, 107, 161 and 300 of the EC Treaty and
Article 7 of the EU Treaty
***I Codecision procedure (first reading)
majority of the votes cast
***II Codecision procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliament’s component Members, to reject or amend
the common position
***III Codecision procedure (third reading)
majority of the votes cast, to approve the joint text
(The type of procedure depends on the legal basis proposed by the
Commission.)
Amendments to a legislative text
In amendments by Parliament, amended text is highlighted in bold italics.
Highlighting in normal italics is an indication for the relevant departments
showing parts of the legislative text for which a correction is proposed, to
assist preparation of the final text (for instance, obvious errors or omissions
in a given language version). These suggested corrections are subject to the
agreement of the departments concerned.
PR\629291EN.doc 3/23 PE 374.428v02-00
EN
CONTENTS
Page
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ................................5
EXPLANATORY STATEMENT.........................................................................................22
PE 374.428v02-00 4/23 PR\629291EN.doc
EN
PR\629291EN.doc 5/23 PE 374.428v02-00
EN
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the proposal for a directive of the European Parliament and of the Council on certain
aspects of mediation in civil and commercial matters
(COM(2004)0718 – C6-0154/2004 – 2004/0251(COD))
(Codecision procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to the European Parliament and the Council
(COM(2004)0718)1,
– having regard to Article 251(2) and Articles 61(c) and 67(5) of the EC Treaty, pursuant to
which the Commission submitted the proposal to Parliament (C6-0154/2004),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the opinion of the
Committee on Civil Liberties, Justice and Home Affairs (A6-0000/2006),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the
proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and Commission.
Text proposed by the Commission Amendments by Parliament
Amendment 1
Recital 2
(2) The European Council meeting in
Tampere on 15 and 16 October 1999 called
for, in relation to better access to justice in
Europe, for alternative, extra-judicial
procedures to be created by Member
States.
(2) The principle of access to justice is
fundamental and, with a view to securing
better access to justice, the European
Council meeting in Tampere on 15 and 16
October 1999 called for alternative, extrajudicial
procedures to be created by the
Member States.
Justification
It is important to stress that access to justice is a fundamental principle of Community law
and that alternative dispute resolution (more specifically, mediation) can afford better access
to justice. This amendment should be read in conjunction with the amendment to recital 8,
1 Not yet published in OJ.
PE 374.428v02-00 6/23 PR\629291EN.doc
EN
which makes it clear that the intention of promoting mediation is not to deprive parties of
their right to their day in court if they wish to exercise that right.
Amendment 2
Recital 8
(8) This directive should cover processes
where two or more parties to a dispute are
assisted by a mediator to reach an amicable
agreement on the settlement of the dispute,
but exclude processes of an adjudicatory
nature such as arbitration, ombudsmen
schemes, consumer complaint schemes,
expert determination or processes
administered by bodies issuing a formal
recommendation, be it legally binding or
not, as to the resolution of the dispute.
(8) This directive should cover processes
where two or more parties to a dispute are
assisted by a mediator to reach an amicable
agreement on the settlement of the dispute,
but exclude processes such as precontractual
negotiations or processes of
an adjudicatory nature such as arbitration,
ombudsman schemes, consumer complaint
schemes, expert determination or processes
administered by bodies issuing a formal
recommendation, be it legally binding or
not, as to the resolution of the dispute.
Cases where a court refers parties to
mediation or national law prescribes
mediation should also be covered,
although the principle remains that
mediation is a voluntary process and
national legislation making the use of
mediation compulsory or subject to
incentives or sanctions should not prevent
parties from exercising their right of
access to the judicial system.
Furthermore, mediation conducted by a
judge who is not responsible for any
judicial proceedings relating to the matter
or matters in dispute should also come
within the scope of this Directive.
Nevertheless, this Directive does not
extend to attempts made by the court or
judge seised to settle a dispute in the
context of judicial proceedings
concerning that dispute or to cases in
which the court or judge seised requests
assistance or advice from a competent
person.
Justification
It is important to delimit the scope of the directive as precisely as possible, whilst making it
clear that promoting mediation should not cause parties to forfeit their right to litigate should
PR\629291EN.doc 7/23 PE 374.428v02-00
EN
they wish to exercise it.
Amendment 3
Recital 9
(9) A minimum degree of compatibility of
civil procedural rules is necessary as
concerns the effect of mediation on
limitation periods and how the
confidentiality of the mediator will be
protected in any subsequent judicial
proceedings. The possibility for the court
to refer the parties to mediation should
also be covered, while retaining the
principle that mediation is a voluntary
process.
(9) Given the importance of
confidentiality in the mediation process, a
minimum degree of compatibility of civil
procedural rules is necessary with regard
to how the confidentiality of the mediation
is protected in any subsequent civil and
commercial, judicial or arbitration
proceedings. It is also necessary to
provide for a minimum degree of
compatibility of civil procedural rules with
regard to the effect of mediation on
limitation and prescription periods, at
least in cross-border cases. Although the
provision on limitation and prescription
periods is limited to cross-border cases,
Member States are encouraged to apply it
also to internal cases with a view to
facilitating the proper functioning of the
internal market.
Justification
This wording is intended to be clearer and to reflect better the structure of the directive.
Amendment 4
Recital 10
(10) Mediation should not be regarded as a
poorer alternative to judicial proceedings in
the sense that settlement agreements are
dependant on the good will of the parties
for their enforcement. It is therefore
necessary to ensure that all Member States
provide for a procedure whereby a
settlement agreement can be confirmed in
a judgment, decision or authentic
instrument by a court or public authority.
(10) Mediation should not be regarded as a
poorer alternative to judicial proceedings in
the sense that settlement agreements are
dependent on the good will of the parties
for their enforcement. It is therefore
necessary to ensure that parties to a written
settlement agreement may request that it
be recognised and its content be made
enforceable insofar as recognition and
enforceability of such content is possible
under the law of the Member State in
which the request for recognition and/or
enforcement is made. The content of a
PE 374.428v02-00 8/23 PR\629291EN.doc
EN
settlement agreement may be rendered
enforceable in a judgment or decision or
by an authentic act by a court or by
another competent authority in
accordance with the law of the Member
State where the request is made.
Justification
This amendment, together with the amendments moved to Article 5, is designed to cater for
concerns which have been expressed with regard to the recognition and enforceability of
settlement agreements, which may contain terms which are intrinsically unenforceable. It is
also important to make it clear that settlement agreements should be reduced to writing in
order for them to be recognised/enforced.
Amendment 5
Recital 11
(11) Such a possibility will allow for a
settlement agreement to be recognised and
enforced across the Union, under the
conditions laid down by Community
instruments on mutual recognition and
enforcement of judgments and decisions.
(11) The content of a settlement
agreement rendered enforceable in a
Member State will be recognised and
declared enforceable in the other Member
States in accordance with applicable
Community or national law, for example
on the basis of Council Regulation (EC)
No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and
enforcement of judgments in civil and
commercial matters(1) or Council
Regulation (EC) No 2201/2003 of 27
November 2003 concerning jurisdiction
and the recognition and enforcement of
judgments in matrimonial matters and the
matters of parental responsibility(2).
__________________________
(1) OJ L 12, 16.1.2001, p. 1.
(2) OJ L 338, 23.12.2003, p. 1.
Justification
It appears desirable to make express reference to the relevant Community instruments.
Amendment 6
Recital 11 a (new)
PR\629291EN.doc 9/23 PE 374.428v02-00
EN
(11a) Whereas this Directive covers
mediation in family law matters, it extends
only to the rights available to the parties
under the law of the Member State in
which mediation takes place. Moreover,
if the content of a settlement agreement in
family matters is not enforceable in the
Member State where it was concluded and
where its enforcement is sought, this
Directive does not enable the parties to
circumvent the law of that Member State
by having the settlement agreement
rendered enforceable in another Member
State, given that Council Regulation (EC)
No 2201/2003 specifically requires that
such agreement has to be enforceable in
the Member State in which it was
concluded.
Justification
It is important to add this clarification in respect of mediation in family matters.
Amendment 7
Recital 13
(13) These mechanisms and measures,
which shall be defined by the Member
States and may include having recourse to
market-based solutions, should aim at
preserving the flexibility of the mediation
process and the private autonomy of the
parties. The Commission shall encourage
self-regulatory measures at Community
level through, for example, development
of a European code of conduct addressing
key aspects of the mediation process.
(13) These mechanisms and measures,
which should be defined by the Member
States and may include having recourse to
market-based solutions, should aim at
preserving the flexibility of the mediation
process and the private autonomy of the
parties. The Commission should encourage
self-regulatory measures at Community
level and the Member States should
encourage and promote the application of
the European Code of Conduct for
Mediators, which the Commission will
publish in the C Series of the Official
Journal of the European Union.
Justification
It is considered that the utility of the European Code of Conduct for Mediators should be
expressly recognised and its publication in the Official Journal secured so as to ensured that
it is widely published and readily accessible.
PE 374.428v02-00 10/23 PR\629291EN.doc
EN
Amendment 8
Recital 17
(17) In accordance with Article 3 of the
Protocol on the position of the United
Kingdom and Ireland, annexed to the
Treaty on European Union and the Treaty
establishing the European Community, the
United Kingdom and Ireland have notified
their wish to take part in the adoption and
application of this Directive. / In
accordance with Articles 1 and 2 of the
Protocol on the position of the United
Kingdom and Ireland, annexed to the
Treaty on European Union and the Treaty
establishing the European Community,
the United Kingdom and Ireland do not
take part in the adoption of this Directive,
which is therefore not binding on those
Member States.
(17) In accordance with Article 3 of the
Protocol on the position of the United
Kingdom and Ireland, annexed to the
Treaty on European Union and the Treaty
establishing the European Community, the
United Kingdom and Ireland have notified
their wish to take part in the adoption and
application of this Directive.
Justification
The United Kingdom and Ireland have signified their intention to take part in the adoption of
this directive.
Amendment 9
Article 1, paragraph 1
1. The objective of this directive is to
facilitate access to dispute resolution by
promoting the use of mediation and by
ensuring a sound relationship between
mediation and judicial proceedings.
1. The objective of this directive is to
facilitate access to dispute resolution and
to promote the amicable settlement of
disputes by encouraging the use of
mediation and ensuring a balanced
relationship between mediation and
judicial proceedings.
Justification
Clarifies and tightens up the scope of the directive.
Amendment 10
Article 1, paragraph 2
2. This directive shall apply in civil and 2. This directive shall apply in civil and
PR\629291EN.doc 11/23 PE 374.428v02-00
EN
commercial matters. commercial matters. It shall not extend, in
particular, to revenue, customs or
administrative matters or the liability of
the State for acts and omissions in the
exercise of State authority (acta iure
imperii).
Justification
Clarifies and tightens up the scope of the directive.
Amendment 11
Article 1, paragraph 3
3. In this directive, “Member State” shall
mean Member States with the exception of
Denmark.
3. In this directive, "Member State" shall
mean all Member States with the exception
of Denmark.
Justification
Clarifies and tightens up the scope of the directive.
Amendment 12
Article 2, point (a)
(a) “Mediation” shall mean any process,
however named or referred to, where two
or more parties to a dispute are assisted by
a third party to reach an agreement on the
settlement of the dispute, and regardless of
whether the process is initiated by the
parties, suggested or ordered by a court or
prescribed by the national law of a
Member State.
(a) "Mediation" means a structured
process, however named or referred to,
where two or more parties to a dispute
attempt themselves to reach an agreement
on the settlement of their dispute with the
assistance of a mediator. This process
may be initiated by the parties or suggested
or ordered by a court or prescribed by the
law of a Member State.
It shall not include attempts made by the
judge to settle a dispute within the course
of judicial proceedings concerning that
dispute.
It includes mediation conducted by a
judge who is not responsible for any
judicial proceedings in that dispute.
However, it does not include attempts
made by the court or judge seised to settle
a dispute within the course of judicial
proceedings concerning that dispute.
PE 374.428v02-00 12/23 PR\629291EN.doc
EN
Justification
Seeks to improve the definition of mediation by making it more explicit.
Amendment 13
Article 2, point (b)
(b) “Mediator” shall mean any third party
conducting a mediation, regardless of the
denomination or profession of that third
party in the Member State concerned and
of the way the third party has been
appointed or requested to conduct the
mediation.
(b) "Mediator" means any third person
who is appointed in circumstances
indicating a reasonable expectation that
the mediation will be conducted in a
professional, impartial and competent
way, in particular a third person who has
committed to, and fulfils the requirements
of, the European Code of Conduct for
Mediators and conducts the mediation in
accordance therewith, regardless of the
denomination or profession of that third
person in the Member State concerned and
of the way the third person has been
appointed or requested to conduct the
mediation.
Justification
The original definition seems too loose. A specific reference to the European Code of Conduct
for Mediators is highly desirable.
Amendment 14
Article 2 a (new)
Article 2a
Ensuring the quality of mediation
(1) Member States shall, by any means
which they consider to be appropriate,
encourage the development of and
adherence to voluntary codes of conduct,
especially the European Code of Conduct
for Mediators, by mediators and
organisations providing mediation
services as well as other effective quality
control mechanisms concerning the
provision of mediation services.
(2) Member States shall encourage the
PR\629291EN.doc 13/23 PE 374.428v02-00
EN
initial and further training of mediators
in order to ensure that the conduct of
mediation is fair, effective, impartial and
competent in relation to the parties and
that the procedures are suited to the
circumstances of the dispute.
Justification
This amendment replaces the Commission's original Article 4. Again, express reference to the
European Code of Conduct for Mediators seems highly desirable. It is important to stress that
mediation must be conducted in a way that is fair, effective, impartial and competent and that
mediation procedures are suited to the circumstances of the dispute.
Amendment 15
Article 3, paragraph 1
1. A court before which an action is
brought may, when appropriate and having
regard to all circumstances of the case,
invite the parties to use mediation in order
to settle the dispute. The court may in any
event require the parties to attend an
information session on the use of
mediation.
1. A court before which an action is
brought may, when appropriate and having
regard to all circumstances of the case,
invite the parties to use mediation in order
to settle the dispute. The court may also
invite the parties to attend an information
session on the use of mediation if such
sessions are held and are easily available.
Justification
Attendance at information sessions on mediation, where they exist, should be voluntary.
Amendment 16
Article 3, paragraph 2
2. This directive is without prejudice to
national legislation making the use of
mediation compulsory or subject to
incentives or sanctions, whether before or
after judicial proceedings have started,
provided that such legislation does not
impede on the right of access to the
judicial system, in particular in situations
where one of the parties is resident in a
Member State other than that of the court.
2. This directive is without prejudice to
national legislation making the use of
mediation compulsory or subject to
incentives or sanctions, whether before or
after judicial proceedings have started,
provided that such legislation does not
prevent parties from exercising their right
of access to the judicial system.
PE 374.428v02-00 14/23 PR\629291EN.doc
EN
Justification
It is also important to stress the parties' right to litigate should they wish to exercise it.
Amendment 17
Article 4
Article 4 Deleted
Ensuring the quality of mediation
1. The Commission and the Member
States shall promote and encourage the
development of and adherence to
voluntary codes of conduct by mediators
and organisations providing mediation
services, at Community as well as at
national level, as well as other effective
quality control mechanisms concerning
the provision of mediation services.
2. Member States shall promote and
encourage the training of mediators in
order to allow parties in dispute to choose
a mediator who will be able to effectively
conduct a mediation in the manner
expected by the parties.
Justification
This article is replaced by the new Article 2a.
Amendment 18
Article 5, paragraph 1
1. Member States shall ensure that, upon
request of the parties, a settlement
agreement reached as a result of a
mediation can be confirmed in a
judgment, decision, authentic instrument
or any other form by a court or public
authority that renders the agreement
enforceable in a similar manner as a
judgment under national law, provided
that the agreement is not contrary to
European law or to national law in the
Member State where the request is made.
1. Member States shall ensure that the
parties, or one of them with the consent of
the others, is able to request that the
content of a written settlement agreement
resulting from a mediation be made
enforceable to the extent that
enforceability of the content of the
settlement agreement is possible under
and not contrary to the law of the Member
State where the request is made.
PR\629291EN.doc 15/23 PE 374.428v02-00
EN
Justification
This amendment, together with the other amendments moved to Article 5 and to recital 10, is
designed to cater for concerns which have been expressed with regard to the recognition and
enforceability of settlement agreements, which may contain terms which are intrinsically
unenforceable. It is also important to make it clear that settlement agreements should be
reduced to writing in order for them to be recognised/enforced.
Amendment 19
Article 5, paragraph 1 a (new)
1a. The content of the agreement may be
made enforceable in a judgment or a
decision or by an authentic act by a court
or other competent authority in
accordance with the law of the where the
request is made Member State.
Justification
Reflects the diversity of legal traditions in the Member States.
Amendment 20
Article 5, paragraph 2
2. Member States shall inform the
Commission of the courts or public
authorities that are competent for receiving
a request in accordance with paragraph 1.
2. Member States shall inform the
Commission of the courts or other
authorities that are competent for receiving
a request in accordance with paragraphs 1
and 1a.
Amendment 21
Article 5, paragraph 2 a (new)
2a. Nothing in this Article shall affect the
rules applicable to the recognition and
enforcement in another Member State of
settlement agreements which have been
made enforceable in accordance with
paragraph 1.
Amendment 22
PE 374.428v02-00 16/23 PR\629291EN.doc
EN
Article 6
Article 6 Deleted
Admissibility of evidence in civil judicial
proceedings
1. Mediators, as well as any person
involved in the administration of
mediation services, shall not in civil
judicial proceedings give testimony or
evidence regarding any of the following:
(a) An invitation by a party to engage in
mediation or the fact that a party was
willing to participate in mediation;
(b) Views expressed or suggestions made
by a party in a mediation in respect of a
possible settlement of the dispute;
(c) Statements or admissions made by a
party in the course of the mediation;
(d) Proposals made by the mediator;
(e) The fact that a party had indicated its
willingness to accept a proposal for a
settlement made by the mediator;
(f) A document prepared solely for
purposes of the mediation.
2. Paragraph 1 shall apply irrespective of
the form of the information or evidence
referred to therein.
3. The disclosure of the information
referred to in paragraph 1 shall not be
ordered by a court or other judicial
authority in civil judicial proceedings and,
if such information is offered as evidence
in contravention of paragraph 1, that
evidence shall be treated as inadmissible.
Nevertheless, such information may be
disclosed or admitted in evidence;
(a) to the extent required for the purposes
of implementation or enforcement of a
settlement agreement reached as a direct
PR\629291EN.doc 17/23 PE 374.428v02-00
EN
result of the mediation,
(b) for overriding considerations of public
policy, in particular when required to
ensure the protection of children or to
prevent harm to the physical or
psychological integrity of a person, or
(c) if the mediator and the parties agree
thereto.
4. The provisions of paragraphs 1, 2 and 3
shall apply whether or not the judicial
proceedings relate to the dispute that is or
was the subject matter of the mediation.
5. Subject to paragraph 1, evidence that is
otherwise admissible in judicial
proceedings does not become inadmissible
as a consequence of having been used in
a mediation.
Justification
This provision is replaced by the new Article 6a on confidentiality.
Amendment 23
Article 6a (new)
Article 6a
Confidentiality of mediation
1. Given that mediation is intended to take
place in a manner which respects
confidentiality and legal privilege,
Member States shall ensure that, unless
the parties agree otherwise, neither
mediators nor parties nor those involved
in the administration of the mediation
process are entitled or compelled to
disclose to third parties or to give evidence
in civil and commercial judicial
proceedings or arbitration regarding
information arising out of or in
connection with a mediation except:
(a) for overriding considerations of public
policy or other substantial reasons, in
PE 374.428v02-00 18/23 PR\629291EN.doc
EN
particular when required to ensure the
protection of the best interests of children
or to prevent harm to the physical or
mental integrity of a person; or
(b) where disclosure is necessary to
implement or enforce the agreement
resulting from mediation.
2. Nothing in the preceding paragraph
prevents Member States from enacting
stricter measures to protect confidentiality
of mediation.
Justification
This amendment introduces minimum rules on confidentiality. It is designed, on the one hand,
to take account of the fact that in common-law jurisdictions confidentiality is a question of
legal privilege. On the other, there is little point in providing that parties cannot be compelled
to make disclosure or give evidence if they have the right to do so.
Amendment 24
Article 7, paragraph 1
1. The running of any period of
prescription or limitation regarding the
claim that is the subject matter of the
mediation shall be suspended as of when,
after the dispute has arisen:
1. To ensure that parties who choose
mediation to try to resolve a dispute are
not prevented from subsequently initiating
judicial proceedings in relation to that
dispute by the expiry of periods of
limitation or prescription, Member States
shall ensure that any such period does not
expire between:
(a) the parties agree to use mediation, (a) the date when the parties agree in
writing, after the dispute has arisen, to
use mediation or, in the absence of such
written agreement, the date on which they
attend the first mediation meeting, or the
date on which an obligation to use
mediation arises under national law; and
(b) the use of mediation is ordered by a
court, or
(b) the date of a settlement agreement, the
date on which at least one of the parties
informs the others in writing that
mediation is terminated or, in the absence
of such written notification, the date on
which the mediator declares on his or her
own initiative or at the request of at least
one of the parties that mediation is
PR\629291EN.doc 19/23 PE 374.428v02-00
EN
terminated.
(c) an obligation to use mediation arises
under the national law of a Member State.
Justification
It is considered that this formulation is clearer than the original Commission proposal.
Amendment 25
Article 7, paragraph 2
2. Where the mediation has ended without
a settlement agreement, the period
resumes running from the time the
mediation ended without a settlement
agreement, counting from the date when
one or both of the parties or the mediator
declares that the mediation is terminated
or effectively withdraws from it. The
period shall in any event extend for at
least one month from the date when it
resumes running, except when it concerns
a period within which an action must be
brought to prevent that a provisional or
similar measure ceases to have effect or is
revoked.
2. Paragraph 1 shall be without prejudice
to provisions on periods of limitation or
prescription in international agreements
to which Member States are parties which
are not compatible with this Article.
Justification
It is considered that it is necessary to tale account of international agreements.
Amendment 26
Article 7, paragraph 2 a (new)
2a. This Article shall apply where a claim
arising from a matter or matters in
connection with which a mediation
procedure to which this Directive applies
is sought to be pursued in a civil or
commercial action in a court or tribunal
situated in a Member State other than that
in which
(i) the mediation in question took place,
PE 374.428v02-00 20/23 PR\629291EN.doc
EN
or
(ii) at least one of the parties to the
mediation, or the mediator, was, at the
time of the commencement of the
mediation, habitually resident or
domiciled.
Justification
This amendment is designed to limit the provision on limitation/prescription to cross-border
cases with a view to reaching a compromise with the Council.
The rapporteur is conscious that the situation with regard to prescription and limitation
periods in cross-border cases is already very complicated on account of the absence of
harmonisation at Community level and the fact that some Member States categorise the
relevant rules as substantive and determine them in accordance with the applicable law
whereas others qualify them as procedural and apply the lex fori. However, this could be the
basis for a compromise if, for instance, the Council were to mandate the Commission to take
up the question of limitation periods in cross-border cases and how their treatment under
private international law affects the proper functioning of the internal market, and to make
suitable proposals.
In any event, the rapporteur trusts that the Member States will adopt this provision also for
domestic cases.
Amendment 27
Article 7 a (new)
Article 7a
Information for citizens
(1) Member States shall ensure that
information is available to citizens, in
particular on Internet sites, on how to
contact accredited mediation providers
and mediators, in particular those
adhering to the European Code of
Conduct for Mediators.
(2) Member States shall encourage legal
practitioners to inform their clients about
the possibility of mediation.
Justification
This amendment is calculated to ensure that the public is informed about how to obtain
access to accredited mediators and that lawyers should inform their clients about the
PR\629291EN.doc 21/23 PE 374.428v02-00
EN
possibility of mediation.
Amendment 28
Article 7 b (new)
Article 7b
The European Code of Conduct for
Mediators
The Commission shall publish the
European Code of Conduct for Mediators
in the C Series of the Official Journal of
the European Union as a notice without
legal effects.
Justification
Whereas it is not the intention to attach any legal effects to the European Code of Conduct for
Mediators, it is considered important to publicise it and make it readily accessible.
Amendment 29
Article 9, paragraph 1
1. Member States shall bring into force the
laws, regulations and administrative
provisions necessary to comply with this
Directive by 1 September 2007 at the
latest. They shall forthwith inform the
Commission thereof.
1. Member States shall bring into force the
laws, regulations and administrative
provisions necessary to comply with this
Directive by 1 September 2008 at the
latest, with the exception of Article 8, for
which the date of compliance shall be 1
September 2009. They shall forthwith
inform the Commission thereof.
PE 374.428v02-00 22/23 PR\629291EN.doc
EN
EXPLANATORY STATEMENT
The rapporteur has always been convinced about the value and interest of alternative dispute
resolution, in particular mediation. It affords a cheaper, quicker and less stressful alternative
to court proceedings for citizens, without removing their right to their day in court as a last
resort. It may also allow parties in dispute to remain in, or even improve, a valuable
relationship, which the adversarial nature of litigation might jeopardise. It also allows for
creative solutions which satisfy parties' real needs. For instance, in medical negligence cases,
the injured party often wants an explanation and an apology just as much as he or she seeks
compensation. The very nature of litigation is apt to frustrate those needs.
However, the rapporteur initially questioned the need for a directive at a time when mediation
systems across the EU are still in an embryonic phase in some Member States. Moreover, in
order to be effective, mediation must be flexible. Any attempt to "regulate" mediation could
stifle its development. However, as a result of her on-line consultation and the evidence
presented by the experts invited to the committee's hearing, the rapporteur recognises that
there is overwhelming support for the principle of having a directive. She notes that even
those experts who were sceptical about the directive or critical of its legal basis were
enthusiastic about mediation as an alternative means of providing access to justice. Her
objective therefore has been to create a workable, light-touch directive, which reflects existing
guidelines and best practice and can serve to encourage the wider use of mediation across the
EU. She would take this opportunity to thank the experts who took part in their hearing for
their willingness to provide drafting suggestions after the hearing, some of which she has
drawn upon in drafting the report.
In the amendments, the rapporteur has sought to clarify and improve on the original proposal,
in particular by modifying the definitions of mediator and mediation. She is particularly
concerned to ensure that quality standards are ensured, especially by including references to
the European Code of Conduct for Mediators. She has amended the provisions on recognition
and enforcement to make sure that they are legally watertight and respect the legal traditions
of the various Member States. As far as confidentiality is concerned, the solution proposed
offers a workable way of dealing with this question which affords Member States the latitude
to adopt stricter rules if they consider this to be desirable.
As far as the question of legal basis is concerned, it would appear that a majority of Member
States in the Council take the view that the proposed directive should be limited to crossborder
cases on the ground that, under Article 65 of the EC Treaty, measures "eliminating
obstacles to the good functioning of civil proceedings, if necessary by promoting the
compatibility of the rules on civil procedure applicable in the Member States" have to have
"cross-border implications" and to be taken in so far as they are "necessary for the proper
functioning of the internal market". The compromise which the rapporteur has put forward is
designed to take into account Member States concerns' about the application of Article 65,
while giving consumers and citizens in the internal market practical and user-friendly options
to have access to a high standard of mediation across the EU. It is hoped that the Council will
take a commonsense view of the benefits of mediation and that the directive can also be
applied to domestic cases in Member States.
PR\629291EN.doc 23/23 PE 374.428v02-00
EN
Rather than opting for a general definition of cross-border cases (a solution which has been
adopted in other instruments, such as the instrument on the order for payment), which would
cause difficulties in practice, the rapporteur proposes merely to limit the provisions on
limitation periods to cross-border cases, on the ground that those provisions are the only ones
which will impact in any substantial way on national legal systems.
For the rest, it is self-evident that the provisions on recognition and enforcement apply only to
cross-border cases and it would be absurd to have special definitions of "mediation" and
"mediator" solely for such cases. Equally, it would serve no useful purpose to have special
rules limited to cross-border cases on referral to mediation or quality assurance.
Lastly, the rapporteur commends this initiative insofar as it will serve to publicise and
promote mediation as an alternative means of access to justice and afford a framework of
common rules which are sufficiently robust to protect the parties' interests, yet light enough to
allow market-driven solutions to emerge.
Previous 