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Nr. 1 Registro organismi di mediazione Ministero della Giustizia
18 marzo 2014
Voluntary vs. Mandatory Mediation

A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: on Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy

di Giuseppe De Palo
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The recent publicationLa pubblicazione dello studio del Parlamento europeo “Rebooting the Mediation Directive” ha stimolato un dibattito internazionale molto seguito, ospitato negli Stati Uniti da Mediate.com, uno dei siti più seguiti al mondo nel campo dell’ADR. MondoADR ripubblica la risposta di Giuseppe De Palo a uno dei primi commenti allo studio di Strasburgo sulla mediazione.

The recent publication of a study conducted for the European Parliament on Mediation [i]  has contributed to the ongoing international debate about effective mediation policy. [ii] I am the coordinator of that 230+ page study, whose results were based on 816 questionnaires completed by respondents coming from the 28 member states of the EU and the majority views reflected in those responses.

The Rebooting study determined, in essence, that mediation in the EU is still the “Sleeping Beauty” I first heard about when I decided to enter into this field exactly 20 years ago, after shadowing a mediation at JAMS in San Francisco.  Indeed, in light of many decades of stagnation, and despite the generous injection of enthusiasm and repeated efforts to revive her, the consensus seems to be that our princess is, unfortunately, more than just asleep. The Rebooting study ultimately concluded that unless “elements of mandatory mediation” are introduced by law, Sleeping Beauty will not wake up, ever, at least on the European side of the Atlantic Ocean.

In a thought-provoking article authored for Mediate.com, ’What Went Wrong With Mediation’, my long-time friend and esteemed colleague Adi Gavrila discussed, amongst other things, the methodology, findings, and recommendations of the European study. In this little article, I would like to correct Adi’s errors on some material aspects of the study and, using his comments about the study, address other arguments he makes. My discussion, I hope, will explain the title for my article, which I devote to all those who – in my view – are placing their hopes on a false Prince Charming.

Adi is correct in pointing out that the number of cases being mediated remains disappointing, both in the US and the EU. The very low number of mediations taking place was the very reason the European Parliament commissioned the Rebooting study in the first place. However, in my view Adi is not correct in identifying the four major areas that cause the “EU Mediation Paradox” [iii] he refers to. Let’s take these four areas into consideration one by one. While I will refer specifically to the EU, I presume that these considerations are in good part applicable to other jurisdictions.

1. Policies. ‘What Went Wrong’ is correct that promoting mediation solely by endorsing it as an alternative to overcrowded courts and expensive lawsuits is the wrong approach. Certainly though, mediation has been proven, over and over again, to save time and money (the Rebooting study, for example, showed that close to 20 billion euro per year could be saved in the EU if mediation were used all the time, even with only a 50% success rate.) What, then, should legislators do, especially at a time of economic downturn?  However, the article’s contention that “introducing mediation as a way to ease the load of courts has backfired” seems unproven, especially if one considers the following: systems where lots of mediations take place (normally because of “mandatory elements” in the regulatory framework) see no increase in problems, or are even seeing improvement, while in systems where mediations are not happening people continually debate whether, and if so how, stronger incentives, or mandatory elements, should be introduced.

In addition to that, while easing the strain on overcrowded and overburdened courts is clearly one of many valid reasons to promote mediation, it is not, and has never been, the only reason provided or recognized. The readers of Mediate.com need not be told, by me or anyone else, about the many individual and societal benefits an increased use of mediations would bring. Still, if the issue here is one of “marketing”, as the articles points out, one should promote the message that is the most likely to prompt politicians to act, given the lack of spontaneous embrace of mediation by its users.

But the argument I find most unconvincing is that “simply increasing the number of judges to deal with the extra load” would be the best policy to address the litigants’ concerns. My colleague here seems to overlook that, as an economist would put it, “justice is a superior good”, ie, something that the richer a society gets, the more it demands. From this point of view, an increase in the number of disputes signals that a given society is richer. More disputes are thus a good sign – I repeat – from that point of view.  And even if one were to add more judges (assuming, that is, that the economy was the opposite of what it is nowadays), very likely there would continue to be even more disputes. An analogy I find useful to explain this concept comes from traffic. Increased traffic is a drag, but it normally means increasing business.  The issue, then, is not to hope that there would be fewer cars on the street (or, fewer people litigating), but to govern traffic, incentivizing certain avenues and de-incentivizing others, at least on an experimental basis. If one just adds more streets or parking spaces, more cars will hit the road.

Adi Gavrila goes on to note “that satisfaction with mediation is not consistently greater when compared to satisfaction with courts.” Although this might hold true with parties at the beginning of the court process, most people ultimately come to regret, at times profoundly, their day in court. Indeed, I do not think it was a self-interested mediator, or a lawyer, who first said “a bad settlement is better than a good trial” or, going way back to Latin, “summum ius, summa iniuria”.  I am positive that saying this first or more often are the litigants themselves, and often both winner and loser in court.

I also disagree with Adi where, in reference to the Rebooting study, he states that supporters of mandatory mediation are self-interested mediators themselves. First of all, a large number of study respondents were not mediators. Second, several respondents were against mandatory mediation. Third, those who favored it pointed out the potential push-back mandatory mediation could confront. Fourth, and most importantly, the EU study does not support mandatory mediation. Rather, the study maintains that “mandatory elements” are necessary for the success of mediation in the EU and, notably, that the best system (both in terms of actual performance and support expressed by the respondents) is one of mandatory mediation with the possibility of an unrestrained (and cheap) opt-out at the first meeting with the mediator[iv].  In short, the study suggested a “smarter” form of the increasingly common mandatory mediation information meetings. Such information meetings, based on an “opt-in” model to participate in mediation, are simply proving to be of little effectiveness. Strikingly, this model, not promoted by the study, is used in Adi’s own country (don’t forget, we are not just good friends, but mediators, too; hence, I of course reached out to him before publishing this article, to learn more about ’What Went Wrong … With Him and His Country’s Mediation Law’!)

Adi goes on to say that “mandatory mediation is a sort of oxymoron – nobody can force people to negotiate.”  Here my disagreement with him is greater, as a matter of both law and practice. First, laws requiring litigants to exhaust pre-litigation processes have existed in the US for over 100 years, and passed Supreme Court scrutiny (if I remember correctly, the US leading case is Capital Traction, of 1899). The European Court of Justice, too, held in its “Alassini” case [v] that mandatory mediation is consistent with EU law so long as it serves a general purpose and does not make access to the judicial system too burdensome.  Second, as a matter of practice, what is a heavier and more legally intolerable obligation to negotiate: being “forced” by law to sit down and talk with a mediator (with the possibility of opting out at little or no cost), or being “de facto” obliged to settle right way to avoid spending a fortune in legal fees, and waiting for years, as happens in countries where fewer than 5% of the civil disputes get to trial? Third, and most fundamentally, requiring people to think about the possible benefits of negotiating is different from requiring them to negotiate.

I would add a note here about an epiphenomenon of mandatory mediation demonstrated in my home country of Italy. As some people know, mediation has quite a history here. After decades of negligible annual numbers of mediations, the switch turned ON in 2011, when mandatory mediation came into force for certain civil actions. From virtually one day to the next, mediations increased to over two hundred thousand annually. At the end of 2012, though, the switch turned OFF, overnight, when the Italian Constitutional Court ruled that the legislative process that had introduced mandatory mediation was faulty. (In other words, the Court did not address the issue of the constitutionality ‘per se’ of mandatory mediation – it only ruled that mandatory mediation should have been introduced with a parliamentary act, not the governmental regulation that was used.)  The switch went back ON when the mandatory requirement was re-installed, this time with parliamentary approval, in September 2013.  The most interesting bit is this: 20% of the 200,000+ mediations initiated before the Italian Court quashed the mandatory mediation requirement were voluntary. Right after that decision, ALL kinds of mediations stopped. And now, with the return of mandatory mediation, BOTH voluntary and mandatory mediations are being started again at a very high rate. In short, at least in Italy, requiring mediation for some cases tends to promote voluntary use of mediation for others.

Going back to ‘What Went Wrong’, my colleague argues there that policymakers and mediators are conspiring: they “have made an unholy alliance to force people into using a service they haven’t particularly liked or found useful.” I have no evidence of this plot, but certainly that is not the mediation model the Rebooting study recommends: if parties do not find mediation useful, or they do not like it for whatever reason, they are free to opt-out and seek recourse through the court system. But at least they have to give the process serious consideration by just showing up. Is that too much to ask of citizens who do not want to pay extra taxes and, at the same time, want access to a better dispute resolution system?

About lawyers being reluctant to use mediation on a grand scale, I only partially agree with Adi. That is, there is resistance by lawyers to elements of mandatory mediation, especially in the beginning; however, given time, many lawyers have become the greatest supporters even of “very mandatory” (ie, without easy opt-out) forms of mediation. Argentina, is one example. Italy, another.  Let me be clear on this, at least about my own country. There are still opponents to the current model of mandatory mediation with easy opt-out, but the majority of lawyers are now in favor, and they actually began creating the busiest mediation centers when “very mandatory mediation” was the law. Lawyers are still almost exclusively trained in the adversarial model, and there is certainly an “adversarial self-selection” factor in those choosing law school in the first place.  So resistance, even strong resistance, by the legal profession should be neither a surprise, nor a reason to be fearful of advocating for a better model.

Having spoken with Adi at various international conferences about this very aspect, I am a bit puzzled when his article seems to suggest that I would be satisfied by the large number of mediations, as if settlement rate and, even more, user satisfaction would not count. But I guess we mediators experience every day, perhaps more than anyone else, the difference between written and oral communication. Anyway, even aside from the discussion as to what really is a “failed mediation”, amongst others I would like to remind us all of the Australian experience. There, mandatory and voluntary models co-exist and the success and user satisfaction rates are comparable. What is not comparable (guess what) is the sheer number of mediations in the two models, within the same country.

I have been using the seat belt or helmet law example for quite some time now, to explain why it is naïve – in my view – to keep on blaming the “lack of culture” for the limited use of mediation. Based on the definition of justice as a superior good, which I alluded to above, and on the well-known “fight or flight” animal response to an attack, I argue that the human being’s initial, natural response to a legal conflict (or the threat of it) is not mediation, but litigation–despite the fact that, overall, the better approach, at least in the vast majority of the cases, is an amicable process. My point is the following: people know that wearing a seat belt or a helmet is good for them (and society); still, we have laws compelling that behavior.  A “culture of safe driving” alone won’t do it.

Similarly, human beings suffer from well documented biases (“optimistic overconfidence” comes quickly to mind) that would lead the majority of them not to insure their vehicles, even if that is an economically irrational choice, both for the individual and the society. Well, Adi says that my analogy compares things that are not comparable, because people have the choice to litigate or not, but not that of buying insurance (or wearing a helmet on motorbike) or not. I think it is plain that people do have a clear choice in both cases, and it is actually very similar: taking the risk of losing in court, or that of being caught and fined by the police.

In my view, ‘What Went Wrong’ takes at times the … wrong perspective. Just as the article focuses on the problem of mandatory mediation encountering initial opposition, and not on what happens later, it also considers the individual case when it states that there are no advantages to mediation over litigation, and not at the big (policy) picture. Of course, if a person faces litigation once in a lifetime, is obliged to mediate first, and the mediation “fails” (once again, depending on what that really means), that person might be unhappy with mandatory mediation. Policy, however, is not about one individual, but the majority of people. To explain this, to the author of ‘What Went Wrong’ and those still sitting tiredly on the old adage “you can lead a horse to the river, but you cannot make it drink” (ie, you can force people to enter the mediation room, but not to settle), please allow me to resort to the example I used presenting the Rebooting study before the European Parliament: “lead millions of horses (ie, all your civil disputes, or categories of them) to the river, calculate the benefits resulting from those that drink and the losses from those that did not, and then decide what’s best for the majority”. And don’t forget, at least in the Rebooting study recommendation, all horses are free to turn away (‘opt out’) once they are at the river!

I would add another piece on the Rebooting study, which is the recommendation on experimenting with “mitigated mandatory mediation” (the study’s phrase for “mandatory mediation with an easy opt-out system”) by not introducing it full scale right way. This approach is already being used in diverse locations. The Italian law I have mentioned foresees only a 4 year trial (with a pit stop after two years). Most interestingly, I understand that a similar trial, though of 18 months only, is taking place at this time in the Manhattan Commercial Court of New York State.

2. Marketing mediation. Adi’s second argument is that mediation is not being used enough because mediators have failed to market it correctly. He states that “as taxpayers in a democratic society, [it] is [the parties’] right to unrestrained access to justice.” I disagree on two counts. First, access to justice is not unrestrained, nor is it fully sustained by the litigants’ own money as is claimed. In Adi’s country Romania, for instance, according to the 2014 CEPEJ report [vi], the state only receives 13% of court costs from litigants. The remaining 87% of the costs are born by those who do not litigate. When the EU is looked at as a whole, the average amount received from litigants does increase, but to cover only 30% of the costs. Would Romanian citizens prefer an increase of about 800% of the court fees, so as to pay in full for the service they get, or would they rather try a (smart) form of mitigated mandatory mediation? In addition to that, would Romanian lawyers be more opposed to this particular form of mediation, or to almost tripling the current court fees, so as to reach the EU average?

My colleague goes on to state that “promoting mediation as cost-effective is also risky,” and that the mediation approach relegates disputes to an inferior quality process and fails to understand the importance of a dispute for parties. But for those parties concerned that mediation is of an inferior quality, the opt-out approach preserves their concerns and allows them to “opt-out” of mediation and seek resolution via the court system.

Adi next states “that, if people really want something, they are ready to pay the price for that.” The very high premium, over actual production costs, that consumers pay for certain consumer products is his example. This statement seems to assume, with “neoclassical economics’, that human beings are perfectly rational resource “optimizers”. Behavioral economics first, and neuroscience more recently, have shown us that this isn’t the case at all. Translated into the field of mediation, if people don’t really want mediation and they were in fact perfectly rational, as Adi assumes, why would people “forced” to mediate settle one out of 2 cases (as it is the case in Italy today)? Or why in the US would otherwise similar foreclosure mediations programs register 25% take-up, when the system is “opt-in”, and over 70% when it is opt-out?  And please, let’s stop with phrases such as forcing “mediation down the throats of users.” Limited or free opt-out always exists, where mediation is mandatory at some level; moreover, although mediation or mediation consideration might be mandatory, the outcome is always voluntary.

3. and 4. Mediators’ behavior and practice, and mediation regulation. According to ‘What Went Wrong’, there is no universal definition of mediation, and this is why the process is not embraced widely, because promoting a trade lacking a very definition is nonsensical. I am not convinced by this statement for three reasons. First, many fields and professions lack a universally accepted definition or standard, but that does not seem to affect their credibility. Second, does a universal definition even matter as long as mediators are solving problems and resolving disputes? Third, at least the Rebooting study seem to indicate the contrary; indeed, the view of the majority of the study respondents, asked about the usefulness (on a scale of five, from very negative to very positive) of a number of measures to promote mediation in the EU, listed a standard certification of mediators as the very last one.

Mediation has fallen short of expectations in the EU and the US, and in that much Adi and I agree. I know this is a strong criticism of his article, but I have tried to explain here the reasons why, and I have conveyed them to him first. Consequently, also strong is my answer to the question of ‘What Went Wrong’. I believe that is the mediators who (rightly) claim that the “mediation romance” is over, but, jaded by the failure of their romantic vision, end up (wrongly) keeping the princess in the coma, rather than waking her. They are unwilling, or incapable, to accept reality that efforts such as the EU Rebooting study, and others before, have been presenting for a number of decades now: the voluntary approach is a false Prince Charming, as far as dispute resolution policy is concerned. People are not enchanted by the vision of mediation, and the princess must be awoken by other, real-world means. Smart forms of mandatory mediation—a more flexible approach than most recognize—increase the number of mediations. Rejecting that reality, and wishing that a more idealistic approach would work, is the fairy-tale, idealistic vision that has kept us in the situation we confront today for too long.

In the end, Adi himself admits that “it would be really insulting to suppose users can’t understand the obvious advantages [that] mediation brings.” If the users are not the ignorant ones, the only ones left to blame are the mediators.  But I do not think that mediators are ignorant, either. I am simply convinced that instead of hoping that a marketing guru will enlighten them (and perhaps the users, too) at the ‘Global Pound Conference [vii], the mediators should speak directly to policy makers and legislators, presenting numbers, admitting mistakes, making and asking commitments. Besides, in the true spirit of mediation’s efficiency, if marketing and mediators taking notes is all there is to make mediation happen, why not pulling together all the money needed to organize such a conference to retain–right now–the world’s foremost marketing expert for our industry?

Adi and I discussed this at length by now, and we do fully agree on something. Sleeping Beauty needs eventually her magic kiss, and the mediation world needs a tournament of all its best knights, that is, discussing new ideas, no matter how diverse. Let’s make the new Pound Conference the place where all those knights work together to wake the princess up … there will be plenty of mediators there to settle the issue of who should then marry her.

Giuseppe De Palo

PS: for those who do not have time to read the entire EU study, I am pasting below its conclusion, which I believe is also the best written part.

_____________________

[i] Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Measures to Increase the Use of Mediations in the EU– hereafter, the ‘Rebooting study’ or ‘study’.

[ii] The study can be downloaded at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf; its official presentation before the Legal Affairs Committee of the European Parliament can be watched at: http://www.youtube.com/watch?v=qvxShkxqwbY&feature=youtu.be.

[iii] This expression was coined by my colleague Leonardo D’Urso and, to my knowledge, is now common in EU circles since a presentation I did at the 2012 Fundamental Rights Conference (http://fra.europa.eu/en/event/2012/fundamental-rights-conference-2012-0#workinggroup5).

 [iv] For a discussion of the efficiency of ‘opt-out’ ADR programs in the US, see  ‘Alternative Dispute Resolution: An Empirical Analysis’, Joshua D. Rosenberg and H Jay Folberg, 46 Stanford Law Review 1538, July 1994. The article found that in an experimental federal court program over 80% of the attorneys whose cases were required to use ADR said they would select a form of ADR for use in other cases if it were available, but no attorney whose case was not assigned to ADR requested to participate on their own. Although attorneys could request to have their cases removed from the ADR track, very few opted out. According to the authors, “[T]his indicates that litigants and their attorneys often followed the path of least resistance, simply staying on the [ADR] track into which they were initially slotted regardless of their judgments about the suitability of that track for their case. What may appear to be complete freedom of choice to participate in alternative dispute resolution may actually result in no real choices being made at all.”

 [vii] The idea of a new ‘Pound Conference’ is brilliantly presented in a recent article written by Michael Leathes and Debbie Masucci. See Http://www.imimediation.org/global-pound-conference.

  Conclusion – Rebooting the Mediation Directive

 The analysis of the regulatory framework for mediation in the 28 Member States reveals significant variations in the implementation of the Mediation Directive. For example, a number of states have opted to apply the Directive solely for cross-border disputes, thereby instituting a dual regulatory regime, while others have applied the Directive provisions, to a varying degree, to domestic disputes as well.

An even greater range of implementation approaches have resulted from the countries’ efforts to achieve the delicate balance between the use of mediation and the use of litigation sought by the Directive. While Article 5 of the Directive allowed the Member States to introduce mandatory mediation elements, including sanctions, the EU tradition of a voluntary approach to mediation has largely prevailed at the legislative level. But those countries that have incorporated or considered mandatory elements have gone about it in different ways. Only one country, Italy, has mandated participation in mediation as a prerequisite to litigation in a fairly broadly defined range of disputes; another country, the UK, has tried it for disputes below a certain monetary value, but then withdrew; France is testing mandatory mediation in certain subject areas; and a number of countries have, instead, mandated attendance at informational meetings about mediation. Other countries have established financial incentives rather than mandates to encourage participation in mediation.[vii]

One area of significant and disappointing consistency, however, is the information about the use of mediation in the Member States. The study’s survey of the current market confirms that the number of mediations, on average less than 1% of all cases litigated in the EU, falls short of what it should be. This result is particularly disappointing because the survey also confirms the data contained in the 2011 ‘The Costs of Non-ADR’ study. As seen from that and several other studies, mediation can save litigants a significant amount in both time and cost, when compared to the time and cost of litigation. Based on the average estimates provided by hundreds of national experts, if all civil cases in the EU went to mediation before going to trial, a mere 9% mediation success rate would yield time savings. This is because the small incremental time increase of each (failed) mediation turning into a trial is offset many times by the huge time saving of each (successful) mediation preventing a trial.

Almost all of the 816 respondents to the study questionnaire believe that more mediations should be occurring. The study discusses their assessment of certain key features of their respective laws’ effectiveness in fostering the use of mediation. To obtain their assessments, the study asked each questionnaire respondent to rank the extent to which mediation regulation in their country promotes mediation. Each respondent chose one of three options on a spectrum going from least powerful to most powerful promotion. The purpose of this exercise was twofold. First, to provide additional views on the country analyses prepared by the study team on key aspects of each Member State’s legislation. Second, to assess the existing measures in light of their produced results, so that the possible legislative changes advocated for in certain countries, and mentioned in the study’s Terms of Reference, could be seen from that perspective.

Many answer choices revealed that existing legislative approaches do not tend to promote the use of mediation. For example, the level of confidentiality protection does not significantly affect the number of mediations. In fact, a majority of the respondents indicated that confidentiality is guaranteed with few exceptions or in all cases, even in countries where there are fewer than 500 mediations annually. Invitations to mediation by the courts, too, have normally generated very few mediations even where the judges are considered to have a very proactive approach towards mediation. Even where the domestic processes to enforce mediated settlements are deemed to be relatively easy, therefore dispelling the concern that litigants might not engage in mediation out of fear that enforcing its result might be too cumbersome, the number of mediations is low. The national mediator accreditation systems, too, do not appear to be a dispositive factor in leading the parties to mediation with the necessary confidence, as the systems are generally regarded as good enough; moreover, even where the accreditation standards are considered high there are few mediations. A number of countries providing greater incentives then others for people who choose mediation do not see many litigants resorting to this alternative to litigation; this suggests that, even assuming that important incentives could be provided at these difficult economic times, one should not expect a significant increase in mediations from incentives alone. Online mediation is still reported to be almost non-existent in most Member States, but even its availability, in certain countries, does not show any connection to frequent mediation use. In Member States where lawyers are required by law to inform their clients about mediation the number of mediations is not high for that single reason, and the same is generally true where litigants are required to attend a mediation information session before filing a lawsuit.

To sum up, all of these regulatory features, identified in the study Terms of Reference as the possible cause for the lack of the development of mediation in the EU, do not appear to be decisive factors in favouring mediation use, even where they are implemented to their maximum extent. To the contrary, there is evidence that the single regulatory feature likely to produce a significant increase in the use of mediation is the introduction of “mandatory mediation elements” in the legal systems of the Member States.

It is very significant that the sole EU country with over 200 000 mediations per year, Italy, only saw this increase (from maybe a few thousands annually) when mediation became a condition precedent to trial, in certain categories of cases. This direct connection is furthermore confirmed by what happened during the time period when mediation ceased to be mandatory there (October 2012 – September 2013): the number of mediations, both mandatory and voluntary, fell back to an extremely modest number. They only rose again, to tens of thousands per month, when the mandatory requirement was re-introduced.

Above and beyond the Italian experience, the sheer number of the study responses show that mandatory elements in mediation – something that in the recent past was by many regarded as a “taboo” – are now acceptable to the majority of people.[vii]

In defining the extent to which mandatory elements should be introduced, the plain preference of the majority of the respondents would appear to be that of requiring litigants to try mediation before filing a lawsuit, albeit in certain categories of cases only (See Figure 26 on page 152). On closer inspection of the data, however, the study shows that a ‘mitigated’ form of mandatory mediation might be more appropriate. In particular, two mitigated forms of mandatory mediation – namely, compulsory attendance at information sessions and mandatory mediation with the ability to opt-out if litigants do not intend to continue with the process – register a higher preference when assessed in combination.  The reason for assessing the scores of these two measures jointly is that they are both centred on the idea of forcing the litigants to at least sit down together to consider mediation seriously. In addition, those who opposed the general idea of mandatory elements in mediation were less resistant to their mitigated forms.[vii]

As for the choice between the two mitigated approaches, the data strongly suggest that mandatory mediation with opt out is the preferable one. In fact, countries where the other approach was adopted do not have a significant number of mediations; consequently, their national experts are advocating for stronger measures. Lastly, and perhaps most importantly, the model of mandatory mediation with opt-out has been proven to generate positive results, as evidenced by the high occurrence of mediations in Italy, where it is currently the law.

Based on the foregoing data and analysis, the study concludes that, at the legislative level, there are two possible courses of action. First, the legislators in the EU should consider requiring mandatory mediation in certain categories of cases with the ability to opt out. Second, the EU should affirm the theory of the ‘Balanced Relationship Target Number’. Under this approach, which does not require a change in legislation, each Member State, using any pro-mediation policy of its choosing, will have to determine a clear target number representing a minimum percentage of mediations to take place every year. In light of the policies that have proven to generate mediations in the EU, it is likely that all the Member States will naturally converge in choosing similar ones.

Finally, the study shows that there is enthusiastic support for a series of well-defined non-legislative measures designed to promote mediation that the EU and the Member States should consider supporting right away. All of these measures focus on both increasing mediation information and actually leading litigants to experiment with mediation. The likely impact on the actual mediation use resulting from the implementation of these measures cannot, however, be accurately estimated. Overall, the study responses convey the message that the most effective way to put mediation on the EU litigants’ map is better regulation—regulation that goes beyond simply inviting civil and commercial litigants to meet with a mediator first.

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