FAMILY MEDIATION LEGAL FRAMEWORK IN THE EUROPEAN UNION: THE IMPLEMENTATION OF THE MEDIATION DIRECTIVE IN THE EU

Klodiana Rafti¹, Fleura Shkembi^2
1PhD Candidate., European University of Tirana, Albania, klodiana.rafti@uet.edu.al
²Dr., European University of Tirana, Albania

Abstract

Family mediation is proposed as an alternative approach to conflict resolution, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. The purpose of this study is to generate significant data regarding family mediation legal framework in the European Union, and also to provide a different perspective on how family mediation is regulated by the EU. Accordingly, regarding to the extent and content of the Mediation Directive, this study reflects the fact that mediation is still in the process of development in the EU, and Member States have different regulatory approaches to it. Therefore, some articles of the Mediation Directive impose specific rules that Member States must reflect in their national legislation, while other articles are more vague and flexible and provide general rules by leaving it to the Member States the extent of the implementation of such rules. On the one hand, following the debate in the EU, this study tries to shed some light on the importance of the Mediation Directive, which its objective is “to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings,” within the mediation process. On the other hand, it aims to analyze the fact that although the implementation of the Mediation Directive by the Member States has increased the use of mediation in general, it has still failed to achieve its main objective. For example, in one study, the respondents proposed a number of legislative and non-legislative measures that would be effective in increasing the use of mediation in the appurtenant Member States. Therefore, this study tries to obtain important data regarding the experience gained from transposing the Mediation Directive into national legal orders, and also to identify reasons why mediation is not used more frequently for both internal and cross- border disputes. In terms of legislative measures, the participants proposed the mandatory mediation in certain cases, the requirement of mandatory mediation information sessions before litigation, and the imposement of sanctions for parties’ refusals to attend mandatory mediation. Whereas in terms of non-legislative measures, the respondents proposed the establishment of a mediation advocacy education program for law schools, the development and implementation of pilot projects, and the creation of a uniform certification of mediators at the EU level. As it can be seen, the key word is mandatory and, indeed, the Study seems to support the adoption of a stronger model of mandatory mediation that would require the parties to mediate before they can approach the litigation process. As a conclusion, these measures show once again that in order for mediation to increase, a better regulation is needed. Although the above non-legislative initiates are not compulsory per se, they, at the very least, involve a more serious engagement of the disputing parties with the mediation process. 

Keywords: family mediation, mandatory, implementation, EU, mediation directive