Directive 2008/52/EC established a common minimum framework for civil and commercial mediation with cross-border elements in the EU. Its aim is to ensure that the parties may turn to an alternative dispute resolution mechanism with effects recognised across the internal market, without the mediation prejudicing their subsequent access to the courts.
When mediation fits in a partition
Partitions usually have a strong emotional component (inheritances, divorces) which makes them especially suited to collaborative solutions. Mediation works well when the parties retain an interest in preserving the relationship, when assets carry symbolic value beyond the economic, or when the cost of litigation is disproportionate to the value in dispute.
Guarantees offered by the Directive
- Confidentiality: the mediator and the parties cannot be compelled to provide as evidence what was said in mediation, save for limited exceptions.
- Suspension of limitation: starting mediation suspends the time limits to avoid procedural prejudice to those attempting to settle out of court.
- Enforceability of the agreement: the agreement reached can be made enforceable in any Member State through the available mechanisms.
Combining mediation and technical traceability
A well-conducted mediation on the inventory and preferences usually leads to an adjudication agreement that, technically, still benefits from the traceability tools: audited inventory, capture of preferences and, if the distribution is finally mechanised, verifiable lottery. Mediation resolves the 'what' and the platform documents the 'how'.
Reasonable limits
Mediation does not replace the judge in matters of public policy, capacity or protection of minors and incapable persons, where judicial intervention is indispensable. Nor is it effective when one party lacks sufficient information or there is a structural imbalance; in such cases, prior legal assistance is essential for the mediation to be legitimate.