The benefits of mediation have been widely advertised for the fast, cost-efficient and practical solutions that allow parties to retain their humane side amidst conflict. Its application has been “prescribed” further as the medicine for improving access to and efficiency of justice that contributes to massive budgetary savings. Despite constant efforts to promote this amicable dispute resolution method and the ever-growing support of governments, public institutions and other organizations, it appears that this process is not yet widespread enough, as it still lacks the confidence of the disputants to opt for it in case of a conflict. As a direct consequence of the adversarial culture we are entrenched in litigation is still deemed as the most appropriate way to resolve conflicts. It really seems that, “the litigious mindset of many seasoned lawyers” is not confined to a specific jurisdiction, but is predominant, thus hindering the better and faster progress towards bringing mediation to the center stage.
Therefore, we’ve been asking ourselves what’s wrong with mediation and how to solve the mediation paradox in which Europe seems has been stalled for quite a long time now? This topic is of concern to a huge number of mediation experts, scholars, and practitioners, as many of them enthusiastically accepted the invitation to re-open the debate on it in an international scientific conference “Overcoming the Mediation Paradox: Ideas, Challenges, Good Practice” on November 2023, hosted by Mykolas Romeris University in Vilnius, Lithuania. More than 150 scientists and practitioners from 20+ countries gathered to share the experience gained trying to adopt mediation, to brainstorm and dissect the mediation paradox and channel some ideas on how transformation can take place. The underlying concept of the conference was that new approaches towards the creation of self-perpetuating mediation ecosystems should be based on statutory regulations.
A keynote speaker Prof. Giuseppe de Palo has reminded of his previous insights that “A False Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma” that he’s discovered a decade ago. Indeed, it has been reaffirmed many times that purely voluntary mediation models are not functioning well and fail to ensure achieving balanced relationship between mediation and judicial proceedings whilst resulting with the loss of billions of Euros annually if not mediating enough. Mediation needs expediently to be nudged back to life through additional regulatory measures such as a requirement for a serious attempt to engage into mediation rather than offering merely informative sessions on the benefits of mediation.
Mediation is at a pivotal point in its development when additional measures are required to adjust the entire system and transform it into a fully functional mediation setting. As keynote speaker Prof. Dr. Nadja Alexander put it: “It is precisely in this flexibility of the adopted measures the art of regulating mediation lies”. Thus, all legislative and professional efforts should be channeled to create a holistic mediation eco-system that includes a comprehensive legal framework, high-quality and accessible mediation infrastructure and services, mediation-friendly courts and the broader eco-system of international dispute resolution.
But is the mediation paradox really a negative sign? Aren’t all problems simply unexploited opportunities, as mediators often preach? It is just a matter of putting the right focus and resources into the right direction on time. Dr. Rimantas Simaitis offered an alternative perspective on whether we should overcome the mediation paradox or keep it as part of the eco-system that propels its excellence? It is now evident that simply telling governments to promote mediation is not enough. Hence, legislators should be urged to undertake more measures and regulate the process more effectively to mainstream disputes to mediation using for example CEPEJ mediation development methodology based on the Tripple A principle, i.e., Availability, Accessibility and Awareness.
Fortunately, the situation is not as hopeless as it might seem at first sight. The experience of representatives from different EU Member States and some of the empirical evidence presented in the second part of the conference revealed that even with the lack of statistics on the actual number of mediations, the trend towards employing coercive measures to promote mediation has been gaining momentum recently. The results of a recent study, presented by Indrė Korsakovienė, revealed, that 20 of 27 EU Member States have adopted at least one mandatory mediation model for family cases and some countries have done this even without realizing that they have introduced mandatory mediation scheme. Even though Dr. Elena Koltsaki compared the long journey of mediation’s development in Greece to an Odyssey aimed to reach the blissful Ithaca, this does not deter other EU countries to use mandatory mediation as a measure to foster its wider usage. The development of the mediation legislation in Bulgaria, Slovakia and Austria only confirms the presumption that without some form of compulsory the truly functioning mediation setting cannot exist.
The term “mandatory mediation” was uttered repeatedly during the conference and the experience of EU countries that have succeeded in adopting it proves that it helps to break the staleness of mediation and provides at least partial statistical data to prove it. However, if we return to the provisions of the Mediation Directive, it reminds us that also other procedural incentives and sanctions to promote this method may be applied.
Panel discussions on whether a new, harmonized approach to EU policy on solving family conflicts is needed concluded that Europe needs more clarity on how to handle a family cases from country to country in a way that allows for extended collaboration and implementation of holistic approaches. The other panel discussion “If not mandatory mediation, then what?” identified various measures to increase the use of mediation. The need to raise awareness of mediation among the public and lawyers was emphasized as a way to build more confidence towards this process. Avoiding a prolonged mediation paradox for the future also requires enhancing the conflict resolution skills of future generations by integrating dispute resolution topics into school and university syllabuses. The experience of many EU Member States confirms that the right balance of procedural incentives and sanctions motivates disputants to engage in mediation no less than mandatory mediation. This underlines the need to foster inter-institutional cooperation by seeking opportunities to offer additional financial incentives, tax credits and other forms for reducing litigation costs. All of the above should be coupled with the establishment of a robust mediation legal framework that encourages parties good faith participation, driven by the desire to find practical solutions.
One can hope that the renewed debate will inspire conference participants to reassess the sustainability of the existing national mediation eco-systems in order to improve them. While doing so though we are facing the next big challenge that technological innovations bring. Graham Ross raised the ideas that AI should be an aid to the mediators, but its application can go wrong in terrible ways, therefore, it should be applied with the necessary degree of care. Indeed, how much technology can mediation afford? Attempts to provoke AI by testing its capacity to mediate have been repeatedly conducted. According to Petros Zourdoumis at least for now, mediators can relax as they won’t be replaced by machines very soon. AI holds limited capacity to offer empathy, handle emotions, and understand the complexity of human relations. And this is perhaps the timeliest point to return to the true essence of mediation, as Prof. Dr. Mary Lou Bryant Frank reminded the audience of the good old truth that the value of empathy, listening techniques and emotional connections are the real factors that contribute to a success in mediation. Emphasizing these values as the cornerstones of mediation certainly can contribute to promoting mediation no less than creating a sustainable mediation eco-system.
In conclusion, once we have planted a mediation seed, we should not expect that it will flourish and blossom without fertilizing the ground or watering it. On the contrary, we must consolidate our efforts to develop a more sustainable mediation framework at national and international level by improving the existing eco-systems. One way to achieve this is by introducing new or improving existing models of mandatory mediation. But this is certainly not the only choice. The second, still underutilized approach, is to supplement the previous move with carefully considered other procedural incentives and sanctions to promote mediation. Finally, we should not expect that the existing mediation paradox is the only challenge to be overcome. The actions should be concentrated at least on two more axes. Firstly, towards the education of a young generation and future lawyers, focusing more on developing their conflict management skills. Secondly, by exploring how mediators will cope with the challenges emerging with the development of the artificial intelligence. Nobody can guess what the day after tomorrow will bring for the mediators. Let’s get ready for further adventures.
Conference video records and other materials are available here.
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