Introduction
Since the latter half of the twentieth century, mediation has spread across the globe as a complement to court systems, celebrated as a flexible and efficient means of resolving disputes. The modern “ADR movement” is often traced back to the United States and the 1976 Pound Conference, where Frank Sander’s “multi-door courthouse” vision placed mediation alongside litigation and arbitration as viable pathways for justice (Sander 1976). From that moment onward, mediation was exported to multiple jurisdictions, frequently presented as a cure for overburdened courts, rising litigation costs, and public dissatisfaction with justice systems.
In Europe, mediation has been adopted in both Western and Central/Eastern European (CEE) contexts, though with different trajectories and justifications. In Western Europe, mediation was often framed as part of a broader pluralization of justice options, serving to improve efficiency and user satisfaction. In CEE, where post-socialist legal systems faced challenges of inefficiency, distrust, and the pressures of EU harmonization, mediation was introduced more as a symbol of modernization than as a response to grassroots demand (Piana 2010).
This article critically examines the justifications advanced for mediation, comparing Western and CEE contexts, and asks whether the goals that policymakers attach to mediation are in fact best achieved through this mechanism. A special focus is placed on the rise of mandatory mediation, increasingly common in jurisdictions such as Italy, Greece, and Romania, where legislators have sought to force parties into mediation as a means of driving uptake. The article does not argue against mediation (or mandatory mediation) per se. Rather, it questions whether the goals used to justify mediation – efficiency, access to justice, trust, harmony, and modernization – are always well matched to the process and suggests that mediation policy in Europe should be reoriented toward more appropriate goals and carefully designed systems.
Mediation and the goal of efficiency
Efficiency – defined in terms of reducing court backlog, lowering costs, and accelerating dispute resolution – is one of the most common policy justifications for mediation. In the United States, the American Bar Association promoted mediation as a remedy for “popular dissatisfaction with the administration of justice” in the 1970s (Pound Conference Proceedings 1976). In England and Wales, the Woolf Reforms and the Civil Procedure Rules of 1999 emphasized early settlement and ADR as tools for reducing delays and expenses. In CEE, policymakers similarly presented mediation as a mechanism to unburden overburdened courts.
However, efficiency gains through mediation are not guaranteed. As Wall and Dunne (2012) note in their review of empirical studies, “mediation is not inherently faster or cheaper than adjudication, especially where parties must first attempt mediation and then return to court when settlement fails.” In some cases, mandatory mediation has created an additional procedural step, delaying final resolution rather than expediting it. Cappelletti (1993), in his seminal study of the global access-to-justice movement, argued that structural court reforms – such as simplified procedures, specialized tribunals, or small-claims courts – can often produce efficiency benefits more reliably than diversion to mediation.
The efficiency justification is therefore somewhat instrumental and, at times, misplaced. While mediation can contribute to reducing caseloads in targeted areas, it is not uniquely suited to this task, and the linkage between mediation and systemic efficiency is often overstated in policy discourse.
Mediation and access to justice
Access to justice has been another key justification. The European Union’s Mediation Directive (2008/52/EC) framed mediation as enhancing “access to justice by encouraging amicable settlement of disputes.” Several CEE countries, such as Bulgaria and Romania, explicitly presented mediation laws as measures to make justice more affordable and user-friendly.
Yet access to justice problems are not simply the result of a lack of mediation options. Hodges, Benöhr, and Creutzfeldt-Banda (2012) show that in consumer disputes across Europe, the expansion of legal aid, the creation of small-claims procedures, and the introduction of online dispute resolution (ODR) mechanisms have done more to increase effective access than mediation schemes, which remain underused. Piana (2010) similarly documents that in new EU member states, citizens often lack awareness of mediation, and lawyers remain reluctant to advise it, meaning the intended access benefits are not realized.
Moreover, mediation can sometimes be more expensive than litigation, particularly where mediator fees are not subsidized. For low-income groups, the real barrier is not adversarial procedure but cost. Thus, while mediation may expand the menu of justice options, it cannot by itself solve the access to justice problem.
Mediation and trust in justice
Trust in justice institutions is particularly salient in CEE, where post-socialist courts have struggled with inefficiency and perceptions of corruption. Mediation was therefore justified in some states as a way to rebuild public trust, offering citizens a less formal, less intimidating, and more participatory process.
Yet research suggests that institutional trust is shaped primarily by the fairness, impartiality, and integrity of judicial institutions, not by the availability of ADR (Piana, 2010). Trust in courts is more strongly correlated with perceptions of judicial independence and competence than with the presence of mediation schemes. Mediation cannot substitute for the structural reforms needed to build confidence in courts.
Indeed, there is a risk that introducing mediation without improving courts may reinforce cynicism: citizens may interpret ADR as an attempt by the state to outsource justice rather than reform its institutions. Trust-building therefore requires tackling judicial integrity and accountability, while mediation may play a supportive but not central role.
Mediation, harmony, and relationship preservation
Where mediation is most valuable is in the domain of preserving relationships. In family, workplace, and community disputes, maintaining future cooperation can be as important as resolving the immediate conflict. Mediation, with its emphasis on dialogue, confidentiality, and consensual settlement, is particularly well suited to this goal.
Moore (2014) identifies relationship protection as one of the unique contributions of mediation, noting that “the collaborative structure of mediation enables parties to craft outcomes that sustain long-term interaction.” In Slovenia, family mediation has been justified precisely on this basis, and in Poland, labor mediation is framed as reducing workplace disruption.
However, mediation is not the only process capable of promoting harmony. Restorative justice practices, ombuds mechanisms, and traditional community forums also emphasize relationship preservation, sometimes with stronger cultural legitimacy (Braithwaite 2002). Moreover, mediation can be problematic if it pressures weaker parties into compromise for the sake of “cosmetic harmony” (Abel 1982). This is particularly a risk in gendered contexts, such as family mediation where power asymmetries are acute. Safeguards and ethical frameworks are therefore essential.
Mediation, modernization, and Europeanization in CEE
In CEE, the most distinctive justification has been modernization and Europeanization. The adoption of mediation laws in Hungary (2002), Croatia (2003), Bulgaria (2004), and Romania (2006) was explicitly linked to EU accession and the need to align national justice systems with European standards. As De Palo and Trevor (2012) observe, “the Mediation Directive was a powerful driver in CEE countries, where mediation became a symbol of belonging to the European legal community.”
Yet uptake has remained low. Piana (2010) documents how Romanian and Bulgarian mediation centers struggled to attract cases, as both lawyers and citizens continued to prefer courts. Apparently, in post-Soviet contexts, mediation laws exist largely on paper, while the culture of adversarial or hierarchical dispute resolution persists. Mediation in these contexts functioned more as a symbol of modernization than as an embedded practice.
The problem of mandatory mediation
One of the most controversial developments in Europe has been the turn to mandatory mediation. Italy introduced mandatory mediation in 2010 for certain civil and commercial disputes, with parties required to attempt mediation before proceeding to court. Greece followed a similar path in 2018, and Romania briefly experimented with mandatory pre-litigation information sessions.
The term mandatory mediation is often used as a broad brush, but in reality, it describes a wide spectrum of very different policy approaches to encouraging or nudging people toward mediation. At one end of the spectrum, “mandatory” may simply mean that parties are required to attend an information session about mediation before proceeding to court, leaving the actual decision to mediate entirely voluntary. At the other end, it may involve a legal obligation to attempt mediation in full before litigation is allowed to continue. Between these poles lie numerous intermediate models: presumptive referrals by judges, financial incentives or sanctions tied to mediation participation or opt-out systems in which mediation is the default unless parties actively decline. To collapse all of these into a single category of “mandatory” risks obscuring their distinct rationales, impacts, and implications for voluntariness. Caution is therefore needed when employing the term, as its apparent simplicity hides important nuances and may lead to misleading generalizations.
The rationale for mandatory mediation is clear: voluntary uptake was low, and governments sought to force usage in order to relieve courts and comply with EU pressures. Proponents argue that mandatory mediation “nudges” parties toward settlement, generates cost savings, and normalizes ADR (De Palo & Trevor 2012).
Critics, however, point out that mandatory mediation undermines the principle of voluntariness, long considered central to the legitimacy of mediation (Boulle & Nesic 2010). It risks becoming an “extra procedural hurdle,” adding time and expense when cases return to court after failed settlement (Wall & Dunne 2012). In Italy, empirical studies showed initial resistance from lawyers, some of whom viewed mandatory mediation as an infringement on access to justice.
There is also the danger of coercion: weaker parties may feel compelled to settle simply to avoid the costs of continued litigation. As Abel (1982) argued decades ago, informal justice mechanisms can sometimes “mask inequality under the guise of consensus.” This concern is amplified when mediation is no longer a choice but an obligation.
Nevertheless, some mandatory mediation schemes have produced positive results when carefully designed. In Italy, after adjustments and greater institutional support, usage has increased in commercial cases, and settlement rates have improved (De Palo & Trevor 2012). The key issue is not mandatory mediation per se, but whether its design protects voluntariness within the process, ensures quality, and integrates mediation into a broader justice strategy.
Mediation as tool and symbol
The comparative picture suggests that mediation in Europe has served both as a tool – providing valuable services in relationship-sensitive disputes – and as a symbol – signaling modernization, EU compliance, or reformist credentials. In Western Europe, mediation has been integrated more pluralistically, as one option within a broader justice ecosystem. In CEE, it has often been promoted top-down, with symbolic rather than functional uptake.
This dual character explains both the promises and frustrations of mediation policy. Efficiency, access, and trust are systemic goals better addressed through judicial reforms, though mediation may play a supporting role. Harmony and relationship preservation are where mediation has unique strengths. Mandatory mediation raises legitimate concerns but, if carefully implemented, can serve as a pragmatic tool for embedding mediation in legal culture.
Rethinking goals and reforming mediation public policy
The adoption of mediation across Europe has often been justified through sweeping promises of efficiency, access, trust, and modernization. This article has argued that these goals are not always well matched to what mediation can realistically deliver. Many of them – particularly efficiency and access – can be more directly achieved through court reform, legal aid, or digitalization. Others – such as rebuilding trust – depend on judicial integrity more than ADR availability.
Yet this does not mean mediation should be marginalized. On the contrary, mediation has real value when its goals are properly defined and its systems carefully designed. The most appropriate goals for mediation are preserving relationships, enabling dialogue, and fostering consensual outcomes where ongoing interaction matters. In these domains, mediation offers benefits that courts and other mechanisms cannot easily replicate.
Mandatory mediation should not be dismissed outright, but its wisdom depends on careful policy design. Where it is introduced as a blunt instrument to clear dockets, it risks undermining justice. Where it is integrated into a broader reform strategy, with safeguards for voluntariness and quality, it can help normalize mediation without eroding its core values.
Looking ahead, the challenge is not whether mediation should exist, but what goals it should be tasked to serve. If mediation continues to be tied to broad systemic ambitions such as backlog reduction or modernization, it risks underperforming and disappointing policymakers. A more promising direction would be to articulate sector-specific goals where mediation’s value is clearer and its application more meaningful. For example, in family disputes, mediation could focus on reducing the long-term emotional and social costs of conflict on children. In workplace disputes, it could prioritize preserving employment relationships and fostering constructive organizational cultures. In commercial disputes, mediation could be tailored to preserving business relationships and facilitating cross-border trade. In environmental and community disputes, mediation could serve as a participatory tool for balancing competing interests and promoting sustainable decision-making.
By shifting from overly general, nation-wide ambitions to targeted, sector-specific objectives, mediation policy could move from symbolic adoption toward genuine embedding. Such a reframing would not abandon the traditional goals of efficiency and access but would ground mediation more firmly in the areas where it offers distinctive advantages. Policymakers, scholars, and practitioners should therefore rethink mediation’s goals and reform implementation policies so that mediation systems are not judged by unrealistic standards, but by their capacity to deliver value where they are most needed.
References
Abel, R. (1982). The Politics of Informal Justice. Academic Press.
Boulle, L., & Nesic, M. (2010). Mediation: Principles, Process, Practice. LexisNexis.
Braithwaite, J. (2002). Restorative Justice and Responsive Regulation. Oxford University Press.
Cappelletti, M. (1993). “Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement.” Modern Law Review, 56(3), 282–296.
De Palo, G., & Trevor, M. (2012). EU Mediation Law and Practice. Oxford University Press.
Hodges, C., Benöhr, I., & Creutzfeldt-Banda, N. (2012). Consumer ADR in Europe. Hart Publishing.
Moore, C. (2014). The Mediation Process: Practical Strategies for Resolving Conflict. 4th ed. Jossey-Bass.
Piana, D. (2010). Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice. Ashgate.
Pound Conference Proceedings (1976). National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. St. Paul, Minnesota.
Sander, F. (1976). “Varieties of Dispute Processing.” In Proceedings of the Pound Conference.
Wall, J., & Dunne, T. (2012). “Mediation Research: A Current Review.” Negotiation Journal, 28(2), 217–244.
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