EU Cross-Border Commercial Mediation

Despite the growing national and international regulatory framework to support cross-border mediation, the use of such mediation appears to remain stubbornly low. This book focuses in particular on the European Union’s (EU’s) continued efforts to encourage the use of cross-border mediation and examines why such efforts have had a limited impact. It does so by drawing on rare, and at times surprising, detailed insights from in-house counsel of multinational companies regarding their use of EU cross-border commercial mediation. By viewing mediation through the lens of disputants, new and important findings regarding why disputants do, and do not, use cross-border mediation have emerged. While these findings are of primary relevance to EU policy and practice, they have implications far beyond the EU context at a time of increasing international interest in cross-border mediation.

The analysis of the insights provided by the disputants reveals, for example:

• the prominent role played by negotiation as a cross-border dispute resolution process;
• that negotiation is a key comparator for disputants when considering whether to use mediation;
• how the EU’s continued focus on understanding and presenting mediation as an alternative to litigation has resulted in measures which are insufficient to address fully the barriers to the use of mediation;
• intriguing barriers to the use of mediation which arise from the association which disputants draw between mediation and negotiation;    
• how the relationship which disputants draw between mediation and negotiation paradoxically raises both opportunities for, and obstacles to, the increased use of mediation; and
• what disputants need in order to increase their use of cross-border mediation.

The qualitative nature (by way of interviews) of the research conducted for this book has enabled the identification of nuanced and novel findings regarding mediation’s position and potential in cross-border dispute resolution. These findings, together with a detailed examination of the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters and the EU’s continued initiatives to foster the use of mediation, form the foundation upon which this book’s recommendations are built.

Changing the frame to view the use of mediation through the disputants’ perspective, as this book does, provides the opportunity for the EU to promote cross-border mediation in a way which resonates more deeply with disputants and responds more fully to their concerns and needs. This thought-provoking book will be of interest not only to European and national bodies seeking to promote the use of mediation but clearly also to dispute resolution academics, in-house counsel, and of course mediators and dispute resolution practitioners in general.