Review of European and Comparative Law (Jun 2023)
Mandatory Mediation in Family Disputes – An Emerging Trend in the European Union?
Abstract
The Mediation Directive (2008) obliged the Member States of the European Union to promote the use of mediation through their own means. A decade later, the results of several studies revealed that national efforts to foster mediation were not as effective as planned in most cases. Despite some scholars’ concerns about restricting mediation voluntariness as means for increasing its application, Italy introduced a mandatory mediation scheme which proved that forcing parties to mediate results in high numbers of mediation procedures with favorable success rates. This led other Member States to reconsider the role of the State in fostering mediation. This article tackles the prevalence of mandatory mediation in family disputes, as an area widely recognized as most suitable for it. The co-authors raised the research question of whether the introduction of mandatory mediation in family disputes is an emerging trend in the European Union. A short overview of the mandatory mediation concept and the existing doctrinal models was presented as a theoretical background of this research. Based on the review of the scientific literature, four prevailing models were identified and briefly described. Secondly, the map of mandatory mediation within the European Union was updated with the latest data collected from the most recent legislative amendments and testimonies of the corresponding national mediation experts. Thirdly, a brief examination of the current mandatory mediation models in the Member States was conducted. The in-depth analysis of the obtained results shows that introducing mandatory mediation in family disputes is a prevailing trend in fostering mediation in the European Union. Consequently, it was identified that the variety of implemented models went far beyond the existing doctrinal classification, which needs to be reconsidered by future research in this field.
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