Modern European Forms Of Non-Voluntary Mediation: The Case Of England In Comparative Perspective

The objective of my research is to investigate and analyze the modern forms of non-voluntary mediation implemented for civil and commercial matters in Europe through a comparative analysis between England and two other European countries namely France and Italy. My research first outlines the existing paradox between the essential characteristic of voluntariness in mediation and the growing implementation in Europe of modern forms of non-voluntary mediation. Non-voluntary mediation can be defined as any measure of coercion exerted over the decision-making of the parties in a court context towards mediation. All legal systems in Europe fundamentally share the view that mediation provides a flexible alternative to solving conflicts based on the principle of the voluntary choice of the parties. Voluntariness is reflected in the control of the mediation procedure by the parties. However, given the low uptake of voluntary mediation in Europe, many if not all European legal systems, incentivized by the European Directives, are today taking steps to integrate non-voluntary mediation in their judicial system. The aim of these regulations and the reasons for implementing them can vary: for some countries such as England cost reduction is put forward as the main reason, whereas in Italy it is the relief of the judiciary’s workload. The interest of a comparative study is also reinforced by the cultural and legal differences existing in Europe. The work undertaken aims to answer the following question: to what extent should non-voluntary mediation be implemented in civil justice systems? To answer that question, the thesis will be divided into three parts: the first part introduces the concept of non-voluntary mediation, the second part analyzes the various forms of non-voluntary mediation in the selected countries and the third part questions the future of non-voluntary mediation in light of the Online Court project in England.