From Promise to Practice: Resolving the Mediation Paradox in Europe

Abstract

This article explores the enduring underuse of mediation in civil and commercial disputes across the European Union (EU) and U.K., a phenomenon known as the "mediation paradox." Despite decades of policy support and legal frameworks such as the EU Mediation Directive, mediation remains a marginal method of dispute resolution. Drawing on historical context, a detailed analysis of a recent expert survey covering 25 EU member states, and regression analysis, the article reveals that indirect promotion of mediation is insufficient. Instead, it highlights that judicial incentives, courts’ ex officio powers, economic benefits and mandatory models are the only institutional features significantly associated with increased mediation use. This presents a new paradox: Although mediation is praised for its voluntariness, it flourishes only when mandated. The article concludes by recommending stronger, evidence-based legal strategies to make mediation a more central feature of European justice systems.