From Promise to the Italian Model: How a Decade of Research Transformed Mediation in the EU

In our series of publications on the institutional architecture of alternative dispute resolution (ADR), we have examined in detail the global standards of IMI, the national quality framework NMI in the Netherlands, the work of the judicial network GEMME, and leading global providers such as CEDR, ICC, and WIPO. However, this entire large-scale infrastructure sooner or later faces one fundamental and somewhat troubling question: why does mediation—despite its proven effectiveness, high level of client satisfaction, and enormous potential for saving time and costs—still account for less than one percent of the actual volume of court litigation in most European Union countries?

The answer to this question is sought by a fundamental series of studies entitled “Rebooting the Mediation Directive”, commissioned by the European Parliament’s Committee on Legal Affairs (JURI) and subsequently expanded by an independent international group of scholars. The first large-scale report, led by Professor Giuseppe De Palo, was published in 2014. Ten years later, under the auspices of the Dialogue Through Conflict Foundation and with the participation of leading European researchers, an anniversary re-evaluation was conducted—the 2025 Edition.

This chronicle of twenty years of monitoring offers a unique “then and now” structure. It clearly demonstrates what has changed in EU legislation and practice over the decade, why soft incentives failed to work, and what single legal mechanism is capable of turning mediation from a “sleeping promise” into a real everyday practice.

2008–2014: Directive 2008/52/EC and the Birth of the “European Paradox”

On May 21, 2008, the European Parliament and the Council of the EU adopted Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters. The goal of the document was extremely ambitious: to encourage the development of alternative dispute resolution, to ensure a harmonious relationship between mediation and court proceedings, and to guarantee the high quality of procedures through proper qualifications and confidentiality compliance.

The Directive established important baseline guarantees for the entire European space. In particular, these included the suspension of limitation periods during mediation, confidentiality guarantees for mediators in court proceedings, and the creation of a clear mechanism to make agreements resulting from mediation enforceable.

However, the Directive left Member States with almost complete freedom of choice regarding the procedural model. Article 5(2) allowed countries to introduce mandatory mediation or financial incentives, but did not oblige them to do so. The majority of European legislators chose a purely voluntary approach, expecting the legal market to appreciate and embrace the benefits of the procedure on its own.

By 2013, it had become obvious that expectations of automatic market growth were an illusion. The European Parliament’s Committee on Legal Affairs commissioned a comparative study from a group of scholars led by Giuseppe De Palo.

Published in 2014, the study “Rebooting The Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU” revealed a striking disconnect between legislative declarations and reality. In most EU countries, the number of mediations was measured not in thousands, but in isolated dozens or hundreds per year. The overall share of mediation procedures relative to total litigation in most states did not exceed half a percent.

Researchers calculated that time wasted due to ignoring mediation cost European citizens and businesses billions of euros annually, adding an average of 300 to 500 days to the duration of dispute resolution. It was then that the phenomenon of the “European Mediation Paradox” was formulated: all players in the legal market—from judges to lawyers and entrepreneurs—unanimously agreed that mediation was an excellent, fast, and inexpensive tool, yet in practice almost never opted for it on their own initiative. The 2014 study delivered a grim diagnosis: mediation in Europe was in a state of a “sleeping promise” or even a “comatose state,” as a purely voluntary model lacking mandatory procedural elements simply did not work.

Anatomy of the “Paradox”: Why Voluntary Mediation Does Not Work on Its Own

Scientific publications by De Palo’s team broke down the reasons behind this phenomenon in detail, identifying three main barriers: psychological, procedural, and economic.

The first and most difficult was the psychological barrier, which researchers dubbed the “trap of weakness.” When a conflict arises, the first party to propose mediation risks appearing weak in the eyes of the opponent. The counterparty perceives an offer to negotiate as a signal that the proposing side fears litigation or lacks convincing evidence. As a result, both parties wait for the other to make a move toward settlement, ending up straight in court instead.

The second factor was the professional culture of lawyers. Classical legal education and the socialization system of lawyers over decades had been oriented toward adversarial court litigation. Lawyers were traditionally trained to defeat an opponent in the courtroom rather than to facilitate negotiations.

The third factor proved to be the economic barrier and an information vacuum. The traditional billable-hour model for legal services created a hidden financial disincentive against swift dispute resolution. At the same time, ordinary citizens and small business executives only recalled mediation when the conflict had already escalated into an emotional war where the desire to punish the offender in court at all costs prevailed.

Comparison of Regulatory Models: From “Soft Encouragement” to the “Italian Breakthrough”

A comprehensive analysis of Member State legislation within the study made it possible to identify four main procedural models for implementing mediation.

The first model is the full voluntary model, under which parties decide independently whether to conduct mediation, while the state and the courts exert no pressure. Sweden and Finland remained examples of this approach for a long time. The outcome proved disappointing: the volume of commercial mediations without a judicial push consistently trended toward zero, despite high overall social trust.

The second model involved financial incentives and sanctions. A party that unreasonably refused mediation or lost in court after rejecting a settlement offer faced fines or lost the right to recover legal costs. Applied notably in Poland and Romania, this approach yielded only modest growth that failed to alter the overall picture, as financial threats alone without procedural engagement could not overcome the psychological barrier.

The third model is the mandatory information session model adopted in France and Greece. Under this system, parties are required to attend an initial consultation with a mediator to learn about the nature of the procedure, after which they are free to decline further involvement. While achieving partial success, in the absence of proper oversight, these meetings often turned into a formal bureaucratic requirement.

The fourth model concept became mandatory mediation with free opt-out, known as the “Italian Model” (Mandatory Opt-Out Model). It establishes an obligatory requirement to hold a first procedural mediation session in specified categories of disputes—such as real estate, inheritance, corporate rights, or medical malpractice—prior to filing a court claim. At this meeting, the mediator explains the nuances of the case and offers to initiate the process. The parties retain the full right to say “no” without any negative consequences and proceed to court. However, they are required to appear physically or online for this first session alongside their attorneys.

The Italian experience demonstrated impressive results. Before the reform, Italy saw only a few hundred mediations per year. Following the introduction of the mandatory first session, the number of mediation procedures surged to 150,000–200,000 annually, with 40% to 50% resulting in full settlement agreements. Italy’s experience convincingly proved that when the law lifts the psychological burden from the parties and obliges them to sit at the table with a professional mediator, the majority of disputants recognize the value of pre-trial settlement and voluntarily remain in the procedure.

“Then and Now”: 2014 vs. 2024–2025

The 2025 Edition anniversary study—edited by Professor De Palo alongside scholars Agnė Tvaronavičienė, Bryan Clark, Mary Trevor, and Indrė Korsakovienė—covered all 27 EU Member States and the United Kingdom, allowing for an assessment of a decade of evolution.

While in 2014 the total volume of mediations in the EU represented less than half a percent of total court cases, by 2025 moderate growth was observed only in those countries that took the risk of amending their legislation. On a Pan-European scale, where voluntary models persisted, the share of mediation still rarely exceeds one to two percent.

At the same time, a fundamental shift occurred in the dominant procedural paradigm. If in 2014 a purely voluntary model prevailed in 25 out of 28 surveyed countries, by 2025 there was a widespread transition toward hybrid and mandatory elements. Elements of the Italian model were borrowed or adapted by Greece, Turkey, Romania, Lithuania, and Croatia.

Significant changes also took place in digitalization. While in 2014 online mediation was considered an isolated experiment and met with skepticism, under the impact of the COVID-19 pandemic it became an accepted norm, substantially reducing transaction costs for the parties. Concurrently, judicial networks such as GEMME gained momentum, alongside the spread of international quality standards backed by IMI and national registries like the Dutch MfN.

From “Comatose” to “Not Enough of a Good Thing”

The analytical dynamics of the academic works by Giuseppe De Palo and his co-authors vividly illustrate the transformation of scholarly opinion over the decade.

The 2015 article “Sleeping? Comatose?”, published in the Cardozo Journal of Conflict Resolution, was characterized by sharp criticism. Researchers concluded that Directive 2008/52/EC in its initial form had failed to achieve its objectives because it entrusted market growth to declarative calls.

Subsequent foundational publications—including “The European Mediation Paradox Revisited” in the Maastricht Journal of European and Comparative Law and articles in Mealey’s International Arbitration Report—provided empirical evidence: no country in the world had managed to achieve widespread mediation adoption without a legislative element of compulsiveness. Researchers debunked the myth that a mandatory initial meeting violates the right of access to court (Article 6 of the ECHR), drawing on settled jurisprudence of the European Court of Human Rights, notably the ruling in Rosalba Alassini.

In their 2025 concluding manifesto “Not Enough of a Good Thing”, scholars drew the line: mediation is a proven, high-quality, and beneficial product, yet society consumes it in catastrophically insufficient quantities. A two- or three-fold increase in mediation volume within voluntary systems remains a drop in the ocean; thus, the European legal space requires a systemic legislative reboot.

The Institutional Chain: Where Research Fits Among Other Stakeholders

In the holistic international ecosystem of mediation, each institution performs its clearly defined role, and the Rebooting the Mediation Directive study occupies a foundational analytical position within it. The Rebooting project shapes regulatory policy and the analytical framework—assessing the market, identifying practical paradoxes, and delivering concrete legislative recommendations to the European Parliament and national governments. IMI and NMI (MfN) are responsible for global quality standards and certification, ensuring that when the legislative mechanism takes effect and thousands of parties turn to mediation, they are met by highly qualified professionals. GEMME (European Association of Judges for Mediation) works with the judiciary to ensure that judges understand their role within the system and skillfully refer cases to initial sessions. Finally, leading service providers such as CEDR, ICC, WIPO, and EUIPO serve as practical venues for conducting complex international and domestic mediations.

Lessons and Challenges for Ukraine

For Ukraine, which adopted the Law “On Mediation” in November 2021 and is moving toward European Union membership, the findings of the Rebooting the Mediation Directive series carry direct practical relevance.

Ukraine’s 2021 Law laid a solid baseline framework: defining confidentiality principles, mediator training requirements, and rules of professional ethics. However, procedurally, it left mediation as a fully voluntary procedure. EU experience over the past twenty years convincingly demonstrates that waiting years for the market to self-organize on a purely voluntary basis means wasting time while leaving the court system overburdened.

Ukraine should take into account the mistakes of its European counterparts and draft legislative amendments introducing mandatory informational or initial mediation sessions for specific categories of disputes—such as family, labor, small commercial, and land disputes. This does not restrict citizens’ access to justice; rather, it creates the necessary procedural momentum.

Furthermore, Ukraine’s high level of existing digitalization allows for the efficient integration of online mediation into the “E-Court” system, making initial sessions maximally accessible. At the same time, the mandatory presence of attorneys at initial meetings should become part of a modern legal culture, where lawyers view mediation as an effective tool for protecting client interests rather than a threat to their billable fees.

The ten-year journey from the first 2014 report to the 2025 Edition re-evaluation confirmed Professor Giuseppe De Palo’s central thesis: mediation does not need additional advertising or another round of awareness campaigns—it needs bold and intelligent legislative policy.

The “European Mediation Paradox” is overcome only where the state assumes responsibility to gently yet decisively push conflicting parties toward their first conversation. The experience of Italy, Greece, and other nations proves that the mandatory first session model transforms a “sleeping promise” into a fully functioning infrastructure of trust and justice. This is the main conclusion Europe has drawn over the past decade—and one that should form the foundation for building Ukraine’s mediation system.