Background: Despite decades of policy support and the legal framework established by the EU Mediation Directive (2008/52/EC), mediation remains significantly underused in civil and commercial disputes across the European Union and the United Kingdom. This phenomenon, widely referred to as the “mediation paradox”, highlights the tension between the principle of voluntariness and the empirical need for institutional mandates. Objective: To examine the institutional factors that effectively influence the adoption of mediation practices in European justice systems based on recent empirical evidence. Method: The study combines historical analysis, a recent expert survey covering 25 EU member states, and multivariate regression analysis focused on the relationship between institutional variables and mediation usage rates. Results: The findings show that indirect strategies such as soft promotion or awareness campaigns are largely ineffective. In contrast, judicial incentives, courts’ ex officio powers, tangible economic benefits, and mandatory frameworks are significantly associated with increased use. A new paradox emerges: while mediation is praised for being voluntary, it only thrives when mandated by robust institutional mechanisms. The article concludes by recommending stronger, evidence-based legal strategies to make mediation a more central feature of European justice systems.
Giuseppe De Palo (Tue,) studied this question.