Learning From Europe’s Mediation Paradox: Why U.S. Mandates Are Leading Where the EU Stumbled
8.11.2025
Voluntary or Mandatory? An Oxymoron Reconsidered
Should mediation remain entirely voluntary, or should legal systems require parties to try it before stepping into court? This debate lies at the center of modern dispute resolution policy all over the world. Those defending voluntariness tend to emphasize the value of party autonomy, arguing that people who freely choose to mediate are more likely to settle and to feel ownership of the outcome. On the other hand, supporters of structured obligations contend that in the real world of litigation, most parties (and often their lawyers) will bypass mediation altogether unless it is built into the process by default.
That question is no longer purely academic. Lawmakers and courts on both sides of the Atlantic are testing, refining, and evaluating how default rules around mediation influence outcomes. The answers that are emerging offer valuable guidance for New York lawyers, judges, and policymakers.
Europe’s Missed Opportunity
The European Union’s 2008 Mediation Directive was designed to promote what it called a “balanced relationship” between mediation and litigation. But 15 years later, that vision remains aspirational. A 2014 study commissioned by the European Parliament confirmed what many practitioners already suspected: mediation in the EU was used in fewer than 1% of potentially eligible civil and commercial disputes. The phrase “EU mediation paradox” was born, a shorthand for the contradiction between widespread support for mediation in principle and almost no use in practice. This paradox captures the puzzling gap between policy endorsement and real-world uptake. A decade later, little has changed. Despite national laws, pilot programs, and promotional efforts, most parties across Europe still end up in court, not in mediation.
The American Shift Toward Structural Nudges
By contrast, courts in the United States, especially at the state level, have made quiet but meaningful progress by embracing what might be called “light-touch mandates.” Each jurisdiction has chosen its own path, but a pattern has emerged. When mediation is positioned as the default, and some form of early participation is required, usage climbs – and so do settlement rates.
Florida is perhaps the most established example. There, judges are required to refer most family disputes to mediation and are encouraged to do the same for general civil claims. The infrastructure is robust, and the results are consistent: settlement rates top two-thirds in family cases and exceed 50% in civil matters.
California takes a more targeted approach. In child custody and visitation disputes, mediation has been mandatory since the 1980s. Each year, court-connected mediators work with nearly 100,000 couples in divorce proceedings. Post-session surveys reveal high satisfaction of disputing parties, even though participation is required. Most of them report appreciating the opportunity to speak and be heard in a private, constructive setting.
New York has followed a different model, one that may strike many readers as a workable middle ground. The state’s Presumptive Alternative Dispute Resolution Program, launched in 2019, designates certain case types – commercial, matrimonial, tort, trusts and estates – as presumptively suited for mediation. Judges retain discretion, but the default is that parties will mediate unless there is a clear reason not to. In 2024 alone, more than 12,000 cases were referred to Community Dispute Resolution Centers under this program. The numbers are growing, and so is judicial comfort with early settlement triage.
Even at the federal level, structural nudges are gaining traction. In the Eastern District of New York, more than 860 cases were referred to mediation in 2023. Of those, 78% reached an initial session and 64% settled. That includes 65% of Fair Labor Standards Act cases and 63% of employment discrimination suits. The lesson is clear: when courts treat mediation as a routine step rather than an optional detour, parties follow their lead.
Revisiting the European Story
Why has Europe struggled, even as many American jurisdictions have seen tangible gains?
To answer that, the Dialogue Through Conflict Foundation, in partnership with more than 30 mediation experts and scholars from different EU member states and the U.K., carried on a multilingual survey between March and July 2024, gathering input from over 2,100 professionals related to mediation, including mediators, lawyers, judges, public officials, etc. The findings confirmed that the mediation paradox endures. Seventy-eight percent of respondents said their country had still not achieved a balanced relationship between mediation and litigation. Sixty-three percent reported an oversupply of mediators compared to the actual number of cases, creating a stagnant professional landscape. Most importantly, 72% identified “mandatory first meetings” as the most effective policy tool for boosting mediation use, far ahead of other incentives such as public awareness campaigns, online platforms, or lawyer notification requirements.
What actually drives toward sufficient change, the survey found, are three things: (1) giving judges the power to refer or pause litigation; (2) offering meaningful economic incentives or disincentives such as court fee reductions or adverse cost rulings; and (3) requiring parties to attend at least one early-stage mediation session. Everything else, including good intentions and glossy brochures, had no significant impact.
The cost implications are just as striking. Back in 2014, the European Parliament study compared the average civil litigation case (€10,449 , or $12,060, and over 500 days in court) with the average mediation (€2,497, or $2882, and just 43 days). The savings are dramatic. That same study estimated that diverting just 20% of eligible cases to mediation could save EU economies nearly €15 billion annually. Yet those savings remain largely hypothetical.
The ‘Easy Opt-Out’ Model: A Balanced Mandate
The co-author of this article, Giuseppe De Palo, who also served as the U.N.’s ombudsman and was one of the architects of the 2014 European study, has proposed a model that seeks to reconcile the ideals of voluntariness with the realities of human behavior. He calls it the Easy Opt-Out Mediation Model.
The logic is simple. Every eligible dispute is automatically scheduled for an initial mediation session soon after filing. That session is held with a professional mediator (not a court clerk) and is designed to be short, focused, and low stakes. Crucially, any party can walk away at any point. No one is required to settle, or even to continue, if they don’t want to. But the meeting happens – and that changes everything.
The model has already shown promising results in pilot programs in Italy, Greece, and Turkey. In Italy, for instance, when this type of structured invitation was introduced for select civil matters, annual mediation requests surged from under 10,000 to nearly 200,000. Most participants didn’t settle immediately, but many did. The court system benefited from the cases that quietly disappeared from the docket.
What makes this model different from traditional mandates is its minimal burden and maximum autonomy. There is no penalty for opting out. But parties must first walk through the door and hear what mediation could offer. In practice, that gentle nudge is often enough to spark engagement.
De Palo has also proposed that jurisdictions adopt a Balanced Relationship Target Number. This is a locally calibrated benchmark for the percentage of disputes that should reach mediation each year. Much like carbon-emission goals or access-to-justice benchmarks, a Balanced Relationship Target Number could help governments and court systems measure progress and hold themselves accountable. The Sustainable Conflict Global Initiative has begun promoting this idea internationally, encouraging countries to turn abstract policy goals into measurable performance indicators.
Lessons for New York and Beyond
New York’s presumptive ADR system already echoes much of the Easy Opt-Out logic. Cases are referred early, parties are expected to participate, and withdrawal remains an option. Yet, as successful as the program has been, it still covers a limited share of the state’s overall caseload. Expanding it – and tracking results against a target number – could help the court system realize its full potential as a model of smart, scalable ADR reform.
The implications go beyond court administration. Lawyers drafting dispute resolution clauses can take inspiration from this model: automatic scheduling, one short session, free exit. It is a structure that encourages resolution without coercion, and in doing so, maximizes client choice and cost-efficiency.
A Gateway, Not a Wall
The lesson from both sides of the Atlantic is clear. Mediation flourishes not when it is simply available, but when it is gently required – when parties are invited, by design, to take that first step and renew the communication without losing face.
Europe’s paradox is not a problem of principle, but of process. And as courts from Florida to California to the Eastern District of New York have shown, process can be changed. When courts build mediation into the justice journey, not as a barrier but as a gateway, parties follow, settlements rise, and justice becomes not just faster and cheaper, but more humane.
Structured mediation mandates, especially of the “Easy Opt-Out” variety, do not undermine voluntariness. They create the space for collaboration in which true choice becomes possible.
Giuseppe De Palo is a New York-based international mediator and arbitrator at JAMS. Agnė Tvaronavičienė is professor of private law at Mykolas Romeris University Law School, Lithuania. This article appears in a forthcoming issue of NY Dispute Resolution Lawyer, a publication of NYSBA’s Dispute Resolution Section. For more information, please visit nysba.org/drs.
