Enforcement of mediation settlement agreements in the EU and the need for reform

Abstract

This article discusses the current status of EU law on cross-border enforcement of Mediated Settlement Agreements (MSAs) focusing mainly on non-family law matters. Directive 2008/52 states the form an MSA may take under the national legislation, as the basis of cross-border enforcement. Given (a) the polyphony of national legislation as to the form an MSA may take for enforcement purposes and (b) the meaning of “judgment” under EU private international law and the Solo Kleinmotoren case, it is suggested that a level playing field as to cross-border enforcement of MSAs in the EU is not guaranteed. Further, it is suggested that MSAs constitute the outcome of a third distinct dispute resolution category, next to judgments and awards, and are also distinct to contracts. It is concluded that a reform of EU law seems necessary in order to mitigate the above lack of an equal level playing field and to take into account the special character of MSAs.