The Principled Relationship of Formal and Informal Justice through the Courts and Alternative Dispute Resolution (with the European Network of Councils for the Judiciary, ENCJ)

In its decision of 8 February 2018, the ELI Council unanimously approved the Statement on The Principled Relationship of Formal and Informal Justice through the Courts and Alternative Dispute Resolution. This project was carried out jointly by the ELI and the European Network of Councils for the Judiciary (ENCJ). The Project Team was chaired by Diana Wallis and Geoffrey Vos.

Quick Facts

Project Type: Statement
Procedure: Accelerated
Adopted: CD 2016/1 (on Projects)
Project Period: February 2016
February 2018


Over the past 40 years, there has been a significant growth in and use of alternative forms of dispute resolution (ADR) throughout Europe. In addition to national developments, there have been developments at the European level. There are currently three main ADR instruments in force in the EU (the ADR instruments). Their aim is to 'contribute to the proper functioning of the internal market' and to ensure access to 'simple, efficient, fast and low-cost' ways of resolving disputes. They aim at limited harmonisation and leave much choice for Member States. In addition to official promotion of ADR, there has been a growth in private sector promotion of ADR through, for instance, contractual clauses in consumer or business contracts that specify that any disputes arising under the contract must be resolved via a relevant form of ADR eg a form of mandatory online dispute resolution (ODR) mechanism or arbitration scheme. 

The various developments have left a patchwork quilt of ADR provision. In some Member States the use of some form of ADR, such as mediation, prior to resort to formal litigation before the courts is a mandatory pre-requisite ie Italy. In other Member States, such as the United Kingdom, use of ADR is optional, albeit its use is promoted by the State generally and by courts in particular. Such differential development may lead to a myriad of different ADR bodies that are alien and unfamiliar to foreign nationals. This in turn may undermine trust and confidence in such mechanisms, and their ability to deliver cost-effective, timely and fair dispute resolution across Member States’ borders. Furthermore, as the European Network of Councils for the Judiciary (ENCJ) has noted, there is a growing risk, and in some cases reality, that ADR is being developed in a manner that is improperly intruding on the legitimate ambit of the judicial branch of the State or government.



The joint ELI-ENCJ project focused on an examination of the development of ADR in Europe. It was particularly concentrated on:

  • a critical review of the EU ADR instruments, and specifically the Mediation Directive, and their implementation in different Member State
  • comparison of national questionnaires aimed at ascertaining whether and where reduced access to the national justice systems would be and is being a negative development. The national reports were used to gather information on shortcomings and best practices in national ADR systems.



The Project Team aimed at analysing whether ADR schemes are voluntary, sufficiently visible and transparent, of sufficient quality in procedure and dispute resolution, and whether they develop throughout the EU Member States consistently with a proper and principled approach to access to the courts. Based on the national reports, and the research conducted by the members of the Project Team, an ELI Statement was prepared which assesses whether concrete steps should be taken in this regard. Furthermore, the Project Team also considered: (a) the potential for developing a draft legislative instrument for the EU aimed at harmonising ADR across the EU; and (b) the role that Internet technology can properly play in the development of online courts and online dispute resolution, consistent with the principles identified in the first phase of the project. 



The Statement, approved by the ELI Council on 8 February 2018, deals with how courts and judges should act in considering or referring cases to Alternative Dispute Resolution (ADR) and consists of two main parts: a Statement of European Best Practice in relation to the approach that courts and judges should adopt in interacting with all types of ADR processes and Recommendations as to the best European models that can be developed and applied for coherent access to dispute resolution processes (DRPs) in respect of different types of dispute, and towards which Member States may wish to progress.

It will be of particular interest for judges and ADR practitioners dealing with the issues discussed on a daily basis as well as for decision makers responsible for designing effective DRP.

Since this is a joint project, the ENCJ will also have to vote upon the Statement. This will take place at ENCJ's Annual Assembly in May 2018. The Statement will be published on our website thereafter.


  • Geoffrey Vos
  • Diana Wallis

Other Project Team Members

  • Fabrizio Cafaggi
  • Stanislav Georgiev
  • Paul Gilligan
  • John Hedigan
  • Christopher Hodges
  • Lourdes Arastey Sahun
  • David Simone
  • John Sorabji
  • Monique van der Goes
  • Stefaan Voet
  • Alessio Zaccaria
  • Ales Zalar


  • Loïc Caidet
  • Ignat Claudiu
  • Horst Eidenmüller
  • Sabine König
  • Marcello Marinari
  • Rada Matjusina
  • Maud Piers
  • Felix Steffek
  • Louise Ellen Teitz