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In Place of Strife

The Mediation Chambers

European Mediation Directive Announced

Tuesday, 15th July 2008

 IPOS mediator, Phillip Howell-Richardson, has alerted us to publication of the new directive. He writes:

"On the 23rd April the European Parliament passed the European Mediation Directive. Many years of activity and debate have resulted in a Directive which has the following characteristics:

1. The Directive applies to processes where two or more parties to a cross-border dispute of a civil or commercial nature attempt to reach a negotiated settlement. Whilst the Directive applies to cross-border disputes in the European Union, it may be applied voluntarily to mediation procedures within a member state.

2. There are five key rules which the Directive contains:-

i) Provisions for encouraging the training of mediators, voluntary codes of conduct and effective quality control mechanisms. It is good to see that the views of UK mediators are reflected in the principals that the arrangements made for these areas must reflect the need for flexibility and market-based solutions.

ii) All judges in the Community will have the right to invite parties to attend a mediation and if necessary, suggest attendance at a mediation information meeting. The UK already does this but many European jurisdictions had problems in giving judges these discretionary powers.

iii) All member states are to evolve a method of turning a mediated settlement agreement into an enforceable judgment. The UK uses Tomlin Orders predominantly, but it will be interesting to see whether we simplify the procedure and follow one of the simplified procedures that may emerge in Europe; for example, a simple court sealing order or certificate.

iv) Provisions confirming confidentiality and privilege. In the UK we rely upon the common law development of both with no specific adaption to mediation. This potentially has problems and there has been discussion about the creation of "mediation privilege". We may see here the emergence of mediation privilege consequent upon the transposition of the Directive. In Europe, this provision is essential as several jurisdictions lack the full protection necessary.

v) Provisions for suspension of limitation or prescription periods. In the UK there is no such suspension. Again, transposition of the Directive will cause us to look at this question and how to implement "time out" to encourage mediation to take place. We are bedevilled by the Article 6 (Access to Justice) views in Halsey and this provision has been evolved to deal with the Article 6 debate throughout Europe.

3. Implementation:-

Whilst approval by the European Parliament occurred on the 23rd April, the new Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union. Once published, member states have 36 months to adopt the Directive, except for certain provisions relating to courts and information which will be required within 30 months. One of the important decisions that member states will have is whether they wish to limit the provisions of the Directive to cross-border disputes or whether, and if so, how, they will apply it to internal disputes as well."

 

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