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Mediation in the European Union

13 September 2011 #Dispute Resolution


For many years, mediation has been an important part of dispute resolution in the UK.  Mediation offers a cost-effective and confidential way for parties to settle their differences and often enables parties to maintain ongoing business relationships which could be irretrievably damaged if the dispute proceeded to a full Court trial.  Over the past few years, the EU parliament has taken steps to harmonise the administration of mediation across the EU.  This resulted in the EU Mediation Directive (2008/52/EC) which the UK government were required to implement by 21 May 2011.

Since mediation is a fairly mature industry now in the UK, with several independent bodies, including CEDR and the ADR Group, organising and monitoring the training of mediators and maintaining voluntary codes of practice, to a large degree the UK already complied with many of the EU Mediation Directive`s requirements.  There are, however, a number of important areas where new law has been introduced in England & Wales to provide additional regulation to mediation.

The first point to note is that the Mediation Directive only applies to "Cross Border Mediation" which means disputes where at least two parties are based in different Member States.  It does not therefore apply to domestic disputes (i.e. where both parties are based in England & Wales), although the Ministry of Justice is presently consulting on whether to extend some of the new rules to these disputes.

There are three key areas where new legislation on mediation has been enacted:

  1. Enforceability of Mediation Agreements

    The EU parliament wanted to ensure that mediation was seen as an effective means of resolving disputes and one main concern was the perceived weakness that settlement agreements reached at mediations are not easily enforceable in contrast to Court judgments.  The EU Mediation directive therefore requires Members States to introduce legislation which provides parties with a mechanism for enforcing mediation settlement agreements.  In England & Wales, such agreements can now be enforced by laid down procedure provided that the agreement itself properly records that it is a mediation settlement agreement and that all parties agree to it being enforced through the Courts.

  2. Extension of limitation

    One reason parties may be reluctant to agree to mediation before the issue of proceedings is the concern that their claim may become statute barred if they delay issuing.  The EU Mediation Directive introduces new set of rules to Cross Border mediations, which can automatically extend the relevant limitation period for 8 weeks from the end of the mediation, which should avoid claims becoming statute barred during the mediation process.

  3. Confidentiality

    One reason that mediations are considered so effective at settling disputes is that the whole process is generally treated as confidential with neither party being able to refer to the discussion in subsequent Court proceedings.  This is seen as encouraging an uninhibited exchange of views which can help parties reach compromise.  The EU Directive now sets out clear rules as to when the parties and/or the mediator can be compelled to disclose what was said at the mediation in Court proceedings, as follows:

    a. If all parties consent to the information being disclosed
    b. If disclosure is required in the public interest
    c. If disclosure is necessary to enforce a mediation settlement agreement

Overall, the new rules under the EU Mediation Directive complement and enhance the existing legal framework that applies to mediation in England and Wales. It will be interesting to see whether this prompts the Civil Procedure Rules Committee to advise extending some or all of the above rules to domestic mediations in England & Wales.

Clarkslegal`s Dispute Resolution Team has a number mediation advocates certified by the ADR Group, with considerable experience of representing clients at mediations.

Clarkslegal, specialist Dispute Resolution lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Dispute Resolution matter please contact Clarkslegal's dispute resolution team by email at disputeresolution@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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Chris Tayton

Chris Tayton
Partner

E: ctayton@clarkslegal.com
T: 0118 960 4691
M: 07880 746 918

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