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:
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.