UK: European Mediation Update

Last Updated: 27 August 2010
Article by Justine Ash

The EU Mediation Directive 2008/52/EC (the Directive) was adopted on 23 April 2008 and came into force on 13 June 2008. The Directive applies to all EU member states (apart from Denmark, which opted out) and applies to certain aspects of mediation in cross-border civil and commercial matters. Although, the Directive makes clear that member states are free to apply the measures at a national level too.

The Aims of Directive 2008/52/EC

The Directive itself addresses 5 key issues:-

  • Ensuring the quality of mediation
  • Court intervention
  • Enforceability of agreements resulting from mediation
  • Confidentiality
  • Limitation

However, its main aims are set out in Article 1 which include (i) to facilitate access to alternative dispute resolution (ADR) and (ii) to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.

Member states (apart from Denmark) must confirm to the European Commission details of the courts or authorities who will be competent (under Article 6(3)) to ensure the enforceability of agreements resulting from mediation, by 21 November 2010 and must bring all other provisions of the Directive into force before 21 May 2011. This is so the Commission can publicise this information to make it easier for citizens and businesses to use mediation.

Mediating cross-border disputes

It is fair to say that cross-border disputes are more complex due to the different national laws and jurisdictions involved, as well as practical matters like culture, language and costs. Even for skilled mediators, mediating a cross-border dispute is tricky. As a result, all parties to a cross- border dispute need common rules they can rely on. The Directive aims to ensure there is in place a high-quality process for resolving such complex cross-border European disputes.

Article 4 of the Directive requires Member States to encourage the development of, and compliance with, voluntary codes of conduct for mediators and mediator providers, together with other quality control mechanisms for the provision of mediation services. Member states are free to use any means they consider appropriate for complying with this. Further, Member states are required to encourage mediation training to ensure that mediation is conducted in an effective, impartial and competent way. Such details are left to individual member states.

In July 2004, the European Code of Conduct on Mediation was launched. Although the Directive does not make specific reference to it, both the Centre for Effective Dispute Resolution (CEDR) and ADR Group are signed up to this Code.

"European Commission calls for saving time and money in cross-border legal disputes through mediation"

As the deadlines for implementation approach, the European Commission has published a press release (title above) reminding member states of the potential benefits of mediation. The Commission emphasizes that the EU measures on settling cross-border disputes by mediation are important because "they promote an alternative and additional access to justice in everyday life". It goes on to say that settling disputes and disagreements through the courts is not only costly and time-consuming but can also destroy profitable business relationships. Member States are encouraged and should be allowed to settle cross-border disputes amicably. A recent study published June 2010, "The Cost of Non ADR" found that based on a claim for EUR200,000 on average, where mediation is not used, there will be between 331 and 436 days of wasted time, with resulting additional costs of between EUR12,471 to EUR13,738 per case.

The press release also provides an interesting update on the progress of implementation to date. Estonia, France, Italy and Portugal have already notified the Commission that they have implemented the Directive, while Lithuania and Slovakia have provided notification of the competent courts for enforcing cross-border mediation settlements.

Article 11 also provides that the Commission must submit for review, a report on the development of mediation through the EU in order to assess the impact of the Directive. The Commission must submit a report on these issues to the European Parliament, the Council and the European Economic and Social Committee no later than 21 May 2016 and the report may include proposals for amendments to the Directive.

The UK view

One final observation for thought. The Jackson Report, published in January 2010, firmly held the view that mediation should not be made compulsory in the UK courts, and whilst mediation was recognized as bringing considerable benefits, it was stated that parties should not be compelled to mediate. The UK courts should however, encourage parties to mediate. (please also refer to Tim Constable's blog on Mediation – The Lord Justice Jackson review dated 14 January 2010 and Justine Ash's blog on Compulsory Mediation – the European perspective dated 30 March 2010 for more information)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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