The European Parliament approved the directive on mediation in civil and commercial disputes last week, nearly four years after it was first proposed. The directive has been drafted as a part of the European Union’s objective of providing better access to justice and encouraging the use of mediation on a European scale.
In England and Wales, we are used to the courts encouraging mediation, but this directive means that in time, courts in all Member States will similarly encourage mediation as an alternative to court proceedings. The directive is only applicable to cross-border disputes and the practice and procedure of mediation will remain within the control of each individual Member State.
The main areas of interest in the mediation directive are as follows:
- Cross Border Disputes – the directive will only apply to cross-border disputes. A cross-border dispute is one in which the parties are domiciled or habitually resident in different Member States;
- No applicability to arbitration – the recitals to the directive state that its provisions are not applicable to arbitration, expert determination or various other adjudication schemes;
- Voluntary Process – mediation must always be voluntary and the parties should remain in charge of the process, with the ability to organise it as they wish;
- Enforcement of Agreements – an agreement arising from a mediation, which is enforceable in one Member State, should also be recognised and declared enforceable in the other Member States;
- Limitation Periods – in order to encourage parties to mediate disputes, Member States must ensure that parties who have chosen to mediate are not prevented from going to court on grounds of limitation, in the event that their mediation fails;
- Voluntary Codes of Practice – Member States are required to encourage the training of mediators and the introduction of effective quality control mechanisms concerning the provision of mediation services, to include encouraging the availability of information to the public on organisations offering mediation services;
- Confidentiality – mediation is intended to be a confidential process and the directive clarifies the position that mediators cannot be compelled to give evidence in subsequent proceedings regarding information arising out of or in connection with the mediation process, save in certain defined circumstances.
The European Parliament has now approved the text of the directive and it is awaiting formal signature. Once this has been done, the Directive will be published in the Official Journal and Member States will be required to implement the Directive within three years of its adoption.