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UPDATE: IMPLEMENTATION OF THE EU MEDIATION DIRECTIVE | |
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April 2011 |
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Source: |
The “EU Directive on certain aspects of mediation” (click here ››) will be transposed (i.e. implemented): |
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Content: |
These Statutory Instruments give effect to the EU Mediation Directive in the UK (but with more legislation yet to be published for England and Wales). |
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Quick overview: |
The EU Directive applies only to “cross-border” mediation within the EU itself. |
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The Detail: The deadline is looming for EU member states to implement new rules for EU cross-border mediation. Member states (except Denmark, which opted out) have until 21 May, 2011 to implement the EU Directive. The Directive is mandatory for EU cross-border mediation. We know how it will work (as to part) in England and Wales, and separately, in Scotland and in Northern Ireland. In none of those jurisdictions will the changes be extended to domestic mediation (as was permitted, but not required, by the EU Directive)1. It follows that there are two tracks: one for domestic mediation and one for EU cross-border mediation. England and Wales A Statutory Instrument (2011 SI No. 88 (L.1)) effective from 6 April 2011, makes changes to the Civil Procedure Rules. It gives effect to mediation settlements being enforceable, whether or not there are extant proceedings, but only where the parties have agreed to enforceability (Article 6). So that is a matter that needs consideration when drafting settlement agreements in cross-border mediations. The SI sets out the court rules that will apply where disclosure of evidence arising from a mediation is sought (Article 7). There is no express provision in relation to Article 4 (the quality of mediation) or Article 5 (recourse to mediation). The first part of Article 7 (confidentiality of mediation and mediators having the right to withhold evidence) is not dealt with in the SI. There is nothing about Article 8 (extending the limitation period where such period would otherwise expire during the mediation). However, it is understood that draft amendments to primary legislation will shortly be published to give effect to those two Articles in England and Wales. The Directive states that “mediation evidence” can be ordered where the parties so agree or where there are overriding considerations of public policy or in relation to the enforcement of a settlement agreement. As to extending time for the purposes of limitation of action where the period would otherwise expire during the mediation, the further legislation will have to make clear when a mediation starts and when it finishes. Scotland “The Cross-Border Mediation (Scotland) Regulations 2011” have been published. That SSI gives effect to Article 7 (confidentiality of mediation and mediators not being called to give evidence) and sets out draft amendments to the laws of Scotland as to the extension of limitation and prescription periods in a number of statutes (Article 8). The SSI does not deal expressly with any other Articles of the Directive. It seems that decisions may have been made not to change the rules of the Sherriff Courts and the Court of Session in relation to the EU Directive on the grounds that no rule changes are needed specifically for the Directive2. Northern Ireland “The Cross-Border Mediation Regulations (Northern Ireland) 2011” give effect to Article 7 (confidentiality of mediation and mediators not being called to give evidence) and sets out draft amendments to no fewer than nine limitation periods in different statutes as to the extension of limitation periods where the limitation period would otherwise expire during the mediation (Article 8). “The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2011” gives effect to Article 5 by permitting the court to invite (but not order) the parties to mediate and/or to stay the proceedings for mediation (but such orders cannot be made later than 56 days before the date on which the proceedings are first listed for hearing). It also provides for enforcement of mediation settlements but only where the parties have agreed to enforceability (Article 6). It also sets out the Court of Judicature rules that will apply where disclosure of evidence arising from a mediation is sought (Article 7). “The County Court (Amendment) Rules (Northern Ireland) 2011” makes similar provisions applicable to the County Courts as those above in relation to the Court of Judicature. Summary It follows from all this that implementation has been dealt with differently in England and Wales, Scotland and Northern Ireland. In tabular form, implementation in the different UK jurisdictions is as follows (where “X” means no specific provisions have been incorporated into law): | |
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Footnotes: 1The Ministry of Justice has launched a Consultation, “Solving disputes in the county courts” on the possibility in the County Courts in England & Wales of extending the EU Directive, inter alia, to domestic mediation, “automatic referral to mediation” in small claims’ cases and “compulsory mediation information or assessment sessions” in higher value cases. The Consultation opened on 29 March 2011 and closes on 30 June 2011) (click here ››) 2See Paragraph 7 of the “Minutes of Sheriff Court Rules Council Meeting” on 5 November, 2010 (click here ››) and Item 6 of the “Minutes the meeting of the Court of Session Rules Council” on 11 October, 2010 (click here ››) 3See The Civil Procedure (Amendment) Rules 2011 (2011 SI No. 88 (L.1)) - effective 6 April 2011 - (click here ››) | |
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Article of EU Directive |
England & Wales |
Scotland |
Northern Ireland |
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Article 4 Encouragement of training/Code of Conduct |
X (As existing) |
X (As existing) |
X (As existing) |
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Article 5 Judicial powers to invite parties to mediate |
X (As existing1) |
X (As existing2) |
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Article 6 Enforceability of mediated settlements |
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X (As existing2) |
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Article 7 Confidentiality & mediators not to give evidence |
? Coming (but the CPR is already varied as to the rules of evidence3) |
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Article 8 Extension of limitation/prescription periods |
? Coming |
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Article 9 Information for the public |
X |
X |
X |