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UPDATE: “HOW TO GET THE BEST OUT OF MEDIATION - PART 1” BY DAVID CORNES AND IMPLEMENTATION OF THE EU MEDIATION DIRECTIVE – PART 2 | |
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July 2011 |
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Source: |
1. “How to get the best out of Mediation” (Part 1) by David Cornes is available to read (click here ››) 2. The “EU Directive on certain aspects of mediation” (click here ››) has now been fully implemented in England & Wales by:: |
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The Cross-Border Mediation (EU Directive) Regulations 2011- effective 20 May 2011 – click here ›› and The Civil Procedure (Amendment) Rules 2011 (2011 SI No. 88 (L.1)) - effective 6 April 2011 – click here ›› |
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Content: |
These Statutory Instruments give effect to the EU Mediation Directive in England and Wales and provide for some consequential amendments to statutes in Scotland and Northern Ireland. |
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Quick overview: |
The EU Directive applies only to “cross-border” mediation within the EU itself and it is now fully implemented in England and Wales. |
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The Detail: The deadline for implementation of new rules for EU cross-border mediation was 21 May, 2011. In England and Wales, Scotland and Northern Ireland that implementation now appears to be complete. The Cross-Border Mediation (EU Directive) Regulations 2011 Provisions as to the confidentiality of mediation (Article 9), mediators having the right to withhold evidence (Article 10) and extending the limitation period during the mediation (Part 3) are dealt with in the Regulations, which came into force on 20 May 2011. The Regulations, which apply to EU cross-border mediations only, started on or after that date (Regulation 3). For England and Wales only, Regulations 9 & 10 provide that a mediator has the right to withhold mediation evidence in civil proceedings and in arbitration. However, a mediator can be required to give evidence where “all the parties” so agree or where it is necessary for overriding considerations of public policy or in relation to enforcement of a mediation settlement. “Public policy” appears to be narrower than the “private law rights of the parties” so it is likely that a different decision might now be reached from that in Farm Assist Limited (In Liquidation) -v- The Secretary of State for the Environment Food and Rural Affairs (No. 2) but only in cross border mediations (click on case name for the decision). In cross border mediation only, various amendments are made to existing statutes to provide for limitation and prescription periods to be extended by an equivalent period to that between the start of the mediation and the end of the mediation. For that purpose, it is necessary to look at the Regulations for the precise amendments to each and every statute, but for example, in the Limitation Act 1980, the start date is the date of the mediation agreement and the date for the end of the mediation is the first to occur of one of five possibilities: settlement; notification of withdrawal by a party; a request is made to continue the mediation and not responded to by the other party within 14 days; if the mediator’s appointment ends and no new mediator is agreed within 14 days or the mediation comes to an end under the terms of the mediation agreement. The statutes amended for limitation/prescription by Part 3 of the Regulations are: England and Wales: Limitation Act 1980; Foreign Limitation Periods Act 1984; Land Registration Act 2002 England, Wales and Northern Ireland: Prescription Act 1832 England, Wales and Scotland: Equal Pay Act 1970; Sex Discrimination Act 1975; Employment Rights Act 1996 England, Wales, Scotland and Northern Ireland: Equality Act 2010 Scotland: Prescription and Limitation (Scotland) Act 1973 – it is not clear how those changes under the Regulations are intended to work with Regulation 4 of The Cross-Border Mediation (Scotland) Regulations 2011, which appears to have already implemented the necessary changes on 6 April 2011 last. There are further consequential amendments to Secondary Legislation in Part 4 of the Regulations. The Civil Procedure (Amendment) Rules 2011 This Statutory Instrument, effective from 6 April 2011, makes related changes to the Civil Procedure Rules. For the detail see Update April 2011 ›› | |