The European commission is currently reviewing the Mediation Directive 2008/52/EC [the Directive]. It carried out a public consultation in late 2015 which focussed on whether the Directive met its objectives and how effectively each provision has been implemented in England and Wales which was largely compliant, limited legislative changes were needed to implement the Directive, so some practitioners, even those who mediate regularly, may have a limited awareness of the Directive. This begs the question as to whether the Directive has affected Mediations in England and Wales.
Objectives of the Directive
The Directive’s objective is:
‘to facilitate access to alternative Dispute Resolution and to promote the amicable settlement of disputes by encouraging the use of Mediation and by ensuring a balanced relationship between Mediation and judicial proceedings’ [art 1].
A number of the provisions of the Directive focus on quality control [art 4]
Enforceability of agreements [art 6]
Non-compellability of mediators to give evidence regarding the Mediation except in certain circumstances [art 7]
Prevention of parties from litigating or arbitrating by the expiry of limitation periods [art 8]
Articles 5 and 9 encourage the use of Mediation.
When does the Directive apply?
While the Directive does not prevent Member States from applying its provisions to internal Mediations the UK Government decided to implement the Directive in relation to cross-border disputes only.
For the purposes of articles 7 and 8 regarding confidentiality and limitation, disputes will also be cross-border where after Mediation Court proceedings or arbitration are initiated in a Member State other than that in which the parties were domiciled or habitually resident on one of these dates. Domicile is determined in accordance with the Brussels Regulation [Council Regulation [EC] 44/2001].
Implementation of the Directive
The Directive came into force in 2008 and was implemented in England and Wales in 2011 with changes to Legislation only required to implement certain aspects of the Directive namely Articles 6 7 and 8 [enforcement confidentiality and limitation]. Existing arrangements regarding Mediation were considered compliant with the rest of the Directive including the provisions relating to training, codes of conduct, invitations by the Court to use Mediation and information on mediators [arts 4 5 and 9] and therefore required no changes.
Indeed as a result of the existing popularity of Mediation in England and Wales various mechanisms were already in place to ensure quality control. For example various Mediation groups including Solent Mediation publish voluntary codes of conduct for their Mediators and have signed up to the European code of Conduct on Mediation. Further the CMC provides an accreditation scheme for Mediation providers [although it has no jurisdiction over non-accredited mediators] and the Ministry of Justice uses this accreditation scheme as a mark of quality assurance. The CMC also monitors training for Mediations where it is provided by accredited providers.
The Directive stopped short of requiring Member States to make Mediation mandatory but notably it did not prevent them from taking this approach. In Italy, for instance, Mediation is compulsory in certain cases. In England and Wales Mediation has not been made compulsory and the use of ADR [including Mediation] is promoted in other ways. The CPR encourage parties to consider ADR including Mediation before commencing proceedings and after proceedings have been commenced the Court has a duty to encourage the parties to use ADR where appropriate. The Courts have long shown their willingness to penalise parties in costs for an unreasonable refusal to mediate. Usually the winning party is penalised although not always - in the recent case of Reive -v- Buckinghamshire Healthcare NHS Trust  Lexis Citation 293, a penalty was imposed against the unsuccessful defendant
There is some debate about whether mandatory Mediation would be a violation of Article 6 of the European Convention on Human Rights. In any event the possible actions under the current regime in this jurisdiction are arguably severe enough and provide parties with an incentive to mediate. Of course, mandatory Mediation would not ensure a successful outcome if ‘success’ means a settlement agreed on the day of the Mediation or soon afterwards since there can be no guarantee that settlement will be reached.
While the Directive has in reality had a limited impact in England and Wales this is because little change was needed here by way of implementation - Mediation was already a popular and widely-used alternative to litigation and many of the relevant mechanisms were in place. However for those conducting cross-border disputes to which the Directive applies it is worth bearing in mind the provisions implanting the requirements of the Directive relating to enforcement, limitation periods and confidentiality which can provide additional protection to parties to these disputes
One of the reasons why parties can be reluctant to mediate is that they are put off by the idea of participating in a very formal structure. For some...