Brexit: UK unwinds implementation of EU ADR laws

Jan O’Neill
Professional Support Lawyer, London

 

The UK Government has published legislation to effectively revoke the implementation of the EU Mediation Directive (2008/52/EC) after Brexit.

The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 (the Regulations) were made on 1 March 2019 and will come into effect on exit day, whenever that occurs.

Why?

The development is part of a wider policy decision by the Government to revoke/repeal UK domestic legislation that implemented EU law in instances where that law is based on reciprocity between EU Member States. Continue reading

EU Parliament Resolution on the implementation of the Mediation Directive

The EU Parliament has adopted a Resolution on the implementation of the EU Mediation Directive (2008/52/EC), containing recommendations aimed at increasing the use of mediation in civil and commercial disputes throughout the EU.

The Resolution follows a 2016 report by the EU Commission which concluded that, overall, the Mediation Directive had added value, particularly by prompting significant legislative changes in several Member States. No revision of the Directive itself was recommended. However, the report noted continuing difficulties with the functioning of many of the national mediation systems in practice. These were attributed principally to the lack of a “mediation culture” in many Member States, insufficient knowledge of how to deal with cross-border cases, the low level of awareness of mediation, the functioning of quality control mechanisms for mediators and a reluctance by courts to propose mediation.

In response, Parliament has made the following recommendations:

  • EU Member States should step up their efforts to encourage the use of mediation in civil and commercial disputes, such as through information campaigns, improved cooperation between legal professionals and an exchange of best practices.
  • The Commission should assess the need to develop EU-wide quality standards for the provision of mediation services.
  • The Commission should assess the need for member states to establish national registers of mediated proceedings. (subject to data protection rules).
  • The Commission should undertake a detailed study on the obstacles to the free circulation of foreign mediation agreements across the EU, and on options to promote the use of mediation.
  • The Commission should find solutions to extend the scope of mediation to other civil or administrative matters.

We will report on any steps to implement these recommendations in due course.

Public consultation on mediation in the EU

The EU Commission has launched a consultation to gather views on the extent to which the EU Mediation Directive (2008/52/EC) has achieved its objectives and to consider whether any changes to the Directive are appropriate.

Responses to the consultation will inform a report the Commission is required to submit to the EU legislative bodies by May 2016, assessing the development of mediation throughout the EU and the impact of the Directive.  The report may, if appropriate, be accompanied by proposals to adapt the Directive. Continue reading

EU Parliament questionnaire on effective mediation policy

The European Parliament has issued a public questionnaire (Assessing the Impact of the EU Mediation Directive and Exploring Legislative and Non-Legislative Measures to Encourage the Use of Mediation in EU Member States’) to gather information about mediation policy and practice in civil and commercial cases in EU member states.

One of the stated purposes of the review is ‘to explore why mediation is not being as widely used as expected’ following the adoption of the EU Mediation Directive (a copy of the Directive can be found here). In addition to seeking feedback on existing mediation practice in the EU jurisdictions, the survey sets out a number of legislative and non-legislative proposals for readers to rate in terms of their ability, or inability, to improve the use of mediation in their jurisdiction.

Responses to the questionnaire will inform a report to be presented to the European Parliament by the end of November, which will include proposals to foster the use of mediation across the EU.

Spain promotes civil and commercial mediation via collaboration agreement and new Act

On 10 October 2012, a collaboration agreement between Spanish judges and the Chambers of Commerce was signed to foster mediation as an alternative to formal dispute resolution. As a result of the agreement, commercial courts and first instance courts can refer cases to the Chambers of Commerce for mediation. Since its signature, a unified commercial mediation services system will be implemented in the 88 Spanish Chambers of Commerce, for which a model regulation and a standard training programme for mediators have been developed. These measures are intended to strengthen Act 5/2012 on mediation in civil and commercial matters (the Act), which came into force on 27 July 2012. The Act adopts in the large part the Royal Decree Law of 5 March 2012, transposing into Spanish legislation the Mediation Directive (2008/52/EC). Continue reading

The introduction of a new Mediation Act in the Czech Republic

On 1 September 2012 the new Mediation Act (Act No. 202/2012 Coll (the Act) became effective. Mediation is not widely used in the Czech Republic and the Act aims to establish a clear legal framework to significantly increase the number of cases settled through mediation. The Act gives effect to the requirements of the Mediation Directive.

The Act provides for basic mediator standards, whereby only those who pass specific mediation exams and are registered on the list of mediators maintained by the Ministry of Justice can act as mediators under the Act. However, “private mediators” who are not registered with the Ministry of Justice, can continue to perform their activities outside the scope of the Act.

In order to initiate mediation proceedings the parties must select a mediator and enter into a contractual agreement defined by the Act. The agreement must state the names of the conflicting parties, the mediator, the dispute, the remuneration to be received by the mediator, and the agreed duration of the mediation (if not agreed it should run indefinitely). In accordance with the Mediation Directive, the limitation period will be interrupted and thus a claim cannot become statute-barred whilst mediation is being attempted.

German mediation law comes into force

The German mediation bill has long been a source of debate and disagreement between the German Parliament’s two chambers. Indeed, disagreement over the terms of the bill was referred to mediation deploying provisions under the German Constitution providing for resolution by mediation of disputes between the two chambers.  As a result of a successful mediation,  the bill was signed by the President of the Federal Republic on 21 July,  published in the Federal Gazette, and came into law on 26 July 2012. Continue reading

New Spanish law on mediation

The Royal Decree-law of 5 March 2012 on civil and commercial mediation was published in the official Spanish journal on the 6 March 2012. With this new regulation the legislator has implemented into Spanish legislation the Mediation Directive. The Spanish legislation has extended the provisions to domestic mediations also.  The aim is to stimulate the use of mediation as a means of voluntary, flexible and cost-effective dispute resolution, thus reducing the close to 2 million legal proceedings per year brought before the ordinary Spanish civil courts and, in turn, lowering the costs currently faced by the Spanish judicial system.