A NEW EU directive on mediation in civil and commercial matters was adopted on April 23rd. Member states have 36 months in which to convert it into national law.
The purpose of the directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings.
The directive obliges member states to encourage the training of mediators and the development of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services; it gives every judge in the EU, at any stage of the proceedings, the right to suggest that the parties attend an information meeting on mediation and, if the judge deems it appropriate, to invite the parties to have recourse to mediation.
It also enables parties to make a mediated agreement as enforceable as a court judgment. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the member states under existing EU rules.
The directive ensures that mediation takes place in an atmosphere of confidentiality and provides that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. Thus the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.
It will also ensure that parties who have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation.
To coincide with the adoption of the directive, the results of a survey on civil justice was published yesterday. It was conducted face-to-face in the 27 EU member states, between November 9th and December 14th last.
It found that four out of 10 Irish people feel that they would be at a disadvantage in legal proceedings in another EU country.
For half of those polled, the main worry would be not knowing the rules of procedure in the other country.
Irish people are also concerned about the language barrier (41 per cent) and the cost of legal proceedings in another country (31 per cent).
The survey showed that the vast majority of Europeans would like to see additional measures introduced to help them access civil justice abroad. However, the Irish would prefer measures to be taken at a national level rather than at EU level. When buying goods from a person or a company based in another EU country, half of all Irish people would prefer that the terms of the contract were based on harmonised EU legislation.