The May 2011 date for implementing the EU Mediation Directive (EUMD) is nearly upon us, and the Ministry of Justice has just published its latest account of the steps it proposes, together with draft Statutory Instrument (yet to be finalised by Parliamentary Draftsman) and CPR amendments. As expected, the machinery for implementation is to be the European Communities Act 1972, by which European legislation can be imported by SI into UK law without its own separate statute.

MoJ has declared itself satisfied that England & Wales are compliant with the EUMD in respect of the majority of its requirements, so no proposals are made in respect of Articles:

1. Objective and scope
2. Cross-border disputes
3. Definitions
4. Quality of mediation
5. Recourse to mediation
9. Information for the public

It is Articles 6 (enforceability of settlement agreements), 7 (confidentiality of mediation) and 8 (suspension of limitation) that have required changes and additions to English law and procedure to accommodate what the EUMD requires for cross-border disputes only.

Indeed the only sentence in bold type in the Policy Implementation Update from MoJ reads “Therefore the Ministry of Justice would like to make it clear that the Directive is being implemented for cross-border disputes only”, a sentence preceded by the assurance that “the new Rules will not have an impact on the conduct of domestic mediations in England & Wales”. This is a clear statement of intent, and presumably will be enacted, but I fear that things are never so simple. Especially in relation to the provisions relating to confidentiality, discussed in full below, there is a crucial issue as to whether the provisions of the EUMD are more or less stringent than domestic English law, and judges may well be invited to look at both and to draw assumptions from the former when dealing with this fundamentally important area. The MoJ also expressed its intention to consult about whether similar provisions should be introduced into domestic law by 2015-15, the earliest possible date for legislation. I believe that no assumption should be made that exactly parallel provisions should be introduced. There has been concern about some of these matters already, and the new proposals are still worrying to a degree.

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by Tony Allen

Tony Allen is a Solicitor, Direct Mediator and Senior Consultant for The Centre for Effective Dispute Resolution (CEDR).