This weekend my wife and I return to Hull, the place where we met 25 years ago, to celebrate Hull’s year as City of Culture. It is fitting then that my latest guest blog is penned by Diana Wallis, President of the European Law Institute, former Vice President of the European Parliament and Senior Fellow of Law at The University of Hull.
Diana also mediates and is part of the SME specialist mediator panel at www.SMEdiation.co.uk.
I have been invited to Spain three times in the last three months to speak about mediation and ADR. This last visit to Madrid, from where I am returning as I write this, was at the invitation of the Council for the Judiciary, the previous visits respectively from the College of Notaries in Catalonia and the Spanish consumers organisations.
This shows me a country where judges, the legal professions and consumer representatives are absolutely serious about developing the potential of mediation and ADR. Of course, all those organisations have had at heart the encouragement and legislative backing these developments have and are receiving from the European Union.
So I found it rather hard in the light of our Prime Minister's speech on Tuesday, to hold it together as at the end of the event yesterday on Wednesday the hymn 'Ode to Joy' was played celebrating this intrinsic link between the EU and mediation.
However, these are times when we have to be tough and pragmatic, using our listening skills and searching for the best way forward.
Now we know that the goal is for the U.K. to leave the European Internal Market I believe this potentially gives an opportunity for the further development of U.K. mediation in the SME and consumer sectors - especially amongst those who want to continue to trade and buy within the EU.
As the new EU ADR and ODR system is an intrinsic part of the Internal Market and requires 'reciprocity' between the other EU countries and the U.K. it seems unlikely to survive Brexit in so far as it has cross border effect. In addition, we are likely to leave behind the European rules on jurisdiction and applicable law which gave consumers the protection of U.K. law and jurisdiction when buying abroad – most notably on-line; now we will all be exposed to all Europe's differing national legal regimes.
So SME's and consumers are going to have to look to other ways to protect themselves if they want to venture cross border. This really is the moment for clear and binding mediation or ADR clauses in terms and conditions of trading, and for making absolutely sure these are incorporated and accepted on both sides. This could be an opportunity for ADR U.K. style, not certainly in the manner we might have wished for, but it should be the moment to push mediation and ADR in the U.K., especially in the SME sector. Mediation and ADR in general offer a safe haven at a time of uncertainty - both during and after the Brexit process. So let's look for that potential silver lining...