New Mediation Rules from Europe
"A Judge can adjourn crossborder disputes in civil and commercial matters to refer the dispute to mediation."
The European Communities (Mediation) Regulations, 2011 (“the Regulations”) have been in operation since 18 May of this year. The Regulations introduce into our national law the provisions required on foot of the EU Mediation Directive 2008/52/EC. The Regulations form part of a suite of changes in the law over the last two years which aim to encourage mediation as a form of dispute resolution outside of the normal court process. In 2009 the Circuit Court rules were amended to allow judges adjourn Circuit Court cases to facilitate the resolution of the dispute by means of mediation, conciliation or arbitration. Similar rules were put in place in relation to High Court disputes in late 2010.
The first point of note in relation to the Regulations is that they relate to cross-border disputes in civil and commercial matters only. However, as mentioned, previous changes to the Circuit and High Court rules are relevant for domestic disputes.
The Regulations allow a judge to refer the dispute to mediation. The judge can do this of his/her own motion or can do it following an application by one of the parties to the dispute. The judge cannot compel the parties to mediate the dispute but he/she can give directions regarding the conduct of the mediation where the parties do elect to mediate the dispute.
The need for confidentiality of the mediation process is recognised in the Regulations by the provision which prevents a mediator being compelled to give evidence in subsequent court or arbitral proceedings which relate to the same dispute. However the mediator can be compelled to give evidence where it is contrary to public policy for such evidence to be withheld or if it is necessary for implementing or enforcing a binding agreement reached by the parties following mediation. Furthermore the parties to the mediation can execute a written agreement to the effect that the mediator can be compelled to give evidence in subsequent proceedings if called upon to do so.
The Regulations provide that the parties can apply to court to make any agreement reached following mediation, a rule of court. In other words, that agreement will then be equivalent to, and have the same force as, a court order.
Finally, the Regulations provide that the time involved in the mediation process shall not be counted with regard to any limitation periods provided for in the Statute of Limitations, 1957 (as amended).
The practical upshot of the Regulations, as a follow-on to the recent changes to the Circuit and High Court rules, is that mediation is now a very real option for parties to a wide variety of civil and commercial disputes even where one or other of the parties has taken steps to litigate the dispute through the courts. Mediation is usually a cheaper, and more efficient, method of dispute resolution. It can avoid the acrimony and delay associated with Court disputes. It can also facilitate the resolution of a dispute by a mediator skilled in the particular field as opposed to a judge who is a lawyer by trade.
Matthew Austin