The recent consultation by the EU on its 2008 Mediation Directive raises the possibility that in future there could be greater regulation in this area of civil justice. Undoubtedly, there is now more access to mediation across the EU. However, quality and, more importantly, usage remains uneven from state to state.
There is scope for still wider adoption while retaining the flexibility which makes mediation so useful and adaptable. It is very important to note that the function of the directive has been to develop internal capabilities in each member state that are used (or are of use) not just for cross-border disputes but many other areas of commercial and civil disputes.
In any future action by the EU, the Centre for Effective Dispute Resolution is not in favour of formal compulsion or mandatory mediation – this creates a problematic atmosphere for negotiation – but we do believe that sanctions and incentives have not been used enough across member states to ensure that mediation is given due attention and consideration.
Broadly speaking, in the UK the Civil Procedure Rules have helped to develop a culture where mediation is regularly considered and used, although one piece of early case law (Halsey v Milton Keynes General NHS Trust [2004] EWCA 3006 Civ 576) sent a dampening message about the usefulness/suitability of mediation in most cases. Therefore, one of our hopes would be that new, clear language from the EU about the effectiveness of proactive judicial direction would be beneficial for all.
Dr Karl Mackie CBE, chief executive, Centre for Effective Dispute Resolution, London EC4
