Proposal for an EU Directive on Aspects of Mediation
in Civil and Commercial Matters
The proposal for a Directive was presented in 2004. The legal basis for the Directive is Article 61(c) and Article 67 (5) of the Treaty establishing the European Community, which provides that the Council shall adopt measures in the field of judicial co-operation in civil matters having cross-border implications and insofar as necessary for the proper functioning for the internal market. Essentially this means that the Directive will not apply on the case of mediation which is purely domestic in nature, although the understanding of cross-border in this case may be broadened somewhat as a result of on-going negotiations.
This Directive will be adopted by process of co-decision between the Council, i.e., the Member States, and the European Parliament. Negotiations between the EU Member States on the one hand and with the European Parliament on the other are at an advanced stage and it is envisaged that it will be possible to reach a conclusion by the end of 2007, with the Directive likely to apply in the Member States by end 2009/mid 2010.
A key objective of the Directive is to facilitate better access to justice by promoting the use of mediation. It aims to establish a sound relationship between mediation and ordinary civil proceedings and seeks to ensure that the courts of the Member States have the tools at their disposal which will enable them, without compulsion, to avail of the mediation option where appropriate. For the purposes of the Directive it is proposed that the following definitions shall apply:
(a) "Mediation" means a structured process, however named or referred to, where two or more parties to a dispute attempt themselves to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process can be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings in that dispute. However, it does not include attempts made by the court or judge seised to settle a dispute within the course of judicial proceedings concerning that dispute.
(b) "Mediator" means any third personwho is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way the third person has been appointed or requested to conduct the mediation.
The most significant elements of the Directive, in its current form, are as follows. Article 5 concerns enforceability of settlement agreements and requires Member States to ensure that the parties to mediation, or one of them with the consent of the others, shall be able to request that the content of a settlement agreement resulting from a mediation is made enforceable to the extent that the enforceability of the content of the settlement agreement is possible under and not contrary to the law of the Member State where the request is made.
Article 6 concerns confidentiality of mediation, and provides that as mediation is intended to take place in a manner which respects confidentiality, unless the parties agree otherwise, Member States shall ensure that neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out of or in connection with a mediation except:
(a) for overriding considerations of public policy, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or
(b) where disclosure is necessary to implement or enforce the agreement resulting from mediation.
Member States may, should they so wish, enact stricter measures to protect confidentiality of mediation.
Article7 sets out the effect of mediation on limitation and prescription periods and provides that Member States shall ensure that parties who choose mediation to try to solve a dispute are not prevented from subsequently initiating judicial proceedings by the expiry of periods of limitation or prescription during the mediation process.
Articles
Fri 15 May 2009 - Joseph P. Folger: 'Mediation Goes Mainstream'
This article, based on Prof. Folger’s keynote at the Institute’s 2001 Symposium, introduces and touches on the themes of several of the other pieces in the symposium issue. In the article, Folger traces the developments in the use of mediation in recent years, especially in the courts, and comments on the impacts this expansion has had on mediation practice and the policy issues it raises regarding mediation’s operation and regulation.
Link: http://www.transformativemediation.org/books.php
Fri 15 May 2009 - Dorothy J. Della Noce, Joseph P. Folger, and James R. Antes, 'Assimilative, Autonomous or Synergistic Visions and Decisions: How Mediation Programs in Florida Address the Dilemma of Court Connection.'
The article summarizes the results and implications of a major qualitative research study of court-connected mediation programs in Florida, and includes an important new “typology” of the possible relationships between mediation programs and the courts they serve. The article relates its typology to the value-basis of both the adjudication and mediation processes, and shows how program choices reflect different values and thus lead to different modes of connection between courts and mediation programs. It concludes with comments on how policymakers might apply the insights of the study.
Link: http://www.transformativemediation.org/books.php
Fri 15 May 2009 - Dorothy J. Della Noce, Robert A. Baruch Bush and Joseph P. Folger, 'Clarifying the Theoretical Underpinnings of Mediation: Implications for Practice and Policy.'
The article surveys attitudes toward theory in the mediation field, showing how there has been a tendency for the field to operate “atheoretically”, at least at the articulated level, and offering explanations for why this has been the case. The article then argues that greater attention to explicitly articulated theory is needed if mediation practices and policies are to make sense, and gives several concrete illustrations of how greater clarity about theory might contribute to sounder policy formulation.
Fri 15 May 2009 - Robert A. Baruch Bush and Sally Ganong Pope, Changing the Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation
The article is a major clarification of the transformative model by two of its originators, including important new material on both theory and practice. The article presents important new insights and perspectives on the transformative model gained from work in training mediators and studying mediation videotapes. It also connects the transformative model to major streams of research in the fields of psychology, communications, and neurophysiology.
Link: http://www.transformativemediation.org/books.php
Fri 15 May 2009 - James R. Antes and Judith A. Saul, 'What Works in Transformative Mediator Coaching: Field Test Findings.'
The article presents the results of a unique qualitative research study designed to test a method of coaching, and evaluating the performance of, transformative mediators. The method itself was originally described in an article published in Mediation Quarterly. The present article reports on how the evaluative method works in actual practice, as studied by the authors at a number of community mediation centers.
Fri 15 May 2009 - Robert A. Baruch Bush, 'Substituting Mediation for Arbitration: the Growing Market for Evaluative Mediation, and What it Means for the ADR Field.'
The article presents a new interpretation of the recent expansion in the use of “evaluative mediation”, suggesting that it is related to recent legal developments that have made the arbitration process less useful to ADR consumers. The result, the article argues, is that those consumers have turned to evaluative mediation as an “arbitration substitute”. The article then explores the implications of this insight for important issues of mediation policy, including qualifications for practice, ethics and certification.
Submissions
Fri 15 May 2009 - Independence, Impartiality and Neutrality in Local Authority Mediation Services: High Standards or High Hurdles?
In recent years there has been a huge increase in the number of mediation services provided directly by local authorities and statutory agencies. Prompted, in many cases, by government initiatives addressing neighbourhood renewal or anti social behaviour issues, councils, housing associations, police and health agencies have all established services and offered them to their ‘customers’. Most are based on the kind of principles which are commonplace in community mediation services. They have at their core, for example, the principles of independence, impartiality and neutrality. This study considers whether these principles provide useful ethical guidelines for mediation practitioners, or if they are obstacles to the provision of effective and relevant conflict resolution services.
Much work has already been done by conflict resolution academics and practitioners in this general area: the principles which govern mediation practice have been dissected and examined by different writers from different angles on many occasions in recent years. This study reviews the relevant parts of this work and its conclusions. The vast bulk of this material, however, is North American in origin. The mediation practice which it examines is fundamentally different from the subject of this study. A limited amount of research has been done in the UK and Ireland and this work will also be reviewed. It is more relevant to this study than the North American work, but it is usually focused on community mediation services. The work of mediation services operating from within and on behalf of statutory organisations has not been considered before.
Download the document (Brendan_Donaghy_research.pdf)
Fri 15 May 2009 - An Exploratory Study of Factors Influencing the Choice of Mediation to Resolve Interpersonal Workplace Conflict
This research examined the factors important in why an employee chooses mediation to resolve a workplace issue such as bullying or harassment. The project was exploratory in nature and used an inductive approach.
While the literature about mediation frequently mentions the benefits and advantages conferred by the process, there is little previous direct research about why people in interpersonal workplace disputes refuse the offer of mediation.
It was decided that the most appropriate approach for exploratory research in this area was interview and a small sample of people were spoken to for their views. These included three practising workplace mediators, a full-time trade union official, a human resource manager and two direct subjects, one of whom had taken part in a mediation and the other who had agreed to take part but had not yet begun the process. It had been intended to interview more direct bullying subjects but access proved to be difficult. The interviews were digitally recorded and transcribed, the responses were analysed and the factors distilled from the responses. The factors were grouped into three main areas as follows:
- Informational (provided by the organisation, from others, from previous experience)
- Intentional (what do the parties intend – resolution or revenge ?)
- Institutional (how forceful the employing organisation is in promoting the use of mediation).
