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BREXIT AND MEDIATION – What Effect Will Brexit Have On Mediation

What Effect Will Brexit Have On Mediation

When mediation was first introduced and embraced in countries such as United States, Canada, and the United Kingdom, the continental jurisdictions were reluctant to accept it. Since the system which prevailed in many of these countries was inquisitorial rather than adversarial, it was thought that the judges could intervene and act as de facto mediators as and when required. It subsequently became clear that this was not the answer. Consequently in 2002 the European Union published a draft directive. The directive which was confirmed in 2008 directed member states to encourage mediation. Initially this was intended to apply to cross-border disputes (disputes between parties based in different countries in the EU).  However, in its final form it was clear that mediation was to be encouraged generally as a means of resolving disputes. While it was stated to be voluntary, it left the door open for individual states to make it compulsory, and some have done so.

Law in England and Wales

The law in England and Wales and the procedure set out in the Civil Procedure Rules, do not make it compulsory to submit disputes to mediation. It has, however, in accordance with the directive, mediation has been widely encouraged by the government and the courts. The civil procedure rules encourage it, and the standard directions which are provided in preparation for civil trials incorporate a provision for mediation to take place. The courts are always willing to adjourn proceedings for mediation. Although mediation is not compulsory in England and Wales, there is a potential cost sanction on those who decline an invitation from the other side to engage in any form of ADR.

Mediation Post-Brexit

After our withdrawal from the European Union, England and Wales will no longer be subject to the European Union Directive. Will the encouragement given over recent years to the parties to engage in mediation therefore cease? Mediation had already gained a foothold in this jurisdiction before the European directive, and it has become steadily more popular since.  With escalating costs of litigation, including increased payments to the court for starting and maintaining a claim, the cost saving advantages of mediation have become more and more apparent.  

Quite apart from any other considerations, the authorities are only too keen to see matters settled outside court. This is not only for the altruistic reason that the parties are able to reap the benefits of mediation as opposed to court proceedings (confidentiality, avoiding costs, and delay, and maintaining a working relationship). More pragmatically it is encouraged because the courts are already overloaded, and despite the charges made to litigants, are expensive to run. As in many other areas of activity, the enthusiasm for mediation is in part at least driven by funding.

With the advantages to the parties and to the government going hand in hand, mediation is undoubtedly here to stay despite whatever form Brexit may take, however hard or soft.  Furthermore the European Union has also published a code of conduct for mediators.  Again while this was formulated with cross-border disputes in mind, it has been widely adopted in the UK, not least by the Civil Mediation Council, who say it has “accepted the EU Model Code of Conduct for mediators and expects that this Code or a Code of equal vigour should be embraced by a registered mediator.”

One should therefore proceed on the basis that Brexit or no Brexit, mediation is likely to continue actively to be encouraged, and that it will remain the best way of dealing with a great many of the disputes which arise.

 

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Pump Court Chambers,
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