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The Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters (2008/52) has been adopted by the UK government.
The Directive, which had a three year timetable for implementation, applies to civil litigation including family law, although it is certainly not family law explicit. It creates expectations that member states will encourage mediation wherever possible: it has been directly responsible for Part 3 FPR 2010. It is an incredible opportunity for all family law professionals committed to ADR to bring about much-needed improvements and opportunities, both specifically in cross-border work but also in national family law mediation. Yet it has its potential problems especially for mediation administrators and the mediation professions. Thus far there has seemed to be little recognition of these problems in the family mediation industry.
It came into force on 20 May, 2011 through the Cross-Border Mediation (EU Directive) Regulations 2011 No 1133. Apart from dealing with matters of mediation evidence and application, the bulk of the statutory instrument of 21 pages deals with amendments to primary legislation although none in family law.
Specific reference should be made to Part 35 FPR 2011, in force 6 April, 2011, along with the brief PD 35A.
The key characteristics are as follows:
Mediators and mediation administrators, in effect law firm managers and lawyer mediators, should review their terms of mediation business. Hitherto safe confidentiality of the mediation process may be opened up by a court orders pursuant to the implementation of this EU Directive.
Apart from this concern, this is an excellent development to support mediation both nationally and in cross-border work. It warrants much support. Mediation operates in very different models and practices across the EU. There is much still to be done to produce any consistency of practice. Nevertheless the work is urgently needed for international families. Much ADR is happening in the emerging family law nations outside of Europe.
A fuller article about the EU Mediation Directive will appear in the September edition of Jordan's International Family Law magazine.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.