David Hodson on International Family Law: The EU Mediation Directive

07 July 2011

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:

• There should be support and commitment to the Directive by all mediators and other ADR professionals and others working towards resolution of family law matters.
• Part 3 PRF 2010, both mediation information before commencing proceedings and the power to adjourn into mediation, is part of the implementation process of the Directive, Articles 4 and 5.
• The encouragement of family mediation creates a fundamental conflict with the anti-mediation practice of the race to issue in Brussels II; this needs to be addressed if cross-border mediation in divorce cases is to have any prospect of success.
• Cross-border mediation is a real specialisation within mediation and should only be undertaken by cross-border specialists; unfortunately there has been minimal training or even recognition within the mediation profession of this work and specialisation.
• Ensuring quality of mediation will need a much tougher approach to the use of public resources committed to the project than in the late 1990s.
• English mediation outcomes are privileged until blessed by legal advice, in potential conflict with Article 6.
• English family law cannot be bound in any way including by mediation outcomes, in potential conflict with Article 6.
• The procedure adopted in both the Directive and the FPR 2010 to allow applications to the court to open up mediated outcomes needs careful consideration by all mediators, especially mediation administrators, and a review of terms of mediation business.
• The opportunity should be taken to introduce binding family law arbitration, with a family arbitration scheme being launched late 2010.
• Mediation outcomes should enjoy the benefits of cross-border recognition and enforcement as the Directive intends, with safeguards.
• Child abduction mediation has had particular success recently with a pilot project in the UK.
• The Hague Conference Permanent Bureau has conducted research into the use of mediation in child abduction cases, covering both Hague and non-Hague States and drafted a Guide to Good Practice on Mediation. It was put before the 6th Special Commission at their conference in June 2011 and should be published soon after further consultation. This Guide will help countries who wish to use mediation, and assist with the development of a uniformed approach to mediation in these high conflict international children's cases.
• The Central London Collaborative Forum, a group of IAML Fellows in London who practice as collaborative lawyers, have created an invaluable protocol for working in international cases and within the spirit of the Directive.
• Cross-border mediation requires careful consideration of the best use of IT including Skype and web cam, recognised in Recital 9 of the Directive.
• Cross-border mediation and other ADR should not be regarded as a "poorer alternative to judicial proceedings", recognised in Recital 19
• The definition of mediation and mediator in Article 3 is worth careful study.
• Part 35 FPR 2010 applies to the EU Mediation Directive. It sets out the procedure to seek disclosure and inspection of mediation evidence, including serving the mediator.
• The Cross-Border Mediation (EU Directive) Regulations 2011 No 1133 has no direct reference to family law and is primarily a matter of implementation. However paras 9 and 10 cover applications for disclosure regarding the mediation settlement. This builds on Pt 35.3.3 FPR and gives the court explicit powers.

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. 

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

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 dh@davidhodson.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.

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