Last summer, to very little fanfare by family lawyers, the UK adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial matters. This Directive will work to strengthen mediation for cross border EU family disputes and inevitably will therefore also impact on domestic mediation.
The preamble makes clear that civil matters include family cases although the Directive is not intended to apply to “rights and obligations on which the parties are not free to decide themselves under the relevant applicable law”[preamble para 10]. Although the UK has until 2010 to bring the Directive into force, the effect will be marked as the Directive sets out the obligation upon the UK to provide for proper mediation services to deal with cross border disputes.
The Directive provides in terms for mediation agreements to be enforceable across Member States which would provide an answer for cases crossing jurisdictions where the mediation has taken place in only one jurisdiction [Article 6].
In addition the Directive sets out clearly the mediation confidentiality that is expected and provides that it shall apply to all mediations save for in cases of public policy exceptions or to protect adults or children from harm... [Article 7].
Interestingly enough Article 8 provides that where cross border mediation has been used, limitation periods will effectively be suspended whilst the process is ongoing. Quite how this will tally with the impetus to be first past the post in relation to Brussels II R has yet to be worked out.
On 6th May 2009 Thomas More Chambers will be hosting a mediation seminar in which all these issues and more will be dealt with “All your questions answered – mediation and family therapy”. Suzi Power , an expert mediator and experienced mediator trainer with Resolution, will be the guest speaker at the seminar further details of which are available from www.thomasmore.co.uk
Sarah Lucy Cooper
Barrister, Thomas More Chambers
Resolution Mediator specialising in cross border disputes in particular with Spain
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