The Impact of the EU Mediation Directive 2008 & the effect that Brexit has had on English Mediation Practice


An interview conducted by Giovanni de Berti with David Richbell.

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Q: Mediation has existed in Britain from many years. Laws and courts began to take notice of it since the early nineties. What was the impact of the EU Mediation Directive of 2008? Had English mediation law and practice to be accommodated, was it and how?

A: Commercial mediation in the UK really started, although very slowly, in the early 1990’s but really became taken seriously after the Woolf reforms in 1999. Those reforms meant that ADR (usually mediation) had to be considered by the parties, so it became an established, and serious, process which lawyers had to consider and recommend. In the years since then it has become expected (although it is not mandatory) that parties enter mediation before trial.

The EU Directive therefore came at a time when mediation had been long established in the UK, so it had no real impact. In fact I believe several UK mediators used their experience in helping to draft the Directive (or at least removing some of the more unrealistic parts).

Q: Did the EU Directive have positive, negative or no effects on the mediation practice, domestic or international, of English mediators?

A: The only changes in the UK were to allow limitation periods to be suspended during a mediation, to create settlement enforcement orders (which I believe has never been used) and to adopt a (rather odd) rule about admitting confidential mediation evidence at trials. So it had very little effect other than to ratify what we were already doing.

Q: Has Brexit had already some effect on English mediation practice, domestic or international?

A: Brexit has had no identifiable effect on mediation practice in the UK, other than the fact that most of us are still in a state of shock. However, being an optimist, I see this as a real opportunity for mediation skills to be used in creative ways.

Q: Do you think / hope / fear it will have in future?

A: I have a strong belief that Brexit has provided us with an opportunity to change how we debate, both in parliament and in general. I have been involved in facilitating conversations on human sexuality in the church and it has changed the way that issues are debated and decisions made. In the past the General Synod has operated in the same way as our parliament – debating issues in a binary (for/against) way. We facilitated discussions that increased understanding and acceptance of differences and led to co-operation in decision-making.

Some time soon the British parliament will be leaving the Houses of Parliament to enable substantial renovation of the buildings. It is an opportunity for debates to be less adversarial and more like the church facilitated conversations, if only because the debating chamber does not have to have seating that faces each party and creates a divide. It is a great opportunity and we shall see if the MP’s are wise enough to grasp it.

The Brexit debate in the UK showed MP’s at their very worst. The public generally were disgusted at the awful level of debate and the lack of real information. Many voted in protest at the level to which our MP’s had descended, rather than against being part of the EU (although the level of debate in the European Parliament has not always been considered to be great either).

The Brexit negotiations should be mediated. They desperately need a co-operative approach. Unfortunately, they have already become adversarial even before the formal process has started. I despair!

Q: In your opinion, should English mediation law or practice change because of Brexit and how?

A: I don’t see how Brexit will affect the mediation world. I can’t see Parliament finding time for a Mediation Bill and there is not much support for compulsory mediation (although some out-of-work mediators do like the idea!).

Q: Is the position in Scotland different? Which impact would have Brexit on Scottish mediation practice?

A: At the moment the position in Scotland is no different to the rest of the UK. Although Scotland has its own laws, and mediation is not so common, the impact is similar. However, Scotland voted overwhelmingly to stay in the EU and Brexit appears to have strengthened the Nationalist case for independence. So who knows what will happen in the future? There is undoubtedly the need for mediation skills, but will they use them?

 

 

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