European briefing

Over the half-century of its existence, there has been a slow but steady creep of EU competence into areas of 'classic' private law and civil procedure. The adoption of Directive 2008/52/EC (21 May 2008) on 'certain aspects of mediation in civil and commercial matters' arguably represents a furtherextension.

English lawyers will hardly need reminding about the enormous development of alternative dispute resolution '“ in particular mediation '“ in the past few years. But it may come as a surprise to find that the EC has thought this a necessary topic for legislation. It might have been thought that the extent to which mediation should be encouraged and promoted is very much a matter for each member state, with no obvious cross-border importance. It is remarkable, indeed, that the Directive makes almost no attempt to justify the need for EU intervention, beyond a boilerplate invocation of the 'proper functioning of the internal market', and a notional limitation to cross-border disputes. But the whole motivation is instrumentalist: mediation is a good thing; it ought to be encouraged, and EU legislation can encourage it.

Closer scrutiny of the Directive shows that this aspirational note continues throughout. For the most part it consists of encouragements (to promote mediation, encourage the development of professional mediation organisations, and make information about it available). There is no legislative rule requiring mediation to be made in any way mandatory. As such the Directive represents a modest first step.

There are two specific obligations, neither of which is likely to be difficult to implement here. First, member states are required to make available some mechanism by which the parties can ensure that agreements resulting from a mediation are enforceable. The obligation seems rather modest; but there were apparently legal doubts in some member states which might be laid to rest. At any rate, English contract law and procedural law has various mechanisms available, particularly the Tomlin Order, which are ideally suited to achieve this objective.

The second obligation, which may make a difference in English law, is introduced by Article 7, which provides for the confidentiality of a mediation, and in particular provides that member states shall 'ensure' that neither mediators or administrators of mediation are required to give evidence about information acquired during a mediation. There are exceptions for overriding public policy (such as child protection) and for actions concerning the enforcement of agreements reached in mediation. This may, perhaps, go a bit further than English law does, since it seems to create a specific statutory privilege against being compelled to testify which might be slightly broader than the existing rules of confidentiality and without-prejudice privilege. But it is not likely to make a major practical difference.

For English lawyers, then, the Directive is not going to make much of a difference to everyday practice. Nevertheless, the point of principle does seem to be important. Here is a subject which, on the face of it, there is no profound Community interest in legislation at all, and which intimately concerns civil procedure. That the EC should regard it as necessary to legislate in such an area demonstrates the extent to which EU law now percolates into areas which were previously regarded as entirely a matter of domestic law.