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The Organisation for Economic Co-operation and Development has contacted both Shell and the north Mayo community in Ireland to offer mediation after a community group filed an admissible complaint with the OECD. The complaint claims that the Corrib gas project developers violated non-binding OECD guidelines for multinational companies by, among other things, failing to provide adequate information to the public about the potential impacts of the gas refinery and pipelines.
Irish Times (March 7, 2009)
After many years of effort, a Mediation Directive for cross-border civil and commercial disputes was approved by the European Parliament on April 23, 2008. The new Directive (i) requires member states to encourage training of mediators and development of codes of conduct and other quality control measures for mediation services, (ii) gives all judges the right to invite parties to mediate, (iii) requires member states to provide judgment-like status for mediated agreements, (iv) requires mediation confidentiality and protects mediators from compulsion to give evidence, and (v) ensures that statutes of limitations and prescription periods will be suspended during mediation. Member states have three years to implement the Directive for most issues, and may chose to apply the Directive to internal as well as cross-border disputes.
European Parliament (Brussels) (April 23, 2008)
In order to provide better resolution of member disputes and improve the business environment through the use of mediation, the Macedonian Chamber of Commerce signed a memorandum of cooperation with the Alternative Dispute Resolution Program of the World Bank’s International Finance Corporation. The agreement is part of an effort by Macedonia and neighboring countries to use mediation in the business sphere, with the greatest success thus far in Serbia, Bosnia and Herzegovina, where about 2,200 disputes involving 45 million euros have been resolved.
World News Connection (September 21, 2007) (Subscription Required); IFC’s ADR Program
In its efforts to reduce gang violence and murders, the police force in Manchester, England is looking to Northern Ireland’s use of mediation in the late 1980s which helped Catholics and Protestants break the cycle of retaliatory violence and ultimately settle their issues. The process under consideration involves using community members as mediators between rival gangs in a police-sponsored program, which is already under way in Birmingham.
Manchester Evening News (August 7, 2007)
Mediation is crucial for those unable to afford the risks and costs of litigation, according to a strongly worded editorial by British High Court Justice Gavin Lightman. However, mediation was set back by the appellate decision in Halsey v. Milton Keynes General NHS Trust, EWCA (Civ) 576 (2004), which refused to order parties to mediate over their objections and required a litigant seeking costs for an opponent’s refusal to mediate to carry the burden of proving the refusal was unreasonable. The importance of these issues is heightened by the government’s limitation on civil legal aid.
TimesOnline (July 31, 2007)
Interim results from an ongoing survey of U.K. construction litigation conducted by the Technology and Construction Court (TCC) and King’s College, London, reveal that much mediation of construction disputes is occurring, but litigants are not interested in the TCC’s pilot project to provide judges as mediators. Of the many cases settled, about one-third were resolved through mediation, with most of the rest settling by direct negotiations. Of the mediations conducted, four-fifths occurred at the parties’ own initiative, generally with use of a limited number of well-regarded barristers and construction professionals as mediators. During the first year of the TCC pilot program, litigants have been willing to use judges as mediators only twice.
Mondaq (June 26, 2007) (Subscription Required or Direct with Registration); The Lawyer.com (July 4, 2007)
Mediation has proven effective in Poland since being introduced only eighteen months ago, with more than 200 cases a month now being referred to mediation by civil courts. Looking to the experiences of other European countries and the United States, a recent legal conference in Warsaw focused on the continuing need for education on the benefits of mediation, and noted that the fees paid to professional mediators often fall short of the effort spent resolving the dispute.
Polish News Bulletin (June 6, 2007) (Subscription Required)
While many sets of chambers in England now have dedicated arbitration practices, Exchange Chambers, a top thirty set in London, is the first to develop a dedicated mediation group, with a third of its barristers becoming accredited mediators. The head of chambers stated the move is based on the dramatic increase in the number of cases being resolved in mediation.
The Lawyer (March 29, 2007)
Romania’s first Mediation Congress is taking place March 16-17 in Craiova to enhance practical mediation skills and further the Union of Mediation Centers in Romania in order to continue the growth of mediation. Mediation centers are now established throughout the country, having begun in 2005 with assistance from the U.S. Embassy, the Ministry of Justice and bar associations in Romania; training was provided by experienced U.S. mediators. Expected participants at the Mediation Congress include mediators, attorneys, judges, and guests from around Romania and abroad.
Press Release (March 8, 2007)
A joint statement used in mediation by the parties’ experts in a construction dispute was held not to be privileged by the UK’s Court of Appeal, reversing the Technology and Construction Court (TCC) in Aird v. Prime Meridian Ltd. Rather than considering the intent of the trial court, the appellate court focused on the fact that the court mandated the joint expert statement using a litigation form and that the experts had agreed to remove the “without prejudice” designation. The Court of Appeal explained that a joint expert statement could only be ordered for litigation under the court’s rules and so would not be privileged even though it was used in mediation.
Aird v. Prime Meridian Ltd., [2006] EWCA Civ 1866 (Court of Appeal) (December 21, 2006)
The European Commission recently committed to use mediation and other forms of alternative dispute resolution in disputes with contractors, many of whom have complained to the Commission Ombudsman. The Commission previously endorsed mediation as a better way to resolve disputes, and proposes to include an optional mediation clause in its standard procurement contracts. While the Commission states it cannot require contractors to mediate disputes with their subcontractors, the Ombudsman is encouraging the Commission to recommend mediation in such situations, as well as using mediation in disputes over grants made by the Commission.
US Federal News (December 18, 2006) (Subscription Required)
The U.K. Department for Constitutional Affairs (DCA) and Her Majesty's Courts Service are sponsoring Mediation Week from October 9-13, with presentations, seminars and mediation demonstrations taking place in participating courts across England and Wales. The week is part of DCA’s Proportionate Dispute Resolution strategy to ensure justice by increasing awareness of rights, responsibilities and resolution alternatives.
Draft executive regulations from the Polish Minister of Justice would provide state reimbursement for lawyers taking part in mediations that may be up to 150% of what is paid in ordinary court cases. Generous fees would encourage mediation, which only began in civil cases in Poland in December 2005, but ultimately will be set by the court.
Polish News Bulletin (July 4, 2006)
The World Bank’s International Finance Corporation organized a mediation skills training program in Karachi in June. The training is part of the its ongoing efforts to establish a pilot mediation program in Pakistan in cooperation with the Federal Ministry of Law, Justice and Human Rights and the High Court of Sindh. Thirty-six professionals from various backgrounds were trained by UK mediators. The Chief Justice of the High Court of Sindh praised the efforts, strongly encouraging the use of mediation in Pakistan to ease the burdens on its courts, free tied-up assets, and minimize business-stifling litigation.
Business Recorder (June 17, 2006) (Subscription Required)
A pilot program in which judges will mediate construction disputes has begun in the UK’s Technology and Construction Court (TCC), despite lack of support from solicitors or the alternative dispute resolution community. Mediations may be handled either by the judge in charge of a case or another judge, with all mediating judges receiving special dispute resolution training. While critics raise concerns about the role of judges as mediators and potential damage to the court’s reputation, the TCC Bar Association supports the mediation program because participation is voluntary. The pilot program began June 1 and will continue until July 2007.
Lawyer (June 5, 2006) (Subscription Required)
While UK courts strongly encourage mediation, they have been reluctant to simply order parties to mediate, and have instead imposed sanctions on litigants who unreasonably refuse to mediate, even if the party is ultimately successful in litigation. In a significant line of cases, UK courts are making increasingly nuanced decisions about whether the refusal to mediate was unreasonable, looking at factors such as the nature of the dispute, the merits of the case, whether delay for mediation would cause harm, whether mediation had a reasonable chance of success and the extent to which mediation was encouraged by the court. Some decisions have recognized that looking into whether a refusal to mediate was unreasonable may involve sensitive issues of mediation confidentiality and privilege, and note the need to avoid questions of why mediation may not have resulted in settlement.
The Journal (Newcastle England) (May 2, 2006) (Subscription Required); Detailed Article
Updated Civil Procedure Rules encouraging mediation and other alternatives to litigation went into effect on April 6 in England and Wales. Notably, “pre-action protocols” were amended for personal injury (PI) claims to encourage negotiation and mediation, which are common for other types of claims. While there has been resistance to mediating PI cases in the UK, use of mediation is increasing and the success rate in PI cases is said to exceed 90%.
Civil Procedure Rules
PI Pre-Action Protocol
Post Magazine (March 9, 2006) (Subscription Required)
Estates Gazette (March 11, 2006) (Subscription Required)
The UK Patent Office began a new mediation service in April for resolving intellectual property (IP) disputes. The Patent Office provides accredited mediators for IP disputes at a set rate of 1,000 pounds/day (in London), as well as a lengthy list of independent mediators that parties can choose to hire directly. Detailed information about the new service and various aspects of mediation is available on the Patent Office’s website. The Patent Office also provides useful model mediation procedures and an agreement to mediate.
UK Patent Office Mediation Service; Model Procedures and Agreement
A new international alliance launched the UK-China Mediation Centre in April, with locations in Beijing and London. The alliance is between the Centre for Effective Dispute Resolution (CEDR) and the China Council for the Promotion of International Trade. The focus is on mediating disputes between Chinese and European businesses to avoid the need for arbitration or litigation.
Lloyd’s List International (4/12/06) (Subscription Required)
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