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With all the furore over the ADR Directive, people will perhaps have forgotten the overarching directive on mediation, designed to encourage the use of mediation in member states.

Now the European Commission has made a call for a public consultation on the application of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters

with the purpose of preparing a report on the application of the Directive

This directive provided that members states needed to take action to encourage mediation to include making mediation agreements enforceable and suspending limitation periods for mediation. It also provided that member states “should encourage the provision of information to the general public on how to contact mediators and organisations providing mediation services. They should also encourage legal practitioners to inform their clients of the possibility of mediation.” We do not think that the way in which the ADR Directive has been implemented in the UK honours the spirit of the Directive as although businesses are obliged to provide clients with details of an ADR provider, they can then opt out of using that provider.

The ADR Directive is a ‘minimum’ harmonisation directive in that member states have some flexibility as to how certain parts of it are implemented. Other Directives such as the Unfair Commercial Practices Directive are ‘maximum’ harmonisation in that member states have no flexibility in how they are implemented.

The ADR Directive allows member states the option of making ADR mandatory to settle a dispute and I understand that some member states have gone down this route. The previous administration took the view that the ADR Directive should be implemented in as light a touch a way as possible. This included not putting additional requirements on business than those contained in the Directive, sometimes known as ‘gold plating’. Making ADR mandatory for traders would have introduced significant additional burdens on business so given the flexibility the UK had in how it implemented the Directive a decision was taken not to make it mandatory.

We shall certainly be responding to this consultation and informing the Commission about the way in which the ADR Directive has been implemented, favouring ombudsmen redress systems and that it would more effectively encourage the uptake of mediation if businesses had to use reasonable endeavours or take reasonable steps to use mediation.

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