Mediation in cross border disputes: How does it work?

Mediation meeting

Mediation is becoming a popular and more economical was of settling disputes in the current economic climate. Litigation may be necessary, however more and more, whether through choice or by the imposition of legislation affecting the area, it is advisable and sometimes even necessary to mediate between the parties. Furthermore given the extraordinary buoyancy of the export industry in a depressed economy, it is necessary to clarify the remedies available to companies in Ireland who have a dispute with an entity based in the EU.

Mediation between parties in cross border disputes is governed by the European Communities (Mediation) Regulations 2011 (SI 209 of 2011) which transposes Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters and is in force since the 18th of May last. It applies to proceedings in all courts.  The Court, on foot of the directive may order that the proceedings or any issue therein be adjourned for such time as necessary and (a) invite the parties to use mediation to settle or determine the relevant dispute or issue, or (b) where the parties so consent, refer the proceedings or issue to such mediation. This effectively means that the Court can order mediation or either of the parties can apply to the Court for mediation to be invoked.

The Court may also invite the parties to attend such information session on the use of mediation, if any, as the Court may specify and the Court may make such further orders or give such directions, as the Court considers will facilitate the effective use of mediation.

With certain exceptions a mediator cannot be compelled to give evidence as to what transpired in the mediation. This should allow an open discourse between the parties involved in the mediation. It is important to note that mediation or the appointment of a mediator will not eat into the time that you have to launch litigation, time will be suspended and you will still have the usual amount of time as governed by statute to bring your claim. A mediation is specified as commencing upon the appointment of a mediator and ends when the mediator determines that the mediation is at an end or has concluded. The Statute of Limitations is suspending during this time and for 30 days after the mediation

Within 6 years after a mediation successfully ends in an agreement, the parties to that agreement may apply to the Court concerned for an order making the agreement a rule of Court and such an order shall be enforceable against both the parties (or any of them). In any non-litigation related mediation, the parties (or one of them) may apply to the Master of the High Court, unless in either case (a) the terms of the agreement are contrary to the law of the State, or (b) the law of the State does not provide for the enforcement of such an agreement.

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