The Department of Justice and Equality has published 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.

The Regulations differs from the draft Mediation and Conciliation Bill 2010 proposed by the Law Reform Commission in their paper on Alternative Dispute Resolution: Mediation and Conciliation: November 2010 which had a much wider ambit.

The Regulations reinforces the right of the parties to recourse to mediation. The courts may invite the parties to use mediation to resolve disputes where the court considers it appropriate, having regard to all of the circumstances of the case and with the parties consent. The parties, by agreement, can also request adjournment of the proceedings to explore mediation. Where the parties decide to use mediation, the courts may also then make such necessary orders or directions so as to facilitate mediation. The courts may invite the parties to attend an information session on the use of mediation.

It is now confirmed that all written mediation agreements can be enforced through the courts. The Regulations provide a time limit on applications for enforcement of mediation agreements (six years from the conclusion of the mediation).

The Regulations also support the principle of confidentiality of mediation, except in specified limited circumstances, such as public policy and where necessary to enforce the mediation agreement.

The Regulations will come into operation on 18 May 2011.

Contributed by Jarleth Heneghan, Partner and Cassandra Byrne, Associate, both of our Projects and Construction Department.