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Wider Regulation of Mediation

Wider Regulation of Mediation

Will this ODR Regulation prompt wider regulation of the mediation market?



Full Transcript

Well, the government has hinted that the next regulation will be accreditation and probably will be obviously the council, the Civil Mediation Council, who would be at the forefront of these changes. But I think the concern in the U.K. is that they already have a very expensive and formalistic court system. The last thing they want to do is to create another formalistic mediation process. So it’s very . . .


I mean, I was looking at how things . . . what prompted legislation in Spain and Italy to promote the use of mediation. The motivations are very different. If you see . . . If you look at Italy, they have a sclerotic, extremely slow court process. They want to incentivise mediation to relieve courts from disputes that take ages to be resolved.


In Spain, they have a court system that is also fairly slow, not as slow as Italian counterpart, but it’s a bit more formalistic. Parties are required to have legal representation, even for particularly low-value disputes. In the U.K., the issue is the formality and the costs.


So I mean, there are different motivations that are informing the use or the promotion of mediation. I think because of formality, the high cost is one of them in the courts in England and Wales. I think that also pushes the government to be cautious about legislating too early and to make it formalistic, the process. But I think accreditation will be maybe the first step that, in time, will come.



I think there are two separate issues. One, it is that the government has said that they will look at accrediting mediators, as well as setting up regulation for the accreditation of mediators. That’s one thing.


A separate thing is the implementation of the ADR directive. The ADR directive will be implemented by next summer. The main changes will be that there will be a number of so-called competent public authorities that will assess whether ADR schemes or mediation schemes that deal with consumer disputes, whether they meet with the criteria set in the directive and get this European certification to deal with domestic, as well as cross-border, disputes.


Then they can also be channeled through the European platform. One of the requirements for this accreditation for mediators or ombudsman schemes is that they deal with disputes online. They don’t have to be all of them. But if parties want to have the dispute resolved online, they must be able to do so. The ODR platform will offer the technology for mediators, for instance, to resolve consumer disputes online. This is obviously because if you have a consumer dispute with somebody in another country, you cannot expect them to travel for a low-value, typical consumer dispute. Low-value could be thousands Few thousands of euros or pounds. You know? Get legal representation without it and meeting . . . Let alone, the people may speak different languages. So the idea is that ADR schemes that resolve consumer disputes must be able to do it not just cross-border, but also domestic disputes, online.

About the mediator

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Pablo is a Senior Lecturer and a non-practising Spanish attorney. He conducts research in the field of dispute resolution, civil procedure and consumer law. He was invited to be a keynote speaker in two international conferences, and he has been invited as a speaker at many other conferences in 15 different countries. He was invited to participate in expert meetings by various organisations, including the UN Commission for International Trade Law... View Mediator