The New EU Directive on Mediation First Insights

by Arbitration, Association for International

• ISBN13: 9789046602423
• ISBN10: 9046602427
• Format: Paperback
• Copyright: 2008-12-01
• Publisher: Maklu Publishers

Summary

This book is an introduction to the current and prospective European mediation practice after the recent issuing of the new Mediation Directive. The reader will find some typical mediation related aspects critically discussed. Philippe Billiet and Ewa Kurlanda introduce the reader to the rise of the European pro-mediation idea and the characteristics of the New Mediation Directive. The Directive itself are being assessed more critically by Phillip Howell-Richardson. Frank Fleerackers presents the way how the training of mediators (one of the key rules of the New Mediation Directive) should be implemented into the European education practice of mediators. Ivan Verougstraete, president of Gemme, discusses the task and possibilities of judges to invite parties to participate in mediation. At last, this work provides some comparative discussions of the European, American and Chinese perspectives on mediation and mediation practices. William O'Brian assesses how European mediation can be improved by looking at some American mediation issues. Li Mingqian demonstrates how far Chinese mediation perspectives can be reconciled with the current European mediation philosophy.

Table of Contents

Introduction	p. 7
An Introduction to the Directive on Certain Aspects of Mediation in Civil and Commercial Matters	p. 9
Introduction	p. 9
The rise of the pro-mediation idea in Europe	p. 10
Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters	p. 13
Aims, Ways and Scope	p. 13
The key rules of the Directive	p. 16
Ensuring the quality of mediation	p. 16
Recourse to mediation	p. 17
Agreements resulting from mediation	p. 17
Effect of mediation on limitation and prescription periods	p. 19
Information for the general public	p. 20
Final date to implement	p. 20
Discussion of the new Directive	p. 20
Mediation can become overstressed	p. 20
Incomplete provisions	p. 21
Importance	p. 21
Conclusion	p. 22
The Role of Lawyers in Interaction: Mediation, ADR and Legal Thinking	p. 25
Introduction	p. 25
Core text	p. 26
Conclusion	p. 34
Judges and Mediation	p. 37
Introduction	p. 37
Some definitions	p. 38
The actual Belgian legal system and the directive	p. 40
The statutory law	p. 40
The directive	p. 40
Concluding	p. 41
Judges as mediators: the pro's en contra's	p. 42
The role of the judge in the referral to mediation and in the execution of the agreement	p. 43
The real issue: judges and conciliation	p. 45
The European Mediation Directive and some Thoughts on the Principles involved in Dealing with the Problems surrounding Mediation Confidentiality	p. 47
Introduction	p. 47
To what will the Directive apply?	p. 47
What are the key provisions?	p. 48
Facilitation and promotion	p. 49
Establishing a sound framework for the relationship between the courts and the mediation process.	p. 49
Conclusion	p. 53
Lessons for the European Union from Mediation in the United States	p. 55
Introduction	p. 55
U.S. Litigation	p. 56
U.S. Mediation	p. 59
Insurance Considerations	p. 62
Steps in a Typical U.S. Mediation	p. 63
The E.U. Directive	p. 64
The Evolution of Mediation1 in China	p. 67
Introduction	p. 67
Typical features of traditional mediation in (ancient) China	p. 68
Characteristics	p. 68
Given application conditions	p. 68
Special mediation basis	p. 68
Compulsory mediation process	p. 68
Flexible mediation measures	p. 69
Direct mediation purpose	p. 69
Factors which shaped this traditional form of mediation	p. 69
Limitations on the traditional mediation practice	p. 70
The current mediation practice in China	p. 70
The transformation to the current mediation practice	p. 70
Actual problems with mediation in China	p. 72
Cultural reasons for overvaluating mediation in China	p. 73
The Chinese mediation practice and the new EU Mediation Directive	p. 74
Conclusion	p. 75
Annexes
Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters	p. 77
European Code of Conduct for Mediators	p. 83
Model Standards of Conduct for Mediators	p. 87
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