Rule 3(2)
SCHEDULE 2
“PART VIMEDIATION DIRECTIVE
Application and interpretation
18.—(1) This Part of this Order applies to mediated cross-border disputes that are subject to Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters(1).
(2) In this Part—
(a)“Mediation Directive” means Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters;
(b)“cross-border dispute” has the meaning given by article 2 of the Mediation Directive;
(c)“mediation” has the meaning given by article 3(a) of the Mediation Directive;
(d)“mediation administrator” means a person involved in the administration of the mediation process;
(e)“mediation evidence” means evidence arising out of or in connection with a mediation process;
(f)“mediation settlement” means the content of a written agreement resulting from mediation of a relevant dispute;
(g)“mediation settlement agreement” means a written agreement resulting from mediation of a relevant dispute;
(h)“mediation settlement enforcement order” means an order made under rule 19(6);
(i)“mediator” has the meaning given by article 3(b) of the Mediation Directive; and
(j)“relevant dispute” means a cross-border dispute that is subject to the Mediation Directive.
Mediation settlement enforcement orders
19.—(1) Where the parties, or one of them with the explicit consent of the others, wish to apply for a mediation settlement to be made enforceable, an application may be made by notice of motion.
(2) An application shall be made ex parte and supported by an affidavit exhibiting the mediation settlement agreement.
(3) The application under paragraph (1) shall be served on the chief clerk of the appropriate county court division.
(4) Except to the extent that paragraph (8) applies, the parties shall lodge any evidence of explicit consent to the application under paragraph (1) when the parties lodge the application.
(5) A copy of the application, mediation settlement agreement and, if applicable, evidence of explicit consent shall be served on all parties to the mediation settlement agreement who are not also parties to the application.
(6) Subject to paragraph (7), where an application is made under paragraph (1), the court will make an order making the mediation settlement enforceable.
(7) The court will not make an order under paragraph (6) unless the court has evidence that each of the parties to the mediation settlement agreement has given explicit consent to the application for the order.
(8) Where a party to the mediation settlement agreement—
(a)has agreed in the mediation settlement agreement that a mediation settlement enforcement order should be made in respect of that mediation settlement;
(b)is a party to the application under paragraph (1); or
(c)has written to the court consenting to the application for the mediation settlement enforcement order,
that party is deemed to have given explicit consent to the application for the mediation settlement enforcement order.
(9) An application under paragraph (1) will be dealt with without a hearing, unless the court otherwise directs.
(10) No document relating to an application for a mediation settlement enforcement order may be inspected by a person under Order 43, rule 4 or rule 43 who is not a party to the proceedings without the leave of the court.
(11) Where the application is supported by evidence of explicit consent to the application by a party to the mediation settlement agreement, the evidence shall be in English or accompanied by a translation into English.
(12) Where a party to the mediation settlement agreement writes to the court consenting to the making of the mediation settlement enforcement order, the correspondence shall be in English or accompanied by a translation into English.
(13) Where the parties to pending proceedings agree to apply for a mediation settlement enforcement order, they shall inform the court immediately.
Mediation settlement enforcement orders: foreign currency
20. Where a person applies to enforce a mediation settlement enforcement order which is expressed in a foreign currency, the application shall contain a certificate of the sterling equivalent of the sum remaining due under the order at the close of business on the day before the date of the application.
Mediation evidence: disclosure or inspection
21.—(1) Where a person seeks disclosure or inspection of mediation evidence that is in the control of a mediator or mediation administrator, an application shall be made by notice of motion.
(2) The application under paragraph (1) shall be served on the chief clerk of the appropriate county court division.
(3) Where an application is made under paragraph (1), the mediator or mediation administrator who has control of the mediation evidence shall be named as a respondent to the application and shall be served with a copy of the summons.
(4) Evidence in support of the application under paragraph (1) shall include evidence that—
(a)all parties to the mediation agree to the disclosure or inspection of the mediation evidence;
(b)disclosure or inspection of the mediation evidence is necessary for overriding considerations of public policy, in accordance with article 7(1)(a) of the Mediation Directive; or
(c)disclosure or inspection of the mediation settlement is necessary to implement or enforce the mediation settlement agreement.
(5) Where this rule applies, Orders 15 and 24 shall apply to the extent they are consistent with this rule.
Mediation evidence: witnesses and depositions
22.—(1) This rule applies where a party wishes to obtain mediation evidence from a mediator or mediation administrator by—
(a)a witness summons;
(b)cross-examination with permission of the court under Order 24, rule 21(7) or rule 24;
(c)an order under Order 24, rule 20(1);
(d)an order under Order 24, rule 20(12); or
(e)an order under Order 24, rule 20(13).
(2) When applying for a witness summons, permission under Order 24, rule 21(7), or an order under Order 24, rule 20(1), 20(12) or 20(13), the party shall provide the court with evidence that—
(a)all parties to the mediation agree to the obtaining of the mediation evidence;
(b)obtaining the mediation evidence is necessary for overriding considerations of public policy, in accordance with article 7(1)(a) of the Mediation Directive; or
(c)the disclosure or inspection of the mediation settlement is necessary to implement or enforce the mediation settlement agreement.
(3) When considering a request for a witness summons, permission under Order 24, rule 21(7), or an order under Order 24, rule 20(1), 20(12) or 20(13), the court may invite any person, whether or not a party, to make representations.
(4) Where this rule applies, Orders 15 and 24 shall apply to the extent they are consistent with this rule.”
OJ No. L136, 24.05.2008