Page 141 - Solving Housing Disputes

therefore, in my view assist with the interpretation of sub-paragraph (m),
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which is dealing with an ENE hearing as part of the court process.
30. Reference is also made in the report to Article 5(2) of the Mediation Directive
335
2008/52/EC, which provides:
1. A court before which an action is brought may, when appropriate and
having regard to all the circumstances of the case, invite the parties to use
mediation in order to settle the dispute. The court may also invite the parties
to attend an information session on the use of mediation if such sessions are
held and are easily available.

2. This Directive is without prejudice to national legislation making the use
of mediation compulsory or subject to incentives or sanctions, whether before
or after judicial proceedings have started, provided that such legislation does
not prevent the parties from exercising their right of access to the judicial
system.

31. This Directive, together with the Directive on Consumer ADR 2013/11/EU,
was considered in the case of Menini v Banco Popolare Societa Cooperativea
(Case C-75-16). In that case, the Court held, inter alia, that:

Mediation is defined (at Article 3(a) of the 2008 Directive) as “a structured
process, however named or referred to, whereby two or more parties to a
dispute attempt by themselves, on a voluntary basis, to reach an agreement
on the settlement of their dispute” (para 49).

32. The voluntary nature of mediation lies in the fact that the parties are in charge
of the process and may organise it as they wish and terminate it at any time
(para 50). It was important that parties could withdraw from the procedure at
any stage if they were dissatisfied with its performance or operation (para 57).
Requiring parties to demonstrate a valid reason for withdrawing would
restrict their access to the judicial system (para 66).

334 Although it is fair to note that Moylan LJ commented that the court’s engagement with mediation had
“progressed significantly” since Halsey was decided: His Lordship declined to decide whether it
remained good law.

335 This Directive has been implemented in the UK by the Alternative Dispute Resolution for Consumer
Disputes (Competent Authorities and Information) Regulations 2015/542. It does not apply to housing
cases.
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