The matter before the joint committee concerns the exercise by the State of its option to take part in the adoption and application of proposals for a regulation creating a European small claims procedure and a directive on certain aspects of mediation in civil and commercial matters. The measures were presented by the European Commission on 23 and 30 March last, respectively. Members will recall that we have three months in respect of the measures, to which the fourth protocol of the Amsterdam Treaty applies, within which to notify the President of the Council of our intention to opt into any discussions from the beginning. As the period will expire shortly, it is essential to seek the approval of both Houses before the summer recess. The approval of both Houses has previously been sought and given on several occasions for the State to exercise the option provided in the fourth protocol in respect of proposals in the area of EU judicial co-operation in civil matters. It is highly desirable that the Houses of the Oireachtas should play a meaningful role in scrutinising measures such as those which are under discussion today. I look forward to hearing the observations of members and to dealing with any queries which might arise. I remind members that officials of my Department appeared before the Joint Committee on Enterprise and Small Business when it was examining the related European Commission Green Paper on an order for payment system and on measures to speed up and simplify small claims litigation in 2003. Recently, officials of my Department attended the Sub-committee on European Scrutiny to discuss Title IV measures in general.
The proposals under discussion should be viewed against the background of the development at EU level of measures geared to enhance judicial co-operation in civil matters. The overriding aim is to make access to justice easier for individual litigants. The access to justice programme is predicated on the fact that in a genuine European area of justice, individuals or businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the member states. In the conclusions of the 1999 Tampere meeting of the European Council, the Council and Commission were called upon to prepare new legislation on those elements of civil procedure required to facilitate judicial co-operation and enhance access to justice. Extra-judicial procedures such as mediation were specifically included in the list of measures considered to warrant legislative initiative as was the creation of a European small claims procedure. The 2004 Hague programme also identifies the proposals in question as projects to be actively pursued.
A number of measures which link in with the access to justice programme have already been brought to the attention of the Oireachtas and, subsequently, been adopted. Examples include the simplification of procedures for the service of documents within the EU, the creation of a European enforcement order for uncontested claims and the establishment of the civil judicial network. The proposed regulation to create a European small claims procedure provides for a specific procedure to be available in all member states as an optional tool for those who seek a court decision in respect of a small claim which is capable of being specified in terms of a concrete amount. For the purposes of the proposal, a small claim is defined as one which does not exceed an amount of €2,000.
The existing Irish small claims procedure covers amounts up to €1,270, which is the euro equivalent of the pre-changeover sum of £1,000 punts. Our small claims procedure focuses largely on consumer issues, whereas the procedure we consider today has a broader scope in which it is envisaged it will apply to civil and commercial claims generally and need not be consumer-based. The Commission proposal is not intended to replace national procedures such as our own. Instead, the European small claims procedure is envisaged as being an optional tool member states will have to offer to those seeking court decisions of a kind which fall within the scope of the proposal. While the proposal is not currently confined to cross-border cases, its greatest utility is likely to occur where a person resident in one member state needs to obtain a relevant judgment from the courts of another.
The question of how decisions will be enforced in practice has not yet been the subject of any formal Commission proposal. Clearly, however, there is a definite link between the process of getting a decision and having it recognised in another member state and the process of subsequently proceeding, should it be proved necessary, to the practical steps whereby a debt can be recovered.
The proposal for a directive on mediation aims at promoting the use of mediation and establishes certain minimum rules intended to ensure a sound relationship between mediation and judicial proceedings. While the proposal as presented has a very broad scope, in that it applies to all civil and commercial matters without exception, it is confined to the mediation process only and is not intended to apply to processes which are more adjudicatory in nature. Examples of adjudicatory processes include arbitration and ombudsman schemes. The proposal also contains a number of important provisions dealing with the enforceability of mediation settlements, the admissibility of evidence in civil proceedings and the suspension of the limitation period.
Mediation is a tool whose use is becoming more prevalent in Ireland. It is a model of dispute resolution which the Government supports as a means of reducing costs for all parties and as a means of reaching a speedier resolution to difficulties which may arise in the ordinary course of human engagement. By encouraging mediation as a solution to difficulties which might otherwise entail court proceedings, the proposed directive has the potential to benefit commercial and individual litigants. As with the small claims proposal, the mediation proposal as presented is not confined to cross-border cases. Its greatest utility, however, is likely to arise where a dispute between parties to a mediation has cross-border connotations.
EU instruments of the type envisaged in these proposals have the potential be a useful tool for Irish consumers and businesses alike. Having regard to the potential benefits of the proposed instruments for consumers and businesses, and to the fact that we have already opted into other connected proposals, I very much hope the committee will support the proposal that Ireland opt into the discussions on these instruments. I look forward to hearing the comments of members on the matter.
Mediation is a growing phenomenon in dispute resolution. In the United Kingdom, the courts are, in some cases, refusing costs to successful litigants on the basis that they did not opt for mediation, which might have avoided litigation in the first place. This is a very welcome approach by the UK judiciary. The advantage of mediation over arbitration is that, with mediation, it is possible to think of solutions to problems that are not simply available through arbitration which is a substitute for a judicial decision.
A mediator can think outside the box and can arrive at solutions different from those that can be arrived at by a court. For instance, I have witnessed mediations in which arguments between employers and employees have resulted in a proposal radically different from that which a court would make. Such a proposal might include an extension of the person's working life. No court could order that a person's retirement age be postponed but this kind of solution can be made from outside the box by a mediator as a way of getting both sides to realise they have common ground.
These two instruments are the kinds of instruments that represent useful developments of the law. The existence of a set of uniform policies, available to people who might otherwise be nervous about enforcing their rights, particularly in cross-border circumstances, will create across Europe greater confidence regarding small claims and all disputes.