A guide to the UPC and the UP - Flipbook - Page 460
to exploring settlement through arbitration or mediation at the Centre and may also use other
options, such as informally discussing with the parties the possibility to settle the dispute.
22-06 At this stage, it is not entirely clear whether the Court can instruct the parties to explore
mediation and/or arbitration at facilities other than the Centre. However, it has been suggested
by the Preparatory Committee that the Court should not recommend specific mediation or
arbitration providers other than the Centre. Nonetheless, the parties are free to conclude their
case by way of a settlement, independently of the Court, at any time during the proceedings 10
and clearly the parties may use any mutually agreed mediation provider, or individual, in order
to try to facilitate such a settlement.
Stay of Limitation Periods
22-07 A further incentive for the parties to explore mediation is that the time to run until the expiry
of limitation or prescription periods is stayed if the parties attempt to settle the dispute by
mediation. 11 It seems clear that this stay is not limited to mediation at the Centre only. 12
This ensures that the RoP are in line with art.8(1) Mediation Directive, 13 meaning that parties
are0not penalised by choosing to attempt to settle their dispute by mediation and then being
prevented from initiating judicial proceedings before the Court, or arbitration at the Centre,
if the mediation is unsuccessful, due to the limitation or prescription periods having expired
during the mediation process. However, if mediation proceedings are terminated without the
dispute being settled, the stay on limitation or prescription periods will be lifted from that
moment. 14 It is important to note that this stay of the limitation period only applies if the
parties attempt to settle their dispute by way of mediation. It does not apply if the parties seek
to resolve the dispute by way of arbitration.
Protection Given to Negotiations to Settle a Court Dispute
22-08 If parties to a dispute are to come to a settlement, it will almost certainly involve them having
to compromise their positions. It is, therefore, very important that the parties can openly
negotiate without fearing that any concessions they suggest during negotiations could be
subsequently used against them in the proceedings, should a settlement not be reached.
Thus, the RoP provides protection for any negotiations by the parties to settle an action before
the Court. 15 The protection it offers for settlement communications is wide, encompassing any
“opinion expressed, suggestion made, proposal put forward, concession made or document
drawn up for the purposes of settlement” and prevents any of these materials being disclosed
to the Court or being relied upon as evidence by either the Court or the parties in any
proceedings before the Court, or any other court, unless any of these materials was expressed
to be made on an open basis and freely disclosable to the Court or any other court. The only
exception to this protection is that the material may be used for the purpose of enforcing the
terms of a settlement agreement. This may include allowing a party to evidence that a
settlement has been reached if, for example, another party denies it. 16
10
11
12
13
14
15
16
art.79 UPCA.
r.11(1) RoP.
See “Table with explanatory notes to the changes made by the Legal Group of the Preparatory Committee in the 17th draft of
the Rules of Procedure” 31 October 2014, p.3.
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 (OJ No. L 136, 24.5.2008, p.3 to 8).
See paragraphs 22-50 to 22-58 for further details.
r.11(3) RoP.
See paragraphs 22-44 to 22-47 for discussion of additional practical effects of this exception for the purpose of enforcement.
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A Guide to the UPC and the UP 450
