by Lyubka Vasileva - Karapanova
BELGIUM
CZECH REPUBLIC
GREECE
GERMANY
ITALY
NETHERLANDS
SLOVENIA
SPAIN
UNITED KINGDOM
1. Legal Frame of Mediation
There is no specific Mediation Act in Belgium. The
basic general statute of mediation has been introduced through the general Code
of Civil Procedure on Feb.21, 2005 /articles 1724 to 1737 of the Code of Civil Procedure/.
These provisions have not been amended after
the adoption of Directive 2008/52/EC, as they are considered to be in line with
the requirements of the Directive and to provide sufficient regulation of
mediation.
The only significant change in mediation legislation
after Directive 2008/52/EC was adopted refers to divorce proceedings. A statute
of April 5, 2011, concerning divorce proceedings obliges the judge to inform the parties on
the possibility of mediation and allows the judge on his own initiative to stay
the proceedings so that the parties to consider mediation (new article 1254,
§4/1, 1255, §6 and 1280 of the Code of civil procedure). For the rest, the
existing procedure governed in articles 1724 - 1737 of the Code of Civil Procedure
remains into force.
The Belgian mediation legislation does not distinguish
internal and transnational mediation proceedings; hence the same provisions
apply to both – domestic and crossborder mediations.
2. Court
Referral to Mediation
Referral
by a judge to mediation can be done at any stage of proceedings (with the
exception of the proceedings before the Court of Cassation or a special court
that handles jurisdiction issues). The mediation agreement concluded after a
referral can be ratified by the judge upon a request of each of the parties.
Such a request can only be rejected on narrow grounds.
As mentioned above, in divorce proceedings the judge is obliged to inform the
parties on the possibility of mediation and has the right, on his own
initiative, to stay the proceedings in order to allow the parties to consider
mediation.
If a contract includes
a clause for mediation in cases of possible conflict , and one of the parties directly
sues the other party, the judge can stay the proceedings only if the interested
party raises this exception (art.1725)(The judge can not stay the proceedings
on his own initiative in these cases.)
3.
Confidentiality of Mediation Proceedings
The
confidentiality requirements concern not only the mediator but also the parties
and the experts appointed during the mediation.
4. Enforceability of Mediation Agreements
The agreement made under supervision of an
accredited mediator can be ratified by the court on request even of one of the
parties and has the force of a judgement (court decision) when it is ratified.
The judge can only reject the demand of ratification on grounds of public
policy or in family matters when the agreement is contrary to the interests of
the children
5. The Impact of Mediation
on Statutes of Limitation
Entering
into a conventional mediation entails legal effects: it has the effects of a
formal notice (important for the interest due) and suspends the statute of
limitations for one month (1730). Signing the mediation protocol suspends the
prescription as long as the mediation proceedings last.
6. Requirements
for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
Belgian
law adheres to the concept that mediation is a fundamentally voluntary process.
However, it is not excluded that a party –even a winning one- would have to pay
part of the costs of the court proceedings if he or she has unreasonably
refused to at least try a mediation (this might be considered as an abuse of
rights).
7. Accreditation Requirements for
Mediators
An
accreditation system is provided, with the accreditation given to mediators and
to training centers by a Federal commission on arbitration. There is no
provision concerning the recognition of mediators trained abroad or recognized
elsewhere in the EU.
It is
worth to mention that it is generally admitted that professional judges cannot
be mediators.
8.
Duties of Legal Representatives and other Professional Mediation Participants
The
parties may use legal assistance in mediation proceedings, as well as to appoint
an expert /with the consent of the mediator/. The obligation to keep all the
information obtained in the course of mediation proceedings as confidential
applies to all participants /including legal representatives and experts/.
9. Statistics
There are no reliable statistics
available.
1. Legal Frame of Mediation
Currently there is
no Mediation Law in Czech Republic. The only legal regulation of
“mediation” is for the purposes of the criminal procedure (victim – offender mediation). The mediation in the criminal
victim – offender cases is governed by the law on the Probation and Mediation
Service no. 257/2000 of the Collection of Laws.
There are also some
provisions of the Code of Civil Procedure where mediation is mentioned, but they do not
describe or regulate the mediation procedure itself.
The draft of
the Mediation Act, implementing the requirements of the directive 2008/52/ES,
is still in process of legislature. The first reading in the Parliament was on
21/9/2011.
The draft regulates the mediation process in a minimal
extent (the initiation, termination, the refusal by the mediator, basic
principles of the mediation process and the basic provisions of the mediation
contract, the confidentiality of the mediator, the organisation of mediation).
Other aspects regarding mediation will be implemented
in different acts as the Commercial Code, the Code of Civil Procedure, the
Civil Code, the Act on Advocacy and Notary rules.
2. Court Referral to Mediation
According to the existing
provisions of the Code of Civil Procedure, the court may order the parties to
participate in the out-of-court settlement negotiation or mediation or a family
therapy if the matter pertains underage children. If the
parties agree to participate in the out-of-court settlement, the court will
adjourn the proceedings as long as it is not contrary to the purpose of the
said proceedings. The court may determine the conditions of prolonging the
adjournment, e.g. the court may order the parties to provide information on the
development and outcome of the settlement negotiations or mediation. The
parties do not have to provide information that was communicated during
mediation or settlement negotiation and that is not reflected in the outcome
(agreement).
According to the current
draft of the Mediation Act, the court may order a first meeting with a mediator
of 3 hours and for this purpose temporarily suspend the proceedings at most for
3 months.
Only the mediators-attorneys may be
appointed for this compulsory meeting. The parties to the dispute shall choose
the mediator-attorney from the Register, if not agreed, the court shall appoint
him.
At this
first meeting the mediator informs the parties about the possibilities of
mediation. The costs of the compulsory meeting are considered costs of
proceedings and are paid by the parties. The amount of costs is limited as well
as the extent of the meeting (3 hours). The mediation itself is completely voluntary and the parties to a dispute
may enter into a contract with the mediator and settle the price for its services.
3. Confidentiality of Mediation
Proceedings
Currently there are no provisions regarding the
confidentiality of the mediation. We do not have information whether such
provisions are included in the draft of the Mediation Act.
4. Enforceability
of Mediation Agreements
According to the current
legislation, a mediation settlement agreement
may be directly enforced if it is
written by the notary or executor and includes the consent
of the obliged party that the obligation stated in the settlement may be
directly enforced if the said party does not honor the that obligation.
The draft Mediation Act provides for the
enforceability of the settlement agreement under the following conditions:
1) The contents of a written mediation agreement can be
made enforceable by drafting the
agreement in the form of a notarial/executionary deed with an express consent
to enforceability or by approval of judicial settlement.
2) In non-contentious proceedings the agreement can be
approved by the final decision of the court.
5. The Impact of Mediation on Statutes of Limitation
Today the parties to a dispute may agree on a
conciliation proceeding guided by any person they choose. This
conciliation proceeding has no effect on limitation and prescription period
(unlike the mediation under the draft Mediation Act).
6. Requirements
for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
According to the current draft of the Mediation Act,
the court may order a first meeting with a mediator of 3 hours and for this
purpose temporarily suspend the proceedings at most for 3 months.
7. Accreditation Requirements for
Mediators
Currently there are no
requirements.
The draft Mediation Act provides for such
requirements. Under the Act a mediator is a natural person. The Act governs only the activity of accredited
mediators (recorded in the Register
of Mediators) in all non-penal matters. This does not incapacitate other
persons from providing services similar to mediation; the state only guarantees
the quality and competence of accredited mediators.
The Act de facto divides
the accredited mediators in 2 categories:
Mediators-attorneys, supervised by the Czech Bar Association (CBA):
§
The CBA
provides the training of mediators and mediators exams;
§
The CBA
executes the disciplinary procedure and imposes disciplinary punishments;
§
The provisions for mediator-attorneys will be
governed by the Act on Advocacy.
Accredited mediators, supervised by the Ministry of Justice:
§
The
Ministry keeps the Register of mediators and organises the mediators’ exams.
This exam requires next to the knowledge of the mediation methodology,
different branches of law, psychology and sociology. The training of mediators is not regulated
by the Act;
§
There is
no internal disciplinary procedure (as in the case of the mediators-attorneys)
but the Act specifies several administrative delicts that can be committed by
the accredited mediators.
A mediator interested in family mediation can pass a special exam and such qualification
shall be recorded in the Register of mediators.
A national of another Member State (or other natural person under the Recognition of
qualifications of nationals of other Member States of the EU Act) may exercise
mediation temporarily or occasionally as a Visiting
Mediator. A visiting mediator must follow the Czech Mediation Act. The
Ministry shall record the Visiting mediator into the Register (document proving
that the visiting mediator exercises the mediation under the laws of other
Member State is needed). The visiting mediator is entitled to exercise
mediation by presentation of required documents to the Ministry.
The mediator (attorney or not) cannot provide legal service to the parties to the dispute. The
pronouncement of his legal opinion is not considered as the provision of legal
service
8. Statistics
There are no reliable statistics
available.
1. Legal Frame of Mediation
Law
3898/2010 on mediation transposes
the Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in
civil and commercial matters to Greek law. The Law applies to all mediations /cross-border and internal/. However, still several by-laws need to be enacted,
dealing with a number of pending issues, such as: the establishment of training institutions,
the establishment of the Mediation Certification Commission and its statutes,
the rules and regulations dealing with certification criteria and controlling mechanisms
to the training institutions, the accreditation conditions and requirements
both for domestic and foreign mediators, and the amount of mediator’s fees per
hour.
Hand in hand with
the mediation act goes a new law on the rationalization and the improvement of
the civil jurisdiction, which brings a number of amendments to the Code of
Civil Procedure. The basic idea was that 3 models should coexist within
the Civil Justice scope: mediation, conciliation, and out of court dispute
resolution by lawyers and their clients (collaborative mediation).
2. Court Referral to Mediation
A court
before which an action is brought may,
at any stage of the trial, invite the parties to
use mediation in order to settle their
dispute.
A court referral may
be also initiated from a foreign court, as provided for by article 3 § 1 c of
the act.
3. Protections Provided to Ensure Confidentiality of
Mediation Proceedings
Art. 10 of
the Greek Mediation Act provides for the confidentiality of the mediation
procedure. It also stipulates that mediators, parties, their
attorneys/representatives and any other person involved in the mediation
process are not to be summoned as witnesses, nor may they be compelled to
produce evidence in any subsequent
judicial or arbitration proceedings. On this point, the new law appears
to differ from the EU Directive, which confines the limits on service as
witnesses and production of evidence to civil and commercial proceedings.
The mediation law, however, provides for an exception to this prohibition for
public policy reasons. Such reasons are addressed in Article 7, para. 1 of the
EU Directive and repeated in Article 10, para. 2 of the law.
4. Enforceability of Mediation
Agreements
5. Requirements for Parties and Lawyers to Consider
Mediation as a Dispute Resolution Option
There
are not requirements for parties
and lawyers to consider mediation as a dispute resolution option.
6. Requirements for Parties to Participate in
Mediation
Following
the choice made under Art. 214
A Para 4 CCP
(previous version),
and extensive efforts made by major Bar Associations, the act opted for the
compulsory presence of the parties’ lawyers. Pursuant to Article 8 Para 1, the
parties or their legal representative for legal entities is to participate in
the presence of an attorney at law.
7.Accreditation Requirements for Mediators
Under the Greek law the
mediator must be a lawyer accredited as mediator by a competent Accreditation
Body.
Pursuant to article 7 of the Mediation Act, the Accreditation Body will be the Department for lawyers and bailiffs, attached to the General
Direction for the administration of Justice at the Ministry of Justice.
By virtue of a decision from the MoJ, a number of important issues will be
regulated, under Art. 7 para 2, such as:
- Quality
control mechanisms for the assessment of mediators;
- Accreditation
requirements for foreign mediators;
- A
“Code of Deontology,” which accredited mediators must respect, and
- Any
other issues related to accreditation.
With respect to
mediation training institutions, the law opted for the following solution:
Pursuant to Article 5 para 1, a
training centre has to be founded by at least one Greek Bar Association and one
Greek Professional Chamber. Any other mediation training issues (e.g. the
required number of training hours needed), however, will be regulated by
presidential decree, following a proposal by the Ministry of Justice and the
Ministry of Education, Lifelong Training & Religious Matters (Article 5,
para. 2). Such a decree has not
been issued yet.
Additionally, the
new mediation law provides for the establishment of a commission entrusted with
the preparation of necessary rules and regulations related to the certification
criteria. The Ministry of Justice will determine the commission members
(Article 6).
8. Price
The
Law on Mediation provides that the minimum hourly rate of the mediator’s fee is
to be defined and (later on) amended by decision of the MoJ (Art. 12 para 3). A
mediator cannot collect an hourly fee for more than 24 hours of work. The
24-hour fee cap includes time spent for preliminary mediation preparation (Article
12, para. 1). Unless the parties agree otherwise, each party is obliged to pay
half of the mediator’s fees, and each party pays his or her own attorney’s fees
(Article 12, para. 2).
9. Statistics
There are no reliable statistics available.
1. Legal Frame of Mediation
Currently there is no Mediation Law
in Germany.
Some
procedural legal norms of the Code of Civil Procedure (ZPO) and the Code of Family Procedure oblige the courts to look
for amicable settlements /see section 2 bellow/.
The
draft of the Mediation Act, implementing the requirements of the directive
2008/52/ES, is still in process of legislature. The hearing in the Federal
Parliament (Bun-destag) took place the 15th of
December 2011. The final hearing in the Upper House of the German Parliament (Bundesrat)
is expected for February 2012. Therefore, the German Mediation Act will not be
in force before March or April 2012.
The content of the German Mediation Act is
limited to the basic duties and tasks of a mediator, some limitations in the
mediator’s function and to a general duty for education and advanced training.
The scope of the draft German Mediation Act refers not only to cross-border
mediations, but covers also national mediation proceedings in all areas of law.
The draft Mediation Act provides for the “pure” mediation
primarily. This is the mediation procedure outside the court. A judge is
allowed to suspend the court procedure in order to allow a court external
mediation (aussergerichtliche Mediation). There have been discussions
about the court internal mediation. Court internal mediation is a separated
procedure where a judge who is not the sitting judge acts as mediator. (gerichtsinterne
Mediation). The Federal
Parliament (Bundestag) didn’t provide this kind of procedure any more.
Instead of that judges can act as some kind of “judges of the peace”
(Güterichter) where a judge who is not involved in decision-making tries to
settle the case. This procedure is slightly different to court internal
mediation. This is in respect to the role and the reputation of judges but with
an option, to use mediation skills as well.
2.Court Referral
to Mediation
Art. 278 paragraph 2 of the code of civil
procedure (ZPO) obliges the civil courts to begin the hearing with a conciliatory hearing in
which the judge has to discuss the issues of fact and of law with the parties
and to put
questions, if appropriate. According to Art. 278 paragraph 1 of the Code of Civil Procedure
(ZPO) the judge shall in every situation of the
lawsuit strive for an amicable settlement.
Art. 15 a of the
Introductory Law to the Code of Civil Procedure entitles the regional
legislator to prescribe that lawsuits on small claims / valued
at or up to EUR 750.00/, lawsuits against neighbours and libel
suits are admissible only after a prior extrajudicial attempt of conciliation. In
addition, a provision in the German Code of Civil Procedure (ZPO) has been
amended by providing for court referrals to ADR with the consent of the parties
(Sec. 278 para. 6 ZPO).
Pursuant
to art. 135 of the Code of Family Procedure the court can oblige the parties to
participate at an information session about mediation. In appropriate cases the court shall
propose an extrajudicial settlement. Pursuant to art. 156, in cases concerning children the court
shall indicate in appropriate cases to mediation or other forms of extrajudicial dispute
resolution.
According to an amendment of Sec. 253 (3) Civil Procedure Code,
the statement of claims (Klageschrift) has to inform the judge on the
parties’ efforts to resolve the dispute in mediation
before bringing the action in court and whether there are any reasons excluding
mediation.
The amendment of Sec. 278 (5) ZPO include the possibility to
transfer the parties to another judge who is acting as conciliator (Güterichter)
for a conciliation hearing. Such conciliation hearing must not be confused with
the court-annexed mediation. The relegation to a “conciliator-judge” remains in
the pure discretion of the court and cannot be declined by the parties. The
“conciliator-judge” has the power to schedule a binding hearing date which is
not possible in court-annexed mediation. In addition, the “conciliator-judge”
has the right to read the records of the case without the prior approval of the
parties.
Furthermore, the amendment of Sec. 278a
ZPO provides for the proposal of court-annexed mediation. The court proceeding
shall be suspended for the time of the mediation proceeding. In the case of
court-annexed mediation, the parties have the right to choose the mediator. If
the mediator is a judge, he must consider all statutory requirements, e.g.
confidentiality, duties of disclosure, training and education.
Parties can, furthermore, bind themselves by all sorts of
contracts not to go to court before having tried an amicable settlement of their dispute. Such a contract
has to be respected by the courts
and if there are no exceptions or reasons for
nullity the contract, the court has to reject the lawsuit as inadmissible.
The Federal Constitutional Court decided that it is no violation of due process
if courts consider mediation clauses as binding contract provisions which must
be followed-up before the court proceeding can be started.
3.
Confidentiality of Mediation Proceedings
At the moment there is no legal rule that grants confidentiality of mediation
proceedings as such. If the mediation
is done by a lawyer, he may be subject to his professional confidentiality. This, however, would not be a
protection for the mediation, but for the professional secret of lawyers
According to the draft
Mediation Act, the mediator and all persons included in the mediation
proceeding have the duty of confidentiality regarding all information gathered
during the mediation proceeding. The
provision is not clear with respect to “all persons”
being obliged for confidentiality. According to the statement of the Bundesregierung,
only staff of the mediator shall be part of this confidentiality obligation,
but not persons as included by the parties, like experts or family members. In addition, it does not include
the parties’ duty
of confidentiality, as
well as an equivalent rule for documents produced during a mediation
proceeding.
Based on this provision, all mediators –
and persons included by the mediator – shall have the privilege to refuse to
give evidence according to Sec. 383 para. 1 no. 6 Civil Procedure Code (ZPO) in
civil actions. There is no according privilege for criminal procedures which is
criticized by several organisations. The duty of confidentiality
should not apply if (1) the disclosure of the mediation result is necessary for
the enforcement of the settlement agreement; (2) the disclosure is necessary in
order to avoid danger for a child or significant ad-verse effect of the
physical or mental integrity of a person (ordre public), or – as an
additional but less concrete exception – if (3) the facts are already in public
domain or are not relevant enough for confidentiality.
For further
confidentiality, e.g. of the parties themselves, experts and other persons
included in the mediation proceeding, additional confidentiality agreements
will be necessary. Such confidentiality agreements can be used for civil cases,
but are not binding for criminal matters.
4. Enforceability
of Mediation Agreements
According to the amendment
of Sec. 796d ZPO, the settlement agreement can be declared as enforceable on
demand of each party, either by the district court as agreed between the
parties or as located at the place of the mediation proceeding. The
same procedure can be conducted vis-à-vis a notary public.
5.
The Impact of Mediation on Statutes of Limitation
According to the already existing Sec. 203 Civil Code (BGB55) the
suspension of limitation periods is also relevant for mediation proceedings.
The statutory limitation periods are suspended as soon as parties start and
continue negotiations for a certain claim or its circumstances. It is
undisputed that mediation must be considered as such negotiation. The suspension ends if
one party refuses mediation clearly and precisely or if the mediation
proceeding ends – either successfully with a final agreement or as a failure.
Insofar, the German legislator was not
forced to consider any further regulation considering Art. 8 EU Mediation
Directive. However, other legal deadlines (Ausschlussfristen), e. g. the
deadline for bringing an action in unfair dismissal cases according to the
German Employment Protection Act are not covered by Sec. 203 BGB. Therefore,
further regulation seems to be necessary in order to avoid uncertainty and
unnecessary legal actions.
6. Requirements for Parties and Lawyers to Consider Mediation as a
Dispute Resolution Option
Art.
15 a of the Introductory
Law to the Code of Civil Procedure entitles all German states on
their own discretion to prescribe that lawsuits on small
claims / valued at or up
to EUR 750.00/,
lawsuits against neighbours and libel suits are admissible only after a prior extrajudicial attempt of
conciliation. Several German states /such as Nordrhein-Westfalen,
Bayern, Baden-Wurttemberg, Hessen and Brandenburg/ have introduced legislative
schemes providing for mandatory ADR.
7. Requirements for Parties to Participate in Mediation
According to
the draft Mediation Act, the mediation is voluntary procedure and the parties
are free to end the mediation at any time.
8. Accreditation Requirements for Mediators
Currently, there is neither a formal accreditation of mediators, nor a protection of this title. A
sort of standardization is granted only by the institutions that provide professional training for mediators. Some professional organizations as
BAFM, BM and others have elaborated binding criteria for their members who
offer professional training of mediators. Above this, various universities and schools
offer such training. The standard formation includes a minimum of 200 hours, a documentation of four mediations, a
series of supervisions and a final colloquium. After having finished this training, the graduated persons can
use the name of the institution where they graduated and call themselves “mediator (BAFM)”, “mediator
University of X”.
The
alternatives to regulate the mediator’s training, education and experience
have been discussed during the legislative procedure concerning
the draft Mediation Act and
the discussion is still ongoing. According to the existing draft of the German
Mediation Act, it is the own responsibility of the mediator to ensure by sufficient
training and continuing education that he is skilled in theory and practice to
guide the parties through the mediation proceeding. However, the Bundesrat and political
parties, as well as the mediation associations, further involved commercial
associations and the Federal Bar Association demand education and certification standards
for mediators. The Federal Bar Association presented a proposal for statutory ordinance (Rechtsverordnung)
referring to the education of certified mediators with a 90 hours training
including the basics of mediation, the practice of mediation, negotiation and
communication techniques, conflict management, legal framework for mediation,
ethics and role of the mediator as well as supervision.
9. Statistics
There
are no national statistics available.
1. Legal Frame of Mediation
Law No. 69 of 19 June 2009,
Article 60 officially recognized
mediation in civil and commercial disputes and delegated power to the Italian
government to issue a Legislative Decree on mediation to implement the
provisions of Directive 2008/52/EC.
Legislative Decree No. 28 of 4
March 2010 was enacted as a
result of the delegation from Law 69/2009, Art. 60 and, while implementing Directive
2008/52/EC, incentivised mediation by creating financial incentives and
enacting procedures for not only voluntary and judicial referral mediation, but
also for mandatory
mediation in many civil and commercial cases. Decree 28/2010 “forces” parties
to mediate while ensuring the quality of mediation.
Ministry of Justice Decrees No.
180 of 18 October 2010 and No. 145 of 6 July 2011 provide specific
guidelines needed to effectuate the provisions of Decree 28/2010 and issue
quality standards for mediation organisations, mediators, mediator training,
and mediation costs.
2. Referral to Mediation
Lawyers have the duty to inform clients about
the option of mediation and specify all tax benefits of the procedure. Should the lawyer fail
to inform the client about mediation, the attorney-client contract may be
voided by the client. The
information must be provided in writing and signed by
the client. If the document is not joined to the writ of summons,
the judge will inform the party about mediation.
The judge may suggest
to the parties at any point during the proceedings to solve their dispute via
mediation.
The mediation
procedure
must not last more than 4 months. If the
parties do not reach an agreement,
the mediator, upon request of the parties, has to provide them with a proposal,
which they are free to
adopt in order to settle the dispute. This proposal has to be sent to the
parties in writing and, if they do not respond,
their silence is considered to be a refusal of the proposal (Art. 11), with
negative consequences for the allocation
of process fees (Art.13). The party
who prevails in a trial but has not
accepted the mediator’s proposal, may be ordered by the judge to pay the
fees to the counterpart.
In addition, Italian law provides for
mandatory mediation when the subject matter of the dispute falls amongst one of
the following areas: tenancy, land rights, partition of property, hereditary
successionsuccessioni
ereditarie, patti di famiglia, locazione,
comodato,, leases, loans, affitto
di aziende, risarcimento del
danno derivante dallarental companies, damages
resulting fromcircolazione di veicoli e natanti,
da responsabilità medica e da vehicle and boat
accidents, medical malpractice, diffamazione
con il mezzo della stampa o con
altro mezzo didefamation by the press or
other means of advertising, contracts, insurance, or
banking and finance. Parties to such a dispute must attempt mediation before trial; otherwise
the case will be dismissed by the court.
3.
Confidentiality of Mediation Proceedings
Mediation
confidentiality is standardized, either
during the process (Art. 9) or out of the mediation procedure (Art.10). All
employees of the mediation body have the duty to keep all information received
during the mediation process
confidential. The same principles apply
to information exchanged during private sessions (caucus), where the
mediator cannot offer the information to the other party without prior consent.
In addition, according to article 200 of the
Code of Criminal Procedure, mediators cannot be required to testify about
information obtained in the course of their work. Information and declarations
exchanged during the mediation procedure cannot be used as evidence
during Court proceedings for the same dispute.
4. Enforceability of Mediation Agreements
Enforcement of mediation agreements is also
monitored under the law. According to article 12 of the Decree this principle applies to all
agreements in civil and commercial matters resolved through the mediation process handled by mediation bodies
registered with the National Register. After
the president of the court where the mediation organisation has its main office
validates the agreement, it then becomes enforceable empowering the parties to seek execution.
Under Art. 17 all
mediation acts, documents and agreements are exempt from stamp taxes and other
charges. Under Art. 20, parties are entitled to a tax credit towards the
mediation fee of up to €500.00 for a successful mediation and up to €250.00 if
the mediation fails.
5. The Impact of Mediation on
Statutes of Limitation
6. Requirements for Parties and Lawyers to
Consider Mediation as a Dispute Resolution Option
Lawyers have the duty to inform clients about the
option of mediation and specify all tax benefits of the procedure. Should the lawyer fail to inform the client about
mediation, the attorney-client contract may be voided by the client.
In disputes, where the law provides for mandatory mediation,
parties must attempt mediation before trial; otherwise the case will be
dismissed by the court.
7. Requirements for Parties to Participate in
Mediation
8.
Accreditation
Requirements for Mediators
The mediation
providers must be registered in the National Register of
Mediation Organizations at the
Ministry of Justice. The National Register contains separate lists for
public bodies and for private entities. Mediation organizations must apply to the
Ministry of Justice and their application is considered by the Director-General
of the Civil Justice Office.
Professionalism and efficiency are the two main
requirements for mediation organizations wishing to appear on the National Register (Article 4 of Decree
180/10). The applicant must prove in particular: its financial capacity and organizational capability; the
availability of insurance covering the professional liability of mediators for
a minimum of € 500 000; the legal structure of the entity, its
autonomy and the compatibility of its activity with its purpose; the
administrative and accounting transparency of the entity and its legal and
business relationships with its mediators; the professional qualifications of
mediators; the guarantee of independence,
impartiality and confidentiality that must be assured during the mediation process; the conformity of the mediation
procedure rules to the law.
Among the requirements that must be fulfilled by conciliation
bodies in order to be included in the register, the legislation places a strong emphasis on the personal
qualifications of the mediators. Each organization must have at least five available
individuals /no one can declare himself available to perform the
functions as a mediator for more than five organizations/. These
individuals must meet certain requirements, such as sufficient education and training,
clean criminal record; not to be prohibited ( perpetually or temporarily)
to hold public office; not to have been
subjected to restrictive measures, prevention or safety; to be reported to have no disciplinary other
than warnings.
Public or private entities applying for entry to
the National Register of Mediators must have their own rules for the mediation process. These rules must be
inspired by the basic principles of informality, promptness and confidentiality.
Once registered, neither the mediation
organization, nor the mediators can refuse to provide mediation services in the
absence of a valid justification to do so.
An
organization seeking to carry out mediation trainings must be included in the list of the Training organizations
at the Ministry of Justice.
Art.18 provides for the minimum content
and duration of the mediation trainings, as follows:
The basic training must be with the total duration of at least 50 hours, divided into
theoretical and practical courses, including mock mediations, and a final test
evaluation, with a maximum thirty participants per course.
The refresher training courses should last at least 18
hours and must be attended every two years.
9. National Statistics
- Mediations conducted from 21 May – 30 June 2011:
7,333/month, 28% increase from the previous month;
- Type of filings: 69% mandatory: 29%
voluntary, 1% judicial referral, 1% by contract;
- Most frequently mediated subject
matters: property rights (16%), lease agreements (11%), medical
malpractice (8%);
- Percentage of mediations which have attendance of
all parties: 27%;
- Percentage success of mediated cases: 58%;
- Percentage of mediations where parties have
attorney representation: 80%;
- Number of mediations expected by 2012: 30,000 per
month.
1. Legal Frame of Mediation
In
Dutch law there are no specific statutory provisions pertaining to mediation,
and only a few court decisions on the subject have been published so far.
The National Mediation Institute (NMI) has
adopted its mediation rules (NMI Mediation Rules, adopted in 1995, amended in 2000).
These rules provide for the basic principles of mediation and, in the absence
of legislative framework, set standards for mediators, disputants, and judges. Three basic principles have been
written into the NMI Mediation Rules:
1.
mediation is based on the continuing voluntary consent of all parties;
2.
the mediator must be independent and impartial; and
3.
confidentiality and secrecy are to be observed during and after the mediation
by all parties concerned.
A project of a legislative act on mediation
implementing the requirements of the EU Mediation Directive is currently in the
process of preparation.
2. Court Referral to Mediation
During the period 1999 –
2002 pilot mediation schemes have been introduced in two district courts. In
2005 a nation-wide court referral system for mediation was created. Despite the fact that these schemes operate on the
principle of self regulation with minimum influence by the state, temporary
financial contribution to mediations has been provided, as well as legal aid
for the parties.
In the Court Encouraged
Mediation project, mediation is provided as an extra service during a court
procedure. At the
hearing, the judge handling the case may refer the parties to a mediator. If
such mediation appears unsuccessful,
the court procedure will be resumed. The judge is not informed of the
negotiations during the mediation
in the event that the court case is resumed. The Court Encouraged Mediation
procedure is free of charge for the parties. The mediator, however, receives a fixed
fee, which is directly paid by the Ministry of Justice.
Project Mediation in de
Gefinancierde Rechtsbijstand (Mediation within the Legal Aid Scheme) started in May
2001. The main goal of this project is to resolve disputes
by mediation, before a court procedure is initiated.
A major requirement in Mediation within the Legal Aid Scheme is that at least
one of the parties is entitled to legal aid.
This is determined on the basis of the income of the parties. If both parties
are entitled to legal aid, they both pay a
fee based on their income akin to the fee for a court procedure. If a procedure
is initiated following mediation,
this fee does not have to be paid again. If one of the parties is not entitled
to legal aid, half of the costs of the
mediator will be borne by that party.
3.
Confidentiality of Mediation Proceedings
As
there is neither statutory provision for the confidentiality of the mediation,
nor forthe privilege of a mediator not to be compelled to
testify on matters learnt during mediation, the obligation of confidentiality should be stipulated in a
contract between the mediator and the parties, or as a confidentiality clause
of the mediation agreement.
According to a judgment by the first instance court in Utrecht, 2 February 2005, LJN:
AS5144: A confidentiality clause must be considered to be an agreement of documentary evidence in
the sense of art. 153 Rv, which means that a judge in principal may not hear witnesses with regard to any
information considered to be confidential in accordance with the confidentiality clause. However, art. 21
Rv contains the obligation for the parties to be truthful and exhaustive about all facts that
might be relevant to a judgment. Only in exceptional circumstances will a judge order a conciliating party to
disclose confidential information. This may only be the case when the need for truth prevails over the prejudice
that might be suffered by a personal disclosure. Furthermore, it is imaginable
in
some cases that a
mediator has a statutory duty to testify. This might be the case when a third
party who is not bound to the confidentiality clause (art. 191 Rv) summons the mediator as
a witness, or when the mediator is summoned to testify in a criminal case (art. 213 Sv) Unlike
some professions, a mediator does not have the right of non-disclosure or legal privilege
in such case.
4. Enforceability of Mediation Agreements
There are no special rules with regard to the
mediation agreements.
According
to article 87 Rv, parties may request the judge to order their appearance in a court session in order to come to a settlement.
If a settlement is reached and upon the request of a party, an official report containing the parties’ commitments under the settlement may be drafted.
Such a report is to be considered an enforceable award (art. 87 subsection 3).
It is
also possible to record a settlement agreement by means of an arbitral award (art. 1069 Rv).
Agreements
can also be entered as deeds, a notarial deed in which the settlement agreement
is incorporated is enforceable. [Handboek Mediation 2003, p. 169]
5. The Impact of Mediation on Statutes of Limitation
There are no relevant
provisions of law; hence mediation proceedings have no effect on the limitation
and prescription periods.
6. Accreditation Requirements for Mediators
There are no statutory
requirements.
The Nederlands
Mediation Instituut ( NMI) maintains a register of accredited NMI mediators and liaises with other institutions and government departments. To be
registered as a NMI-mediator one must have attended (with success) one of the NMI-accredited mediation
training courses. In addition, there is an annual contribution of approximately 200 EURO due. NMI has
its own mediation and disciplinary rules, code of conduct, and complaint procedure,
which the NMI-mediator has to comply with. Considering its activities, NMI can be regarded as an umbrella
organization.
7. Statistics
The following statistical data has
been reported, based on the information from the Legal Aid Board and the
Council for the Judiciary:
Referral by the judge – 4183 cases for 2009, 4500 – for
2010;
Referral by the legal service counter- 2198 cases for
2009, 2500 – for 2010;
Legal aid in mediation cases- 6798 for 2009, 6500 – for 2010.
1. Legal Frame of Mediation
The Mediation in Civil and Commercial
Matters Act (adopted
on
23 May, 2008, into force since 21 June, 2008) - contains basic principles and rules
on mediation procedure; transposes the Directive 2008/52/EC of the European
Parliament and of the Council on certain aspects of mediation in civil and commercial matters to Slovenian law. The Mediation Act applies to all mediations /cross-border and internal/
in disputes arising out
of civil, commercial, labour, family and other property relationships with regard to claims which may
be freely disposed of and settled by the parties (Art. 2, para. 1)/. Its provisions also apply to mediation in other disputes, as long as this complies
with the nature of the legal relationship out of which the dispute has arisen and if this is not
excluded by law.
Other
Acts containing provisions on mediation procedure:
·
The Act on Alternative Dispute
Resolution in Judicial Matters /adopted in November 2009/- contains specific provisions on mediation offered by courts to parties in judicial proceedings. It imposes the obligation
to all first instance courts and courts of appeal to offer mediation or other ADR to parties in civil, commercial,
family and labour disputes. On the basis of this Act, the 59 courts of first instance (44 local
courts, 11 district courts and 4 labour courts) offer mediation to parties since 15 June 2010. The 5
courts of second instance shall introduce such programmes before 15 June 2012. One of the
courts of appeal has already introduced the programme of mediation.
·
The Patients Rights Act- introduces mediation as a means of
resolving disputes between a patient and a provider of
medical services. In case of such disputes, mediation is offered to parties by the Commission
for the Protection of Patients Rights.
- The Proposal
for the Family Act – contains several specific rules on mediation procedure in
the area of family matters.
2. Court
Referral to Mediation
According
to the Civil Procedure Act, the court must, at any time, look for the
possibility of a court
settlement. Parties can conclude a court settlement in any stage during the proceedings (Article 306 of the CPA).
A settlement hearing is a compulsory part of the proceedings (Article 305a). The main
purpose of the settlement hearing is peaceful settlement of a dispute. In such hearing, a judge may inform
parties on the use of mediation.The court may interrupt civil proceedings for
up to 3 months, if parties agree to try alternative dispute resolution (Article 305).
The Act on ADR in Judicial Matters introduces a special provision on information session. This
Act contains some incentives and some sanctions, for example: courts may demand from parties
that they take part in a special information session on mediation; mediation is free of charge for
parties in family and certain labour disputes; in other disputes (except in commercial
disputes) the first 3 hours of mediation are free of charge for parties etc.
In
case parties do not propose referring the case to alternative dispute
resolution, the special information session may be held at any time during the judicial
proceedings. The information session may be held by a judge or by his assistant (Article
18 of the Act on ADR in Judicial Matters). After the information session has been held,
the court may decide that parties shall try solving their dispute in mediation. Parties have
the right to oppose to such decision and in that case mediation proceedings do not commence.
However, parties who unreasonably decline the use of mediation might bear costs of the
judicial proceedings, irrespective of the outcome of the proceedings (Article 19 of the Act on
ADR in Judicial Matters).
3. Confidentiality of
Mediation Proceedings
Article
10 of the Mediation Act regulates confidentiality
within mediation proceedings. It stipulates that information, received from one party, may be
disclosed (by a mediator) to any other party to mediation, unless information has been given to the
mediator subject to a specific condition that it be kept confidential.
Article
11 of the Mediation Act regulates confidentiality
outside mediation proceedings (=towards third persons). It stipulates that
all information originating from mediation or relating to it is confidential,
unless otherwise agreed by the parties, or unless its disclosure is required by law or for the
purposes of implementation or enforcement of a dispute settlement agreement.
Article
12 of the Mediation Act regulates the specific question of admissibility of evidence in
other proceedings. The parties, mediators or third persons who
participated in mediation shall not in arbitral, judicial or other similar proceedings rely on,
introduce as evidence or give testimony regarding any information obtained during the
mediation, including information that an invitation has been made by a party to engage in mediation
proceedings or the fact that a party was willing to participate in mediation proceedings.
Such information may
only be disclosed or used in proceedings before an arbitral tribunal, court or other
competent government authority for the purpose of evidence under conditions and to the extent
required by law, in particular on grounds of public policy (e.g. protection of the interests
of children or prevention of
interference with a person's physical or mental integrity) or insofar as necessary for the implementation or
enforcement of an agreement on the settlement of adispute; otherwise such
information shall be treated as an inadmissible fact or evidence.
4. Enforceability of Mediation Agreements
According
to Article 14, para. 2 of the Mediation Act, parties may agree that the
agreement shall take the
form of a directly enforceable notarial deed, a court settlement or an arbitral award based on the settlement.
A court settlement in pending court cases: The Civil Procedure Act stipulates that
the court must, at any time, look for the possibility of court settlement. Parties can conclude a court settlement in
any stage during the proceedings (Article 306 of the CPA). Parties, who conclude an agreement in mediation during the judicial proceedings, can
have the agreement written down in a form of a court settlement immediately after the termination of
mediation proceedings.
A court settlement in cases of
out-of-court mediation: In case an action has not been brought, it is also possible
for parties to conclude a court settlement. The Civil Procedure Act stipulates that a person, who
intends to bring an action, may try concluding a court settlement in local court (Article 309
of the CPA).Jurisdiction of the court is to be determined with regard to the
place of residence of the other party in conflict. The court which receives a proposal for
settlement shall invite the other party and present the offered terms of settlement to that party.
The parties may also request together that an agreement be made enforceable by a court in a
form of a court settlement.
A directly enforceable notarial deed is another possibility for the
parties who conclude an agreement in mediation. The Notary Act stipulates that a
notarial deed is enforceable in case a person, who has an obligation, determined in the deed, consents to
direct enforceability
in the same or in another notarial deed (provided that the claim is due; Article 4 of the Notary Act).
Arbitral award based on the settlement: The
Arbitration Act (ZArbit) stipulates that the arbitral tribunal terminates
proceedings in case parties
conclude a settlement. Parties may demand that the settlement be written in a form of an arbitral award. The
arbitral award rendered on the basis of the settlement has the same effects as any other arbitral award - the effects of a final judgement (Article 38, Zarbit)
and may be enforced once it is declared enforceable by court (Article 41, ZArbit). The possibility of
having the agreement written in a form of an arbitral award is suitable for those parties, who try
mediation during the arbitration proceedings. For other parties it would be too complicated
(too costly and time consuming) to start arbitration proceedings with the sole intention to
have the agreement resulting from mediation be made enforceable.
5. The Impact of Mediation on Statutes of Limitation
Limitation period for a claim subject to mediation shall cease to run during mediation
proceedings (Art.17 of the Mediation Act). If mediation is terminated without an agreement, the limitation
period shall continue to run from the moment the mediation proceedings are terminated.
The time that expired prior to the initiation of mediation proceedings shall be included in the limitation period laid
down by law.
If a
deadline for bringing an action is set by a special regulation in respect of a
claim subject to
mediation, this deadline shall not expire earlier than 15 days after the termination of mediation.
The
Mediation Act determines the precise moment when mediation proceedings commence (Article 6) and when they terminate
(Article 13).
6. Requirements for Parties and Lawyers to Consider Mediation as a
Dispute Resolution Option
According to Art. 16 of the Mediation
Act, where
the parties have agreed upon mediation and have expressly undertaken not to initiate, until the
expiry of a certain period of time or until a specified event has occurred, arbitral or judicial
proceedings with respect to an existing or future dispute, the arbitral tribunal or the court must, upon an objection by the defendant, dismiss
such an action, unless the plaintiff demonstrates that otherwise
harmful and irreparable consequences would occur. The
defendant must submit this objection in the defence plea at the latest.
The court shall dismiss an action even if before bringing the
action obligatory mediation proceedings are
prescribed by law.
According to the Act on ADR in Judicial Matters, the judge
may order an informational session and after such a session has been held, the court may decide that parties shall try solving their
dispute in mediation. Parties have the right to oppose to such decision and in that case
mediation proceedings do not commence. However, parties who unreasonably decline the use of
mediation might bear costs of the judicial proceedings, irrespective of the outcome of the
proceedings (Article 19 of the Act on ADR in Judicial Matters).
7. Requirements for Parties to Participate in Mediation
There are no
requirements for the parties to participate in mediation. The principal of
voluntary cooperation of the parties is declared as one of the fundamental
principles of the Mediation Act (Art. 4, para 2). However, the party who
unreasonably refuses to try mediation might have to bear some negative
consequences (see p.6 above).
8.
Accreditation Requirements for
Mediators
The
Mediation Act does not contain any provision on ensuring the quality of
mediation.
However,
the Act on ADR in Judicial Matters, adopted in November 2009 and Rules, issued on the basis of this Act, contain
certain provisions which aim at ensuring the quality of
mediation.
The Act stipulates that mediators can only work in court-annexed or
court-connected mediation programmes if they fulfil certain conditions. For example, they have to
pass the initial and further training which meets the standards laid down by the Act (Article
8 of the Act on ADR in Judicial Matters). The Centre for Judicial Training provides
training for mediators who work in court-annexed or in court-connected programmes. The Head of
the ADR office in court
monitors the execution of the programme and may take certain measures in case of problems with the quality of
mediation services.
The
Patients Rights Act and Rules, issued on the basis of this Act, also contain provisions aiming at ensuring the quality of
mediation. For example, the Act lays down the conditions under which one may become mediator
in the area of healthcare. It also determines control mechanisms concerning the provision
of mediation services in this area.
9. Statistics
A total number of about 2 500 court –
annexed mediations conducted for a year has been declared recently at a
Mediation Experts Meeting held in November 2011 in Milan.
1. Legal Frame of Mediation
In the past ten years several autonomous
communities (“regions”) have enacted their family mediation acts, which are not
harmonized.
The European Mediation Directive has not
been transposed in Spain yet.
A Bill on Mediation in Civil and
Commercial Matters has been drawn up, but has not been enacted until now. The
Bill establishes:
·
a general scheme
applicable not only to cross-border disputes, but to those domestic mediations
that take place in accordance with the requisites of the Bill;
·
mediation procedure as a
pre-requisite to commencing court proceedings in claims up to 6.000,00 €;
·
mediation agreements to
be enforceable;
·
suspension of limitation
period by mediation;
·
settlement agreement to
end further litigation on the same issues;
·
judges empowered to
invite parties to go to mediation.
2. Court
Referral to Mediation
Spain
has a successful labor mediation scheme, which was implemented in 1996.
Pilot-tests of court-annexed programmes on
civil and commercial mediation have been set in place recently, but there are
no statistics available yet.
3.
Confidentiality of Mediation Proceedings
Currently there are no established guidelines
relating to confidentiality in connection with mediation.
4. Enforceability of Mediation Agreements
Neither the enforceability of the
settlement agreements
nor the meditation clauses in commercial contracts have been addressed yet in the
Spanish law. The
current Bill on Mediation
in Civil and Commercial Matters contains provisions regarding the
enforceability of the mediation agreement.
5. The Impact of Mediation on Statutes of Limitation
Currently there are no provisions prescribing for any
effect of mediation on statute of limitation. The Bill provides for the suspension of limitation period by mediation.
6.
Accreditation Requirements for
Mediators
No accreditation is required at the moment. Training courses are
being offered through private organizations, such as ARyME. Training is also available in some universities, but it focuses on
family mediation.
1. Legal Frame of Mediation
There is
no primary legislation for mediation in England, Scotland or Northern Ireland
(nor is it believed for the Republic of Ireland). The development of mediation is due to
spontaneous growth, some court auxiliary schemes, some Government statements
and encouragement and incentives promoted by court judgments, principally in
relation to the award of costs.
The Ministry of Justice has made clear its strong endorsement
of mediation for purposes of allocation of scarce resources. This has been emphasised in various reports
on the civil justice system, and first became a significant feature of
Government policy with the “ADR Statement” by the Prime Minister in 2003, now
the “Dispute Resolution Commitment” which requires all public contracting
entities to be “pro-active” in using “effective, proportionate and appropriate
forms of Dispute Resolution”.
The provisions of article 6 (enforceability
of agreements resulting from mediation) and article 7 (confidentiality of mediation) of the Mediation Directive 2008/52 are implemented by inserting a new section
(Section III – Mediation Directive) into Part 78 of the Civil Procedure Rules /CPR/, together with
consequential amendments in Parts 5, 7, 8, 31 and 32. These amendments are in force since 06 April 2011 and
only apply to mediations in cross-border disputes within the EU. /Ministry of
Justice (ex-Lord Chancellor’s Department) confirms that the Directive in
general will only apply to cross-border disputes within the EU/.
The provisions of articles 7 (confidentiality) and 8 of the Directive (effect of mediation on limitation
and prescription periods) are implemented by Statutory Instruments 2011
No. 1133 /Mediation/ The
Cross-Border Mediation (EU Directive)
Regulations 2011 /in force since 20 May 2011/. The provisions of these
Regulations apply only to cross-border mediations which have started on or
after 20 May 2011.
2. Court Referral to Mediation
There is a general disposition by judges to encourage
mediation in civil and commercial cases.
In divorce cases the standard procedure is to invite, but not to force,
parties to attend an ADR information session in the early stages of matrimonial
proceedings. The principal incentive in
civil and commercial cases (but not divorce) is the possible denial of the
award of costs to a victorious but uncooperative party. There is a court assisted scheme for
mediation for small claims of up to £5000.
The
Civil Procedure Rules ("CPR")
The CPR /in force since April
1999, last amended in October
2011/ encourage the use of ADR by litigants with the assistance of the
Courts and empower
the Court to sanction litigants who
do not engage in ADR appropriately by reducing a successful party's usual entitlement to recover their legal
costs.
The CPR introduced a set of codes, called
Pre-action Protocols, with a view to regulating the conduct of prospective litigants prior to
commencing proceedings to try to ensure that litigation was truly a matter of last resort. The Protocols focus on practical measures
requiring parties to articulate
their cases clearly and to exchange relevant documents, at the same time all of them require parties to consider ADR processes prior to the
commencement of proceedings. Whilst pre-action ADR is not mandatory, the
Protocols make clear that if they are not followed then the Court must have
regard to that conduct when determining
costs at the conclusion of a matter.
The CPR introduced a guiding principle for the
conduct of civil litigation - the overriding objective -that the Court must
deal with cases "justly" (CPR 1.1). To further the overriding
objective, the Court has a
duty to manage cases actively. Active case management includes "encouraging
the parties to use an
alternative dispute resolution procedure if the court considers that
appropriate and facilitating the use
of such procedure" (CPR 1.3).
Once litigation is underway and the parties have
exchanged statements of case (pleadings), they are
required to complete an Allocation Questionnaire, which assists the Court in
managing the dispute appropriately. The
Allocation Questionnaire includes as its first section a series of questions on settlement. It alerts parties to the fact
that the Court will want to know what steps have been taken towards settlement and requires legal
representatives to confirm personally that they have explained to their client the need to try to
settle; the options available; and the possibility of costs sanctions if the client refuses to try to
settle.
At the allocation stage, any of the parties may
seek a stay of proceedings to attempt settlement through
ADR or the Court may order a stay of one month or more for that purpose of its
own volition.
- Costs sanctions for an unreasonable refusal to consider ADR
The costs
of civil litigation in England and Wales are normally awarded according to the "loser pays" rule
(CPR 44.3(2)). A successful party (whether claimant or defendant) will usually recover in the region of 60-70%
of the costs of the action from the unsuccessful opponent.
However, the award of costs according to the "loser pays" rule is
subject to the Court's discretion
and, in assessing costs, the Court must take in to account the conduct of the
parties which includes conduct before
proceedings, and the efforts made, if any, during proceedings to resolve the dispute (CPR 44.3(4) and (5).
The leading decision is the Court of Appeal
decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, in which the Court
issued guidance on the relevant factors to consider in determining whether a party has acted
unreasonably in refusing ADR. The burden of proof will be on the unsuccessful party (and thus the payer
of costs) to show that the successful party's refusal of ADR was unreasonable. Factors relevant to
that assessment include (but are not limited to): (1) the nature of the dispute; (2) the merits of the
case; (3) whether other settlement methods have been attempted; (4) whether the costs of ADR
would be disproportionately high; (5) whether ADR will delay a trial; (6) whether ADR has a
reasonable prospect of success; and (7) whether the Court has encouraged the parties to attempt ADR.
Other notable cases include, Nigel Witham Ltd
v Robert Smith and others [No.2] [2008] EWHC 12 (TCC), where it was held that a successful
party might receive an adverse
costs order if it agreed to mediate but delayed unreasonably in doing so. In 7th
Earl of Malmesbury v Strutt &
Partner [2008] EWHC 424 (QB) the Court held that if a party appears at mediation and conducts itself in such a way
as to make successful mediation all but impossible, that behaviour is similar to simply refusing to
mediate altogether and accordingly that party can be penalised in costs.
Solicitors'
Code of Conduct
The current Solicitors Code of Conduct, which came in to force on July
1, 2007, sets out the professional
conduct obligations on English solicitors (although it is not strictly
binding). Rule 2.02(1)(b), dealing with
standards of client care, requires that a solicitor must "give the
client a clear explanation
of the issues involved and the options available to the client". The
guidance to that rule provides
that where the matter relates to a dispute between the client and a third party
the solicitor "should discuss whether
mediation or some other alternative dispute resolution (ADR) procedure may be more appropriate than
litigation, arbitration or other formal processes".
Court-annexed
schemes
The majority of civil disputes are not subject
to any formal court-annexed schemes, although mediation or another ADR
process will frequently take place under the encouragement
of the Court in the exercise of its case management powers.
There are also several court-annexed
schemes, as
follows:
- The National Mediation
Helpline (NMH) is
operated on behalf of the government's Ministry of Justice in conjunction with the
Civil Mediation Council (an unincorporated association established in 2003 by mediation
providers, independent mediators, leading academics, legal bodies and government departments). Civil courts can
refer litigants to the NMH to assist them in resolving their dispute through mediation. The parties are not
compelled to use the NMH or to take part in mediation and the degree of encouragement by the
court will depend on the individual judge. Mediations are organised through an approved ADR
provider.
- Small Claims Mediation Service - This is a free and
confidential service for litigants involved in small claims (i.e. £5,000 or less). The
scheme is voluntary and parties are required to enter the mediation in good faith with the aim of achieving
settlement. A trained mediator arranges the mediation, which usually lasts around an hour and is
carried out by telephone. Where necessary face-to-face mediations are arranged.
- Mayor’s and City of London County Court -
This mediation scheme operates instead of the NMH scheme in the Mayor's and City of
London County Court, which is the oldest local court in England. The scheme is operated by district
judges on a selective, voluntary
basis with the scheme being administered and mediations conducted away
from the court office
and buildings.
- Technology, Engineering and Construction proceedings - A
pilot scheme called "Court Settlement Process" commenced in the Technology and Construction Court
(TCC) in June 2006. This scheme enables
a London TCC judge to provide a form of mediation if the parties so desire
and agree.
- Family proceedings - Further to a pilot in
2009, a practice direction came into force in April 2010 that empowers civil courts hearing
family law disputes to attempt to resolve appropriate cases through mediation. At the first hearing
the court will conduct a conciliation process, sometimes involving a mediator. Where agreement
is not reached, the court should adjourn proceedings for the parties to attempt mediation.
- Labour proceedings - Employers are encouraged
to pursue early resolution of workplace disputes, thereby avoiding recourse to employment
tribunals. The CMC workplace mediation provider registration scheme is the main access
channel for users of workplace-related mediation services. Reputable mediation service providers
in this sector can be found through the CMC website (www.civilmediation.org). The Advisory,
Conciliation and Arbitration Service (Acas) is an independent organisation which aims to
improve employment relations. It offers a free conciliation service for employment disputes that
are to be heard before employment tribunals.
- Appeal proceedings - With the exception of
family disputes (which are administered by the Court of Appeal), the Court of Appeal Mediation
Scheme is administered by CEDR. A judge considering an application for permission to appeal is
expressly required to consider whether the matter is suitable for mediation. The parties are not
obliged to take part in the mediation, and they and the mediator can terminate the mediation by
informing the Civil Appeals Office or CEDR at any time and without giving reasons.
3. Confidentiality of Mediation
Proceedings
Under the provisions of Part 2
of the Regulations /Statutory
Instruments 2011 No. 1133/, a mediator or a mediation
administrator has the right to withhold mediation evidence in civil and
commercial judicial proceedings and arbitration. A court may order
that a mediator or a mediation administrator must give or disclose mediation
evidence where (a)all parties to the mediation agree to the giving or
disclosure of the mediation evidence; (b)the giving or disclosure 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)the mediation evidence relates to the
mediation settlement, and the giving or disclosure of the mediation settlement is
necessary to implement or enforce the mediation settlement agreement.
According to the new
rule 78.27 of CPR, the mediator or
mediation administrator might be
summoned as witness on request of one of the parties only if the
requesting party 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. When considering a request for a witness
summons the court may invite any person, whether or not a party, to make
representations. The same rules
apply where a person seeks disclosure or inspection of mediation evidence
that is in the control of a mediator or
mediation administrator /rule 78.26/.
As for domestic
mediations, the law does not explicitly
provide for the confidentiality of the mediation, or for a privilege of a mediator not to be compelled to
testify on matters learnt during mediation. However, whenever parties
enter into a mediation agreement, this will usually include appropriate confidentiality provisions and
the Court has held that there is an implied obligation of confidentiality as between the parties and
the mediator in any event which each of them may enforce.
In the case of Farm
Assist (in liquidation) v The Secretary of State for the Environment, Food & Rural Affairs (No 2) [2009]
EWHC 1002, which reviewed the extent of the confidentiality in the mediation process, the court held that
notwithstanding any express terms as to the confidentiality
of the process, the Court retained a discussion to set aside such provisions
when the interests of justice required it
(on the facts of the case by compelling a mediator to answer a witness summons and attend court to give evidence on
what had transpired in the mediation). Such cases are,
however, rare and the Courts well appreciate that the confidentiality of the
mediation process is an
integral part of its success.
In EU cases judge
should apply overriding considerations of public policy as in Directive.
Mediation proceedings including documents
generated and oral statements made at the mediation are "without prejudice" /It is not open to either party (or the
mediator) to refer to or rely on such material
in any litigation or arbitration proceedings which are on foot or are
subsequently commenced/. The without prejudice privilege belongs to
the parties (and not the mediator) and can therefore
be waived by agreement between the parties (see Farm Assist). Instances
of waiver are, however, rare.
4. Enforceability of Mediation Agreements
The
revisions to English Civil Procedure Rules /effective from 6 April 2011/
provide for the opportunity of making a mediation settlement, reached in a cross-border mediation under the
Directive, enforceable by
issuance of mediation settlement enforcement orders (MSEO) by the courts. According to the new rule 78.24
an application for a mediation settlement to be made enforceable could be filed
by each of the parties with the explicit consent of the other parties. The
mediation settlement agreement must be annexed to the application, along with any
evidence of the explicit consent of the other parties. The party is deemed to have
given explicit consent to the application for the mediation settlement
agreement order when he or she (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 for MSEO; or (c) has written to the court consenting to
the application for the mediation settlement enforcement order. Where the requirements are fulfilled and the court
has evidence that each of the
parties to the mediation settlement agreement has given explicit consent to the application for the order, the court will make an
order making the mediation settlement enforceable. The application will be dealt with without a
hearing, unless the court otherwise
directs.
5. The Impact of Mediation on
Statutes of Limitation
An
amendment has been introduced
for cross-border mediations suspending for the period of the mediation, plus
eight weeks for
reactivation, any final limitation date.
For UK disputes, parties must either agree extension or one party must
file protective claim.
6. Requirements for Parties and Lawyers to
Consider Mediation as a Dispute Resolution Option
Under the Solicitors’ Code of Conduct, the solicitors are obliged to "give the client a clear explanation of
the issues involved and the options available to the client”, including to discuss with
the client whether mediation or some other alternative
dispute resolution (ADR) procedure may be more
appropriate than litigation, arbitration or other formal processes.
The Pre-Action Protocols require parties to consider ADR processes prior to the
commencement of proceedings. Pre-action
ADR is not mandatory, but the
Protocols make clear that if they are not followed then the Court must have
regard to that conduct when determining
costs at the conclusion of a matter.
7. Requirements for Parties to Participate in
Mediation
There are no
requirements for the parties to participate in the mediation proceedings. However, a party –even a winning one- would have to
incur part of the costs of the court proceedings if he or she has unreasonably
refused to at least try mediation.
8. Accreditation Requirements for
Mediators
No training or accreditation is formally required
to practise as a mediator. However, in practice, the vast majority of mediators will be trained
and accredited through a recognised ADR provider. It should be noted that a significant number of
mediators, once trained and accredited, have no affiliation
to any ADR provider and practise as sole practitioners.
Official accrediting bodies include the Law
Society, the Bar Council and the CMC, but such accreditation
relates to the standards, quality, and characteristics of the ADR provider and
sets basic standards of training,
Continuing Professional Development (CPD) and administration. Accreditation of providers does not apply to
individual mediators operating under the auspices of such providers. The CMC endorsed and adopted
the EU Model Code of Conduct for Mediators (the Code) in
2004 and expects the Code to be embraced by accredited mediation providers.
The
Government does not consider it necessary to introduce any measures for
training or codes of conduct since private organisations and court annexed
schemes both insist on this for candidates for inclusion in their lists. The lone mediator is thus not controlled.
9.Statistics
There appears to be no national source of mediation
statistics; each organisation has its own.
CONCLUSIONS
While the EU Mediation Directive is intended to
provide some uniformity regarding the most crucial issues, such as the quality
of mediation service, confidentiality of the mediation, enforceability of the
settlement agreement resulting from mediation and the effect of the mediation
proceedings on the prescription and limitation periods, there are still EU
countries where these issues are not addressed by the local legislation.
Furthermore, the legislation of the countries that have already implemented the
provisions of the Directive also provides for different legislative solutions
on these issues in many cases. The main differences might be summarized, as
follows:
1. With regard to the confidentiality
of the mediation proceedings: While upon the Bulgarian, Belgian, Greek and
Slovenian law the obligation for confidentiality apply to all the participants
in the mediation proceedings, there are countries where this obligation
concerns only the mediator and his staff, but not the parties and the other
participants involved in the mediation proceedings by the parties /as in
Germany, according to the current draft of the Mediation Act /. The law of
another group of countries, such as Spain, Netherlands, UK /for domestic
mediations/, Czech Republic and Germany /for now/ does not contain any
provisions concerning the confidentiality, thus leaving the protection of
confidentiality to be regulated in contractual way – through a confidentiality contract or clause, stipulated
between the parties and the mediator. Bearing in mind these differences, it
would be strongly advisable in order to ensure the confidentiality of the
proceedings, a confidentiality clause to be included in the contract signed by
the mediator and the parties prior to commencement of any of cross-border
mediation.
2. With regard to the enforceability of the
mediation agreement: Two
main approaches have been followed regarding the legal means for making the
mediation agreement enforceable: the conclusion of the mediation agreement in
the form of a notarial deed with an express consent to
enforceability /e.g. Czech Republic, Slovenia, Netherlands, Bulgaria/ or by
approval of the agreement by the court as a judicial settlement /e.g. Belgium,
Germany, Italy, Slovenia, UK, Netherlands, Bulgaria/. In some countries both
means are available /e.g. Bulgaria, Slovenia, Netherlands/.
3. With
regard to the impact of mediation on statutes of limitation: In Germany, Belgium, Bulgaria and Slovenia the limitation period for a claim subject to mediation shall
cease to run during mediation proceedings.
Additionally, in Slovenia, a deadline for bringing an
action set by a special regulation in respect of a claim subject to mediation shall not expire earlier than 15 days after the termination of mediation. In UK the commencement of a cross-border
mediation suspends for the period of the mediation, plus eight weeks for
reactivation, any final limitation date.
For UK disputes, parties must either agree extension or one party must
file protective claim. In other countries /e.g. Spain, Netherlands, Czech
Republic/ the current legislation does not provide for suspension of the
limitation periods.
4. With regard to the accreditation requirements
for mediators: Currently only few of the countries included in this
report have adopted statutory requirements for the accreditation of mediators,
mediation and training organisations, as well as for the training required
/Italy, Bulgaria and Belgium/. While the Greek Mediation Law contains such
requirements, the respective by-laws
on the implementation of these requirements have not been enacted yet.
5.
With regard to the mediation as a prerequisite for initiation of court
proceedings:
Italian
legislation provides for mandatory mediation when the subject matter of the
dispute falls amongst one of the following areas: tenancy, land rights, partition
of property, hereditary successionsuccessioni
ereditarie, patti di famiglia, locazione,
comodato,, leases, loans, affitto
di aziende, risarcimento del
danno derivante dallarental companies, damages
resulting fromcircolazione di veicoli e natanti,
da responsabilità medica e da vehicle and boat
accidents, medical malpractice, diffamazione
con il mezzo della stampa o con altro mezzo
didefamation by the press or
other means of advertising, contracts, insurance, or
banking and finance. Parties to such a dispute must attempt mediation before
trial; otherwise the case will be dismissed by the court.
In
Germany: Art. 15 a of the
Introductory Law to the Code of Civil Procedure entitles all
German states on their own discretion to prescribe that lawsuits on small claims /
valued at or up to EUR 750.00/, lawsuits against neighbours and
libel suits are admissible only after a prior extrajudicial attempt of conciliation.
Several German states /such as Nordrhein-Westfalen, Bayern, Baden-Wurttemberg,
Hessen and Brandenburg/ have introduced legislative schemes providing for
mandatory ADR
According
to Art.16, Para 2 of Slovenian Mediation Act, the court shall dismiss an action even if
before bringing the action obligatory mediation proceedings are
prescribed by law.
In many countries, if the parties to a contract have agreed that the
disputes that may arise from the contract shall be resolved by mediation, the
courts would respect such a clause and when an action concerning a respective
dispute is brought without prior attempt to mediate, the court will stay
/Belgium – on request of one of the parties/ or dismiss /e.g. Slovenia, Germany/
the case.
Furthermore, in many countries, as in UK, Italy, Slovenia and Belgium, a
party who unreasonably refuses to at least try mediation might bear costs /or part of
them/ of the judicial
proceedings, irrespective of
the outcome of the proceedings.
It might be concluded from the examples above
that there are still considerable differences in the legal regulation of
mediation and the consequences thereof within the EU member states, which must
be taken into consideration in the cases of cross-border mediation.
This chapter is based on the information available at
the moment of its preparation /November – December 2011/. The following sources
of information have been used: 2010 Mediation Country Report – Greece by Ioanna Anastassopoulou and
Catherine Cotsaki - http://www.adrcenter.com/jamsinternational/civil-justice/Mediation_Country_Report_Greece.pdf and summaries on the
implementation of the Mediation Directive up to November 2011, by Apostolos
Anthimos and Ioanna
Anastassopoulou
This chapter is based on the information
available at the moment of its preparation /November – December 2011/. The
following sources of information have been used: 2010 Mediation
Country Report – Germany by Christoph Strecker-http://www.adrcenter.com/jamsinternational/civil-justice/Mediation_Country_Report_Germany.pdf
and a summary on the
implementation of the Mediation Directive up to November 2011, prepared
by Prof. Dr. Renate Dendorfer LL.M. MBA HEUSSEN RECHTSANWALTSGESELLSCHAFT
MBH, MUNICH
Further information regarding the hearing of the
Rechtsausschuss: The German Mediation Act will allegedly include further
regulation regarding the content of mediation trainings, the length (120 h at
minimum) and the certification of mediators.
This chapter is based on the
information available at the moment of its preparation /November – December
2011/. The following sources of information have been used: 2010 Mediation
Country Report – Italy by ADR Center - http://www.adrcenter.com/jamsinternational/civil-justice/Mediation_Country_Report_Italy.pdf and a summary
on the implementation of the Mediation Directive up to November 2011, by ADR
Center
No regulatory framework for mediation existed in Slovenia before 2008. However, mediation did exist in
practice already from the year 2001 on, mainly as courtannexed mediation.
В периода 18-20 април 2013г. в Братислава, Словакия се проведе четвъртата
конференция на EMNI /European Mediation Network
Initiative/, в програмата на която
имах честта да участвам като лектор.