The Variegated Landscape of Mediation : A Comparative Study of Mediation Regulation and Practices in Europe and the World 9789460949654, 9789462361119

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Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

The Netherlands

Renate DendorferDitges, Ulla Gläßer

Dimitra K. Triantafyllou, Lila A. Bakatselou

Manuela Grosu

James Gilhooly SC

Giuseppe De Palo, Chiara Massidda

Daiga Zivtina, Anete Dimitrovska

Natalija Kaminskienė

Alain Grosjean, Guy Arendt, Julia Senior

Oscar Grech

Fred Schonewille, Manon Schonewille

(Yes) No Yes No No No No Yes (No) No No (Yes) Yes (No) Yes No

Yes No Yes No No No Yes Yes Yes Yes No No Yes (Yes) Yes No

(Yes) (Yes) (Yes) (Yes) (Yes) (No) No Yes No (No) (No) No (Yes) (Yes) Yes (Yes)

(Yes) (No) Yes No Yes No No Yes No Yes Yes No No Yes Yes No

Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes (Yes) (Yes) Yes (No)

Yes No No No No No No Yes No (Yes) (Yes) (No) No Yes Yes No

Yes No Yes No No No No Yes No No No (Yes) No Yes Yes No

Yes (No) Yes No No No No Yes No (Yes) (Yes) (No) (Yes) (Yes) No No

(No) (Yes) Yes Yes Yes Yes No Yes No No No Yes Yes No Yes No

Yes/(No) 2013 draft law (No)/(Yes) 2013 draft law Yes No/(Yes) 2013 draft law (No)/(Yes) 2013 draft law No/(No) 2013 draft law No/(Yes) 2013 draft law Yes No (Yes)/(No) 2013 draft law (Yes)/(No) 2013 draft law (No)/Yes 2013 draft law No/(Yes) 2013 draft law Yes/(Yes) 2013 draft law Yes Yes

F/E

F/(E)

F/(T)

F

F

F

E/F/Mix

F

F

F/(E)

F/E All All All Joint/(caucus) Joint/(caucus) (No) (Yes) (No)

F/(D) F/E F/D NA Mix Mix Yes No Yes

F/D F/T T/F N Mix Joint/(caucus) Yes No Yes

D F D NA Mix Mix Yes Yes No

F F F Other Mix Mix Yes No Yes

F T T NA Mix Mix (No) Yes No

(D) E/F/Mix (D) N/GA/LO (Joint) (Joint) (No) (Yes) No

F F F N Mix Mix Yes No Yes

F F F NA Mix Mix Yes No Yes

F /D E /T /F F/D All Mix Joint/(Caucus) Yes Yes No/(Yes) 2013 draft law

120-200 hrs

>40 hrs

>60 hrs

20-60 hrs (est.)

50 hrs

40-45 hrs

8-500 hrs

60 hrs (est.)

NA

40-80 hrs

No Yes (No) (Yes) No No No Yes No No No No Yes Yes

Yes Yes Yes (Yes) No Yes No No Yes (No) No No Yes Yes

Yes (Yes) (No) (Yes) No (No) No No Yes (No) No No (No) (No)

No No (Yes) (Yes) No Yes No Yes No No No Yes No No

Yes Yes No No No No No No Yes No No No Yes Yes

(Yes) No (No) No No Yes No Yes (No) No No No No No

No No No No No No No Yes (No) No No No Yes Yes

No Yes No No Yes No Yes No Yes No No No Yes Yes

(No) Yes Yes Yes No No No No Yes No No No Yes Yes

2012

2010

2002

No

1865/2010

No

2008

2012

2004

No Yes Yes No (Yes) No

No Yes Yes No (No) (Yes)

No Yes Yes No Yes No

No Yes Yes No Yes No

2011 Yes Yes No Yes No

No Yes Yes No Yes Yes

2011 No No Yes (Yes) Yes

€150-450 (est.)

€ 100

2012 Yes Yes Yes Yes No € 30-100 (est.)/€150250 cross-border (est.)

(Yes) (No) (Yes) Yes (No) Yes No Yes No/(Yes) 2013 draft law No/(No) 2013 draft law No Yes/No 2013 draft law No/(Yes) 2013 draft law No/(Yes) 2013 draft law No/Yes 2013 draft law (expected 2014] 2012 Yes Yes No Yes Yes

€28-30 (est.)

€100 (est.)

€ 200-300 (est.)

€ 50

€ 200-400 (est.)

€75-300 (est.)

€ 100

€28-30 (est.)

€70-85 (est.)

€ 200-300 (est.)

€ 50

€ 150-250 (est.)

(No)

No

No

No

2013 Yes No Yes (No) Yes € 65-9.200 per party per mediation € 65-9.200 per party per mediation Yes

No

No

Yes

No

Yes

Yes

No

No

No

(No)

(No)

No

No

No

(Yes)

Yes

No

Yes

No

No

No

Yes

No

NA

No

No

No

No

No

(No)

No

Yes

No

(Yes)

No/Yes 2013 draft law

Yes Yes Yes No Yes (Yes) (Yes) (mediator)/ No (others) Yes Yes No

Yes Yes Yes No Yes No

(Yes) Yes Yes No Yes Yes

Yes No Yes No (Yes) (Yes)

Yes Yes Yes (Yes) No No

No No Yes No No No

Yes Yes Yes No Yes Yes

Yes Yes Yes No No Yes

Yes (Yes) Yes No Yes Yes

No/Yes 2013 draft law (No)/(Yes) 2013 draft law Yes No Yes No

€ 25-100 (est.)

€500 (est.) €200 (est.)

Yes

Yes

Yes

Yes

No

Yes

Yes

Yes

(No)/(Yes) 2013 draft law

(Yes) No No

Yes (No) No

Yes No No

Yes (No) No

No No No

Yes No No

No (No) (No)

Yes (No) No

(No)/(Yes) 2013 draft law (No) (No)

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1.

1.

Poland

Portugal

Romania

Slovakia

Slovenia

Spain

Sweden

Ewa Gmurzynska

Ana Goncalves, Thomas Gaultier

Sanda Elena Lungu, Constantin-Adi Gavrilla

Martin Magál, Nora Šajbidor

Bojana Jovin Hrastnik

Mercedes Tarrazón, Marian Gili Saldaña

Christer Holm, Simon Arvmyren

(Yes) No Yes Yes No No No Yes No Yes Yes Yes (No) (Yes) Yes No

Yes No Yes No No No No Yes No Yes Yes No No Yes Yes No

(Yes) No Yes No No No No Yes No Yes No No (Yes) Yes No No

Yes No Yes No No No No Yes No Yes (Yes) No (Yes) (Yes) Yes (Yes)

Yes No Yes (Yes) Yes Yes No Yes No (Yes) (Yes) (No) (Yes) (Yes) Yes No

Yes No Yes No No No Yes Yes No No No Yes Yes Yes Yes No

F

F

F/(E/T)

NA

F

F

F F F GA/LO Joint/(Mix) Joint/(Mix) Yes Yes No

F F/(T) F NA Mix Joint/Mix Yes Yes No

F/(E/T) F/(E/T) F/(E/T) All Mix Mix Yes Yes Yes

F F F NA NA Mix Yes No Yes

F F F NA All All (Yes) (Yes) (Yes)

40 hrs

190 hrs

80 hrs

100 hrs

40-150 hrs

(Yes) (Yes) No No No No No Yes (No) (commercial)/Yes (family) No No No Yes Yes

No Yes Yes Yes No Yes No Yes Yes No No Yes No No

Yes Yes Yes Yes No Yes No No Yes No No No Yes Yes

Yes Yes Yes No (No) No No No Yes No No No Yes Yes

(Yes) (Yes) No No No No No (Yes) (Yes) No No No Yes Yes

F F F NA Mix Mix No No No Min. 100 (SP) / min. 170 (CA) No No No No No No No No Yes No No No Yes Yes

Yes (No) Yes (No) (Yes) No No Yes No Yes Yes No (Yes) Yes Yes Yes E (in court)/ F (out-of-court) D/F F D/F GA Mix Mix No No No

2005

1992

2006

2004

2008

2011 Yes Yes No Yes Yes 1.000 zlotys per mediation (in court)/ € 50-100 (commercial) 1.000 zlotys per mediation (in court)/ € 20-50 (commercial) No

2013 Yes Yes No Yes Yes

2013 (Yes) (No) Yes (Yes) (No)

2010 Yes Yes No Yes Yes

2012 Yes Yes No Yes Yes

€150-350 (est.)

€100-1.000 a day (est.)

€67-134

€34-192

€90-350 (est.)

€100-1.000 a day (est.)

€20-100

No

Yes

Yes

No

No

No

No

No

No

Yes

No

Yes Yes Yes No (Yes) Yes

Yes Yes Yes No Yes No

United Kingdom, England and Wales

United Kingdom Scotland

Andrew Colvin, Victoria John Sturrock, Graham Wilson Boyack (Yes) No Yes No (No) No (No) Yes No (Yes) (Yes) No/Yes No Yes (Yes) No

(Yes) No Yes Yes No No (No) Yes No Yes Yes No No Yes Yes (Yes)

(F)

F

(F) (F) (F) Tech./LO Mix Mix Yes Yes No

F F F NA Mix Mix Yes Yes No

40 hrs

6 days

40 hrs

No No No No No (Yes) No Yes No No No No (Yes) No

Yes No (Yes) (Yes) No (Yes) No Yes No No No Yes No No

(No) No (Yes) Yes No Yes No (Yes) No No No Yes No No

2001

2011

(No)

No

2009-2013 Yes Yes Yes (Yes) Yes

No Yes Yes No (Yes) No

No Yes Yes No Yes (Yes)

2011 Yes Yes No Yes Yes

€ 30-120 (est.)

SEK1.500-5.000 (est.)

£300 (est.)

£50-500 (est.)

€34-192

€ 30-120 (est.)

SEK1.500-5.000 (est.)

£100-150 (est.)

£50-500 (est.)

Yes

Yes

Yes

(Yes)

Yes

Yes

No

No

No

(Yes)

Yes

No

Yes

(No)

No

(Yes)

(No)

(Yes)

No

(No)

No

No

No

No

Yes Yes Yes No Yes Yes

Yes Yes Yes No Yes Yes

Yes Yes Yes No Yes (No)

Yes Yes Yes No Yes No

Yes Yes Yes No Yes No

(No) Yes (Yes) No (Yes) No

No No Yes Yes No No

(Yes)

Yes

Yes

Yes

Yes

Yes

(Yes)

(No)

No

Yes (Yes) No

Yes No No

Yes (No) No

No (No) (No)

Yes No No

Yes No No

Yes No No

(Yes) (No) No

Yes (Yes) No

OM_The_variegated_landscape_compleet.indd 9

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The Variegated Landscape of Mediation

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The Variegated Landscape of Mediation A Comparative Study of Mediation Regulation and Practices in Europe and the World

Manon Schonewille and Dr Fred Schonewille (eds.)

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Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-111-9 ISBN 978-94-6094-965-4 (E-book) © 2014 Editors and authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

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List of Contents Foreword  By Professor Jay Folberg, Diana Wallis and Ard van der Steur

9

1. Introduction to: The Variegated Landscape of Mediation A Comparative Study of Mediation Regulation and Practices in Europe and the World Manon Schonewille and Dr Fred Schonewille 1. Challenges 2. Worldwide trends, common cores, fascinating facts and good practices 3. Incentives, penalties and mandatory aspects 4. Objective and conclusion

13

2. Mediation in the European Union and Abroad: 60 States Divided by a Common Word? Manon Schonewille and Jeremy Lack 1. Implementing a flexible and predictable framework in Europe 2. Mediation in the EU and abroad: The absence of clear definitions or common principles 3. The two separate axes to consider when designing mediation: process and substance 4. What does this all mean in practice? 5. Dealing with the variety and looking ahead Appendix I Possible issues to consider and possible differences in expectations when initiating a cross-border commercial mediation between two companies

19

14 15 16 17

19 21 25 35 39 43

I. European Union 1 AUSTRIA Prepared by Professor Dr Marianne Roth, LL.M. – Mag. Marianne Stegner 2 BELGIUM Prepared by Luc Demeyere 3 BULGARIA Prepared by Lyubka Vasileva-Karapanova 4. CROATIA Prepared by Mladen Vukmir 5. CYPRUS Prepared by Agis Chr. Georgiades 6. The CZECH Republic Prepared by Bie Heyninck 7. DENMARK Prepared by Ass. Professor Lin Adrian. Ph.D. 8. ESTONIA Prepared by Triinu Hiob 9. FINLAND Prepared by Antti Heikinheimo 10. FRANCE Prepared by Dr Paola Cecchi Dimeglio 11. GERMANY Prepared by Professor Dr Renate Dendorfer-Ditges – Professor Dr Ulla Gläßer 12. GREECE Prepared by Dimitra K. Triantafyllou – Lila A. Bakatselou

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46 62 72 86 99 108 119 128 139 153 167 181

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The Variegated Landscape of Mediation

13. HUNGARY Prepared by Manuela Grosu 14. IRELAND Prepared by James Gilhooly SC 15. ITALY Prepared by Professor Giuseppe De Palo – Chiara Massidda 16. LATVIA Prepared by Daiga Zivtiņa – Anete Dimitrovska 17. LITHUANIA Prepared by Assoc. Professor Ph.D. Natalija Kaminskienė 18. LUXEMBOURG Prepared by Alain Grosjean – Guy Arendt – Julia Senior 19. MALTA Prepared by Oscar Grech 20. The NETHERLANDS Prepared by Dr Fred Schonewille – Manon Schonewille 21. POLAND Prepared by Dr Ewa Gmurzyńska 22. PORTUGAL Prepared by Ana Gonçalves – Thomas Gaultier 23. ROMANIA Prepared by Sanda Elena Lungu – Constantin-Adi Gavrilă 24. SLOVAKIA Prepared by Martin Magál – Nora Šajbidor 25. SLOVENIA Prepared by Bojana Jovin Hrastnik 26. SPAIN Prepared by Mercedes Tarrazón – Marian Gili Saldaña 27. SWEDEN Prepared by Christer Holm – Simon Arvmyren 28. UNITED KINGDOM: England and Wales Prepared by Andrew Colvin – Victoria Wilson 29. UNITED KINGDOM: Scotland Prepared by John Sturrock – Graham Boyack

193 210 220 236 248 261 270 280 294 305 315 329 340 352 368 379 392

II. Europe outside of European Union 30. RUSSIA Prepared by Professor Tsisiana Shamlikashvili 31. SERBIA Prepared by Blazo Nedic 32. SWITZERLAND Prepared by Jeremy Lack – Alexis Lafranchi 33. TURKEY Prepared by Seçkin Arikan 34. UKRAINE Prepared by Galyna Yeromenko – Tatiana Kyselova

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List of Contents

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III. Rest of world outside of Europe 35. ARGENTINA: Buenos Aires Prepared by Dr Miguel Bernardo O’Farrell 36. AUSTRALIA Prepared by Lorraine Lopich 37. The BAHAMAS Prepared by Koschina L. Marshall 38. BAHRAIN Prepared by Yasmin Sebah 39. BARBADOS Prepared by Kumar Hathiramani 40. BRAZIL Prepared by Gabriela Asmar – Humberto Dalla Bernadina de Pinho – Michele Paumgartten 41. CAMBODIA Prepared by Savath Meas 42. CAMEROON Prepared by Enga Kameni – Mfor Divine Afuba 43. CANADA, Ontario Prepared by Clifford M. Hendler – Alicia K. Kuin 44. The Republic of CHINA Prepared by Andrew Wei Min Lee – Vivian Feng Ying Yu – Julia Zhu Yi 45. ECUADOR Prepared by Juan Montalvo Perero – Adriana Lasso 46. EGYPT Prepared by Judge Dr Ehab Elsonbaty 47. INDIA Prepared by Prathamesh D. Popat 48. INDONESIA Prepared by L.M. Hayyan ul Haq Ph.D., SH., LL.M., Ph.D. – Dr Zainal Asikin, SH., SU. – Dr Zainul Daulay, SH., M.Hum. 49. ISRAEL Prepared by Professor Mordehai (Moti) Mironi – Hagit Shaked 50. JAPAN Prepared by Haig Oghigian – Takeshi Yoshida – Mami Ohara 51. The LEBANON Prepared by Salwa Saad Khairallah 52. QATAR Prepared by Judge Dr Ehab Elsonbaty 53. RWANDA Prepared by Tom Mulisa 54. SINGAPORE Prepared by Aloysius Goh Choong Sien 55. SOUTH AFRICA Prepared by Professor Dr. Barney Jordaan 56. Introduction to the United States of America Prepared by Professor Hal Abramson 57. USA – California Prepared by Eric van Ginkel 58. USA – Florida State Courts Prepared by Professor Sharon Press

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478 487 506 515 524 533 550 559 568 579 591 600 608 620

635 646 655 664 673 682 692 701 703 719

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The Variegated Landscape of Mediation

59. USA – New York,  Prepared by Giulio Zanolla 60. USA – Texas – State and Federal Courts Prepared by Professor Kimberlee K. Kovach

732 746

IV. Appendix 1. Index of countries in alphabetical order 2. Country contributors in alphabetical order

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Foreword by Professor Jay Folberg This book marks the maturing of mediation. In its early period, the use of mediation as an alternative to court decisions was unregulated. The merit of settling cases through a thirdparty neutral was much debated and the practice of mediation was nascent. The sparse use of mediation created little need for regulation. The absence of regulation allowed a ‘thousand flowers to bloom.’ As the number of those who embraced mediation and offered services grew, the claims made for the benefits of mediation and mediation training also increased. The variety of unregulated mediation practices and providers created confusion over what mediation is, as well as concerns about the quality of services, procedural fairness, how mediation was being sold and its impact on court proceedings. Calls for regulation of mediation came from different sources. A unifying theme was consumer protection. Professional interests were often the backstory. Some of those who embraced mediation early on thought it necessary to define mediation to fit the model that they helped create. Professionals from different disciplines, who dealt in their own way with other peoples’ conflicts, disagreed about the training and expertise required to provide quality conflict resolution services. In many jurisdictions, including the United States, mediator training requirements and certification were an early focus of regulation, with trainers advocating regulations that tended to favour the training they provided. Training or certification were sometimes linked to the establishment of a mediation confidentiality privilege or requirements for inclusion on a court mediation panel. Territorial battles, fought through regulation, were not limited to established disciplines. Those who sought to create a new profession of mediation believed that all mediators needed training for a new set of skills. Mediation proponents of a more laissez faire bent were concerned about premature regulation to fix something that they did not view as broken. They were sceptical about professional gatekeeping that might reduce competition, lessen flexibility, spawn bureaucracy and that may have unintended consequences. Regulation, at first, tended to be piecemeal, aimed at one type of conflict like child custody, one isolated problem like confidentiality, or one setting like court-connected mediation. More comprehensive regulation often followed. The thousand flowers of mediation varietals grew in different gardens in different nations. Each jurisdiction has to consider regulation, or not, that is responsive to the particular growth of mediation practice in its own soil. Regulatory approaches and details also have to be sensitive to unique cultural values, traditions, legal systems, legislative settings, political climates, competing interests and mediation experience. So, as mediation has grown in many environments, regulation of mediation has taken different forms. These different approaches to the regulation of mediation present both an opportunity and a challenge. In this era, where digital communication allows for efficient sharing of information, regulatory details and results are readily available worldwide. There is now an opportunity to view different national approaches as experiments from which to learn and benefit through comparing a variety of mediation regulations, while recognising the adjustments that may be necessary to accommodate cultural, legal and other differences. A challenge exists for those who practice in multiple jurisdictions, or who, for reasons of policy formulation, academic inquiry, training purposes or curiosity, want to understand the variegated landscape of mediation. There is also a need to find mediation commonalities and understand

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The Variegated Landscape of Mediation

differences for purposes of crafting a procedural structure for settlement of cross-border disputes. That is where this book fills a most important role. It provides detailed and comparable information about the regulation and practice of mediation in 60 jurisdictions. It brings together in one volume a compilation of the regulations of each of the countries in the European Union, Europe beyond the Union and many countries outside of Europe, including several key states in the US. Manon and Fred Schonewille, as editors, have drawn on their own extensive contacts and knowledge of mediation across the world to bring together informed reporters from each country to detail the mediation regulations and some of the developments in their jurisdiction. The Schonewilles, as a tremendous service to the reporters and their readers, have provided each reporter with a uniform set of headings and subheadings, to set out relevant regulatory information pertaining to their jurisdiction. With this organising method, the reader can easily compare the regulatory scheme of each country, topic by topic. Although the country chapters are complete by themselves, each offers a resource for further research and reading under the heading ‘most relevant literature or references, case law, articles, law.’ Another topic heading provides a weblink to the text of mediation law of the country. Each reporter is held to the same format for the topics, however, the last of the headings provides a bonus feature of ‘country specific remarks’ that allows the reporter more leeway to discuss unique and interesting factors about mediation in their country. This makes for a fascinating world mediation tour. I wrote this foreword while I was preparing mediation-related trips to two countries new to me. What a gift it was to have available a draft of this book so I could quickly read in-depth information about mediation in the countries I am visiting. I found that the reporters’ remarks and references allowed me to obtain convenient information, not just about regulation, but also about the practice and development of mediation in each of their countries. This book is a fabulous resource. Jay Folberg1 is former Dean and Professor Emeritus at the University of San Francisco School of Law. He is the Executive Director of the JAMS Institute and a mediator with JAMS, December 2013 San Francisco, USA.

1

Contact: [email protected].

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Foreword by Diana Wallis Back in 2008 I was part of the European Parliament team that worked on the Mediation Directive (Directive 52 /2008); it was not a straightforward birth. For one thing, there were many of us in Parliament at the time who had initially not really wanted to see the field of alternative dispute resolution, in the widest sense, regulated at all. Rather, we were concerned that regulation might stifle the experimentation and flexibility which seemed to lie at the heart of these new processes, and which made them potentially so attractive. How wrong we were. As the title of this publication makes clear, the landscape with regard to mediation alone is variegated across Europe and beyond, despite legislation in the form of the Directive. Whether such variegation is negative or positive is open to future debate but what cannot be challenged is the need for guidance in understanding how mediation operates in differing jurisdictions, how it fits into the wider justice system and what users should expect. In this respect the editors have collated a wealth of information displayed in a helpful and practical format. The European Directive, which had to be implemented by all Member States by May 2011, clearly provides much needed focus and framework for cross-border mediation. In this sense it has helped set the tone: there can also be little doubt that in its final form it has a very light touch. This is apparent from the variation in possibilities charted by the information found in the publication in relation to areas such as confidentiality, enforcement and the voluntary or mandatory nature of mediation. These were areas where perhaps the Directive sought to enable the development of mediation rather than to be overly prescriptive. Of course, where the Directive had little or nothing to say was in relation to the type of mediation, the training, accreditation, fees and governance of the mediation profession itself. In this respect the publication does a huge service in providing detailed insight into each national scene, which will be invaluable for those looking to understand how local professions operate and where best to seek assistance. The field of mediation is of course not only variegated but also rapidly changing. It is clear that greater regulation of mediators and other dispute resolution professionals at national level is inevitable, and the authors make continual reference to impending or actual new national regulation. Likewise the impact of advancements in technology and communications as interpreted by the European legislator in offering new possibilities under the recent ADR Directive and ODR Regulation will have implications for mediation and mediators. The benefit of this publication is that it provides a detailed overview of where mediation is now, an overview that will undoubtedly be invaluable as we approach the review date of the original Directive in May 2016. Diana Wallis,2 is former Vice President of the European Parliament 2007 – 2012. Member of the European Parliament, Yorkshire & the Humber UK, 1999 – 2012. Law School, University of Hull, November 2013, UK.

2

Contact: [email protected].

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Foreword by Ard van der Steur I started my career in 1995 as a traditional trial lawyer (‘advocaat’) specialised in employment law. No one ever suggested that conflicts between an employer and an employee could also be solved by either using mediation techniques or mediation itself. I have to admit that ‘mediation’ was the victim of quite unfounded but nevertheless powerful prejudice. This changed when I realised after some years of practice that many conflicts arose out of emotions that could not adequately be addressed by the traditional court proceedings, or by the involved lawyers. After this revelation, I became enthusiastic about mediation and, after my election as member of parliament for the liberal conservative VVD party in the Netherlands, I started my crusade for the recognition and acceptance of mediation as the logical and natural alternative for traditional court proceedings. Although my suggestions were positively received by the government, it was clear that no concrete results would be realised in the short term. Realising this, I embarked on the development of a bill that would incorporate mediation in our civil code, for all conflicts between the government and its subjects. The knowledge about the choices that were made in other countries in Europe and beyond, provided by the authors of this book, was vital for the development of my bill. It is important to realise that practical and noteworthy solutions have been devised in other countries. It would have been helpful if this book had been available when I started drafting my bill. I am grateful that the authors not only describe what the current situation is in the Netherlands but also include future developments. Two proposals in my bill may be of particular interest to the readers. I propose opening the possibility of fast court proceedings by an ‘e-judge’ who can help the parties engaged in mediation to solve a conflict about an issue that could otherwise endanger the success of the mediation. The second proposal is to entitle the register mediator to file the mediation result with the court in order to obtain an execution order. This ensures that the result of the mediation can be implemented, just as normal court rulings would be. This book is important for anyone interested in mediation, whether they are legislators or litigators, and want to know what the status of mediation development is in other countries, how mediation is incorporated in conflict resolution in these countries and what the requirements for mediators are. Knowledge that in the future will no doubt also help companies to decide on appropriate corporate seats. I hope that in the next reprint of this book a mediation act will be included in the chapter about the Netherlands, meaning that the bill successfully passed both the House of Representatives and the Senate. Ard van der Steur LLM3 Is member of the Dutch House of Representatives of the States General, December 2013, The Hague, The Netherlands.

3

Contact: [email protected], @ardvandersteur, www.ardvandersteur.nl.

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Introduction to: The variegated landscape of mediation A comparative study of mediation regulation and practices in Europe and the World Manon Schonewille1 and Dr Fred Schonewille2 ‘What you see and what you hear depends a great deal on where you are standing. It also depends on what sort of person you are.’ (C.S. Lewis)3 Compiling this book has been a challenging and hugely interesting journey, comparable to getting 360 degrees feedback while entering into many different worlds. When we came up with the idea ‘to prepare a comparative overview of mediation practices and regulation worldwide’, we had no idea what we were getting ourselves into. Our vision was that we simply needed a comprehensive and simple grid (such as those provided in the folding covers and at the end of each chapter in this book) to compare regulatory aspects worldwide. Such a comparison, based on several standardised benchmarks for each country, would be helpful for those mediating across-borders, those involved in education, and legislators. Our mission was to use the grid to identify and analyse any ‘common cores’ we would find that defined mediation in all countries around the world, as well as listing good practices. At the time, Fred was involved as an advisor to the draft Dutch mediation legislation led by MP Ard van der Steur. Having access to an overview of how mediation was being regulated elsewhere, and knowing what was being done in other countries would also aid the drafting of new legislation. Manon was teaching, negotiating and mediating across many borders and was often struck by the diverse practices she witnessed. She felt the need for a practical reference tool to assist parties and their counsel on how to initiate and prepare for a cross-border mediation more effectively. These challenges are described in the second chapter of this book, ‘Mediation in the European Union and Abroad: 60 States Divided by a Common Word?’.

1

Manon A. Schonewille is a legal business mediator, a partner in the Legal Mediation Firm Schonewille & Schonewille, partner in Toolkit Company and President of ACB Foundation, Corporate ADR & Mediation in the Netherlands. She is an IMI Certified Mediator, IMI Certified Mediation Advocate and a JAMS International panellist. Contact: [email protected]. 2 Dr Fred Schonewille is a legal family mediator, a partner in Legal Mediation Firm Schonewille & Schonewille as well as a researcher and lecturer. Email: [email protected]. 3 C.S. Lewis in ‘The Magician’s Nephew’ (The Chronicles of Narnia Publication). Two children are tricked by their uncle, a magician, into becoming part of an experiment and they set off on an amazing adventure. What happens when they touch the magic ring is far beyond anything even the magician could have imagined. Thrown into the wood between the worlds, the children soon discover that they can enter many worlds through the mysterious pools they find there.

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1. Challenges We encountered challenges and discovered many fascinating facts while compiling this book. The idea of creating something fully comparable was exciting, but not every country fits into the neat grid format or could address the original questions that we provided. Even ‘standardised benchmarks’ or a set of (in our eyes) ‘simple closed questions’ turned out to be interpreted differently depending on which country and with which mediation worldview these questions were read and answered. In fact we even came across another Dutch worldview regarding mediation styles and approaches that we had unwittingly imposed on others in this study (described in Chapter 2). There are in fact more exceptions than rules, and several questions were very hard to answer, especially with a simple ‘yes’ or ‘no’ or another similarly-limited range of answers that we asked the respondents to observe. Answering questions about your own country and at the same time trying to take into account where your country might be on a comparative worldwide continuum was not an easy task. Introducing question 16, asking for the country-specific remarks, did help; however, we increasingly realised that we had given an extremely challenging task to our esteemed contributors, who were making a huge effort to fit their countries’ responses into our strict grid format, even if it was not a comfortable fit. We really appreciate their efforts and great work and would like to thank all of them warmly. Sixty jurisdictions are covered in this book. They are at various stages of mediation development, have different levels of sophistication, and their disparate approaches to mediation practices, styles and process, both internally in each country and externally, were often hardly comparable. We hope that, for the second edition of this book, we will be able to cover more than 60jurisdictions, including those that withdrew their contribution because of inter-state difficulties and those where, despite much effort on our part, we were unable to identify a knowledgeable professional willing to contribute to this book. We also expect that those countries where mediation is just starting to develop will be able to report their mediation activities and developments to contribute to the next edition. This book offers a comprehensive overview of many mediation regulatory frameworks for commercial and civil cases, as well as a practical overview of the development of mediation and worldwide mediation practices in 60 jurisdictions, with a special emphasis on the European Union. The book is designed to facilitate a direct comparison, based on standardised benchmarks for each country. This is intended to assist educators, those mediating across-borders and adjudicators, as well as policy makers and litigators. We would like to thank Professor Jay Folberg for pointing out that it was important to bear in mind for the whole book, including the title, that the study is about the broader appplication of mediation rather than just a study of regulatory frameworks. Mediation is developing rapidly around the world, and is being promoted actively in many countries. The European Union introduced a Mediation Directive in May 2008,4 starting a trend of legislative efforts that is increasingly introducing mediation as part of the judicial system in many European countries. The Directive not only impacted upon EU Member States, which were required to implement its provisions by May 2011, but also influenced neighbouring and other countries that are not EU Member States. Related to this, education about mediation is increasing worldwide, and there is a new interest in finding appropriate methods, substance and didactics for teaching mediation internationally. At the level of higher education,

4

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.

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law schools are the dominant players, although mediation or mediation advocacy are still not taught as separate disciplines in most universities and professional bodies around the world. This raises questions about the interdisciplinary character and the potential development of mediation as a new profession, and whether it should be viewed purely from its ‘legal’ application. The development of higher education in mediation in several countries and the search for best practices and the exchange of education tools is comprehensively addressed in Mastering Mediation Education,5 edited by Martin Euwema and Fred Schonewille (2013).

2. Worldwide trends, common cores, fascinating facts and good practices Unsurprisingly, we found many similar worldwide trends emerging, such as new legislative efforts and increasing mediation education in universities. Although we knew that mediation is a very flexible practice, we expected there would be wide-ranging variations, though we were still hoping to find common cores or practices that are invariably and universally applied. Mediation turned out to be a fascinatingly variegated landscape indeed. Whatever aspect we looked into, be it that a mediator and the parties can always decide the style and approach of the mediation themselves, the voluntary nature of mediation, or even its confidentiality, there were always exceptions. In fact, our vision that we could find at least one common core to which all 60 states would respond in the same way turned out to be an illusion. A small and non-exhaustive selection of the fascinating facts, practices and regulatory frameworks that surprised us (from our Dutch perspective) includes: – Although mediation education is increasingly featured in the curriculum of universities, mediation advocacy has yet to be commonly perceived as a valid field of study, education or practice. There are hardly any national procedures for the recognition or credentialing of mediation advocates or mediation advisors, despite the fact that mediation tends to be taught in some law schools (as opposed to business schools or other social science faculties, such as international affairs or psychology). A task force of the International Mediation Institute (IMI) recently developed new criteria for good mediation advocacy practices for those wishing to become IMI Certified Mediation Advocates.6 – Nearly all legislations leave the mediator and the parties to decide how they want to conduct the mediation process or what style of mediation to adopt, such as whether or not to use caucus, co-mediation teams, or single mediators. However, there are always exceptions to the rules. For example, mediation is defined as a ‘facilitative’ process in several countries (e.g., Malta). The Bulgarian Mediation Act also promotes a ‘facilitative’ approach, not by explicitly mentioning it, but by prohibiting mediators from expressing legal opinions or giving advice. What is meant by ‘facilitative’ varies in scope and nature from one country to another. In Austria, family mediation has to be conducted by co-mediators, preferably male and female, one a lawyer, the other a psychologist. – In most jurisdictions it is not common practice for mediators to give binding opinions. In some countries, such as Bulgaria, mediators are even prohibited from giving binding opinions. In other countries, however, the law provides for an evaluative approach to mediation as the predominant style. In Estonia, for example, mediation is embodied in the Conciliation Act and if a case is not settled through mediation the mediator may present the parties with a suggested settlement proposal such a proposal is considered reasonable having regard to the facts of the dispute. – Lawyers or others representing or supporting the parties in mediation are generally allowed to be present during mediation sessions if the parties wish them to. However, there are 5 Martin Euwema, Fred Schonewille, editors. Mastering Mediation Education. Apeldoorn/Antwerpen: Maklu, 2013. 6 www.imimediation.org/imi-mediation-advocacy-competency-certification.

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exceptional circumstances, such as victim-offender cases in Denmark, where lawyers may not be present. In general it is not obligatory to have a lawyer present, except in some countries, such as Greece, Italy and Argentina, where legal representation in a mediation is compulsory. – Mediators’ obligations and liabilities are generally dealt with by civil law provisions, with the exception of Austria, where mediators breaching confidentiality and violating the interests of another person can be prosecuted under the criminal law and risks possible imprisonment for up to 6 months or a fine. – In most jurisdictions, professionals with various backgrounds can be mediators, but in Argentina only lawyers can be accredited mediators (until 30 March 2014 that was also the situation in Greece). In Turkey, only legal professionals with 5 years experience can be mediators. In other countries, such as Cyprus, only lawyer-mediators can be appointed in certain circumstances, such as non-commercial civil cases. In Indonesia, a mediator must have legal knowledge and skills, be at least 35 years of age, and have experience (or have been active in their fields of expertise) for at least 15 years. In the Czech Republic, lawyers and non-lawyers are listed on separate mediation registers. In Estonia there are special provisions for lawyer mediators – for example, settlements concluded with the aid of a mediator who is a sworn advocate are more easily enforceable. In other jurisdictions, such as California and most other US States, the selection of who can be a mediator is left entirely up to the users of mediation services and there are no legal requirements in this area. In Greece, basic mediator training can only be offered by a Bar Association in collaboration with a Chamber of Commerce. In many countries (e.g., Slovakia, Spain, Serbia) mediators must have a university degree. – Fees can usually be freely contracted between the parties and the mediator. However, some countries have rules laying down minimum or maximum rates that are provided for by law (e.g., Italy, Argentina, Turkey), including a maximum number of hours that can be charged in principle (e.g., Greece) or a minimum hourly rate that can be charged in the absence of an agreement on mediator fees (e.g., Malta). Sometimes, general rules on how to arrive at a mediator’s fee are given – for instance, that the fee must be a reasonable amount and should consider the nature and the subject of the conflict/dispute (e.g., Romania). – Generally, mediation services are offered by organisations providing these services, and by individuals who offer their mediation services privately. In Italy or Malta, however, individuals cannot provide private mediation services, and only recognised service providers may do so. In Romania, individuals can only offer services through a mediation office of two or more mediators, whereas in the Czech Republic, the opposite rule applies - bodies providing mediation services are prohibited and only individuals can offer these services.

3.

Incentives, penalties and mandatory aspects

A trend that we noted is that there are several initiatives around the world to encourage the use of mediation through offering incentives, or by introducing mandatory aspects or even penalties. Some legislation in some countries includes mandatory process steps for trying or considering mediation. In France, Romania and Israel, for example, attending a pre-mediation or mediation information session, can be compulsory. Mediation is an obligatory process step for specific cases in many jurisdictions around the world including Texas, Florida, Argentina, Australia, Canada, Croatia, Egypt, India, Japan, Lebanon and Rwanda. In Ecuador, mediation is promoted through arbitration. If a request for arbitration is filed and answered, the director of the arbitration centre is required to call parties to a mediation, and Rule 9 of the American Arbitration Association's October 2013 Commercial Arbitration Rules and Mediation Procedures makes

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mediation a process step that parties need to opt out of - not one that they need to opt into. In the Canadian Province of Ontario parties will not be assigned a court date without first having attended a mediation session. Some countries introduce penalties for not mediating, or not mediating in good faith. In Malta the court may award double costs in the other party’s favour if a party refuses or fails to participate in mediation or fails to collaborate with a mediator without just cause. In Italy if the mediator’s proposal is rejected by one of the parties and a settlement is not reached, the mediator’s proposal is included in the court file. If the court’s ruling coincides with the mediator’s proposal, the court can impose sanctions on the party who rejected the proposal. In Singapore the court reserves the right to take into account, when determining costs, unsatisfactory reasons for not attempting mediation or unreasonable termination of mediation. Incentives for parties who try mediation voluntarily before going to court are included in legislation or applied in practice as a way of promoting the use of mediation. In Texas some courts facilitate an early trial setting if the litigants participated in mediation and did not settle the matter. In Australia’s project for family law property disputes, cases are also scheduled early for hearing. A reduction in costs may be considered by the court for parties who try mediation in The Bahamas; mediation in workplace cases by the Labour inspector is free in Cameroon and in Spain and Catalonia free mediation and free legal assistance are offered under certain circumstances. For parties reaching a settlement agreement that is subsequently implemented in a court settlement agreement in Bulgaria, half of the stamp duty deposited is refunded to the plaintiff; in Croatia, the party proposing mediation can be exempted from court fees. In England and Wales, for small claims, the court hearing fee is refunded if there is a settlement prior to the hearing and in Scotland efforts to expedite resolution generally (including mediation) may be recognised in some costs awards. In Greece mediated agreements are not subject to stamp duty in order to be enforceable.

4. Objective and conclusion In the individual country chapters of this book, the authors, who are knowledgeable professionals in their jurisdictions, give a comprehensive and fascinating overview of mediation development in their countries. Combined, these chapters show the breadth and variety of mediation regulations and practices around the world. We hope that this book will become a standard reference work for users, practitioners, adjudicators, legislators and educators. It can support comparative academic studies, and provide guidelines to professionals mediating acrossborders, as well as to legal counsellors who are supporting clients in international cases. The objective of this book is partly to enable ADR practitioners and academics to obtain an overview of developments in other countries, to facilitate working across-borders, to compare our practices and to lay the groundwork to identify and formulate in the future common core features as well as good practices for mediation practice and regulation. Equally importantly, we hope this book will be a valuable reference book for clients, corporate counsel and lawyers who manage disputes abroad and a tool to facilitate and stimulate cross-border mediations. Last but not least we would like to express our great appreciation and to thank our research assistant Eldrid Bron, without whose valuable energetic support and positive ‘can do’ attitude we would not have been able to carry out and compile a survey of this magnitude. At least we would not have been able to publish it in this decade! We started this introductory chapter with a quote of C.S. Lewis in The Magician’s Nephew, so we wrap this up with two other quotes from him:

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‘When things go wrong, you'll find they usually go on getting worse for some time; but when things once start to go right they often go on getting better and better.’ ‘Pooh! Grown-ups are always thinking of uninteresting explanations.’ Let’s find fascinating explanations and approaches to make sure that, with informed consent, the ‘thinking outside the box’ capacities of mediation are preserved while continuing to improve on quality and predictability; and let’s keep on learning from one another. Now that we have comparative overviews available to us, as well as the great interest that this survey has already sparked, we hope that mediation will become increasingly used as a logical first step in trying to resolve all conflicts. Things are starting to move in the right direction, and can only improve in the future.

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Mediation in the European Union and Abroad: 60 States Divided by a Common Word? Manon Schonewille1 and Jeremy Lack 2

1.

Implementing a flexible and predictable framework in Europe ‘Good management is the art of making problems so interesting and their solutions so constructive, that everyone wants to get to work and deal with them.’ (Paul Hawken)3

Directive No. 2008/52/EC entitled ‘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’ (the ‘Directive’), had an implementation deadline of 21 May 2011. Although it created challenges for several Member States, all countries of the European Union (‘EU’) have since adopted this Directive. The purpose of the Directive was to create minimum common rules on mediation for all Member States of the EU in cross-border civil and commercial mediations with the exception of Denmark, which is exempt in certain areas like civil judicial matters from the Maastricht treaty. Although the Directive was initially intended to have a broader domestic remit, its scope was narrowed down to cross-border commercial and civil disputes as a political compromise, due to resistance to mediation legislation in certain countries. The stated aim of the Directive4 in its final form was to facilitate access to mediation where a party from at least one Member State of the EU is involved in a civil or commercial dispute with another party located in another country.5 This meant ensuring a predictable legal framework and, through this, promoting the use of amicable dispute settlement methods across the EU in general. In addition to introducing a predictable legal framework and common principles for 1 Manon A. Schonewille is legal business mediator, a partner in the Legal Mediation Firm Schonewille & Schonewille and Toolkit Company, as well as President of ACB Foundation, Corporate ADR & Mediation in the Netherlands. She is an IMI certified mediator, IMI certified mediation advocate and JAMS International panelist. Contact: [email protected]. 2 Jeremy Lack is a common-law and civil-law lawyer and ADR Neutral with offices in Geneva, London and New York, who specialises in the prevention and resolution of international commercial disputes and related processes, including hybrid proceedings. He is also an IMI certified mediator, mediation advocate and a panelist with JAMS International, ICDR/AAA, CPR, SCCM, CMA, WIPO, INTA, and other ADR organisations. Contact: [email protected]. 3 Paul Hawken is an American environmentalist, entrepreneur, journalist and author, dedicated to sustainability and changing the relationship between business and the environment. 4 Article 1 Objective and scope: ‘1. The objective of this Directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings. 2. This Directive shall apply, in cross-border disputes, to civil and commercial matters except as regards rights and obligations which are not at the parties’ disposal under the relevant applicable law. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). 3. In this Directive, the term ‘Member State’ shall mean Member States with the exception of Denmark.’ 5 Article 2 Cross-border disputes: ‘1. For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Member State …’

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particular aspects of civil procedure in cross-border civil and commercial cases, the Directive also aimed at establishing a framework to preserve flexibility, which was perceived by the drafters as being a main advantage of mediation. Adopting the Directive was also seen as an important and much needed initiative in order to harmonise mediation practices for cross-border disputes between 27 Member States, having 23 different official and working languages (not including Denmark/Danish),6 over 500 million people and diverse judicial systems including 3 common-law jurisdictions (England and Wales, Northern Ireland, Ireland) 2 mixed common and civil-law jurisdictions (Scotland and Malta), and a wide variety of civil-law countries. Although the Directive sought to set certain minimal standards (e.g., of confidentiality and to interrupt statute of limitations periods), it did not seek to regulate or affect the practice of mediation within any EU Member State. Nor did the authors of the Directive suggest what courts should actually do in civil or commercial cases when parties come from different countries. This lack of practical provisions on how mediation should be put into practice, or how the judicial system in each Member State should support or promote the use of mediation is a universal theme in many countries around the world, and the EU is not an exception. According to a report that was published in June 2010 as part of a EU Commission-sponsored mediation project,7 the use of mediation in Europe could be summarised as a paradox comprised of two numbers: an average use in 0.5% of cases (based on the ratio of the number of mediations/the number of litigated cases in Europe) and an average settlement rate of 75% for those cases where mediation was used.8 So mediation was understood to be a high quality product that was rarely used. While drawing up the Directive, the EU Commission and Parliament were guided by two principles: flexibility and predictability.9 The result was a document with a very ‘light touch’, which essentially left every Member State to its own devices. Although the Directive was ostensibly intended to set standards for cross-border cases, it also considered the possibility that it may be applied to domestic cases as well,10 where the parties would be from the same Member State. This light touch approach did not address whether mediation was a clearly understood process, or whether it may have varied in practice from country to country and if so, how. ‘How well has the intended purpose of the Directive been achieved?’ Based on our practical experience as mediators and mediation advocates, and after analysing the 28 chapters for all EU Member States in this book, our answer could be summed up as follows: ‘The Directive’s intended purpose to stimulate cross-border mediation has been impeded by the way it has been conceived, implemented and regulated’. Although flexibility and diversity have been maintained to accommodate local circumstances and cultures, there are no predictable legal frameworks or guidelines for parties coming from different countries as to how mediation should be initiated, conducted or overseen. There are no clear EU guidelines or provisions regarding mediator quality standards, or clear explanations of what different forms of mediation may mean. Each Member State has been left free to develop a culturally-shaped and nationally-biased view of 6 At that time 26 countries and 22 official languages (excluding Danish/Denmark). In 2013 Croatia became a new Member State, bringing the total to 28 EU Member States. 7 ‘The Cost of Non ADR: Surveying and Showing the Actual Costs of Intra-Community Commercial Litigation’, June 2010. 8 80% for voluntary mediation and 70% for mandatory mediation. 9 European Parliament resolution of 13 September 2011 on the implementation of the directive on mediation in the Member States, its impact on mediation and its take-up by the courts (2011/2026(INI)). 10 ‘Whereas: … (8) The provisions of this Directive should apply only to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation processes. …’

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what the word ‘mediation’ means, without creating any bridges between these different interpretations and customs, and there are a dizzying number of different practices and definitions existing today, not only within the EU but across the world as a whole. This could be seen as positive, encouraging diversity, but it can also be viewed as disruptive if the goal is to provide greater certainty and address possible cultural, national or linguistic barriers to amicable dispute resolution. The solution is not to impose one definition or to prescribe one approach to mediation, but to facilitate the use of commercial and civil mediation across borders by enabling parties and their counsel to understand the different options that exist so they can make an informed choice. The majority of the 60 states surveyed in this book have recently passed new legislation, or are planning to do so. No two countries, however, seem to have implemented the exact same legislation or to have agreed on the practicalities of how the Directive would be put into practice in the EU to facilitate mediation across borders. Local variety is important and inherent in a flexible process like mediation, and it usually works well within national borders. When regulatory frameworks or practices vary greatly from country to country, however, and if litigants or their counsel are unaware of this, difficulties can arise that could easily be addressed by providing clear guidelines and definitions on mutually identified parameters where countries differ. These would at least inform disputants of differences and how they may have an impact on the process or the outcome to their dispute. If parties and/or their counsel have different procedural expectations and have not consciously agreed to what type of mediation process or approach they and the other party wish to use (which can depend on their view of what mediation is about) this can lead to even more disputes on matters of process. The authors suggest that some form of guidance is needed to ensure that the parties and their counsel have agreed on common parameters on a case-by-case basis, to ensure there is informed consent. In the absence of informed consent, the parties’ self-determination and autonomy may be compromised. The purpose of this chapter is to explore how it may be possible to create a balance between, on the one hand, the need for local flexibility and, on the other hand, the need for a more predictable framework in cross-border cases. The answer seems to lie in guiding the parties more specifically towards reaching informed consent regarding their procedural choices, and to ensure that they have designed a process that is best suited to the needs of their particular cross-border case.

2. Mediation in the EU and abroad: The absence of clear definitions or common principles ‘Between what I think, what I want to say, what I believe I say, what I say, what you want to hear, what you believe to hear, what you hear, what you want to understand, what you believe you understand, what you understand… there are ten possibilities that we might have some difficulties in communicating. But let’s try anyway…’ (Bernard Werber)11 a. The absence of clear definitions George Bernard Shaw is known to have joked that the United Kingdom and the US are two nations divided by a common language. Something similar can be said about the word ‘mediation’. In our view, the EU (as well as the rest of the world) is equally separated by this common word. As concluded in the first chapter, mediation offers a kaleidoscopic landscape with huge varieties, and there are no `common cores’ or practices that are universally applied in each and every country. It is difficult to extract any clear standards or processes for mediation when two parties

11 French author. Extract from ‘L’ Encyclopédie du savoir relatif et absolu’.

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come from different jurisdictions, especially when the expectations, styles and approaches to mediation vary greatly from country to country. To add to the confusion, the words used to describe mediation styles and approaches, like ‘directive’, ‘facilitative’, ‘transformative’, ‘evaluative’ or ‘non-evaluative’, appear to have different meanings in different countries. Even the word ‘mediation’ is interpreted differently in different states or depending on an individual’s profession. Yet for cross-border cases the word mediation, just like the terms to describe the approach to the process, is commonly used and agreed to, without people understanding the key differences that exist behind it, or the consequences of these different understandings. A common and more precise vocabulary would help to avoid the risks of misunderstandings that are highly likely to arise in the current cross-border environment. Ostensibly, the Directive appears to provide a sufficiently broad definition to accommodate all types of mediation. On closer examination, it appears to be a tautology of limited practical value:12 ‘Mediation’ is defined as ‘a structured process, however named … whereby two or more parties to a dispute … reach an agreement on the settlement of their dispute with the assistance of a mediator’. ‘Mediator’ is defined as ‘any third person who is asked to conduct a mediation’. Thus the definition of ‘mediation’ refers to a ‘mediator’, and the definition of ‘mediator’ refers back to ‘mediation’. On the face of it, mediation could be taken to mean any sort of process in which a neutral person helps the parties to settle. It includes ‘any third person’, which means, inter alia, a negotiator, facilitator, manager, sage, guru, therapist, lawyer, religious leader, elder, ombudsperson, early neutral evaluator, mediator, chairperson, norms-educator, independent expert, neutral, conciliator, adjudicator or even an arbitrator or magistrate. This provides the advantage of freedom and flexibility to cover all dispute resolution processes and approaches, provided the parties agree to and have the same understanding of the process that they are entering into and what type of ‘third person’ (or persons) they are seeking. The Directive does not offer practical guidance to a person seeking to initiate mediation in a cross-border situation where these invisible potential traps for miscommunication and misunderstandings are prevalent given this broad definition. Even if parties and their counsel agree that they want a professionally accredited mediator as opposed to any of the other types of ‘third person’ mentioned above, there are many different schools and types of professional mediation that exist, including facilitative, transformative, evaluative, narrative, solution-focused, etc. Some countries apparently favour one type over the other, which is even entrenched in the law, whereas others seem to wish to capture the same diversity as contained in the EU definition. Nor does the Directive provide any guidance regarding typical cross-border issues. For the purposes of the Directive, a cross-border dispute means any dispute where a party residing in one EU Member State has a dispute with a party residing in another EU Member State.13 12 Article 3 Definitions: ‘For the purposes of this Directive the following definitions shall apply: (a) ‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question. (b) ‘Mediator’ means any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.’ 13 Article 2 Cross-border disputes: ‘1. For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date on which: (a) the parties agree to use mediation after the dispute has arisen;

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Although it provides that mediation should be suggested by the court in such instances (and can even be ordered by the court in some countries), there are no provisions regarding due process, informed consent of the parties, language issues, venue, applicable laws, or how to verify the appointment of mediators who are culturally appropriate or neutral for the case in question. Should the mediator be proposed or appointed by the court, or should the parties appoint one themselves? Should a naming authority be used, and if so, should it be a national or an international body? How and where will the mediators be found? How can they be selected based on relevant skills and experience? Is word-of-mouth reliable? Can mediators be neutral or impartial if they come from the Member State of one of the parties? Should it be considered a ‘good practice’ for the mediator to come from a third Member State? If so, which one? Should the parties appoint two co-mediators, one from the Member State of each of the parties? If so, how should issues of language and venue be dealt with? What happens if the parties cannot agree on any of the above points? These are overwhelming questions that the Directive could not have been expected to regulate (and probably cannot, or should not, today), however, providing a checklist describing possible choices for some of these issues or offering some guidelines – which parties would be free to deviate from – would have been helpful. According to the Directive’s definition, a mediator is also any third person who is asked to conduct mediation in ‘an effective, impartial and competent way’. What do these words actually mean? If parties do not have informed consent about what mediation process, style or approach each of them prefers, and the mediator does something very different from what both or one of the parties expects, can a mediator still be seen as conducting the mediation in an effective, impartial and competent way? If not, can it still be called ‘mediation’? It appears from this book that a cross-border mediation, whether within the EU, between EU and non-EU states, or outside of the EU, will suffer from at least three problems: 1) a lack of clear and shared definitions or a precise vocabulary of what mediation and different styles of mediation or mediation approaches actually mean (which can become an issue if parties do not address this or have a different understanding of what they think they agreed to); 2) a lack of generally-accepted and clear quality standards for those professionals calling themselves mediators to determine their competency or suitability to handle cross-border disputes as opposed to those of any other ‘third person’ profession (e.g., their intercultural competencies and knowledge of various mediation practices, approaches and techniques)14; and (b) mediation is ordered by a court; (c) an obligation to use mediation arises under national law; or (d) for the purposes of Article 5 an invitation is made to the parties. 2. Notwithstanding paragraph 1, for the purposes of Articles 7 and 8 a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in paragraph 1(a), (b) or (c). 14 A task force of the International Mediation Institute, IMI, developed criteria for inter-cultural mediator training and IMI certification. Besides general requirements and substantive criteria (knowledge and skills) the task force also proposed six cultural focus areas (CFAs) that mediators may want to give particular attention to during inter-cultural mediation. Each of these behavioural categories is offered as an example and may be relevant when preparing for mediation, interacting with participants, bridging differences, and establishing common grounds between participants: 1. relatedness and communication styles; 2. mindset towards conflict; 3. mediation process; 4. orientation toward exchanging information; 5. time orientation; 6. decision making approaches. See: https:/imimediation.org/intercultural-certification-criteria.

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3) the absence of basic practical guidelines or a checklist suggesting how to set up an appropriate, culturally-balanced mediation process, when parties and their counsel who come from different countries may have different understandings or expectations of what the process to which they agreed actually entails. This book reveals that preparing for mediation around the world is a bit like travelling and having to prepare ahead for different electric plugs and phone sockets. If you travel to another country you are likely to need an adapter to make a connection. As part of their survey, the editors and the co-authors of this chapter initiated limited sub-research on whether there was a common statutory definition of mediation in each of the 60 countries surveyed, especially within the EU. Despite the common definition suggested by the EU Directive, the following definitions emerged from within the EU: – Hardly any EU country uses the EU Directive’s definition exactly (only Greece does so). – Most countries have developed their own national definitions. Some are very different from the EU definition (for example, Romania and Austria); some are a variant of the EU definition (for example Luxemburg, Cyprus and Spain, but in Spain a different definition is used, in Catalonia). – Some countries use different definitions for national and cross-border cases (for example, Austria, which still deviated slightly from the language of the EU Directive when defining mediation for cross-border disputes as separate from domestic disputes). – Some countries like Poland, Sweden, the Netherlands, Belgium, England and Wales, and Scotland have no official national definition. Some do not have a definition but do have a description of the scope of applicability, for example, Finland. Many civil-law countries, such as Switzerland and France, distinguish between ‘mediation’ and ‘conciliation’, whereas others use the terms interchangeably (for example, Estonia and Lithuania), and in Belgium, mediation legislation refers to ‘bemiddeling’, which is the term used in Dutch to describe conciliation, whereas in Italy the term ‘mediazione’ used to be understood to relate primarily to a commercial contract for a middle-man who will receive a commission on sale, ‘conciliazione’ being the preferred definition prior to the implementation of the EU Directive in Italy). b. Common principles that are not common The Directive also sought to introduce certain common principles that it turns out are not, in fact, common in all countries of the EU or beyond its borders: Article 5 creates the possibility for courts to suggest (or even mandate) mediation; Article 6 regulates the enforceability of agreements resulting from mediations; Article 7 seeks to guarantee confidentiality using standards that do not meet the standards of several jurisdictions (e.g., focusing only on the mediator’s ability to testify and not on communications between the parties during the course of mediation); and Article 8 regulates the effect of mediation on statutes of limitations and prescription periods. Few countries have implemented these common principles in the same way. Even seemingly uncontroversial words, such as ‘on a voluntary basis’ or ‘confidentiality’ turn out to contain certain invisible biases of mediation as a process, and what the word can entail. Can a mandatory pre-mediation information session for litigants be seen as part of a voluntary mediation process (as is required in countries like France and Romania)? Can a mandatory mediation session prior to a court hearing be voluntary (as in Italy)? Is mediation voluntary even if the parties are compelled to sit in a room with a mediator for a minimal period of time before the dispute goes before a court or if refusal to do so may have consequences?15 15 Some mediators will answer ‘yes’ to these questions. It is possible to compel a party into mediation, they will say, but not to stay in mediation. Once the process is started, they submit, the parties are free

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Can mediation be non-confidential (as in Finland for joint sessions during in-court mediation, where a judge acts as the mediator and there is a presumption that all documents filed with the court should be publicly accessible)? Can mediation have no impact on the statute of limitations period within which a cause of action must be filed (as in the Netherlands and Latvia)? Can mediators or parties in certain circumstances be compelled to give evidence in court if professional secrecy is not regulated by law (as is the case in Finland, France, Latvia, Luxembourg, the Netherlands and the UK)? Could it be for these reasons that several EU jurisdictions (e.g., England and Wales, Scotland, Portugal, Austria, the Netherlands and Ireland) implemented the Directive as narrowly as possible – e.g., for cross-border commercial and civil cases only? Whatever the reasons, be they to enhance diversity as much as possible or for domestic political or cultural reasons, the Directive’s implementation has led to the confusing situation (in our eyes) that different regimes and standards now appear to apply not only between countries, but even within the same Member State, distinguishing domestic from international disputes, and applying nationalist thinking to the latter as well. This is difficult to reconcile with the EU’s general purpose of enabling the free movement of goods, services and professionals. It can only be concluded from this analysis that, insofar as facilitating international or crossborder commercial or civil mediations are concerned, there is still much room for improvement. This book highlights the need for trying to formulate common definitions, guidelines and frameworks, at least for cross-border situations. In the remainder of this chapter we will focus on how to proceed in the current environment. We will then offer some suggestions to take into account when the impact of the Directive is reviewed by the EU authorities in 2016.

3.

The two separate axes to consider when designing mediation: process and substance ‘We have to consider the process itself as part of the problem.’ (David Plant)16

a. Classifying mediation approaches in 4 quadrants It appears from the language of the Directive and the surveys contained in this book that there is a broad range of processes around the world, and particularly in the EU, which are all called mediation but are quite different from one another. Mediation can be a positional negotiation that is managed by an evaluative neutral, or an interest-based negotiation that is facilitated by a non-evaluative neutral as part of a social process. It can be a ‘numbers only’ discussion, orchestrated in separate one-on-one meetings with the mediator (‘caucuses’), or a process by which emphasis is placed on relationship building, by keeping the parties together in joint sessions at all times. It is important that parties discuss the details of the process and not assume anything, remembering that to ‘assume’ makes an ‘ass’ out of ‘u’ and ‘me’! In a series of articles, Professor Len Riskin designed a simple grid to illustrate the range and complexity of different types of mediations (and mediators) that can exist, and to assist parties in selecting the type of mediator and mediation process they seek.17 We have adapted his grid as to leave and mediation is now voluntary. Mediators handling mandatory mediation claim to have similar settlement rates (presumably 70%) for contractual mediations. Once people talk in the presence of a skilled mediator, who knows how to orient their attention constructively, they start listening and things change. 16 US litigator, arbitrator and mediator, author of We must talk because we can – Mediating international intellectual property disputes’, ICC Publication No. 695, 2008 Edition. 17 Leonard L. Riskin, ‘Decisionmaking in mediation: the new old grid and the new new grid system’, Notre Dame Law Review 79, No. 1 (2003): 1–53. Professor Riskin is the Chesterfield Smith Professor of Law

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follows, and find it to be very helpful as a basis for discussion with the parties and their counsel in all mediations, especially cross-border situations.

B. Directive Non-Evaluative

D. Directive Evaluative

A. Facilitative Non-Evaluative

C. Facilitative Evaluative

EVALUATIVE (SUBJECT MATTER)

NON-EVALUATIVE (SUBJECT MATTER)

DIRECTIVE (PROCESS)

FACILITATIVE (PROCESS) According to this modified Riskin grid, the type and style of mediation can be analysed by focusing on two basic axes: a) how directive or facilitative the neutral will be on matters of process (e.g., time management, whether to caucus or not, written submissions if any, opening presentations, etc.); and b) how evaluative or non-evaluative (‘facilitative’ as defined in the standardised questions in other chapters of this book)18 the neutral will be on matters of substance (e.g., ranging from refusing to express any views, to doing tough reality-testing and preparing to give a mediator’s proposal if the parties do not reach an agreement).

at the University of Florida College of Law, and a Visiting Professor at Northwestern School of Law in Chicago, US. 18 This book was primarily conceptualised and drafted by a Dutch team. In doing so, the word ‘facilitative’ was used in accordance with the Dutch concept of facilitative mediation, which essentially means that the mediator should not be evaluative regarding subject matter. The use of the word ‘facilitative’ as synonymous with ‘non-evaluative’, however, reflects a cultural bias, which is a good example of what permeates the field of international mediation. Whereas ‘facilitative mediation’ equates to ‘nonevaluative mediation’ in the Netherlands, the term can be used in relation to process (as opposed to substance) in other countries, as is the case with this Riskin Grid. It is thus possible in other countries for people to describe themselves as ‘facilitative’ and ‘evaluative’, which would not be understandable in the Netherlands. Working on this chapter, the authors reflected on a mix of Swiss/British/US/ Israeli/Dutch approaches, which brought this Dutch cultural bias to light. The questions formulated by the editors for questions 3.e. to i. in the survey were thus meant to address issues of substance (as opposed to process). The two axes, facilitative or directive on process, and evaluative or nonevaluative on substance shown in the above graph, could therefore be confusing to a Dutch mediator. In this chapter (as opposed to the rest of this book) we use an international approach, in which the term ‘facilitative’ relates to process only, and ‘non-evaluative’ relates to substance. In the other chapters of this book, ‘facilitative’ means ‘non-evaluative’, relating to substance.

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Considering process and substance to be two separate axes distinguishing different types of mediations and mediators, we can see that there are at least four different types of approaches to a mediation process, which can vary greatly within the same quadrant, depending on the degree of emphasis on process and/or substance. These processes can reflect different values or cultures, and allow a visualisation of the mixed forms that can exist between countries or within the same country.19 Quadrant A (Facilitative on Process & Non-Evaluative on Substance): This can be described as a form of facilitative, interests-based mediation, where the role of the mediator is to generate choices, both on issues of process and of substance. The neutral in this quadrant helps the parties to generate procedural options that will help them to find solutions themselves (e.g., focusing on subjective interests and facilitating joint brainstorming sessions to seek possible options for mutual gain, based on the parties’ subjective interests and looking towards the future). In this type of mediation, the neutral acts as a convenor and helps the parties to discuss their procedural options and preferences. Issues such as time, venue, whether or not to caucus, and preparations for the mediation will all be left to the parties to decide, and the mediator will try to refrain from making any recommendations. The mediator in this quadrant helps the parties to brainstorm and to find solutions that may best meet both parties’ subjective interests. The primary focus of the mediator operating in quadrant A can be described as treating the mediation as a social process, in which the parties are given the opportunity to explore their relationship, recognise and express emotions, and discuss their fears and hopes, misunderstandings, intentions and motivations. The neutral avoids expressing views, or using any substantive knowledge that they have in making any proposals to the parties as to possible outcomes, and considers the journey in itself to be the destination.

19 It should be pointed out that this modified Riskin Grid is not the only (or indeed necessarily an allencompassing) way of explaining some of the differences that can be observed between countries. Other techniques, such as use of caucuses or joint sessions, use of systemic theory, appreciationbased enquiry, brainstorming techniques, or the primary purposes of the mediations, may be better. Professor Stephan Breidenbach of the Humboldt-Viadrina School of Governance in Berlin, the EuropaUniversität Viadrina in Frankfurt and the University of Vienna, for example, has identified four basic models of mediation: (i) a service-driven model; (ii) an individual-autonomy model; (iii) a reconciliation model; and (iv) a social transformation model. It could be argued that the Riskin Grid captures all of these models. Frankly, however, the mere fact of trying to stereotype country styles is in itself dangerous and over-simplistic, and none of these systems of categorisation (or caricaturisation) should be relied on. Breidenbach emphasises the need to look at mediators individually, in a given context, and not as a group or as a national profile. For the purposes of this chapter, however, and notwithstanding the dangers of doing so, the Riskin Grid is a practical and accessible way of visualising some of the differences that exist and their possible consequences, but its implications should not be taken to their logical extremes. It is provided purely as a basis for discussion for the purposes of this chapter, or for discussions with parties when preparing for a cross-border mediation.

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Possible pros and cons of this type of mediation: PROS

CONS

Generates more choices and party autonomy, and may be perceived as providing better procedural quality.

The process may be viewed as inefficient, ‘wishy-washy’ or too unclear in some cultures or professional communities.

Empowers the parties: provides an unlimited scope for the parties’ discussions, including ­emotions, beliefs, fears and concerns.

The process and outcome are purely subjective and there are no clear norms to help frame a structured process or a zone of possible agreement (ZOPA).

Decelerates the discussions and gives more time for introspection as well as possibly deeper discussions with the other party.

Can take more time and possibly be more expensive.

Builds relationships, trust and affiliation between the participants attending the mediation.

Parties can get stuck if no guidance is offered, emotions may dominate, or parties may feel they have too many choices.

Embeds a possibly higher compliance factor, since all outcomes are generated by personal choices.

Weaker parties may have less leverage and need a person to help them level the playing field (e.g., by giving each party the same opportunity to participate in the process).

The fact that the mediator is non-evaluative means the parties are less likely to try to convince the mediator of the merits of their case or become positional.

Added value of mediator may be unclear if this person is not seen to be taking an active leadership role or providing any substantive expertise.

Makes the parties solely responsible for their behaviour and all decisions regarding process and outcome.

May provide an illusion of harmony and enable the parties to avoid facing difficult topics needing in-depth discussions.

Quadrant B (Directive on process and non-evaluative on substance): This can be described as a form of directive, interests-based mediation, where the role of the mediator is similar to that of the mediator in Quadrant A, but where the mediator is expected to take more of a leadership role and direct the process itself. The mediator’s role in this quadrant is to guide the parties by structuring the process according to what he or she thinks will help the parties reach an outcome based on their subjective interests looking towards the future. The neutral in this sort of mediation may limit the nature of the discussions (e.g., guide the conversations and discourage positions from being argued) and take on a more directive role on procedural matters, such as setting the time (e.g., several short working sessions or one mediation day), whether and when to caucus, choice of venue (e.g., a place that is more likely to help the parties to reconnect – such as an off-site retreat or an office building in a central business district), what sorts of prior written documents will be exchanged (such as written ‘interest papers’ as opposed to ‘position papers’, legal documents or expert reports), and any preparations to be done prior to attending mediation (e.g., perspective-taking and setting the agenda on what to discuss in an opening session). The mediator will often decide if and how long to caucus for with each party, or on the other hand, whether, when and how long to meet in joint sessions. The neutral operating in quadrant B, as in quadrant A above, refrains from making assessments or proposals on substantive issues, and is not meant to express any views or opinions as to where he/she thinks the matter should settle.

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Possible pros and cons of this type of mediation: PROS

CONS

Possible greater efficiencies in terms of time and costs compared to Quadrants A and possibly C.

The mediator may have procedural preferences or biases that may not be (culturally) appropriate or optimal under the circumstances.

Neutral is given a greater leadership role, without influencing the parties empowerment regarding substantive outcomes.

The outcome is purely subjective and there are no clear norms to help frame a possible zone of possible agreement. (ZOPA)

Catalyses the discussions but leaves time for introspection.

Can take more time and possibly be more expensive than Quadrants C and D.

Builds relationships, trust and affiliation between the parties.

Parties can become too dependent on the presence of the mediator to direct communication.

Mediator can direct attention to difficult topics needing discussion.

Weaker parties may have less leverage on substantive issues.

Mediator can be more directive in focusing parties to discuss useful and constructive topics.

Mediator may make wrong assumptions when directing the parties’ attention and miss opportunities for deeper exchanges.

The fact that the mediator is non-evaluative means the parties are less likely to try to convince the mediator of the substantive merits of their case or become positional.

May leave the parties with the perception that the mediator cannot help them handle substantive topics that they believe need evaluative input.

Quadrant C (Facilitative on Process and Evaluative on Substance): This can be described as a form of facilitative, norms-based mediation where mediators are chosen for their substantive knowledge of the norms that would normally apply to this sort of dispute (e.g., the applicable laws, case law or industry standards that would apply if a tribunal were to decide the matter). The neutral in this case should still take into account the parties’ subjective interests and help generate procedural choices, but is also expected to help the parties identify certain objective parameters and norms regarding possible outcomes, such as what the law would provide for, which may be dispositive of the outcome of the case (e.g., what are the relevant facts that the parties would need to present, what type of evidence would suffice, and the relative merits of their cases as a matter of law, or applying whatever other norms might apply to these facts). The mediator in this quadrant invites the parties to discuss their procedural preferences (e.g., as to time, venue, caucuses, written submissions and preparations) but is also expected to discuss and possibly provide input in discussions regarding the parties’ best alternatives to a negotiated agreement (BATNA), worst alternatives to a negotiated agreement (WATNA) and possible, probable or realistic alternatives to a negotiated agreement (PATNA/RATNA). Mediators may be expected to use their substantive knowledge to do some reality testing with the parties (normally in caucus) and to help identify key parameters and benchmarks that may create a framework for a zone of possible agreement (ZOPA), based on these objective norms, as well as the parties’ interests to generate subjective norms. It is also possible for the mediator operating in quadrant C to make proposals to the parties as to possible solutions if so requested, or to make final determinations on substantive issues.

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Possible pros and cons of this type of mediation: PROS

CONS

Possibly greater efficiencies in terms of time and costs in that norms can be used to focus discussions, and at the same time parties are fully in control of the process.

The mediator may have substantive preferences or biases that may influence the outcome or prevent the parties from exploring the whole breadth of possible outcomes.

Neutral is given higher status regarding their substantive expertise, without influencing the parties’ empowerment regarding their procedural options.

The outcome may become too focused on norms and past events, so subjective needs and interests, looking to the future may be overlooked.

Neutral can propose important substantive topics for discussion and can help the parties generate subjective (as well as objective) norms with which to resolve the conflict, while leaving the parties in control of the agenda.

Attention may get too focused on substantive issues as opposed to relationship building, and mediator may confuse parties by being facilitative on process, but also doing reality testing, discussing the merits of the case or offering a proposal.

The mediator can help parties define the parameters of a ZOPA based on a discussion of their respective BATNAs, WATNAs, PATNAs/­R ATNAs are and possibly a reality test, or make a ­proposal.

May lead to more positional posturing behaviour, as the parties try and build coalitions with the mediator, treating the mediator as a non-binding arbitrator when it comes to outcomes, and seeking to use the mediator to influence the other party’s perceptions of their BATNAs, WATNAs and PATNAs/RATNAs).

Mediator can direct attention to substantive topics needing discussion and provide evaluative feedback if so required.

Parties may abdicate too many responsibilities to the mediator and stop working on relationship issues.

Quadrant D (Directive on Process and Evaluative on Substance): This can be described as a form of directive, norms-based mediation where the role of the mediator is to be efficient in generating outcomes, and to set and control the process. The mediator is expected to be able to form a view as to what would settle the dispute and to possibly propose it to the parties if they do not reach an agreement within a set period of time (e.g., one or two days). Although a skilled mediator operating in this quadrant will initially seek solutions that take into account the parties’ subjective interests, the process may be influenced by the premise that the mediator can direct the process and provide an opinion regarding substance, to help the parties reach cost-effective outcomes within a pre-defined time frame. The parties’ interests should be used to generate subjective norms, however, the mediator is likely to be an expert who will also focus on legal or industrial norms, such as what the law or the applicable rules of the industry in question would provide for. The goal is to catalyse an outcome that is within the range of what a court or tribunal might propose, or that benchmarks well with what could happen in court. The mediator in this sort of process normally has much experience, substantive knowledge, limited time, and is a person of high status. This person is expected to set social protocols, direct the process in accordance with their procedural preferences (e.g., as to time, venue, caucuses, written submissions and preparations) and to be willing to do some robust reality testing regarding BATNAs, WATNAs and PATNAs/RATNAs. This person is expected to be able to apply her/his substantive knowledge to help the parties identify key parameters and benchmarks, and to shape a settlement within a defined ZOPA. The neutral operating in quadrant D is likely to be under time pressures and to use this pressure to focus on specific dispositive issues (e.g., risk assessments and probabilities of outcomes). Although these mediations may be handled in joint sessions, they tend in practice to be done in caucuses, so that the mediator may gain as much relevant information as possible, test assumptions,

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or suggest solutions. Although emotions may be recognised as important, they may also be seen as best handled in caucuses, either to help the mediator build a greater sense of trust and relationship with the party or to keep the process ‘on target’ in the eyes of the other party. Bracketing techniques (narrowing down financial ranges all parties might agree to) and shuttle diplomacy (e.g., carrying messages and offers) are techniques sometimes used in this quadrant to combine efficiencies of time and process with outcomes. Some mediators in this quadrant inform the parties upfront that they will put forward a mediator’s proposal if they deem it useful to do so. Mediators operating in this quadrant often require the submission of position papers and key documents in advance of the mediation, which the mediator is expected to have read and formed a preliminary view of before the mediation proceedings begin. Co-mediations are rarely used in this quadrant, save for large multi-party disputes, where it may be efficient to conduct several caucuses in parallel. The mediator(s) in these sorts of cases are often judges, experienced lawyers, senior managers, consultants or engineers, with complementary expertise, who can suggest where in the ZOPA the parties may agree to settle. In its extreme form, mediations in this quadrant amount to a sort of non-binding arbitration process, with the difference being that the neutral(s) can meet separately with the parties in caucus before giving their recommendations or making a settlement proposal. These four quadrants are only symbolic and should not be taken as more than one method by which to try to visualise what sort of approach can be required or applied in different kinds of mediations.20 Like all attempts to stereotype, it is dangerous to use this as a way to define or characterise a country or its mediation styles. Some countries with sophisticated mediation services and highly skilled neutrals offer combinations of processes in one or more of these quadrants. Although some countries may appear to have adopted one of these quadrants in their national approaches to mediation, mediation is still in its infancy, and increased crosspollination across countries may lead to more diversity within each country. Some countries with a long history of mediation (e.g., the Netherlands) are also offering innovative hybrids, combining some of these quadrants.21 Most experienced international mediators are also sufficiently versatile to adapt their style according to the procedural needs of the parties and their counsel. It is possible for a mediator to start in one quadrant at the beginning of mediation and to end up in another quadrant over the course of the same mediation (sometimes even in the same day!). The authors to this section favour, in fact, a flexible and eclectic approach.

20 These four quadrants describe only a very limited number of types of mediation. In addition to facilitative, directive, evaluative and non-evaluative styles, there are transformative, narrative, religious, appreciative, solutions-oriented, conciliative, transcendent, spiritual, constellation–based, compassionate, systemic and eclectic styles. See e.g., Ken Cloke ‘Let a thousand flowers bloom: a holistic, pluralistic and eclectic approach to mediation’ (2007). 21 In the Netherlands, a country with a traditionally non-evaluative approach to mediation, the editors of this book have introduced the concept of ‘legal mediation’ an eclectic or varied approach where several evaluative elements regarding substance are introduced in the closing stages of a mediation process or using co-mediators with different approaches. It would be impossible to characterise this process as belonging to any one of these quadrants. A legal mediator has a solution focused, facilitative and evaluative approach. Legal mediation means that the mediator pro-actively supports parties on a substantive and procedural level. On request the mediator also addresses applicable legal norms or how similar issues were successfully solved in comparable mediations. The communication, substantive- and legal aspects of the case as well as the personal and commercial interests of the parties play an equally important role in the mediation process.

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Possible pros and cons of this type of mediation: PROS

CONS

Probably greater efficiencies in terms of time and costs in that norms can be used to focus discussions and the mediator can be more directive in focusing parties’ discussions on useful and constructive topics.

The mediator may have substantive or procedural preferences that may unduly influence the outcome, or that may not be culturally appropriate, or prevent the parties from exploring the whole breadth of possible outcomes.

Neutral is given a greater leadership role and can assert him/herself as needed, use his/her status as leverage and set protocol standards.

Less party empowerment. The outcome may become too focused on norms and past events (e.g., issue of facts and law), and future subjective needs and interests may be overlooked.

The mediator can help focus the parties by defining the parameters of a ZOPA, based on an analysis of the BATNAs, WATNAs, and PATNAs/ RATNAs and by putting forward a binding or non-binding proposal.

Focusing too much on the ZOPA and a mutually acceptable PATNA or RATNA may lead to unhappy compromises or equally unsatisfactory outcomes, instead of focusing on interests to try to ‘expand the pie’ and think of possible outcomes for mutual gain that go beyond both parties’ BATNAs.

The mediator can use caucuses to do robust reality testing, work on confirmation bias, overconfidence bias, and to help the parties overcome issues of reactive devaluation and positional anchoring.

Over-reliance on caucuses may lead to too much emphasis on the mediator’s relationship with the parties as opposed to the relationship between them. May lead to more positional posturing as the parties try and build coalitions with the mediator thinking in terms of ‘us’ vs. ‘them’.

The mediator can educate and assess the parties on norms that may be dispositive of the outcome or direct attention to substantive topics needing discussion.

Mediator may become too much of a problem-solver, thinking they have the solution rather than that the parties do. Participants may work less hard on relationship issues and substantive issues, leaving this to a great extent to the opinion of the mediator.

Pressures of efficiency, or the parties perceived need for an outcome (e.g., to avoid costs of trial or unpleasant relationships) may provide additional incentives for the parties to compromise and settle.

Pressures of efficiency may lead to greater adversarial behaviour and positional negotiation, less room for working through relationship difficulties or emotional issues, and may possibly lead to lower compliance rates, cognitive depletion, or decision fatigue.

For example, a mediator may start mediation in quadrant A, leaving all choices regarding procedural options up to the parties and not acting evaluatively, but find that they are in quadrant C or D by the time the mediation has ended by becoming increasingly directive and evaluative due to the parties external constraints (e.g., time and budgets). The opposite can also happen: the parties may ask the mediator to conduct the mediation in quadrant D, but during the mediation it becomes clear that there are many underlying emotional, cultural, social or relational issues that are blocking arriving at optimal solutions between the parties or there may be changes in the parties’ circumstances (e.g., in company strategy or objectives, external pressures, or a renewed interest on rebuilding on the relationships between the participants to mediation) which require an increasingly facilitative or non-evaluative approach. It can also be considered a good practice to consider by appointing two neutrals operating simultaneously in one or different quadrants (e.g., in co-mediations or hybrid mediation models). There is no ‘right’ or ‘wrong’ quadrant, and both of the authors have found themselves operating in different quadrants, in different types of cases and at different times (sometimes in co-mediations or hybrid processes). Although quadrant D may lead to greater efficiencies, there may be a price to be paid for it, leading to fewer ‘mutual gain’ outcomes. Alternatively, quadrant A may appear to be an ideal starting point, but given power imbalances, cultural

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differences, or external pressures that neither party can control, it can lead to disappointment and frustration if the parties do not have a mediator who is also willing to work in another quadrant, or to bring in a co-mediator who knows how to do so. b. Mediation approaches in a cross-border mediation It is important to ensure at the beginning of a cross-border mediation that the mediator(s), the parties and their representatives all have a common understanding of the quadrant(s) they are operating in. An experienced international mediator should have the flexibility and skills to operate in and understand all four quadrants if so required, or to know when to bring in a colleague with complementary skills. They should be able to discuss various procedural choices and options with the parties, just as skilled mediation advocates should be trained to do. National training or their source profession may make a mediator initially more comfortable working in one quadrant than another. Thus some jurists, who have built up skills, mental models, and considerable experience working in quadrant D, or some psychologists who are used to work in quadrant A, may find it difficult to work in another quadrant. There is also a danger that if only one type of profession may be accredited as a mediator in a given country (e.g., only lawyers), the national style of mediation may tend to gravitate around quadrants C and D, as lawyers tend to be trained to focus on legal syllogism, whereby ‘facts + laws = outcomes’. If mediator lawyers are under time pressure and do not receive additional training on how to specifically deal with this, they are likely to act as problem-solvers, seeking to analyse the facts and the law as the basis for a ZOPA within which a settlement can be found, rather than probe the parties’ subjective interests and seek options for mutual gain. Having explained above the dangers of national stereotyping, the Riskin Grid may nevertheless be borne in mind when reading the various national chapters that are contained in this book. The regulatory frameworks of some countries suggest that not as much thinking has gone into promoting or sustaining diversity of mediation practices as has been done in other countries, or that the legislators may, prefer one quadrant over the others. Although mediation is not everywhere clearly defined and regulations are not in all countries set in a way that can be clearly identified with any given quadrant, these distinctions, or a conscious strategy to embrace all of them, can be found to exist (to varying extremes) when reading the 60 descriptions contained in this book closely. The country that a mediation process or mediator is chosen from may have a very big impact on the way mediation is initiated, conducted and concluded. Its outcome and the impact it may have on the parties themselves or their relationships with others may be greatly affected by what may at first appear to be an insignificant choice of venue. The process itself can contribute to conflict escalation or de-escalation. If the parties are placed in an evaluative quadrant, they may place greater emphasis on coalition-building with the mediator, seeking to influence them and working more in caucuses, whereas in non-evaluative quadrants the process may lead the parties to focus more on their communications, and how to work in joint session.22 Many civillaw countries do distinguish precisely between these two types of processes (i.e., evaluative and non-evaluative), which both fall within the EU Directive’s definition of mediation. They are often treated quite differently in the rules of civil procedure of these countries, often called ‘conciliation’ (a norms-based and evaluative process, corresponding to quadrants C and D) – which the authors find confusing – and ‘mediation’ (an interests-based and non-evaluative 22 For further discussions on the distinction between mediation and conciliation, and the possible impact of the process itself on the outcome of an ADR process, see J. Lack ‘Appropriate dispute resolution (ADR): the spectrum of hybrid techniques available to the parties,’ Chapter 17, in ADR in business, practice and issues across countries and cultures (Kluwer Law International, edited by A. Ingen-Housz, 2011), pp. 339-79, and J. Lack & F. Bogacz, ‘The neurophysiology of ADR and process design: a new approach to conflict prevention and resolution?’, 34 Cardozo J. of Conflict Resolution (Vol. 14:33] 2012, pp. 33-80.

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process, corresponding to quadrants A and B). In Switzerland, for example (which is not an EU Member State, but to all intents and purposes is part of the EU due to its bilateral agreements with the EU), the Code of Civil Procedure (CPC) makes a clear distinction between ‘mediation’ and ‘conciliation’, which are covered by different sections of the CPC.23 As the authors of this section see the current situation, a clearer awareness of the different types of mediation processes and their pros and cons, together with clearer definitions of mediation, principles that represent a variety of generally accepted standards or the types of mediation that can exist, could help disputants in different Member States of the EU and around the world to avoid the invisible trap of agreeing to a process that they actually do not understand in the same way and to give them opportunities for informed choice and authonomy. Of course a large variety in styles and approaches can be reframed as providing more flexibility. Some countries objected at the time to the EU Directive because they were afraid that it would take away one of the cornerstones of the mediation process: flexibility. This was the position, for example, of the Netherlands. One question we had, seeing the feedback from all the countries, was whether cross-border mediation was more predictable in the past, when there were fewer legislative rules, meaning that parties may have had more informed consent regarding the processes they were entering into. Given the possible misconception that the EU Directive was seeking to harmonise one type of process when it was in fact combining variants of conciliation with variants of mediation, is the Directive creating more choice or more confusion? It can be useful to use the Riskin Grid to discuss approaches and expectations together with the parties and/or their legal counsel. This can be a good preparation exercise before any mediation to ensure everyone is working within the same quadrant at the same time, in domestic cases as well. A lack of clarity when setting up a cross-border mediation process may impede confidence in or greater use of mediation in cross-border disputes if lawyers and the parties are not aware of these issues, and there is a disagreement either between them or with the mediator about what mediation is about, or what type of mediation should be used after the mediation has commenced. As with everything in this world it would be wrong to look at the glass as only being half empty, and to reach the conclusion that mediation in the EU and abroad is ’60 countries divided by a common word’. Although there are indeed wildly differing mediation practices and regulatory frameworks within Europe and elsewhere, with little predictability in certain cross-border cases, more courts and lawyers are beginning to discover the use of this process. It is thus possible to also look at the glass as being half full, given the high levels of efficiency and satisfaction ratings achieved by most countries where mediation is now being used, in whatever quadrant(s) happens to be the case.24

23 Conciliation is more commonly used in Swiss courts and is considered to be part of judicial proceedings, covered by sixteen sections in Title 1 of Part 2 CPC (Sections 197-212 CPC), whereas mediation is seen to be an extra-judicial procedure that is covered by only six sections in Title 2 of Part 2 CPC (Sections 213-18 CPC). The Swiss CPC does not provide a clear definition, however, to distinguish mediation from conciliation. Nor does it highlight the differences between them. The differences are to be inferred from the contexts they relate to (‘conciliation’ is usually conducted by a sole magistrate sitting in the court; ‘mediation’ is usually conducted by one or more professionally trained mediators, whose style will are often be influenced by training they have had in other countries). For more information, see Section 16 ‘Country specific remarks’ in the chapter on Switzerland. 24 ACB foundation, for example, at the time reported 77% settlement rates and 94% satisfaction ratings. Data compiled by the ACB Foundation in 2004 over a period covering 1998-2004. Source: http:/www. acbmediation.nl/upload/Sections/files/kwantitatief%20verslag%20St%20ACB%201998-2004.pdf.

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Cross-border mediation, however, can be a complex and confusing process for the moment, and it may inhibit the expansion of mediation or its ability to reach its full potential use. The %ages of 0.05% for usage and 75% as a success rate suggest that there is still huge growth potential for mediation in the EU and abroad. For this to really take off in the EU, however, the Commission will need to promote the free movement of mediation services, parties and mediators across the EU by recognising the national prejudices that are beginning to emerge and the lack of precision or understanding about the differences which each Member State has adopted it. The answer does not necessarily lie in more legislation or harmonisation, but greater precision in vocabulary, support in making informed choices and creating incentives for ADR professionals and users from across the EU to discuss and learn more about the pros and cons of different styles of mediation and how to provide parties with more informed choice. Mediating internationally or cross-culturally requires (even more than in domestic mediations) specific knowledge and skills, including mediators being aware of their preferred style(s) of mediation, their ability to diagnose and help the parties adapt the process to suit their procedural preferences and needs. Mediators should also allow the parties to re-contract from time to time, should they wish to move to a different style of mediation if their first choice regarding the process turns out not to have been optimal in the circumstances. It is a good idea, for example, for the parties to have a first mediation session with a mediator or an independent and experienced mediation advocate that will work for both parties and lawyers to facilitate a discussion on procedural choices before the actual mediation begins, which could be with one or more other mediators.25

4. What does this all mean in practice?26 How would civil or commercial cross-border mediation work in practice today? Let’s imagine a hypothetical dispute between a family-owned business based in Country A (where mediators and lawyers are trained, and the government has regulated mediation in accordance with quadrant A of the Riskin Grid) (‘Company A’), and a mid-sized company based in Country D (where mediators and lawyers are trained, in accordance with quadrant D of the Riskin Grid) (‘Company D’). The dispute arises over whether payment for certain invoices is due, and whether certain goods conformed to specifications. Both companies have local lawyers, who are knowledgeable about mediation in their respective jurisdictions and have been trained to handle mediations in quadrants A and D respectively. They advise their clients to agree to mediation, not realising the expectations and approaches between Country A and Country D are different. Depending on where the ‘defendant’ is domiciled, it is possible that external lawyers would be appointed in that country, and that the external lawyers would agree on a mediator in that country, without providing an informed choice to the parties regarding the process to be used in this cross-border setting. This could create an advantage for one party, to the possible disadvantage of the other. Let’s assume that Company A is expecting a process to take place 25 In order to avoid this risk, the International Mediation Institute has provided a decision tree on its website at http://www.imimediation.org/decision-tree to assist parties in different countries in jointly selecting a mediator in international cases. The idea behind this decision tree is to help the parties to understand these issues by using the decision tree itself, and jointly identify and select mediators who are not only competent, but also more suited to their combined procedural preferences. 26 The authors would like to warmly thank our colleagues and country contributors who challenged us to rethink and review substantial parts of this chapter. We realise that there are many different views regarding some of the ideas that are expressed in this section, and that many experienced practitioners will not agree with these views. This debate is helpful in itself, and the authors welcome comments from all readers, to help us to develop our thinking on the topics of how to initiate, conduct and oversee cross-border mediation. Please contact: [email protected] and [email protected].

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in accordance with quadrant A, and that Company D is expecting the process to take place in accordance with quadrant D. How and when will they realise that the processes they are expecting may not be appropriate for the other company? As noted earlier, the words used to describe mediation styles and approaches, such as ‘directive’, ‘facilitative’, ‘evaluative’ or ‘non-evaluative’ may have a very different meaning in different countries. A mediator from Country D may describe him/herself as ‘facilitative’, in the same way that his or her colleague from Country A would, without knowing that they may mean different things. ‘Facilitative’ in Country D may mean that parties may instruct the mediator on certain preferences they have, but the mediator is clearly in control as the manager of the mediation process and will assume that the mediation will take place in his/her office in the course of one day, and expect prior submissions (mediation briefs or position statements and documents), opening statements and most work to be done in caucuses during the day, working in several rooms. In contrast, ‘facilitative’ in Country A may mean that the mediator will ask and expect the parties to discuss every detail regarding the process (e.g., location, venue, meals, social events, time to be allocated per meetings, who should attend, whether or not any documents will be provided, options for initial joint meetings) and may assume that everything will happen in joint sessions, leaving all decisions, both procedural and regarding substance, to the parties (e.g., whether or when to ask for a caucus or joint meeting, and if so, when and how long each session will take, who should attend, what preparatory work should be done in advance, etc.). A ‘facilitative’ approach for a Country D mediator may also mean that he or she believes the parties expect mediators to use their substantive knowledge and to be willing to do reality testing in caucuses, to walk the parties through the strengths and weaknesses of their cases, and help them to assess their BATNAs, WATNAs or PATNAs/RATNAs and any underlying assumptions. Because this mediator is not expecting to put forward a mediator’s proposal, and may indeed refuse to do so when first asked, this person may perceive themselves to be as ‘facilitative’ in a way that is not at all what Company A or its lawyer may expect. For a Country A mediator, however, ‘facilitative’ may mean refraining from using any substantive knowledge altogether and will not consider any rigorous reality testing (PATNAs/RATNAs) to be part of their remit (unless expressly requested to facilitate such a discussion by the parties). The mediator from Country A may not understand that Company D or its lawyer expect him/her to do reality testing in caucus or to provide any views at all on anything. It is very possible, in view of the foregoing, that Company A and its lawyer would be very disappointed by a mediator working in Country D style, and that Company D and its lawyer would be very disappointed in a mediator working in Country A style (and may interpret the proposal of hiring a co-mediator as a lack of confidence rather than as a way to improve the quality of the process). Parties or their lawyers may even end up having a dispute about the mediation process itself. What type of mediator should be appointed in such a case (e.g., a ‘facilitative’, ‘evaluative’, ‘transformative’, ‘solution-focused’, etc. mediator)? How many mediators should be appointed? Where from? What should their role and status be? How much time should be allocated to the mediation? Who should attend? Who will decide whether or not to caucus or have a joint session? If Company A’s lawyer raises all of these questions with Company D’s lawyer, the latter may think that the former is wasting time and is unnecessarily trying to drag things out. Likewise, Company A’s lawyer may think Company D’s lawyer is being far too positional or aggressive if he or she starts to assume they are working in the same Quadrant D, and that all the lawyers need to do at that point is work out the date of the mediation and to propose names of mediator(s) they have worked with in the past and in whom they have confidence. One company may even suspect that the other is not acting in good faith if they appear to be too insistent on working only within their view of what ‘mediation’ is about.

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Without even going into the substantive details of our hypothetical case between Companies A and D, it is possible to foresee that their lawyers may face a number of immediate hurdles when discussing the type of mediator they wish to appoint. For example: Company A’s lawyer may seek two co-mediators: (i) who do not use caucuses and work almost exclusively in joint sessions, helping the parties to rebuild direct communication and affiliation with one another and to recognise emotions as expressions of unmet needs and interests; (ii) who never make recommendations or provide any evaluative feedback; (iii) who will take all the time that is needed to ensure the parties design an optimal process and outcome, working over many short sessions to ensure that everyone is fresh and alert, and so that they can prepare between meetings for the next meeting (i.e., a process that can be spread out over several days or weeks); (iv) who will ensure the parties reach their own co-created outcomes, based solely on their subjective interests; and (v) who work as a team (preferably a man and a woman, from different professions – e.g., a lawyer and a psychologist, who had 150 hours of mediation training), given that, in Company A’s view, the value or complexity of the dispute will justify doing so. Company D’s lawyer may seek a sole mediator: (i) to work primarily in caucus to build trust with each of the parties separately; (ii) who can do robust reality-testing, and will be prepared to provide views on the merits of certain positions or evidence that the parties may argue, as well as to give a final mediator’s proposal if asked to do so by the parties; (iii) who can complete the mediation in one or two consecutive days without any breaks; (iv) who is usually a retired judge, a senior lawyer, or an engineer with a great deal of substantive expertise and procedural experience, having handled many such cases before (regardless of their international or cross-cultural experience) and who had 40 hours of training as a mediator. Appendix I at the end of this chapter provides a more detailed chart outlining the expectations of Company A and Company D and important considerations to take into account when planning for such a cross-border dispute. In view of the disparate preferences and national approaches to mediation, where, how, when and with whom should the mediation be set up? These questions appear simple at first, but can be harder to answer in practice. The selection of mediator(s) and the design of the process itself may have a profound influence on the parties and possible outcomes. Should two mediators be hired (e.g., one from country A and another from country D who know how to operate in quadrants A and D respectively)? Or should one mediator be hired, from a neutral third jurisdiction, who knows how to operate in quadrants B or C? If co-mediators are chosen, will they know how to work together? Will one mediator take the lead and, if so, which one? Should one mediator focus on process issues and another on substantive issues? If a sole mediator is appointed, should this person be familiar with all four quadrants and the substantive or mediation laws of both countries? One possibility is indeed to appoint two mediators, one from each jurisdiction, or from two similar jurisdictions. This may result in a form of hybrid, with the one neutral acting more as an evaluative conciliator, and the other neutral acting more as a non-evaluative mediator. Although this may sound unnecessarily cumbersome and more expensive, such co-mediations

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are reported to be widely preferred by mediators, parties and especially counsel, whenever they have tried it, and to be particularly effective.27 As discussed in section 3, there are pros and cons to each of the four quadrants. Yet some sort of a starting place is needed. If the parties in the dispute between Company A and Company D choose to conduct the mediation in a primarily facilitative (process) and non-evaluative (substance) way, the downside may be that just discussing the process options may already take too much time and frustrate Company D. The mediator may leave everything up to the parties to decide, leaving Company D feeling insecure because it does not know what to expect (or what would be a good process choice), or irritated because it wants to move on instead of discussing procedural options with the other party. The managers of Company D may have no interest in sitting down and meeting the members of the family that own Company A, and may not be willing to sit for long periods of time to discuss how the employees of Company A felt when certain things occurred, nor what emotions they could have expected. Company D may have come to the mediation with a settlement price and a clear walk-away price in mind, and may be in a hurry to move on to a positional negotiation strategy based on numbers. In this model the process may also become part of the problem. The mediator may not be comfortable discussing numbers early on, and if Company A does not wish to do so, the mediator may try and mediate the issue of when and how numbers should be raised. Too much time may thus be spent on things that appear to be trivial to one (or both) of the participants, who may ask early on for caucuses and a discussion on numbers because this would be perceived as a much faster way to settle the dispute, with a similar degree of satisfaction. Company D’s lawyer may insist that the mediator move to caucuses and start to do reality testing with both sides, two proposals that the mediator in this case is likely to resist given his facilitative and non-evaluative mandate. Caucuses may, however, help the mediator to uncover solutions that the parties cannot see themselves. The positive side of this approach is that if Company A and Company D are to have close future working relations, treating the mediation as a social process may help them to focus on how to build a sustainable relationship despite their different corporate cultures and styles of management, allowing natural affiliation, respect and empathy to build between the participants. Such a process, ostensibly not only about issues of money, could also be a transformative and empowering opportunity for both parties, teaching them how to prevent and handle any future disagreements that may arise between them as well. Such a social process is more difficult to achieve in a day or when the parties are sitting in separate rooms. The question may be: when is which approach more desirable or useful for the parties? The answer, we submit, lies in informed choice, discussing all of these points. Which can be done before the mediation begins, by telephone or videoconferencing, e.g., using Skype, GotoMeeting or some other online meeting platform using online dispute resolution technology.

27 Not only does this observation match the authors’ own experiences in practice, the findings from a Dutch court-connected mediation project (mediation naast rechtspraak) indicate that: (i) compared to a solo-mediator, co-mediators generate higher settlement rates: 67% for judicial comediations as compared to 59% for judicial solo-mediations; and (ii) lawyers report higher satisfaction ratings with the outcomes of co-mediations, although the parties themselves were typically indifferent. A possible explanation for these findings may be that co-mediation actually does generate better outcomes. Lawyers frequently deal with disputes, and are more able to compare the resolution of one case with outcomes in similar cases. Although a co-mediation team may not necessarily be cheaper or more efficient in terms of time, a team is generally more effective and mediators used to working with other mediators in this way will tend to recommend it whenever possible and even offer discounts to their clients as an incentive to do so.

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The Directive ignores or sidesteps these fundamental issues and does not give any direction as to what to expect in such cross-border cases as the one between Company A or D, or how to initiate it. Its definition of ‘mediation’ and ‘mediator’ includes all four quadrants in the Riskin Grid, deliberately including conciliation as one of the mediation processes covered (by including ‘however named’). Additional EU guidelines with more precise definitions would help, thus converting possible traps (e.g., fragmented national processes) into an opportunity (e.g., more informed choice and diversity).

5.

Dealing with the variety and looking ahead ‘There is nothing so useless as doing efficiently that which should not be done at all.’ (Peter F. Drucker)28

The trend towards national definitions, and national ADR institutions, who may teach their own (often culturally-biased) concepts of mediation to their nationally-certified mediators, is likely to be one of the greatest obstacles to the growth of mediation across the EU in the next few years, and to the free movement of mediators and mediation services across the EU, which would bring greater diversity and more informed choices. Even if different national approaches reflect different cultures that need to be taken into account, cross-border mediation guidelines should be set to help courts, companies, advisors and ADR institutions to have a common vocabulary and set of standards when initiating mediation between companies such as Company A and Company D. The EU framework should guide and assist them in making their own choices, depending on the definition, type of process, type(s) of mediator(s), of the process, including certain key parameters (e.g., time, value of dispute, budgets, value placed in future business relations, social, emotional, cultural and other factors, such as the likelihood of the dispute escalating further). The European commission will prepare in 2016 a report on ‘the development of mediation throughout the European Union and the impact of the Directive in the Member States.’ And ‘…if necessary, the report shall be accompanied by proposals to adapt the Directive.’29 In anticipation of that report, it is important to analyse and discuss not only what the generally accepted standards of mediation are or what a ‘common core’ for mediation and best or good practices should be in Europe or around the world, but also to discuss the question of how to help disputants build their own interests-based justice systems using mediation or conciliation, with the assistance of the executive, the legislator and the judicial arms of the state, to initiate, manage and resolve their disputes optimally. This would help parties reach an informed choice when designing processes and reaching optimal solutions that comply with the law, but more importantly, address their needs. Based on this book, the authors suggest that the following 3 issues be given particular consideration in the context of cross-border civil and commercial mediations: 1) The development of an EU glossary providing clear and shared definitions or a precise vocabulary of what mediation, conciliation and different styles of mediation or mediation approaches actually mean. 2) Organising regular opportunities for professional cross-border mediators to meet, exchange good practices, and provide user feedback or descriptions of their competency or suitability for assisting the courts, parties and their advisors when selecting neutrals for cross-border 28 Austrian-born American management consultant, educator, and author, who greatly influenced the philosophical and practical foundations of modern management, and developed the concept ‘management by objectives’. 29 EU Mediation DirectiveArticle 11.

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disputes, and encourage the free movement of mediators and mediation services across the EU. 3) The creation of basic, practical guidelines or a checklist suggesting how to set up an appropriate, culturally-balanced mediation process, if parties and their counsel, who come from different countries, have different understandings or expectations of what the process to which they agreed actually entails. It is unlikely that a ‘common core’ will ever be found to characterise mediation within the EU or across the 60 countries surveyed. One of the original definitions of commercial mediation by Folberg & Taylor dating back to 1984 describes mediation as ‘… the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual agreement that will accommodate their needs’.30 This definition could be a good starting point to provide a new common basis for consolidating the good work that has happened since the EU Directive was issued in 2008. We submit that using a more precise definition, and distinguishing mediation from conciliation (while continuing to cover both) should be a priority when the Directive is reviewed in 2016. The presence of the word ‘needs’ in the Folberg & Taylor definition of mediation suggests that the process need not be norms-based but that it should focus on the parties’ needs. This is true for issues of process as much as of substance. A broader but more precise vocabulary that would focus on helping parties to understand and correlate their procedural needs to the type of mediation process (or combined processes) they may wish to use would be an excellent step in the right direction. Many countries surveyed also do not appear to adhere to or place value on a systematic approach that covers all of the elements contained in the Folberg & Taylor definition. Positional negotiations are common and an interests-based negotiation can appear counter-intuitive at times, so the steps of focusing on subjective interests and exploring possible options that may address both parties’ subjective interests are often ignored or forgotten. These were seminal steps in the concept of interest-based negotiation introduced by Harvard’s ‘Getting to Yes’ model.31 A new glossary, distinguishing different types of mediation processes, their descriptive terms, and guidelines to help entities in different countries to safely discover, explore and define their joint procedural needs, and assist them to do so, would be a welcome step. Helping parties to distinguish ‘mediation’ from ‘conciliation’ may be a helpful exercise in common-law as well as civil-law countries. Including both of these processes in the Directive, but specifying the differences between them so that they can be used more skilfully (possibly in combination), could also be a useful development. Being more specific could even be viewed as an ethical obligation of mediators and mediation advocates. If the three pillars for ethics in mediation are (i) party autonomy, (ii) procedural fairness and (iii) substantive fairness,32 it is essential for all concerned to clearly specify the differences and cultural assumptions that are beginning to emerge country-by-country. Party autonomy requires that a party has self-determination and informed consent. This cannot be the case if a party is unexpectedly caught by an evaluative process it did not consent to, or vice-versa. Procedural fairness is not only a matter of power balances in process design, but also a matter of impartiality (or rather, equi-partiality, multi-partiality, and/or omni-partiality) of the

30 J. Folberg & A. Taylor, Mediation: A comprehensive guide to resolving conflicts without litigation (San Francisco: Jossey-Bass, 1984), p. 7. 31 Getting to YES: Negotiating agreement without giving in is a best-selling non-fiction book first published in 1981 by Roger Fisher and William L. Ury. 32 These three pillars are introduced and described in E. Waldman’s book ‘Mediation ethics: Cases and commentaries’ (San Francisco: Jossey-Bass, 2011), the first textbook on ethics in mediation that also includes several different national views.

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mediator and the process itself. Providing a choice between a ‘facilitative’ process and a ‘directive’ process in itself provides for greater procedural fairness, especially in a cross-border setting. Finally, substantive fairness is predicated on party autonomy and procedural fairness, but it is also difficult to accept mediation as fair if it results in a mediator’s proposal (even if it is non-binding) as part of a process that responds more closely to the cultural preferences of only one of the parties. How caucuses are used and how information received in caucuses may have influenced a mediator’s proposal are also difficult issues to decide on, which is why some mediators – albeit a minority – recommend never caucusing when a mediator’s proposal is to be put forward. In the cross-border example given in this section, apart from the fact that many courts today would not know how to select the type of mediator or the mediation services provider who could provide a competent and suitable mediator for that case, it is clear that it would also be inappropriate to solely suggest the use of a Country D or a Country A mediator or mediation services provider.33 Problems will arise in cross-border cases if the parties and their lawyers have different expectations of what mediation is, what a mediator does, how a mediation process needs to be conducted and what it encompasses. The question: ‘Which mediation process should a court or the parties choose for a cross-border dispute?’ can lead to a two-step process: (i) a first discussion on procedural issues, and the type of mediation the parties are looking for; and (ii) a substantive process in accordance with the process designed as a result of the first step. Mediators and mediation advocates or advisors who work across borders should therefore be aware of the different national approaches to mediation and regulation, and their impact. Professionals acting or advising across borders should undergo training on how to initiate cross-border cases, and this topic should be included in EU mediator and mediation advocacy training.34 The authors do not mean to appear critical of the EU Directive. It is a hugely positive and very important piece of legislation whose impact is seen as critical to the EU as a whole and beyond. Our belief, however, is that more is needed. This section is intended to do some reality testing to help the parties (in this case the EU and its Member States) like a mediator may do in some countries to think of potential opportunities that remain which could be developed to help parties to generate their own processes and solutions, leading to interests-based justice. Our wish is that legislators in the EU and beyond be more aware of their national biases and preferences, and determine whether and how mediation can be improved in the future, both domestically and internationally, and how to help maintain diversity and encourage informed consent. There are many things that can (and arguably must) be done to take mediation to the next level for it to realise its full potential. If mediation represents access to ‘interests-based justice’ as opposed conciliation which represents access to ‘norms-based justice’, what procedural safeguards can be built into the Directive to ensure that the parties are always encouraged to consider both options? Do they

33 If an Italian party were involved in the case, however, this may be a very real problem as only an Italian registered mediator, who is certified by the Ministry of Justice, can conduct legal mediation that will have a legal effect in that country. This seems to violate the EU principle of non-discrimination, and Italian law appears to contravene EU law by not allowing certified mediators from other EU Member States to act in legal mediation in Italy. 34 For the recent conclusions of an IMI mediation advocacy taskforce that touches on several of these points, see http://www.imimediation.org/advocacy-taskforce.

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wish to settle their disputes based on their subjective needs and interests, rather than based on a third party’s perceptions of who may be ‘right’ or ‘wrong’? Or a combination of both? What values or outcomes can be promoted and may be attractive to all Member States? What should be the purpose of the Directive: to stimulate access to interests-based justice as distinct from norms-based justice? To encourage party autonomy and collaboration? To have disputants recognise and accept their own responsibilities? To be more efficient, reduce costs and save time? To lighten the workload of the courts in an increasingly litigious and self-centred consumer ­society? Is there a need to develop public precedents and norms when mediation is used? The answers to these questions will vary greatly depending on which Member State is being asked. Presumably greater diversity, precision, choice and informed consent will be of mutual interest to all Member States and their residents. Mediation (in its broad sense) will evolve best if it remains flexible and diverse. It should also be compatible with the local legal cultures and social values of individual Member States. Flexibility in styles and approaches in mediation are crucial. However, if we aim at stimulating cross-border mediations, we also need a predictable framework based on whatever common cores may or may not exist, or at least by having greater conceptual clarity (and with that, guided choice, greater party autonomy, procedural fairness and substantive fairness). More research and analyses are also needed, and new hybrids, such a co-mediation using a mediator and a conciliator and mediators from different jurisdictions, should be explored and made available. The International Mediation Institute already provides a forum where users, scholars and practitioners are discussing and assessing how to find the most suitable (as distinct from competent, which is a prerequisite) mediators on the internet, free of charge. The EU should facilitate such initiatives and help parties to find and adopt the right balance between flexibility, diversity and clarity. In any case, we need mediators, parties and their counsel who are keenly aware of the different types of mediation that exist and different expectations about the mediation process and mediation styles. This could transform the issue of 60 countries divided by a common word into a golden opportunity, especially within the EU.

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Appendix I Possible issues to consider and possible differences in expectations when initiating a cross-border commercial mediation between two companies

Country A Expectations

Country D Expectations

1. Choosing the mediator(s):

Co-mediation is desirable whenever possible, preferably a man and a woman. Mediators are trained, have 200 or more hours of experience and are not assumed to be people of high status.

One mediator, usually having 40 hours of training, and assumed to be a person of high status, such as an experienced lawyer, barrister, solicitor, engineer, etc.

2. Pre-mediation activities:

Briefing of parties and lawyers (if Briefing of mediator by counsel. lawyers have been retained) about the mediator’s preferred style of mediation and mediator fees.

3. Choosing venue and A neutral place, maybe in the A business venue for one mediation day date: countryside, and at least one overnight (usually offices in a city). stay for people to be able to reflect on things the following morning. 4. Documents:

Case summaries and bundles of documents seldom sent to the mediator(s), but if so are exchanged between the parties. Summaries should focus on the parties’ needs and interests, and not on past facts. If at all requested (which is rare), parties will be asked for ‘interest statements’ in contrast to ‘position papers’.

5. Caucus or joint session:

The mediator(s) are seldom separate Everyone gathers for a first joint and work mainly in joint sessions (>80% session; after that at least 70% of the of time). time is spent in caucuses. The mediator shuttles between the parties’ rooms.

6. Parties’ opening presentations:

Opening reflections by whoever wishes Formal statement by the lawyer of the to go first (preferably a party rather plaintiff (possibly followed by the party). than a lawyer). Followed by a formal statement by the lawyer for the defendant (possibly followed by the party).

7. Mediation process:

Occasional group exercises to encourage perspective-taking, bring out needs and interests, and to give the parties an opportunity to show they have understood one another’s needs and interests. Possible meetings between various parties (without the mediator(s) needing to be present).

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Case summaries and bundles of documents can be sent to the mediator(s). Private or confidential information can also be sent by each party independently, which is not shared with other party. A mediation brief or ‘position paper’ is often sent to the mediators and exchanged by the parties.

Business-like meetings, focussed on reaching an outcome, directed by the mediator. Much use of bracketing techniques (trying to narrow the ranges of offers) in what can often be a positional negotiation about numbers.

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The Variegated Landscape of Mediation Country A Expectations

Country D Expectations

8. Mediator task and style:

The mediator(s) avoid(s) forming a view of what could bring about a settlement, but works with the parties to explore and generate as many options for mutual gain as possible (e.g., brainstorming sessions, and assessing options as opposed to expressed needs and interests).

The mediator rigorously reality tests the substantive aspects of the case (e.g., the facts and the law) and is often increasingly directive on the process as time goes by. The mediator usually forms a view of where parties might settle, and then attempts to bring parties to that point using dispositive norms as a basis for ­negotiation.

9. Time scope

Avoid time pressure to complete settlement. Try to give as much time as possible to ensure parties have had full opportunity to reflect on the settlement terms, and still agree with them. Either settlement is reached and documented then and there, or no settlement is reached and the mediator(s) continue(s) to be available to the parties to identify why a settlement was not reached and possible additional steps that could be taken to resolve any remaining differences.

Pressure to complete settlement within the time available (1 to 2 days). Either a settlement is reached and documented then and there, or no settlement is reached, and there is no emphasis spent on analysing the d ­ ifferences any further.

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I. European Union

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1

AUSTRIA 1

Prepared by Professor Dr Marianne Roth, LL.M. (Harvard)2 – Mag. Marianne Stegner 3

1.

Attempt to mediate

AT

a. Always voluntary Yes. On May 1, 2004 Austria enacted the Federal Law on Mediation in Civil Law Matters (Zivilrechts-Mediations-Gesetz, hereinafter ‘Austrian Mediation Act’). The Austrian Mediation Act states in Section 1 that ‘Mediation is an activity voluntarily entered into by the Parties ...’. The Austrian Mediation Act applies exclusively to mediation of ‘civil matters’, meaning all conflicts that the regular civil courts have to decide. Hence, the notion of civil matters also includes commercial matters but excludes conflicts that must be decided in administrative proceedings, or for which no official proceedings are available. Further, on 1 May 2011 the Austrian EU Mediation Act (EU-Mediations-Gesetz), which is applicable for cross-border mediation conducted by non-registered mediators, came into force. It stipulates in Section 2(1)(No.1) that mediation is a structured process by which the parties try to achieve an amicable settlement on a voluntary basis. For the difference between registered and non-registered mediators, see 16. b. Mandatory (in some cases) (No). According to the Austrian Mediation Act, mediation is voluntary (see 1.a.). Also the Austrian Supreme Court has stated that mediation cannot be ordered against the will of one party (OGH, 15.07.1997, 1 Ob 161/97a). There are only very few situations in which mediation is a prerequisite for initiating court proceedings. According to Section 15a Vocational Training Act (Berufsausbildungsgesetz (BAG)) and Article 1 Section 135 Labour Act for Agriculture and Forestry (Landarbeitsgesetz (LAG)), mediation is mandatory if the trainer wants an extraordinary cancellation of the contract with the trainee. Before the trainer is allowed to submit the extraordinary notice of cancellation, he/she has to participate in the mediation process with the trainee. The mediation process can only be omitted on the basis of a written declaration from the trainee. c. Court referral or court-connected mediation possible (Yes). In 2008 a pilot project was launched at the commercial court of Vienna. Mediators presented mediation as a form of alternative dispute resolution to the parties involved in pending cases and they also conducted mediation. Since the pilot project was well received, it was continued in six other courts (regional civil court of Vienna, labour and social court of Vienna, regional court of St. Pölten, regional court of Vienna Neustadt, regional court of Leoben and regional court of Linz).

1 Last update of information: January 2014. 2 Marianne Roth is professor of law at Salzburg University, Austria. In addition to this, she is practicing as an arbitrator under institutional and ad hoc rules and has worked as a legal advisor and visiting professor for various institutions around the world. Contact: [email protected]. 3 Marianne Stegner is a research assistant and Ph.D. student at the University of Salzburg, Austria. Contact: [email protected].

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In spring 2011 the association for mediation in procedures before the court (Verband für Mediation gerichtsanhängiger Verfahren, hereinafter VMG) was founded. The aim of this association is to facilitate court-referred mediation. The mediators involved in court-referred mediation need a great deal of expertise and therefore the association sets strict requirements for a mediator to be registered on the VMG list. For example, a mediator who applies to be added to the VMG list must have attended several court proceedings as well as a seminar to gain basic knowledge of Austrian civil procedure and the legal framework for court-referred mediation, and has to sign a declaration of consent to comply with the ethics and conduct of the Austrian mediation network. Only mediators who are registered on the VMG list can conduct court-referred mediation. The VMG is currently working on guidelines for the certification of court-referred mediators, which should be completed in spring 2014. d. Court-ordered mediation possible No. Court-ordered mediation is not possible. This can be derived from the legal definition of mediation in Section 1 as well as from Section 16(2) of the Austrian Mediation Act. Pursuant to the latter provision, the mediator is only allowed to act with the approval of the parties. However, the court may indicate the possibility of mediation as an alternative way of dispute resolution; see Section 204(1) of the Austrian Code of Civil Procedure (Zivilprozessordnung). e. Sanctions by the court if mediation is not tried (in good faith) No. It follows from the principle of voluntariness that there are no negative consequences for a party if this party does not participate in the mediation. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions if mediation is not tried or not tried in good faith. See 1.e. g. Incentives if mediation is tried voluntarily before going to court No. There are no incentives. h. Outside counsel presence/representation during mediation sessions allowed Yes. Counsel presence/representation during mediation sessions is allowed. However, it should be noted that Section 16 of the Austrian Mediation Act stipulates that a mediator may not represent or advise in a dispute which makes reference to the mediation. i. Outside counsel presence mandatory No. See 1.h.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. A mediation clause is not a compulsory provision. The Austrian Code of Civil Procedure does not stipulate any consequences for non-compliance with a mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

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3. Mediation procedure

AT

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The Austrian Mediation Act does not contain procedural rules for the mediation process or approach. However, Chapter IV of the Austrian Mediation Act stipulates rights and obligations for registered mediators, including: – the right and obligation to use the professional title ‘registered mediator’ (Section 15(1)); – receiving a commission is prohibited (Section 15(2)); – acting as a mediator in the same conflict is prohibited if the mediator has been a party representative, advisor or decision-maker and vice versa (Section 16(1)); – the mediator may only act with the approval of the parties and has to conduct the mediation procedure to the best of his/her knowledge, in person, and directly, independently and impartially (Section 16(2)); – information obligations (Section 16(2 and 3)); – documentary obligations (Section 17); – secrecy and confidentiality obligations (Section 18); – obligation to take out professional liability insurance (Section 19); – continuing professional development obligation (Section 20); – notification obligation (Section 21). The Austrian EU Mediation Act contains a confidentiality obligation in Section 3, which is applicable to non-registered mediators who conduct cross-border mediation. b. Mediation procedure, mediator duties, style and approach of the mediator fully ­flexible/­ contractual (No). The mediation process is governed by the contract between the parties (Mediations­ vereinbarung) and the contract between the parties and the mediator (Mediatorvertrag). Hence, within the statutory limits, the mediation procedure is designed according to the will of the parties. Mediator duties are described in the Act, see 3.a. c. Mediator can offer a non-binding opinion (No). According to the legal definition of mediation in Section 1 of the Austrian Mediation Act, it is not the task of registered mediators to offer advice or to make a proposal for a solution, rather it is their task to facilitate the communication between the parties with the aim of enabling the parties to reach a solution themselves. However, mediators may make a proposal for a solution if the parties ask them to do so. d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). The Austrian Mediation Act does not refer to a special mediation style. Hence, the mediation style that best suits the situation is chosen. In general one can differentiate between cases which are very emotional (e.g., divorces, disputes between neighbours) and cases which are less emotional and rather have their focus on substantial aspects. For the former, a transformative style is more suitable than an evaluative or facilitative style. For the latter, a facilitative style, or an evaluative style, are possible. Hence, for commercial disputes a facilitative style is the predominant style; however, it can also be an evaluative style if the parties prefer.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Transformative. See 3.e. Mediation styles vary depending on the dispute. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Transformative. See 3.e. and g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. An evaluative approach is used only at the request of the parties. If an evaluative approach is chosen, it can be used in various ways. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint sessions/(mix with caucus). The Austrian Mediation Act contains no specific rules regarding the procedure. Therefore it is up to the will of the parties if they wish to have joint sessions, or caucus, or both. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions/(mix with caucus). In general it can be said that in emotional disputes mediators predominantly choose joint sessions. The less emotional a dispute is, the less likely it is that joint sessions will be used and the more likely it is that mediation will take place in caucus sessions. However, the choice of process depends on the will of the parties and the case at issue. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. In Austria there is a two-tier system for registered and non-registered mediators. There are no legal provisions which regulate the accreditation or certification of non-registered mediators. For registered mediators, Chapter III of the Austrian Mediation Act is applicable and deals with the list of mediators, its maintenance, requirements of registration, professional qualifications, application for registration, verification of requirements, registration and removal from the list. The Federal Minister of Justice maintains the list of mediators. This list contains the name, date of birth, profession of the mediator, their professional address and academic title. The list of mediators is published electronically so that users can either search for a specific mediator or for the mediators available in one of the Austrian Federal States. (http:// www.mediatorenliste.justiz.gv.at/mediatoren/mediatorenliste.nsf/docs/home). Any person who seeks registration on the list of mediators has to file a written request to the Federal Minister of Justice. According to Section 9 of the Austrian Mediation Act, applicants must prove that they are: – over the age of 28; – professionally qualified; – trustworthy; and – that they have taken out professional liability insurance in accordance with Section 19.

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AT

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The Variegated Landscape of Mediation

Any person who can provide the necessary information is entitled to registration on the list of mediators. Professional qualification and trustworthiness are to be evidenced by appropriate documents. Trustworthiness can be proven by submitting an extract from the register of convictions that is no more than three months old. Professional qualification can be proven by a certificate issued by a registered training institution. Any person is professionally qualified who is familiar with the legal and psychological basic principles of mediation and has obtained the necessary knowledge and skills in mediation through an appropriate training (according to Section 29 of the Austrian Mediation Act). The Federal Minister of Justice maintains a list of training institutions for mediation in civil-law matters. The training should preferably be completed at a registered training institution. Exceptions may be practical workshops and training courses that were completed prior to the establishment of the list as well as training that was completed in a foreign country. If all requirements have been complied with, the applicant is registered on the list of mediators for the period of five years. Within a year of, but no less than three months before, the expiration of the registration, the mediator may apply in writing for a continuation of the registration for another ten years. The application for continuation has to contain evidence of further training (see 4.1.e). Chapter VII of the Austrian Mediation Act deals with implementing the regulation which stipulates the specific conditions for the training of mediators. The training regulation for mediators came into effect on 1 May 2004 (Zivilrechts-Mediations-Ausbildungsverordnung). The Austrian Mediation Act requires the training to be divided into two parts. Theoretical training must comprise 200 to 300 training units; the application-oriented part must be 100 to 200 training units. It is common practice for a training unit to last 45 minutes. The regulation considers the education that different professional groups have already obtained and therefore provides schedules with a range of compulsory training units. Mediators who participate in court-referred mediation need to be registered with the VMG (see 1.c.). b. Set by market (private certifying bodies) No. There are several organisations which accredit registered mediators. Training institutions and courses are regulated by Chapter VI of the Austrian Mediation Act. Thus, a training institution may apply for registration with the Federal Minister of Justice in writing. When doing so, the institution has to prove that training goals are achieved. The institution will then be registered on the list of institutions for a period of five years and may apply for continuation for another ten years at the earliest one year, at the latest three months before the termination of the registration date. Continuation is approved if the annual report (Section 27 of the Austrian Mediation Act) shows that the suitability of the institution is guaranteed. The list of institutions is published electronically (http://www.mediatorenliste.justiz.gv.at/ mediatoren/mediatorenliste.nsf/contentByKey/VSTR-7DYGZV-DE-p). The institutions may have different legal forms. Most institutions are associations or limited liability companies, but they may also have another form, such as private foundations or partnerships. They can also be service providers with the Austrian economic chamber, such as the Institutes for Economic Development (Wirtschaftsförderungsinstitut – WIFI), which are present in all Federal States of Austria. c. Set by public regulation Yes. The mediation profession and therefore the accreditation of registered mediators are publicly regulated by the Austrian Mediation Act. Thus, the Federal Minister of Justice maintains a list of registered mediators as well as a list of training institutions. Both are electronically published (see 4.1.a. and b.).

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d. Number of hours for basic mediator training 165-274 hours (220-365 training units). The Austrian training regulation for mediators (‘Zivilrechts-Mediations-Ausbildungsverordnung’) stipulates how many units a person who wants to become a registered mediator has to attend. This varies from a minimum of 220 training units up to a maximum of 365 (each unit takes 45 minutes). However, the exact number of training units depends on the prior education or profession of the participant, under the regulation on the specific conditions for the training of mediators; see 4.1.a. For example a lawyer has to attend fewer units (=220). The 220 to 365 45-minute training units equate to 165 to 274 hours. In Austria it is common practice for a training unit to last 45 minutes.1 e. Mandatory continuing professional development for accredited/certified mediators Yes. Each registered mediator has the obligation to undertake continuing professional education of at least 50 training units (of 45 minutes) within a period of 5 years. Mediators have to present evidence of this to the Federal Minister of Justice every 5 years. (Section 20 of the Austrian Mediation Act). f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (No). To become a registered mediator, one has to fulfil certain requirements, see 4.a. One of these requirements is to have a certificate from a training institution. Even though the content of the education is stipulated in the training regulation for mediators, there are no uniform rules on how the examination has to be set up in order to award a certificate. g. Accreditation through written exam (Yes). There are no uniform examination regulations, however, most of the registered training institutions adjust their regulations in line with the Ministry of Justice. Most of the institutions require an applicant to attend all seminars and to pass several parts of examination; these parts may consist of a written exam, case study, preparing a case study protocol and presentation of the case study. h. Accreditation through performance-based assessment (Yes). See 4.1.g.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are no special certificates to accredit mediation advocates. According to Section 63 of the Guideline for Practising as Attorney and for the Supervision of Attorney’s and Trainee Attorney’s Duties (Richtlinie für die Ausübung des Rechtsanwaltsberufes und für die Überwachung der Pflichten des Rechtsanwaltes und des Rechtsanwaltsanwärters), advocacy comprises mediation. Section 8(5) of the Attorney’s Code (Rechtsanwaltsordnung) stipulates that attorneys also have to adhere to their duties as attorneys when acting as mediators. However, to become a registered mediator an attorney has to fulfil the requirements stipulated in Section 9 of the Austrian Mediation Act (see 4.1.a.). j. Set by market (private certifying bodies) No. See 4.2.i.

1 See Falk/Koren, Zivilrechts-Mediations-Gesetz. Kommentar zu ZivMediatG, Vienna 2005, Section 29(8)(1) and (2).

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k. Set by public regulation No. See 4.2.i.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. See 5.b. b. Set by public regulation Yes. Anyone can be a mediator and can conduct mediation procedures. However, to become a registered mediator one has to fulfil the requirements of Section 9 of the Austrian Mediation Act (see 4.1.a). c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 5.b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-­border) No. See 5.b.

AT

6.

EU Directive

a. EU Directive implemented for cross-border cases only Yes. The law implementing the EU Directive, namely the Austrian EU Mediation Act (EU-Mediations-Gesetz) applies to cross-border cases only (Section 1(1) of the Austrian EU Mediation Act). But one has to keep in mind that the Austrian Mediation Act is still applicable if a registered mediator conducts the mediation in a cross-border case (Section 5 of the Austrian EU Mediation Act). Hence, the Austrian EU Mediation Act only applies to mediation in cross-border cases, conducted by a mediator who is not registered on the list of mediators. b. EU Directive implemented for all national and cross-border commercial cases No. National commercial cases are governed by the Austrian Mediation Act. For cross-border-cases see 6.a. c. EU Directive implemented for all national and cross-border civil cases No. National civil cases are governed by the Austrian Mediation Act. For cross-border cases see 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2004. See 1.a. b. Legislation updated since EU mediation directive (date update) No.

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8.

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Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Mediation bodies may have various legal forms. b. Individuals may be providers of mediation services Yes. Indeed, most of the mediation providers are individuals. See 8.c. c. Mediation provider qualifications/requirements determined by public regulation Yes. The Austrian Mediation Act stipulates that the Federal Minister of Justice has to maintain a list of mediators. Only mediators on this list are allowed to use the professional title ‘registered mediator’ (eingetragener Mediator). Only registered mediators have special rights and obligations according to the Austrian Mediation Act. For further information about the list see 4.1.a. However, it is not a legal requirement to be a registered mediator in order to work as a mediator.

9.1. Mediator fee a. Freely contracted Yes. The mediator fee is freely contracted between the mediator and the parties. Hence, the parties are free to agree upon the way how the mediator fee is charged (e.g., hourly fee, daily fee, lump-sum fee) and they are free to agree upon the amount charged. b. Fixed in some cases by public regulation Yes. For family mediation the hourly rate is € 182 per hour. Dependent on the income of the parties and the number of joint children, the whole amount or a certain percentage is covered by the state. c. Average mediator fee per hour for commercial or cross-border cases € 120-400 (estimate). There are no statistics available regarding mediator fees per hour, either for commercial/cross-border, or civil cases. However, it can be estimated that the average mediator fee per hour for commercial cases is between € 120 and € 400, and for cross-border cases it is a bit higher because additional skills are needed. The VMG, for example, recommends € 350 (+ VAT) per mediation team. d. Average mediator fee per hour in civil cases € 90-400 (estimate). The average mediator fee per hour in civil cases is generally lower than for commercial cases and depends on the complexity of the case and the dispute (in family disputes there are fixed fees, see 9.1.b.). It can be estimated that the average mediator fee per hour for civil cases is between € 90 and € 400.

9.2. Financing and legal aid e. Legal aid available for mediation services (No). In general there is no legal aid available for mediation services. One exception is in family mediation, where the State covers the mediation costs in whole or in part. See 9.1.b. f. Mediator fees covered by legal insurance schemes (Yes). Most of the insurance companies in Austria cover mediation costs; however, the conditions vary (including the sums which are actually covered).

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g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court referrals or court-connected mediation schemes? No.

AT

b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. In Austria, mediation is seen as part of the legal system. Mediation is governed by several laws, including the Austrian Mediation Act, the Austrian EU Mediation Act, and the training regulation for mediators. Further, mediation – as one form of alternative dispute resolution – is mentioned in various laws, e.g.,: – Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch (ABGB)) – Austrian Federal Act on the Equalisation of Persons with Disabilities (­Bundes-Behinderten gleichstellungsgesetz (BGStG)) – Family Charges Equalisation Act (Familienlastenausgleichsgesetz (FLAG)) – Genetic Engineering Act (Gentechnikgesetz (GTG)) – Labour Act for Agriculture and Forestry (Landarbeitsgesetz (LAG)) – Vocational Training Act (Berufsausbildungsgesetz (BAG)). c. Mediation procedure has impact on statute of limitations Yes. The mediation procedure has an impact on the statute of limitations. According to Section 22 of the Austrian Mediation Act, the start and duration of the statute of limitations is suspended with the commencement and proper continuation of the mediation procedure (conducted by a registered mediator). Likewise other time limits are suspended that concern rights and claims affected by the mediation. Furthermore, the parties may declare in writing that rights and claims between them which are not affected by the mediation are also suspended. No such written agreement is needed in disputes involving family law. Section 22(2) of the Austrian Mediation Act stipulates that the suspension also includes rights and claims resulting from family law which are not affected by the mediation, unless the parties agree otherwise in writing (see 16). Documenting the commencement, proper continuation and end of the mediation procedure is one of the mediator’s obligations (Section 17(1) of the Austrian Mediation Act). Section 4 of the Austrian EU Mediation Act stipulates that the commencement and proper continuation of the mediation procedure suspends the statute of limitations and other time limits for the enforcement of rights and claims affected by the mediation.

11. Mediated settlement a. Contract Yes. A mediated settlement qualifies as a civil-law contract. b. Automatically enforceable No. A mediated settlement is not automatically enforceable.

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c. Enforceable under some circumstances which are up to the parties Yes. In Austria, the conferment of enforceability may be obtained in several forms: the most common one is that the parties have the settlement confirmed in an enforceable notarial instrument (Section 3 of the Austrian Notaries Act (Notariatsordnung), Section 1(No.17) of the Austrian Enforcement Act (Exekutionsordnung)). Another possibility is that the parties ask an arbitral tribunal to draw up a record of the settlement which is enforceable under national law, or to record the settlement in the form of an arbitral award on agreed terms which is enforceable not only in Austria, but also internationally under the 1985 New York Convention (Section 605 Austrian CCP, Section 1(No.16) of the Austrian Enforcement Act). Since May 2011 another option is available in judicial proceedings according to Section 433a of the Austrian CCP (Mediationsvergleich) which states that ‘The content of a written agreement resulting from mediation can be recorded in the form of a court settlement in front of every district court’. Court settlements are enforceable under Section 1(No.5) of the Austrian Enforcement Act. Mediation settlements can only be recorded in the form of a court settlement if one party (with express consent of the other party) or both request it. Further, only settlements can be recorded which would be a matter for the civil courts in the event of a dispute. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. Section 18 of the Austrian Mediation Act requires the registered mediator as well as any assisting staff in a very general way to keep confidential any facts that have come to their attention in the context of mediation, as well as any documents prepared or received by them in the context of mediation. Section 31 of the Austrian Mediation Act has a broad general clause that defines the exceptions to the confidentiality requirement: public and reasonable private interests justify a breach of the mediators’ duty of confidentiality. If a registered mediator breaches the confidentiality obligation, the person whose interests were violated can demand prosecution (punishment of up to six months or a fine of up to 360 daily unit rates) according to Section 31 of the Austrian Mediation Act. Section 3 of the Austrian EU Mediation Act is applicable for non-registered mediators and contains a similar confidentiality requirement to that of the Austrian Mediation Act. It provides for two exemptions: due to considerations of public policy or if the disclosure of the content of the mediation proceeding is needed for the enforcement of the mediated agreement. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. In Austria not only the Code of Civil Procedure but also the Code of Criminal Procedure (Strafprozessordnung) contain privileges for registered mediators: in civil proceedings registered mediators may not be questioned with respect to what was entrusted to them or learned in the context of the mediation (Section 320 No. 4 Austrian CCP). Somewhat more lenient is the pertinent provision for criminal proceedings. Here, registered mediators have the right to refuse to give evidence with regard to the abovementioned matters (Section 157(1)(No.3) of the Code of Criminal Procedure).

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13. Education a. Mediation education is a common component of the legal education curriculum (No). Mediation courses are offered at several universities. The University of Salzburg, for example, offers some courses on commercial mediation which can be chosen by the students voluntarily. b. Mediation advocacy education is a common component of the legal education curriculum No.

AT

14. Most relevant literature or references, case law, articles, law –– Hagen, Johann J./Lenz, Cristina, Wirtschaftsmediation, Vienna 2008. –– Hopf, Gerhard, Das Zivilrechts-Mediations-Gesetz, ÖJZ, 3 (2004), 41-51. –– Kloiber, Barbara, Die Mediations-Richtlinie und ihre Umsetzung in Österreich, ZfRV, Vol. 16 (2011), 119-127. –– Knapp, Dietmar, Grundzüge des Mediationsrechts, Vienna 2012. –– Lenz, Cristina, The EU Directive on mediation – the implementation in Austria and the preparations in Germany, in: Marianne Roth/Michael Geistlinger (eds.), Yearbook on International Arbitration Volume II, Vienna 2012, 375-393. –– Roth, Marianne/Egger, Peter, Die EU-Mediationsrichtlinie, ecolex 2009, 538-541. –– Roth, Marianne, The EU Mediation Directive, in Faculty of Law, University of Nis (eds.), The Law of the Republic of Serbia and the EU Law – Current State of Affairs and Perspectives, Volume 1 (2009), 98-108. –– Roth, Marianne, The Proposal for an EU Directive on Certain Aspects of Mediation in Comparison with the Austrian Mediation Law, Journal of International Dispute Resolution (IDR) 2005, 205-227. –– Roth, Markus/Gherdane, David, Mediation in Österreich, in: Klaus J. Hopt/Felix Steffek (eds.), Mediation. Rechtstatsachen, Rechtsvergleich, Regelungen, Tübingen 2008, 105-182. –– Scheuer, Ursula, Vollstreckbarer Mediationsvergleich und neue Regelungen für grenzüberschreitende Mediationsverfahren, Zak, Heft 8 (2011), 147-150.

15. Mediation legislation texts a. Weblink to legislation in national language –– Austrian Mediation Act (Zivilrechts-Mediatations-Gesetz), http://www.ris.bka.gv.at –– Austrian EU Mediation Act (EU-Mediations-Gesetz), http://www.ris.bka.gv.at training regulation for mediators (Zivilrechts-Mediations-Ausbildungsverordnung), http://www.ris.bka. gv.at b. Weblink to English or other translation –– Austrian Mediation Act, http://www.oebm.at/cms/fileadmin/users/redaktions-upload/­ Bundes-Bereich/Austrian_Mediation_Act1.pdf c. Other references –– Association for mediation in procedures before the court (Verband für Mediation gerichts­ anhängiger Verfahren), www.vmg.co.at. –– Austrian Association for Mediation (Österreichischer Bundesverband für Mediation), http:// www.oebm.at/cms/index.php?id=411&waiv=sm%3Bwaiv%3Dsm

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–– Code of ethics for mediators published by the Austrian Network Mediation (­Österreichisches Netzwerk Mediation, Ethikrichtlinien für Mediatorinnen), –– http://www.servicestellemediation.at/Ethikrichtlinien.pdf –– Guideline of the Advisory Counsel for Mediation regarding the criteria for the registration on the list of training institutions and courses according to Section 23 of the Austrian Mediation Act (Richtlinie des Beirats für Mediation über die Kriterien zur Eintragung in die Liste der Ausbildungseinrichtungen und Lehrgänge nach §23 Zivil­rechts-Mediations-Gesetz), http://www.mediatorenliste.justiz.gv.at/mediatoren/mediatorenliste.nsf/ContentByKey/ VSTR-7JRVQE-DE-p/$file/Richtlinie%20Ausbildungseinrichtungen.pdf

16. Country specific remarks In Austria there is a two-tier system for registered and non-registered mediators. There is no exact job profile or organisation in associations. Hence, registered and non-registered mediators are both authorised to conduct mediation. Registered mediators have a better reputation due to the fact that their education and obligations are stipulated by law. The Austrian Mediation Act and the training regulation for mediators apply to registered mediators who conduct national or cross-border mediation. The Austrian EU Mediation Act is applicable to non-registered mediators conducting cross-border mediations. Further, the list of mediators which is published online by the Ministry of Justice lists only registered mediators and provides their contact information (email and/or telephone number) which is very helpful for parties looking for a suitable mediator. The answers in this grid refer to registered mediators unless otherwise stated. Family mediation holds a special position in Austria. Even though Austria does not know court-ordered mediation, the judge may point out the option of mediation (see Section 13(3) of the Non-Contentious Proceedings Act (Außerstreitgesetz)), or even order the participation at a preliminary meeting about mediation (Section 107(3) (No.  2) Non-Contentious Proceedings Act. To provide the parties with enough time to reach an agreement, the court may stay the proceedings for at most 6 months (Section 29(2) of the Non-Contentious Proceedings Act). Further, family mediation is the only form of mediation for which legal aid is provided. Depending on the income of the parties and the number of children, the whole amount or a certain percentage of the mediator’s fees is covered by the State (see 9.1.b.). In general, rights and claims which are affected by mediation are suspended at the commencement and proper continuation of mediation. If the parties wish to include other claims which exist between them, they have to agree in writing to also suspend these time limits. However, Section 22(2) of the Austrian Mediation Act contains a special rule for family mediation. It states that the suspension of time limits covers all mutual claims, or other perceived rights and claims under family law, that the parties may have against each other, even without written agreement, insofar as the parties do not agree otherwise in writing. Another specific feature is that family mediation is conducted by two mediators (Co-Mediation). The list of co-mediation teams is published electronically on the website of the Federal Ministry of Economy, Family and Youth (Bundesministerium für Wirtschaft, Familie und Jugend). According to Section 3(7) of the Guidelines for the Promotion of Mediation (Richtlinien zur Förderung von Mediation, available in German on http://www.servicestellemediation.at/richtlinien_.pdf), the team should consist of a registered mediator with a legal education and a registered mediator with a psychosocial education, and it should preferably be a mixed-gender team.

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Generally, it should be noted that a breach of the confidentiality obligation may have severe consequences for registered mediators (not only in family mediation, but in each mediation procedure). According to Section 31 of the Austrian Mediation Act a registered mediator who reveals information in breach of his/her confidentiality obligation, and thereby violates the legitimate interests of another person, is liable for prosecution by the court (punishment of up to 6 months or a fine of up to 360 daily unit rates). However, registered mediators can only be prosecuted if the person whose interests were violated requests such prosecution. Registered mediators are not to be punished if the breach was justified by public or individual interest (Section 31(2) of the Austrian Mediation Act). Regarding the confidentiality obligation and exemptions thereto, see 12.a. and b. Section 32 of the Austrian Mediation Act stipulates that if a breach of administration is committed it is punishable with a fine of up to € 3.500 (1.) if a person who is not registered as a mediator uses the professional title ‘registered mediator’ or a similar title that may cause confusion; or (2.) if one of the following provisions of the of the Austrian Mediation Act has been breached: Section 15(2), Sections 16, 17, 19, 21 or 27 (see 3.a.).

AT

Mediation definition The definition of ‘mediation’ in Austria is stipulated in Section 1 of the Federal Mediation in Civillaw Matters Act (Zivilrechts-Mediations-Gesetz). This Act was enacted on 1 May 2004 and is applicable if a registered mediator conducts the mediation in a national case or a cross-border case. § 1 Zivilrechts-Mediations-Gesetz  (citation: § 1 ZivMediatG, BGBl.  I No. 29/2003; available on www.ris.bka.gv.at) (1) Mediation ist eine auf Freiwilligkeit der Parteien beruhende Tätigkeit, bei der ein fachlich ausgebildeter, neutraler Vermittler (Mediator) mit anerkannten Methoden die Kommunikation zwischen den Parteien systematisch mit dem Ziel fördert, eine von den Parteien selbst verantwortete Lösung ihres Konfliktes zu ermöglichen. (2) Mediation in Zivilrechtssachen ist Mediation zur Lösung von Konflikten, für deren Entscheidung an sich die ordentlichen Zivilgerichte zuständig sind. English translation: Section 1 of the Federal Law on Mediation in Civil Law Matters (Austrian Mediation Act)  (translation from  http:/portal.wko.at/wk/format_detail.wk?­A ngID=­1&StID= ­362257&DstID=0) (1) Mediation is an activity voluntarily entered into by the parties, whereby a professionally trained neutral facilitator (mediator) using recognised methods systematically encourages communication between the parties, with the aim of enabling the parties themselves to reach a resolution of their dispute. (2) Mediation concerning civil-law matters is mediation to resolve conflicts for which decisions the civil courts would be responsible. The law implementing the EU Directive  2008/52/EC  is the  Austrian EU Mediation Act (EU-Mediations-Gesetz). It was enacted on 1 May 2011 and is applicable to cross-border cases conducted by a mediator who is not registered on the list of mediators. The definition of ‘mediation’ and ‘mediator’ is contained in Section 2 of the Austrian EU Mediation Act: § 2 EU-Mediations-Gesetz (citation: § 2 Abs. 1 Z 1 und 2 EU-MediatG, BGBl. I No. 21/2011; available on www.ris.bka.gv.at) (1) Im Sinn dieses Bundesgesetzes bedeuten

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1. Mediation: ein strukturiertes Verfahren ungeachtet seiner Bezeichnung, in dem zwei oder mehr Streitparteien mit Hilfe eines Mediators auf freiwilliger Basis selbst versuchen, eine Vereinbarung über die Beilegung ihrer Streitigkeit zu erzielen, unabhängig davon, ob dieses Verfahren von den Parteien eingeleitet, von einem Gericht vorgeschlagen oder angeordnet oder nach dem Recht eines Mitgliedstaats vorgeschrieben wird; 2. Mediator: eine dritte Person, die ersucht wird, eine Mediation auf wirksame, unparteiische und sachkundige Weise durchzuführen, und die ihren Wohnsitz oder gewöhnlichen Aufenthalt in einem Mitgliedstaat hat; English translation: Section 2(1)(No.1) and (No.2) of the Austrian EU Mediation Act2 (1) In the meaning of this Federal Act 1. Mediation: a structured process, however named or referred to, whereby two or more parties to a dispute attempt on a voluntary basis to reach an agreement on the settlement of their dispute with the assistance of a mediator, independent of the process being initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State; 2. Mediator: any third person who is asked to conduct mediation in an effective, impartial and competent way, and has its domicile or habitual residence in a Member State;

2

Unofficial translation prepared by the authors of this chapter.

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Mediation regulation and approach Country: Austria Prepared by Marianne Roth, Marianne Stegner 1. Attempt to mediate

2. Mediation clause

AT

3. Mediation procedure

4.1. Mediator accreditation

4.2 Mediation advocacy accreditation

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

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Yes (No) (Yes) No No No No Yes No Yes No No (Yes) (No) (No) No F / (E) F T T All joint/(mix with caucus) joint/(mix with caucus) Yes No Yes 165-274 hrs Yes (No) (Yes) (Yes) No No No

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Mediation regulation and approach Country: Austria Prepared by Marianne Roth, Marianne Stegner 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only 6. EU directive b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since 7. Mediation legislation b. Legislation updated since EU mediation directive (date update) 8. Bodies providing mediation 9.1 Mediator fee

9.2 Financing and Legal aid 10. Legal context

No Yes No No Yes No No 2004 No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

Yes Yes Yes

d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes?

€ 90-400 (est.) (No) (Yes) No No

b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract 11. Mediated settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidenti- a. Regulated by law ality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education 13. Education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes Yes € 120-400 (est.)

Yes Yes Yes No Yes No Yes Yes (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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2 BELGIUM1 Prepared by Luc Demeyere2

1.

Attempt to mediate

a. Always voluntary Yes. The Belgian Mediation Act dated 21 February 2005, which entered into force on 30  September 2005, distinguishes between voluntary mediation and court-annexed mediation. It does not preclude the existence of a third category not provided for in the Act and described as ‘free mediation: mediation ad hoc’. Even in court-annexed mediation, the mediation is subject to the parties’ consent before it can be ordered by the court.

BE

b. Mandatory (in some cases) No. For labour law disputes, the judge is obliged to attempt to reconcile the parties (Section 734 of the Belgian Judicial Code). In practice, this requirement has been reduced to a procedural formality. c. Court referral or court-connected mediation possible Yes. See 1.a. d. Court-ordered mediation possible (No). See 1.a. Only possible when parties consent. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. i. Outside counsel presence mandatory No.

1 Last update of information: July 2013. 2 Luc Demeyere practices litigation, arbitration (both as counsel and as arbitrator) and mediation in domestic and cross-border disputes. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause No. Provided that the mediation clause is valid and binding, the court, at the request of a party before any other motion or defence, will suspend court proceedings or declare that it has no competence until the mediation has taken place. The mediation clause does not prevent provisional or conservative measures from being ordered by the court. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. The wording of the mediation clause is decisive. If the mediation is a contractual obligation, mediation is mandatory; if mediation is phrased as an option, it is not.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (No). The Belgian Act requires for voluntary mediation and court-annexed mediation that the ‘mediation protocol’ be signed by the parties and the mediator. It should specify the points provided for in the Belgian Act, including the fees and costs of the mediation. Once the mediation protocol has been signed, the mediation is conducted in a way that the mediator and the parties deem appropriate and is thus flexible. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. See 3. a. c. Mediator can offer a non-binding opinion Yes. d. Mediator can offer a binding opinion Yes. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Mix. Mediation training focus fundamentally on facilitative mediation and develop skills to such effect. In mediation each mediator will develop their own approach, and may be tempted on technical matters falling within /their area of expertise to provide an evaluation of the questions at hand. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Mix. Mediation training stress the necessity for the mediator to stay in control of the process, granting each party the opportunity and time to express its views. Be tough on process and open on substance.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Mix. See 3.e. In divorce mediation it is common practice that the spouses are not assisted by their lawyers; as a result the mediator will have to point the spouses’ attention to issues governed by ‘ordre public’. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Mix. See 3.f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Mix. No data available. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

BE

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). The accreditation of mediators is entrusted to the Federal Mediation Commission. The Belgian Act specifies the minimum requirements to be fulfilled by mediator candidates: a) on the basis of their present or past activity, they should demonstrate the competence required by the nature of the dispute; b) depending on the case, they should demonstrate adequate training or experience for mediation practice; c) in view of the mediation practice, they should provide necessary guarantees regarding independence and impartiality; d) they must not have a criminal record that is incompatible with the practice of an accredited mediator; e) they must not have been the subject of a disciplinary or administrative sanction that is incompatible with the practice of an accredited mediator, or have had an earlier accreditation withdrawn. Accredited mediators should attend follow-up training. The Federal Mediation Commission took a resolution adding additional criteria for a candidate to be accredited as a mediator. In case of court-annexed mediation the court may, if the circumstances so require, appoint a non-accredited mediator. No accreditation of the mediator is required for ad hoc mediation cases b. Set by market (private certifying bodies) No. c. Set by public regulation Yes. See 4.1.a. d. Number of hours for basic mediator training 90 hours.

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e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. Accredited mediators must demonstrate to the Federal Mediation Commission that they have attended follow-up training of 18 hours over a period of 2 successive years. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. See 4.1.a. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are no specific rules or mechanisms to recognise lawyers representing clients in a mediation procedure. The rules referred to under 4.1.a. also apply to advocates acting as mediators. j. Set by market (private certifying bodies) No. k. Set by public regulation No. See 4.1.a.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. For ‘free mediation’ and,mediation ad hoc’ non-accredited mediators can act as mediator. b. Set by public regulation Yes. See 4.1.a. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. The Belgian Act stipulates that advocates (members of the bar), notaries as well as ­others can be accredited. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The Belgian Mediation Act anticipated the contents of the EU Directive and does not distinguish between national and cross-border cases, which implies that it applies to both.

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b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2005. The Belgian Act of 21 February 2005, Belgian Official Gazette, 22 March 2005, page 12772 et seq., which entered into force on 30 September 2005. b. Legislation updated since EU mediation directive (date update) No.

8.

Bodies providing mediation

BE

a. Mediation bodies may have various Legal forms Yes b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation Yes. The Federal Mediation Commission released a resolution on 1 February 2007, amended later, on the conditions and procedure for accreditation as an institution. The institution should have the form of a legal entity. CPD programmes may be accredited separately.

9.1. Mediator fee a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. The Belgian Act extends legal aid to the costs and fees of mediators acting in a voluntary or court-annexed mediation, provided the mediation is conducted by an accredited mediator. The legal aid is based on a ‘value per point’ system, and the value per point for the judicial year 1 September 2010 – 31 August 2011 was € 24.03. The number of points for legal services under the legal aid system was established by schedule and will be determined in each case based on the services rendered. For mediation, the standard is 10 points. c. Average mediator fee per hour for commercial or cross-border cases € 100-300 (estimate). Based on hourly rates in commercial matters, the mediator’s hourly fee may vary between € 100 and € 300, but hourly fees outside this range may be agreed. d. Average mediator fee per hour in civil cases € 50-200 (estimate). Based on hourly rates in civil matters, the mediator’s hourly fee may vary between € 50 and € 200, but hourly fees outside this range may be agreed.

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9.2. Financing and legal aid e. Legal aid available for mediation services Yes. See 9.1.b. f. Mediator fees covered by legal insurance schemes (No). Insurance policies covering legal assistance may be understood to cover mediator fees provided the insured can prove that the mediation was successful. Explicit coverage may be provided for as well. g. Mediator fees subsidised in court-connected schemes No. Legal aid is available for mediation services, see 9.1.b.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. On 1 January 2003 a pilot project on mediation by judges was launched, but later on the High Counsel for Justice advised against judges acting as mediators. This pilot project came to an end. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The Belgian Act is incorporated in the Belgian judicial code as Part VII. c. Mediation procedure has impact on statute of limitations Yes. The notice sent for starting a voluntary mediation triggers a one-month suspension of the statute of limitations period relating to the claim of the right invoked. For court-annexed mediation, a joint mediation request by the parties causes the procedural deadlines to be suspended as of the date the joint request is filed. As the case may be, new procedural deadlines may be applied for.

11. Mediated settlement a. Contract Yes. The mediation agreement is the agreement that is entered into as the result of the mediation. It is to be signed and dated by the parties and by the mediator, if the mediation is governed by the Act. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties Yes. If the parties have enacted their mediated settlement in a notarial deed, this deed is enforceable just like any other notarial deed. d. Enforceable under some circumstances defined by public regulation Yes. The Belgian Act provides that the court can be requested to homologate the mediated settlement if the mediation has been conducted by a mediator accredited by the Federal

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Mediation Commission. The homologation has the effect of a ‘judgement by consent’. The court can only refuse to homologate the mediated settlement if doing so would be contrary to the ordre public, or, in family matters, if the mediated settlement violates the interests of the minors.

12. Confidentiality

BE

a. Regulated by law Yes. The Belgian Act creates a privilege as well as a duty of confidentiality and professional secrecy. The privilege concerns the parties to the mediation and implies that documents drafted and communications made during the course and for the purpose of mediation are privileged and confidential. They may not be referred to in court or in administrative or arbitral proceedings, or in any other proceedings for the resolution of conflict, and they may not be admitted as evidence, not even as an out-of-court admission. Deviations are only possible by agreement between the parties, for example, in order to allow the judge to homologate the mediated settlement. Violation of the duty of confidentiality by one of the parties may give rise to a claim for damages. Confidential documents that have nevertheless been disclosed should be excluded from the proceedings ex officio. Mediators as well as experts called upon with the agreement of the parties, during the mediation, are bound by duties of professional secrecy which are criminally sanctioned. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. See 12.a.

13. Education a. Mediation education is a common component of the legal education curriculum (Yes). Most universities offer mediation as an optional course; the University of Antwerp has a mandatory course. b. Mediation advocacy is a common component of the legal education curriculum (Yes). A summary introduction to mediation in general is part of the mandatory course for the Flemish bar exam.

14. Most relevant literature or references, case law, articles, law –– Allermeersch, B. en Schollen, P., ‘De wet tot wijziging van het Gerechtelijk Wetboek in verband met de bemiddeling’, R.W. 2004-05, 1481-1494. –– Gayse, B., ‘Bemiddeling. Een veralgemeende wettelijke grondslag’, NjW 2005, 434-449. –– Van Leynseele, P. en Van De Putte, F., ‘La médiation dans le Code judiciaire’, J.T. 2005, ­297-308. –– Andries, K., Het bemiddelingsbeding: geldigheid, effect inhoud en afdwingbaarheid, in Biblio­ theek Burgerlijk Recht Larcier, Brussel, Larcier 2007, 116 p.. –– Renson, P., ‘L’agrément définitif des médiateurs: le fil d’Ariane’, J.T. 2008, 296-298. –– Renson, P., ‘La transcription de certains jugements homologuant des accords de médiation : ‘l’intervention des notaires remise en cause ?’, J.T. 2009, 509-514.

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–– Verbist H., Analyse van de Belgische bemiddelingswet in het licht van de Europese richtlijn inzake bemiddeling, TMD (Nederlands Vlaams tijdschrift voor mediation en conflictmanagement), 2010/1, p.33 ff. –– Verbist H., Omzetting van de Europese Richtlijn 2008/52/EG inzake bemiddeling/mediation in de lidstaten van de Europese Unie: een eerste evaluatie, TMD (Nederlands Vlaams tijdschrift voor mediation en conflictmanagement), 2011/4, p. § ff. –– Demeyere L., Mediation in Belgium – an overview, in, Yearbook on international arbitration, volume II, edited by Marianne Roth, Michael Geistlinger, p. 361 ff.

15. Mediation legislation texts a. Weblink to legislation in national language –– www.belgielex.be –– www.belgiquelex.be –– www.belgienlex.be b. Weblink to English or other translation NA. c. Other references –– www.bemiddeling-justitie.be –– www.mediation-justice.be

16. Country specific remarks The Federal Mediation Commission plays a central role in the institutional framework introduced by the Act. Its tasks are defined by the Act. It is entitled to release resolutions on the matters provided for in the Act and is assisted by three subcommittees. It accredits mediators and may revoke their accreditation; it accredits institutes for training as well as programmes for CPD. Section 731 of the Belgian judicial code provides that any lawsuit, the subject matter of which can be settled validly at the initiative of one party or with the parties’ consent may be submitted in advance to the court for settlement. This provision is only used very exceptionally. Belgian law has other acts mentioning or referring to mediation in which mediation is not understood in the sense of mediation as referred to in the EU Directive: – the Belgian Act dated 5 July 1998 concerning debt mediation; – the Belgian Act dated 10 February 1994 introduces, under certain conditions, mediation with victims in criminal matters; – the Belgian Act dated 25 April 2007 established a mediation service for tax m ­ atters. Mediation definition There is no definition of ‘mediation’ given in Belgian law.

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Mediation regulation and approach Country: Belgium Prepared by Luc Demeyere 1. Attempt to mediate

2. Mediation clause

BE

3. Mediation procedure

4.1. Mediator ­accreditation

4.2. Mediation ­advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes No Yes (No) No No No Yes No No No Yes (No) Yes Yes Yes Mix Mix Mix Mix Mix Mix Mix (Yes) No Yes 90 hrs Yes Yes No No No No No

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Mediation regulation and approach Country: Belgium Prepared by Luc Demeyere 5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases 7. Mediation a. Mediation legislation since legislation (besides b. Legislation updated since EU mediation directive (date update) Directive) 8. Bodies providing a. Mediation bodies may have various legal forms mediation b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1 Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2 Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes Yes No No No Yes Yes 2005 No Yes Yes Yes Yes Yes €100-300 (est.) €50-200 (est.) Yes (No) No No

Yes Yes Yes No Yes Yes Yes Yes (Yes) (Yes)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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3 BULGARIA 1 Prepared by Lyubka Vasileva-Karapanova2

1.

Attempt to mediate

a. Always voluntary Yes. According to Section 2 of the Mediation Act ‘Mediation is a voluntary, confidential procedure for out-of-court dispute resolution, whereby a third neutral person (mediator) assists disputing parties to reach a settlement.’ The parties participate in mediation of their own free will and may withdraw at any time (Section 6 of the Mediation Act).

BG

b. Mandatory (in some cases) No. Mediation is a voluntary procedure by definition (see 1.a). c. Court referral or court-connected mediation possible Yes. The court has the general authority at its own discretion to ‘propose to parties to use mediation for resolving their dispute’ (Section 11 of the Mediation Act). In civil and commercial proceedings, the court has the general authority ‘to refer the disputing parties to mediation when scheduling the first hearing of the case in public session’ (Section 140 (3) of the Civil Procedure Code, Section 374 (2) of the Civil Procedure Code). Parties may be referred to mediation or decide to use it later on at any time during the proceedings. In divorce proceedings during the first hearing for examination of the case ‘the court shall be bound to direct the parties to mediation or another procedure for voluntary resolution of the dispute. If the parties agree to use mediation, the divorce case will be put on hold. Each of the parties may request a resumption of the proceeding within six months. Unless such a request is made, the case shall be dismissed. Where settlement agreement is reached, depending on the content of the agreement the case shall be dismissed or a proceeding for divorce by mutual consent shall be proceeded with.’ (Section 321. (2) (3) and (5) of the Civil Procedure Code). d. Court-ordered mediation possible No. The judge can only inform the parties and propose that they use mediation for resolving the dispute, but cannot oblige them to do so. Even in divorce proceedings, where the judge has the obligation to refer the parties to mediation or another ADR method, the parties are free to reject participation in mediation proceedings and such a rejection does not have any negative consequences.

1 Last update of information: July 2013. 2 Lyubka Vasileva-Karapanova is co-founder and vice president of the Professional Association of Mediators in Bulgaria (PAMB), practicing mediator and mediation trainer. She is a lawyer with experience in different areas of law, including civil and commercial law, protection of intellectual property rights (trademarks), litigation and ADR and is currently legal advisor for Sopharma Pharmaceuticals PLC. Contacts: [email protected]; [email protected].

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e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court (Yes). There are no special incentives if mediation has been tried prior to initiation of the court action concerning the same dispute, but has finished without a settlement agreement being reached. However, in pending court cases, if the parties reach a settlement agreement that is subsequently implemented by the court in a court settlement agreement, ‘half of the stamp duty deposited shall be refunded to the plaintiff’. (Section 78 (9) of the Civil Procedure Code). h. Outside counsel presence/representation during mediation sessions allowed Yes. According to Section 12 (2) and (3) of the Mediation Act, the parties may participate in the mediation process personally or through a representative authorised in writing. Lawyers, as well as other specialists, may also participate in mediation processes. If necessary and agreed to by the parties, an external expert opinion can also be requested. i. Outside counsel presence mandatory No. At their own discretion, the parties decide whether and to what extent they will use advisors or experts.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Unlike the arbitration clause, which could serve as a ground for dismissal of the case (according to Section 8 of the International Commercial Arbitration Act ‘The court which has been seized with a claim related to a dispute which is subject to an arbitration agreement is obliged to terminate the case if the party refers to it within the time limit for response to the statement of action.’), there is no such rule in connection with the mediation clause, either in the Mediation Act, or in the Civil Procedure Code. Hence, despite the mediation clause, the judge is not entitled to dismiss the case on the ground that such a clause exists. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. (See 2.a) c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The mediation procedure is described in general terms. The law only prescribes the main principles of mediation and the respective duties and responsibilities of the mediator

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(including ethical rules of conduct), as well as the grounds for commencement, suspension or termination of the mediation procedure, its effect on the statute of limitations and the effect of the settlement agreement resulting from mediation. The way in which the mediation procedure itself is conducted is not subject to legal regulation. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). The procedural rules are flexible and subject to mediator’s and parties’ consent. There are no specific statutory provisions regarding the mediator’s style and approach, except the general prohibitions of Section 10(1),the Mediation Act, according to which ‘a mediator may not give legal advice’ and Section 6, stating that ‘a mediator shall not impose a resolution for the dispute’. Within these limits the parties and the mediator are free to agree on any organisation of the mediation procedure. In any event, the mediator must obey the ethical rules of conduct, guarantee his independence, impartiality and neutrality and respect the opinion of the parties and their equal rights to participation in the mediation procedure.

BG

c. Mediator can offer a non-binding opinion (No). As a rule, the mediator does not give advice and is especially banned from giving a legal opinion or advice (see 3.d.). However, it is not prohibited (but also not common practice) that on request of both parties the mediator could express their own non-binding opinion on non-legal issues. Furthermore, it is possible, especially in a deadlock situation, for the mediator to suggest or test some possible resolution options (usually in the form of hypothetical questions to the parties) in order to encourage the parties to generate their own solutions. d. Mediator can offer a binding opinion No. The Bulgarian Mediation Act promotes the model of facilitative mediation, without explicitly naming it, where the mediator supports parties in reaching their own agreement, without interfering with their final decision. The mediator may neither impose a resolution for the dispute nor provide legal opinion or advice (Section 6, and Section 10(1) of the Mediation Act). e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. (See 3.c. and 3.d). f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. The facilitative approach is predominant, although regarding the procedure itself the mediator has much more flexibility and control and may at his own discretion also use a more directive approach. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Transformative. (See 3.c. and 3.d.). A transformative approach, or a mixture of facilitative and transformative approach, is most commonly used in family cases, especially by mediators with a background in psychology. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. The facilitative approach is predominant, although regarding the procedure itself the mediator has much more flexibility and control and may at his own discretion also use a more directive approach.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. (See 3.c. and 3.d.) j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. According to the Mediation Act, the mediator may schedule separate meetings with each of the parties, with due respect for the equal rights thereof to participate in the process. In practice, usually the procedure starts with a joint meeting and, if necessary, may continue with a caucus or follow-up joint meetings. (It is up to the style of the mediator and the specifics of the case.) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. (See 3.j.). It is deemed that for family cases joint sessions (only) are often more appropriate. However, this is not a strict rule, so mixing joint sessions with caucuses is also a common practice.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. The Minister of Justice does the accreditation of mediators by entrying them in the Uniform Register of Mediators, provided that the requirements of the Mediation Act and of the Ordinance on its implementation are met. Foreign citizens may also be accredited as mediators, provided that they meet the same requirements and have a permit for long-term (new provision) or permanent residence in the Republic of Bulgaria. Such a permit is not required from nationals of Member States of the European Union, the other states from the European Economic Area and Switzerland. (Section 8(1) and (2) of the Mediation Act). b. Set by market (private certifying bodies) No. c. Set by public regulation Yes. The accreditation is given by registration in the Uniform Register of Mediators at the Ministry of Justice, providing that the candidate: a) is a legally capable person; b) has successfully passed mediation training; c) does not have a criminal record; d) has not been deprived of the right to exercise a profession or an activity; e) has a permit for long-term or permanent residence in the Republic of Bulgaria (if the person is a foreign national). This requirement does not apply to EU citizens (Section 8(1) and (2) of the Mediation Act). Persons holding administration of justice functions in the judiciary system are not permitted to carry out mediation activities (Section 4 of the Mediation Act). d. Number of hours for basic mediator training 60 hours at least. There is a requirement of a minimum of 60 hours of training, including at least 30 hours of practical training. Mediation training required for accreditation must be provided by an accredited training institution approved by the Ministry of Justice. Specific requirements for the minimum contents and duration of the training and the institutions providing it are specified in the Ordinance on the Implementation of the Mediation Act. The training is successfully completed after passing a test, a practical exam representing mock mediations, and an interview.

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e. Mandatory continuing professional development for accredited/certified mediators (No). A specific new provision for further training of mediators was included in the ordinance on the Implementation of the Mediation Act. It encourages mediators (without obliging them) to regularly improve their skills and knowledge by passing further theoretical and practical training in specialised mediation (such as commercial, family, labour mediation, etc.) and specifies the minimum duration (30 hours) and contents of such specialised training. (Section 11а of the Ordinance). The rules of some court-connected mediation schemes (e.g., the Settlement Centre at Sofia Regional Court) provide for annual assessments of the performance of their mediators. The number of mediated cases for the period, the feedback obtained from the parties to those cases and/or the co-mediator (in case of co-mediation) as well as participation in further training are considered as important factors in such an assessment. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. (See 4.1.a., 4.1.c. and 4.1.d.)

BG

g. Accreditation through written exam Yes. A written test at the end of the mediation training is part of the requirements for successful completion of that training. (See 4.1.d. and 4.1.c.) h. Accreditation through performance-based assessment Yes. The training required for accreditation as a mediator is successfully completed after passing a test, a practical exam representing mock mediations, and an interview.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are no special requirements for lawyers in order to act as representatives or advisors for their clients in mediation procedures. As the lawyer’s acceptance and understanding of mediation is considered crucial for the success of mediation and its promotion, many events to increase awareness, specialised workshops and seminars on mediation for the members of the legal society (including judges and attorneys) have been organised in the last 5 years by the Professional Association of Mediators in Bulgaria (PAMB) and some other mediation and bar associations. Such events, however, are still entirely private initiatives of mediation organisations. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. (See 4.1.a and 4.1.c) b. Set by public regulation

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Yes. (See 4.1.a and 4.1.c). Only natural persons meeting the accreditation requirements set by the Mediation Act and the Ordinance on its implementation and registered in the Uniform Register of Mediators at Ministry of Justice can perform as mediators. Persons holding administration of justice functions in the judiciary system are not permitted to carry out mediation activities (Section 4 of the Mediation Act). c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. There are not such requirements. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There are not such requirements.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. b. EU Directive implemented for all national and cross-border commercial cases Yes. The Mediation Act applies to all mediations in civil, commercial, labour, family and administrative disputes related to consumer rights, and other disputes between natural and/ or legal persons, including cross-border disputes. The EU Directive on mediation was implemented by the last amendments of the Mediation Act (SG No. 27/1 April 2011) and therefore also applies to all mediation cases – domestic or international. c. EU Directive implemented for all national and cross-border civil cases Yes. (See 6.b).

7.

Mediation legislation besides Directive

a. Mediation legislation since 2004. The Mediation Act (promulgated in State Gazette No. 110/17.12.2004, amended and supplemented, SG No. 86/24.10.2006, supplemented, SG No. 9/28.01.2011, amended and supplemented, SG No. 27/1.04.2011). Ordinance No. 2 of 15.03.2007, (last amended, SG No. 29/ 8 April 2011) on the implementation of Section 8 of the Mediation Act (regarding the registration rules for mediators and training organisations and the rules of procedural and ethical conduct for mediators) Some provisions of the new Civil Procedure Code (promulgated in State Gazette No. 59/20.07.2007, effective 1.03.2008, last amended, SG No.5/14 January 2011). b. Legislation updated since EU mediation directive (date update) (Yes) 2011. Despite having been in force well before the enactment of the EU Directive, the Mediation Act was in line with most of the requirements of the Directive. Therefore, only a few provisions were updated by the last amendments of the Mediation Act (SG No. 27/1 April 2011) in order to fully implement the Directive. The amendments mainly focused on ensuring higher protection for parties in mediation in four main areas: confidentiality, statute of limitations, mediator impartiality and neutrality, and enforcement of settlement agreements achieved in mediation.

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8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. According to the Mediation Act, the mediator must be a natural person. Such persons may also form associatoins in order to provide mediation services. The law does not limit the said association to a specific legal form, therefore it can take any form. b. Individuals may be providers of mediation services Yes. Mediation procedures may be implemented by one or more mediators (natural persons) selected by the parties. In practice, co-mediation, conducted by two mediators as a team is seen as a beneficial model often implemented in Bulgaria. c. Mediation provider qualifications/requirements determined by public regulation No.

BG

9.1. Mediator fees a. Freely contracted Yes. The only restriction regarding the mediator fees imposed by Section 34(2) of the Ordinance is that the mediator fees cannot be determined under conditions or be linked to the outcome of the dispute. Most mediation providers have their own fee schedules. Usually the mediator’s fee for the first 3 hours is payable in advance and is not refundable once the mediation begins. A non-refundable registration fee amounting to € 25.50 euro (€ 60 euro for cross-border, on-line mediation) that has to be paid at the time of submitting the request for mediation is also required. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases – € 41 per hour for cases in which material interest at stake not exceeding 100,000 3  BGN; – not less than 1% of the value of the disputed amount(material interest at stake) if it exceeds 100,000 BGN (in this case the fee is not per hour). For cross-border on-line mediations: – € 80 per hour for cases in which the material interest at stake does not exceed € 100,000; – € 100 per hour for cases in which the material interest at stake exceeds € 100,000. d. Average mediator fee per hour in civil cases – € 25.50 per hour for cases in which the material interest at stake does not exceed 30,000 BGN; – € 41 euro per hour for cases in which the material interest at stake is between 30,000 BGN and 100,000 BGN; – not less than 1% of the value of the disputed amount (material interest at stake) if it exceeds 100,000 BGN (in this case the fee is not per hour).

3

1 EUR=1.95583 BGN according to the official rate of exchange of the Bulgarian National Bank.

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For cross-border on-line mediations: – € 60 per hour for cases in which the material interest at stake does not exceed € 30,000; – € 80 per hour for cases in which the material interest at stake is between € 30,000 and € 100,000; – € 100 per hour for cases in which the material interest at stake exceeds € 100,000.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. Currently the existing court-annexed scheme operates pro bono on an entirely voluntary basis. This scheme – a Court Settlement Programme (with a settlement centre) – was initiated in the first quarter of 2010 by the biggest Bulgarian court – the Sofia Regional Court. Within this programme, parties in cases pending before the Sofia Regional Court have the opportunity to receive information and consultation regarding mediation, as well as professional assistance for resolving their case at the Court Settlement Centre. The Centre operates pro bono and the mediation service within the programme is delivered by volunteer mediators and judges trained in mediation techniques (the latter do not act as mediators). Having reached a settlement agreement, parties may present it before the court and request its implementation in a court settlement agreement having the legal effect of a court decision, thus enjoying the refund of 50% of the state fee already paid for the court action. From the beginning of 2011 the Court Settlement Centre extended its mediation service to the second biggest court in Bulgaria – the Sofia City Court – and attracted additional professional mediators to support its increased activity with the help of a project supported by the America for Bulgaria Fund, and implemented by the Professional Association of Mediators in Bulgaria.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). If mediation is conducted while a court proceeding regarding the same dispute is pending, it is the parties’ responsibility to inform the court about the suspension or termination of the mediation procedure or, if a settlement agreement has been reached in mediation, to ask the court to implement that agreement as a court settlement agreement. Mediators at the Court Settlement Centre mentioned in 9.2.g. have to report back to the coordinator of the programme and the referring judge about the progress of the mediation procedure concerning the referred cases they have mediated, but this duty is imposed for statistical purposes only and does not exempt the parties from their obligations to inform the judge themselves. As far as the said Court Settlement Centre is a self-organised structure, formed and run together by judges and mediators who participated in the programme, the decisions concerning the activity of this particular centre, its rules, the standards for assessment of its mediators and ensuring the quality of the service provided are taken by collective bodies formed by representatives of judges and mediators – participants in the programme.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The Bulgarian law recognises and regulates mediation as a voluntary and confidential procedure for out-of-court dispute resolution that can be conducted at any time, including during court proceedings handling the same conflict. The commencement of the mediation procedure has legal effect on the statute of limitations, which does not run during the mediation procedure (but for no longer than 6 months from its start) – Section 11(a) of the Mediation Act. Once the parties have reached a settlement agreement in mediation, they can ask the court to approve it as a court settlement agreement, thus making it enforceable (Section 18 of the Mediation Act).

BG

c. Mediation procedure has impact on statute of limitations Yes. The provisions of Section 11(а) of the Mediation Act explicitly state that no limitation period shall run during the mediation procedure. Since the provisions of Section 15(1)(6) of the Mediation Act provides for the termination of the mediation procedure 6 months after its commencement, this means in practice that the limitation period is suspended for no more than 6 months. The initial date of mediation (i.e., the day on which the limitation period is suspended) is explicitly defined as ‘the day on which the parties reached consent for commencement of the mediation procedure, and – in the absence of an explicit consent – the day of the first meeting between all participants and the mediator’/ (Section 11(2) of the Mediation Act).

11. Mediated settlement a. Contract Yes. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties Yes. The agreements reached in mediation in pending court cases may be submitted by both parties to the court panel hearing the case for approval as a court settlement agreement (Section 234 of the CPC). The court settlement agreement is enforceable, has the relevance of an effective judgment and is not appealable before a superior court. If no court proceedings have been initiated for the mediated dispute, the new Section 18 of the Mediation Act implementing the Mediation Directive applies. According to its provisions, ‘an agreement under a legal dispute reached in a mediation procedure shall have the force of a court settlement agreement and be subject to approval by the regional courts in the country. The court approves the agreement after it has been confirmed by the parties, unless it conflicts with the law and good morals. The court shall hear the opinion of the prosecutor, if a prosecutor participates as a party to the case.’ Another alternative for the parties is to ask a notary for notarisation of their signatures under the settlement agreement. The settlement agreement bearing notarised signatures may serve as a ground for the issuance of an enforcement order for the obligations contained therein to pay sums of money or other fungible assets, as well as for obligations to deliver particular things. If the debtor does not object to the enforcement order, it will enter into force and the court will issue a writ of execution. If the debtor objects to the enforcement order, the creditor requesting the enforcement order can bring an action to ensure that it is enforced.

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d. Enforceable under some circumstances defined by public regulation Yes. The law specifies the circumstances under which the settlement agreement becomes enforceable, but it is up to the parties to initiate the respective procedure (see 11.c.)

12. Confidentiality a. Regulated by law Yes. According to Section 7(1) of the Mediation Act, the participants in a mediation process are bound by the obligation to respect the confidentiality of all circumstances, facts and documents that have come to their knowledge in the course of the procedure. (External confidentiality towards third parties). Internal confidentiality (towards participants in mediation) – the mediator shall not communicate to the other participants in the mediation procedure any circumstances which relate to only one of the disputing parties without the explicit consent of the party in question (Section 10(4) of the Mediation Act). Mediators are obliged to maintain the confidentiality of all information received in the capacity of mediator, even after termination of their function as a mediator (Section 33 of the Ordinance). Exceptions to mediation confidentiality are only allowed on the grounds specified in the Directive 2008/52/EU. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. According to Section 166 of the Civil Procedure Code, mediators have the right to refuse to testify about a dispute they have mediated. The new paragraphs of Section 7 of the Mediation Act implementing the Directive increase this protection, setting out that a mediator cannot be interrogated as a witness in respect of circumstances confided to him/her by any of the participants which are relevant to the resolution of the dispute under mediation, except with the explicit consent of the participant who confided the circumstances (Section 7(2) of the Mediation Act). Exceptions to mediation confidentiality are only allowed on the grounds specified in the Directive 2008/52/EU.

13. Education a. Mediation education common component in legal education curriculum No. Some universities offer a facultative course on ADR (mediation and arbitration) as part of their legal education programme or include some lectures on mediation in it, but in general mediation education is not seen as a common component of the legal curriculum. In the autumn of 2012, a module on mediation was included in the training programme of the National Institute of Justice – an institution responsible for the initial training of candidate junior magistrates and the continuing training of magistrates. Since then two seminars on mediation for candidate junior magistrates and candidate junior prosecutors have been delivered as part of this training programme. As mentioned above (see 4.1.c.), the mediation training required for the accreditation of a person as a mediator is provided only by training institutions approved by the Ministry of Justice, most of which are mediation organisations. (The full list of the approved mediation training providers is available on http://www.justice.government.bg/MPPublicWeb/default. aspx?id=3)

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b. Mediation advocacy education common component in legal education curriculum No.

14. Most relevant literature or references, case law, articles, law –– Professional Association of Mediators in Bulgaria, ‘Mediation training – course book, level 1’, ‘Mediation training – course book, level 2’, ‘Mediation training – course book, practicum’;4 Professional Association of Mediators in Bulgaria, 2011, ‘Cross-border mediation – manual on cross-border and cross-cultural mediation’ by Arthur Trossen, Sevdalina Alexandrova and Albena Komitova; ‘Overview of the mediation legislation of some European countries’ by Lyubka Vasileva-Karapanova (covers Belgium, Czech Republic, Greece, Germany, Italy, Netherlands, Slovenia, Spain and UK);5 –– Feneia Publ., ‘Mediation between the victim and the criminal offender’ by ­Dobrinka ­Chankova –– Fliorir Publ., ‘Mediation and the Civil Procedures’ by Manio Manev; –– ‘Restorative justice’ by Dobrinka Chankova –– ‘Getting to YES’ by Roger Fisher and William L. Ury –– ‘Nonviolent communication’ by Marshall B. Rosenberg

BG

15. Mediation legislation texts a. Weblink to legislation in national language –– http://mediation-net.eu/index.php?option=com_content&view=article&id=23:mediation lawbg&catid=6:bulgaria&Itemid=43&lang=bg b. Weblink to English or other translation –– http://mediation-net.eu/index.php?option=com_content&view=ar ticle&id=23%3 Amediationlawbg&catid=6%3Abulgaria&Itemid=43&lang=en c. Other references: –– The Uniform Register of Mediators: http://www.justice.government.bg/new/Pages/ Registers/Default.aspx?evntid=eq0G%2bPC%2bawg%3d

16. Country specific remarks Mediation definition The Bulgarian Mediation Act (promulgated in State Gazette No. 110/17.12.2004, amended and supplemented, SG No. 86/24.10.2006, supplemented, SG No. 9/28.01.2011, amended and supplemented, SG No. 27/1.04.2011) defines mediation as follows:

4 These three books together cover the curriculum of the mediation training required for accreditation of mediators that is delivered by PAMB as one of the officially approved mediation training institutions. 5 These two works were written as part of the project ‘European network of mediators for crossborder dispute resolution’ funded by the European Commission and implemented by the Professional Association of the Mediators in Bulgaria (PAMB) in cooperation with Integrierte Mediation e. V. – Germany and the European Association of Judges for Mediation (GEMME) and were used in several training courses on cross-border mediation delivered simultaneously in Bulgaria and Germany by PAMB and Integrierte Mediation.

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'Definition of Mediation Section 2. Mediation is a voluntary and confidential procedure for out-of-court resolution of disputes, whereby a third party mediator assists the disputants in reaching a settlement.’ This has been the legal definition of mediation in Bulgaria since 2004 and it remained unchanged after the implementation of the EU Directive. It is also mentioned in Section 1 of the Mediation Act that ’mediation is seen as an alternative method of resolution of legal and non-legal disputes.’ Disputes that may be the subject of mediation are enumerated in Section 3 as follows: ‘Section 3(1) (Supplemented, SG No. 27/2011) Subject of mediation may be civil, commercial, labour, family and administrative disputes related to consumer rights, and other disputes between natural and/or legal persons, including when they are cross-border disputes. (2) Mediation shall furthermore be conducted in the cases provided for in the Criminal Procedure Code. (3) Mediation shall not be conducted if a law or another statutory instrument provides for another procedure for conclusion of an agreement. Regarding mediators, – according to Section 4 ’Mediation shall be implemented by natural persons. Such persons may associate for the purpose of implementing of the activity. No persons performing functions of administration of justice in the judiciary system may carry out mediation activities.’ – In addition Section 8(1) and (2),set  the following requirements: General Eligibility Requirements Section 8. (Amended, SG No. 86/2006) (1) A mediator may only be a legally capable person who meets the following requirements: 1. has not been convicted for criminal offences at public law; 2. has successfully undergone a course for mediators 3. has not been deprived of the right to exercise a profession or conduct an activity; 4. (Supplemented, SG No. 9/2011) has a permit for long-term or permanent residence in the Republic of Bulgaria, in the event the person is a foreign national; 5. has been entered in the Uniform Register of Mediators with the Minister of Justice (2) (Effective as from the date of entry into force of the Treaty concerning the Accession of the Republic of Bulgaria to the European Union.) The requirement under paragraph 1, item 4 does not apply to nationals of Member States of the European Union, the other states from the European Economic Area and Switzerland.

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Mediation regulation and approach Country: Bulgaria Prepared by Lyubka Vasileva-Karapova 1. Attempt to mediate

2. Mediation clause

BG

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes No Yes No No No (Yes) Yes No Yes No No (Yes) (Yes) (No) No F F F/T F NA Mix Mix Yes No Yes >60 hrs (No) Yes Yes Yes

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Mediation regulation and approach Country: Bulgaria Prepared by Lyubka Vasileva-Karapova 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No Yes No No No Yes Yes 2004 2011 Yes Yes No Yes No €41-100 €25,50-100 No No No (No)

Yes Yes Yes No Yes Yes Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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4. CROATIA 1 Prepared by Mladen Vukmir2

1.

Attempt to mediate

a. Always voluntary (Yes). In most of case, mediation in Croatia is of a voluntary nature. However, there are some specific situations where the court can order mediation (see 1.b. and d.)

HR

b. Mandatory (in some cases) Yes. Exemptions of voluntary access to mediation are provided for the Labour Act for collective labour disputes, as well as by the Family Act, where mediation is obligatory in the divorce cases (see 1.d.). In such cases, the parties are subject to mediation in order to fulfil the conditions for court protection. c. Court referral or court-connected mediation possible Yes. According to the changes and amendments to the Civil Process Code (2008), judges have discretion over referral to mediation before the court, taking into account the circumstances of the case. Also, the present system allows the referral to mediation through all stages of civil procedure. d. Court-ordered mediation possible Yes. This possibility is prescribed by the Section 270 of the Labour Act for disputes which can lead to strikes or other types of industrial action. However, the parties can agree to ADR proceedings other than mediation. Also, the mediation procedure under the Family Act applies in divorce proceedings if the spouses have minor or adopted children or children under their parental care after the age of majority. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith No. g. Incentives if mediation is tried voluntarily before going to court (Yes). The party who suggested the mediation can be exempted from paying the court fees. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator.

1 2

Last update of information: January 2014. In 1991, Mladen Vukmir founded Vukmir & Associates, a law firm in Zagreb, Croatia. Since 2010 Mladen Vukmir has been an IMI (International Mediation Institute) Certified Mediator and since 2011 a Croatian Ministry of Justice certified mediator. Contact: [email protected].

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i. Outside counsel presence mandatory No. The presence of legal professionals outside Council is not mandatory, due to the informality of the mediation procedure, which implies that procedural rules are not applicable. However, for cases of a more complex nature, such as cross-border or commercial cases, the presence of lawyers may be advisable in order to facilitate the parties in articulating their own positions and interests through mediation.

2. Mediation clause a. Case admissible in court with a mediation clause (No). We are not aware of any practice in this regard and there is no provision in the law regarding this aspect except for the circumstances described in 2.c. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (No). See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). Mediation clauses incorporated into contracts are binding for the parties, as prescribed by Section 18 of the Croatian Mediation Act, under the following condition: if the parties have agreed to mediation where it is expressly stated that during a specific period of time or until the exact terms are met they will not initiate court, arbitration or other proceedings, such an agreement shall be binding. In this case, the court, arbitrator or other body before which the proceedings on the subject of the dispute is initiated, shall dismiss the procedure, but only upon the request of the opposing party. This enables the parties to bypass the court proceedings, and to achieve productive solutions with the help of a professional mediator.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (No). Mediation itself is regulated by the Croatian Mediation Act (2003, amendments in 2009 and 2011). The Act was rather different from version to version in some aspects. Also, certain aspects of mediation are regulated by different Acts (Civil Process Act, Family Act, Labour Act etc.). However, the way in which the mediation is conducted is completely up to the parties themselves, and the approach of the mediator. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Since civil process rules are not applied in the mediation procedure, and due to its voluntary nature, the mediation procedure can be described as flexible. The way in which the mediation is conducted is up to the parties, and the mediator’s preferences and suggestions. c. Mediator can offer a non-binding opinion (No). As a rule mediators do not offer any binding advice or suggestion, however, in some cases (evaluative mediation) they can give an opinion at the request of the parties. In practice, if the mediator has specific professional expertise, they sometimes expressly ask for an opinion.

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a. Mediator can offer a binding opinion (No). Generally, mediators do not offer advice if the parties have not expressly agreed to this, and are even less likely to do so for advice that can be considered as binding. According to the Croatian Mediation Act, mediators can suggest the text of the mediation settlement to the parties, or if they do not, the parties can request this. b. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Most of the local basic mediation training provides for the facilitative approach. c. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. While most mediators use a facilitative approach, some mediators with more traditional styles, or with a legal background, will use a directive approach during the process.

HR

d. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Most local basic mediation training provides for the facilitative approach. Therefore, even in civil disputes the style that dominates is facilitative. Some mediators with a legal background may be more directive, and those with a background in psychology may use some transformative elements. e. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. While most mediators use a facilitative approach, some mediators with more traditional styles, or with judicial background will use a directive approach re process. f. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice/legal opinion. Evaluation is usually conducted in an informal manner, in the form of general advice from a ‘senior/experienced’ vantage point. Giving legal opinions is not used often in mediation, but one can expect it to be used more frequently in the future as the mediation market develops further. g. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix/joint sessions. While most mediators use a mixed process as a default, some mediators with more sophisticated styles will use joint sessions as a default, with caucuses being the exception. h. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix/joint sessions. While most mediators use a mixed process as a default, some mediators with more sophisticated styles will use joint sessions as a default, with caucuses being the exception.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Standards for the accreditation of mediators are set by the Regulations on the register of mediators and standards for the accreditation of institutions for mediation and mediators (hereinafter: the Regulations; Official gazette No. 59/11). This Regulation also regulates

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the content, form and manner in which the register of mediators is kept. Therefore it is prescribed that the register of mediators is maintained by the Ministry of Justice. The register is public and everyone has the right to inspect it without proof of legal interest. In order for a mediator to be listed in the register, it is necessary to obtain a certificate issued by an accredited institution on the basis of basic training for mediators. According to the provisions of Section 10 of the Regulations, accredited institutions for mediation are those authorised by the Croatian Mediation Act or those that obtain approval from the Ministry of Justice for conducting basic and advanced training for mediators, conducting training for mediator trainers as well as for conducting mediation in their mediation centres. b. Set by market (private certifying bodies) No. It is expected that in the future the market will work in two directions. It is likely that it will favour certified mediators, and will favour specific experience and styles within that group. Of course, it is conceivable that some non-certified mediators will survive the market forces, at least until such time as certification becomes mandatory. c. Set by public regulation Yes. The standards for the accreditation of mediation institutions as well as mediators are set by the Regulations. See 4.1.a. d. Number of hours for basic mediator training 40 hours. The basic mediation training in Croatia consists of a minimum of 40 hours, as prescribed by the provision of Section 9(2) of the Regulation. e. Mandatory Continuing Professional Development for accredited/certified mediators (Yes). In addition to basic training, a certified mediator needs to take further advanced training of a minimum of 20 hours. Section 7 of the Regulation prescribes that certified mediators have to submit a certificate from an accredited mediation institution as confirmation of having undergone advanced training. Such a certificate must be submitted every two years, counting from entry in the register of mediators. Certified mediator trainers who have participated in conducting mediator training for at least 20 hours during the two years after obtaining a trainer’s certificate are exempt from this f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) Yes. Once a mediator has a certificate from an accredited institution on the basis of completing the basic training for mediators, he/she can request registration in the register of mediators. g. Accreditation through written exam Yes. See 4.1.h. h. Accreditation through performance-based assessment Yes. According to the provisions of Section 11 of the Regulations, there is evaluation of basic theoretical and practical knowledge through examination, conducted before a committee of at least three trainers who conduct basic training of mediators. Furthermore, the said provision determines that examination will focus on subject matters related to a theoretical approach and the specifics of the mediation procedure, the stages of mediation and simulation of skills and techniques used in mediation procedures. Course participants who do not take or pass the examination cannot obtain a mediator certificate.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. j. Set by market (private certifying bodies) Yes. The initiative to obtain a certificate is private, however, we have noticed an increased presence of attorneys attending basic training who do not necessarily aim to act as certified mediators, but are seeking to understand mediation better within their role as legal practitioners. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

HR

a. Set by market (private certifying bodies) (No). Although we have public regulation, Croatia does not prohibit uncertified mediators from acting as mediators. However, it is to be expected that the market will move towards certified mediators, and in any case, trained mediators. b. Set by public regulation (Yes). It is stipulated that some mediation procedures may only be delegated to certified organisations or persons who are determined by special mediator lists (i.e., in divorce proceedings or collective labour disputes). In addition, since there is regulation, almost every trained mediator is at the same time a certified mediator. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) (No). Lawyers and others with a legal education appear to be mediators in most of the cases. However, besides lawyers, other professionals are included in mediation procedures as well. Sometimes this option even appears to be more convenient for the parties, especially in cases dealing with very sensitive issues (such as family disputes) or in cases where the disputes are of a specific and complex nature (like disputes concerning medicine, finance, construction works etc.). Thus, mediators may be accountants, engineers, architects, social workers, psychologists and experts on labour relations, doctors, consultants, educators etc. Furthermore, parties are usually accompanied by their lawyers, who supervise the legal aspects of the mediation settlement, which is also in favour of mediators who do not have legal education. If mediation involves court proceedings that have already been initiated, the Croatian Mediation Act prescribes that, if the parties do not agree otherwise, the independent body will appoint a mediator who is a judge or lawyer. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. In accordance with the Section 1(2), the Directive is only applied to civil and commercial cross-border disputes, with the exception of cases involving rights and obligations of which

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the parties are not at liberty to dispose. However, given that the general view of the European Community is that the dual legal regime (one for cross-border and the other for all other disputes) would cause legal insecurity, the concept of unified legal regime for both domestic and cross-border disputes is a more acceptable option for Croatia. b. EU Directive implemented for all national and cross-border commercial cases (Yes). Pursuant to the previous question, the Croatian Mediation Act implements the Directive in a way that it applies to both national and cross-border commercial and civil cases. However, it should be noted that the provisions of the Directive regulating mediation in cross-border commercial and civil activities have been in force since the recent accession of Croatia to the EU on 1 July 1 2013. c. EU Directive implemented for all national and cross-border civil cases (Yes). See 6.b.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2003. The first Mediation Act (Official Gazette NN 163/03) in Croatia was introduced in 2003 and based on the UNCITRAL Model Law on Mediation. b. Legislation updated since EU mediation directive (date update) Yes 2011. The Mediation Act was amended in 2009. The new Mediation Act of 2011 supersedes the previous versions, while implementing the EU Directive, with exception of provisions related to cross-border activities which have been in force since Croatia’s accession to the EU, on 1 July 2013.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Pursuant to the Mediation Act, a mediation organisation may be a legal person, an entity of a legal person or an organisational unit of a legal person that organises mediation proceedings. So far, most of them are in the form of associations or professional organisations founded by law, such as the Croatian Mediation Association (HUM), Chamber of Trades and Crafts etc. Also, other professional organisations, such as the Bar Association, have founded their own mediation centres. Such centres are then established by a special decision of the assembly of the association as independent bodies within the umbrella association. b. Individuals may be providers of mediation services Yes. Although not set by law explicitly, there are no obstacles for an individual to be a mediation provider within the broader legal framework. c. Mediation provider qualifications/requirements determined by public regulation (No). There is no specific structure for mediation providers determined by the law. It depends on the legal form in which the mediation provider is incorporated. For example, the HUM consists of bodies which are characteristic for an association: the General Assembly, the Board of Directors, Chairman and the Supervisory Board. On the other hand, mediation providers established as mediation centres within a certain association (such as the Bar Association’s mediation centre), have a Board of Directors of the Centre and a Secretary.

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9.1. Mediator fees a. Freely contracted Yes. According to the rules of the HUM compensation for mediator’s work is freely determined in a form of agreement between each mediator and the parties. If no agreement is reached, the mediator fee is determined by the value of the dispute. Fees for the disputes in which the monetary value cannot be determined amounts to HRK 1,000 (corresponding to approx € 130,00), unless otherwise agreed by the parties. Different mediation providers have different fee structures. The Croatian Chamber of Economy keeps the fees fixed at a low amount, the Bar Association Mediation Centre allows for free contractual arrangements.

HR

b. Fixed in some cases by public regulation Yes. As mentioned above, the Croatian Chamber of Economy has fixed mediation fees which are prescribed by the Decision on the Costs of Mediation Proceedings. In line with the provision of Section 4 of this Decision, the fee for each mediator who takes part in the proceedings amounts to 1,200 HRK for each day of mediation started (corresponding to approx. € 160). Here it should be noted that these fees were intended to popularise mediation but resulted in fees being too low to get quality mediation in return. c. Average mediator fee per hour for commercial or cross-border cases € 50-250 (estimate). In practice, fees may vary depending on what is determined by the parties, the mediator’s experience, the type of mediation, the value of the dispute etc. As a general rule, the fees are calculated based on the value of the dispute. However, according to the Section 7(2) of the Decision on Costs of Mediation Proceedings of the HUM, higher costs are charged for more complex disputes. If a mediator is engaged in a dispute which requires specialised knowledge, if mediation is performed in a foreign language, and if the value of the dispute exceeds HRK 4,000,000, the fee for the mediator’s work is increased by 30%, and initial administrative costs by 100%. Such differences are definitely reasonable, however, to avoid abuse, the Secretary of the Association decides on the need for specialised knowledge, on the degree of complexity of the dispute as well as on the need to conduct the mediation in a foreign language. http://www.mirenje.hr/index.php/centar-za-mirenje/trokovnik.html) d. Average mediator fee per hour in civil cases € 65-120 (estimate). Within certain mediation providers, such as the Bar Association Mediation Centre, it is generally accepted that mediation fees may be freely arranged for each individual mediation contract. Therefore, mediation fees per hour usually range between HRK 500 to HRK 900 (corresponding to between € 65 and € 120). Also, in more complex commercial disputes, the fees may be higher. (See also 9.1.a, b and c)

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). The Croatian Legal Aid Act (Official gazette No. 143/14) provides that legal aid is granted in all proceedings before courts, administrative bodies and other legal persons working for public authorities when deciding on existential issues. The Act defines that primary legal aid includes legal assistance for amicable out-of-court dispute settlement, as well as secondary legal aid including legal assistance for amicable dispute settlement in court. Approval of any form of legal aid includes exemption from payment of fees and litigation

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costs. Here we would like to emphasise that, despite existing regulation in this matter, we are not aware of these provisions being applied in practice. f. Mediator fees covered by legal insurance schemes (Yes). While mediator fees are in some cases covered by legal insurance, it has to be noted that this apparently only applies to mediation related to insurance or reparation of damages disputes arising from insurance contracts or the law. In this case, if mediation is carried out by the Mediation Centre founded by the Croatian Insurance Office, all the mediation costs/ mediator fees are paid by the insurance company. Furthermore, the parties are exempt from paying the official fees because all the administrative costs are paid directly through the Croatian Insurance Office. http://www.huo.hr/hrv/--/15/detalji/ g. Mediator fees subsidised in court-connected schemes Yes. For court-connected mediation, parties who try mediation after referral by the court are exempt from paying the costs, except for a nominal official fee. In practical terms it can be said that mediation before going to court is free for the parties (unlike at mediation centres where it is charged). (Regulations on the procedure of mediation before the Higher Commercial Court of the Republic of Croatia, Section 2; http://www.vtsrh.hr/index.php?page=conciliation&lang=hr)

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (Yes). Mediation before the court is conducted by mediators on the list of mediators. They are generally judges, but also advocates who have obtained a mediator certificate. A mediator role can be assigned to experts from various professions whose knowledge might be important to the dispute resolution in question. http://www.vtsrh.hr/uploads/Dokumenti/Mirenje/Osnovni_podaci_o_mirenju_pri_sudovima.pdf b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The Croatian Mediation Act of 2003 incorporated mediation into the Croatian legal system. In 2006, within the strategy to reform the legal system, the pilot project for mediation in the Commercial Court was initiated, thus introducing mediation as a separate dispute resolution method for the first time. Based on that project, the implementation of mediation has taken place in eight other courts throughout the country, within the framework of the project ‘Mediation before the courts’. In 2007 the implementation of mediation proceedings in the Croatian High Commercial Court was introduced, making it the first appellate court in the Republic of Croatia with an established mediation centre. The role of mediation as a part of the Croatian legal system has become even more important since the introduction of the EU project ‘Improvement of mediation as alternative dispute resolution’ in 2008, implemented by the Ministry of Justice and assisted by mediation centres. The overall objective of this project is to provide easier access to justice through the development of alternative dispute resolution, while its purpose is the development of alternative dispute resolution services in Croatia and its adaptation according to best practices in the European Union. It is also intended to develop alternative dispute resolution before and outside the courts.

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Amendments of the Civil Procedure Act have introduced mediation throughout the duration of the entire litigation process. c. Mediation procedure has impact on statute of limitations (Yes). The provisions of Section 17 of Croatian Mediation Act regulate the effects of the mediation procedure on periods of limitation and prescription. It is prescribed that parties who have opted for mediation in an attempt to settle their dispute will not be deprived of the possibility of initiating judicial, arbitral or other proceedings because of the expiry of limitation or prescription periods. In other words, the initiation of mediation proceedings shall suspend the application of the statute of limitations. Also, if mediation terminates without settlement, it is considered that no suspension of limitation has occurred. However, the Act prescribes an exception for cases where a claim is filed, or other procedural activities before the court or other competent authority are undertaken in order to determine, secure or assert a claim within 15 days after the termination of mediation. In such situations, limitation shall be considered suspended at the moment the mediation proceedings were initiated. If the time limit for filing a claim is provided for in a separate regulation, this time limit shall not run during mediation proceedings and it shall start running again at the end of the fifteenth day following the termination of mediation.

HR

11. Mediated settlement a. Contract Yes. A mediated settlement qualifies as a binding contract, in accordance with Croatian Civil Code. If the parties have undertaken obligations under the settlement, they are bound to fulfil them. b. Automatically enforceable (Yes). As provided under Section 13(1), (2) and (3) of the Croatian Mediation Act, a settlement agreement concluded in the course of mediation proceedings is enforceable only if it contains a clause setting the obligation to perform an act over which the parties may reach a settlement and if it contains the obligor’s statement on immediate authorisation of enforcement (an enforcement clause). In this case the obligor explicitly agrees that on the basis of the settlement agreement, to perform the obligation, immediate enforcement may be ordered. Therefore, enforceability is not fully automatic because the enforcement clause has to be incorporated into the agreement. Once a valid clause is entered into the agreement, enforceability becomes automatic. The required formalities are not set by law and are then debated between the mediation stakeholders, namely the court and the mediators. c. Enforceable under some circumstances which are up to the parties Yes. The parties need to agree on the inclusion of the enforcement clause, and can even notarise the settlement agreement, although this is not expressly required for its enforceability, as prescribed by Section 13(5) of the Croatian Mediation Act. d. Enforceable under some circumstances defined by public regulation Yes. The Section 13 of the Croatian Mediation Act determines that a settlement agreement in mediation proceedings is enforceable if the prescribed conditions are met (See 11.b.).

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12. Confidentiality a. Regulated by law (Yes). According to the Section 14 of the Croatian Mediation Act, unless otherwise agreed by the parties, the mediator must keep all information and data received in the course of the mediation proceedings confidential in relation to third persons, except where disclosure is required by the law or where it is necessary for the implementation or enforcement of the settlement agreement. Furthermore, the mediator shall be liable for the damage caused by his or her violation of this obligation. The above provisions are applied accordingly to the parties and other persons who have participated in mediation proceedings in any capacity. Confidentiality in relation to the meetings of the parties and the mediator is regulated by the provisions of the Section 10(2),of the Croatian Mediation Act, which prescribes that, unless the parties have agreed otherwise, the mediator may communicate information or data received by one party to the other party only with the other party’s consent. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). The question of admissibility of evidence in judicial, arbitral or any other proceedings is regulated by the Section 15 of the Croatian Mediation Act. It is prescribed that it is not permitted to make statements, propose evidence or submit any other proof in whatever form regarding any of the following: a) the fact that a party proposed or accepted mediation; b) the parties’ statements of facts or proposals made during mediation proceedings; c) admission of claims or facts made in the course of mediation proceedings if such admissions and observations are not a constituent part of the settlement; d) documents prepared solely for the purpose of mediation proceedings, unless it is stipulated by law that their communication is necessary for the implementation or enforcement of the settlement agreement; e) the parties’ willingness to accept the proposals made during mediation proceedings; f) other proposals made during mediation proceedings. Such evidence shall be rejected as inadmissible. However, according to the principle of autonomy of the parties, they can agree otherwise. The above provisions are based upon the UNCITRAL Model Law on International Commercial Conciliation.

13. Education a. Mediation education is a common component of legal education No. There are no mediation courses offered by universities in Croatia. Mediation is usually discussed within family law and labour law courses at universities. Within civil process law, mediation issues are discussed in relation to the conclusion of extra judicial settlement between the parties. So far, only the Faculty of Law in Zagreb offers an optional ADR course. b. Mediation advocacy education is a common component of legal education No. Although mediation advocacy education is not a common component of legal education in Croatia, there are some attempts for advocacy education concerning mediation through other channels. Based on the EU project ‘Improvement of mediation as alternative dispute resolution’, the Croatian Ministry of Justice has introduced training programmes for mediators. Basic and advanced courses are offered within the HUM, the Croatian Chamber of Trades and Crafts, the Croatian Economy Chamber and the Croatian Employers’ Association. Many attorneys attend these courses with the intention of learning advocacy through a mediator’s eyes. In addition to this, a mediation centre was established at the Croatian Bar Association, in line with Directive 2008/52 EC of the European Parliament at the Council

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of 21  May 2008 concerning specific aspects of mediation in civil and commercial matters (Official Journal of the European Union L-136 of 24/05/2008).

14. Most relevant literature or references, case law, articles, law –– –– –– –– ––

B. Blazevic: ‘Mediation according to the Civil Procedure Act’; in Croatian B. Blazevic: ‘Commentary on the Croatian Mediation Act’; in Croatian S. Simac: ‘Mediation-an alternative way of dispute resolution’; in Croatian A. Uzelac: ‘Mediation as an alternative to litigation’; in Croatian M. Vukmir: ‘Embracing the Negative to Achieve the Positive’; in English

15. Mediation legislation texts a. Weblink to legislation in national language –– http://narodne-novine.nn.hr/clanci/sluzbeni/2011_02_18_310.html b. Weblink to English or other translation –– http://www.hgk.hr/wp.../mediationact2011141192.doc

HR

a. Other references –– In Croatian. Croatian mediation (HUM): http://www.mirenje.hr

16. Country specific remarks Mediation definition: Mediation is defined by the provisions of Section 3 in the Croatian Mediation Act (Zakon o mirenju) which was last amended in 2011 and published in Official Gazette No. 18/2011: ‘Mediation means any proceedings, regardless of whether they are conducted before the court, a mediation organisation or outside such institutions, in  which the parties attempt to resolve their dispute amicably, with the assistance of a mediator or mediators who assist them in reaching a settlement agreement without having the authority to impose any binding solution on them’. In Croatian: „mirenje je svaki postupak, bez obzira na to provodi li se u sudu, instituciji za mirenje ili izvan njih, u kojem stranke nastoje sporazumno riješiti spor uz pomoć jednog ili više izmiritelja koji strankama pomažu postići nagodbu, bez ovlasti da im nametnu obvezujuće rješenje’ Section 3 of the Croatian Mediation Act defines the terms ‘mediator’ and ‘mediation organisation’ as well: ‘Mediator means a person who conducts mediation on the basis of an agreement made between the parties’; in Croatian: ‘Izmiritelj je osoba koja na temelju sporazuma stranaka provodi postupak mirenja’. ‘“Mediation organisation” means a legal person, an entity of a legal person or an organisational unit of a legal person which organises mediation proceedings’. In Croatian: ‘Institucija za mirenje je pravna osoba, tijelo pravne osobe ili ustrojstvena jedinica pravne osobe koja organisira postupke mirenja’.

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Mediation regulation and approach Country: Croatia Prepared by Mladen Vukmir 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(Yes) Yes Yes Yes No No (Yes) Yes No (No) (No) (Yes) (No) Yes (No) (No) F F/D F F/D GA/LO Mix/joint Mix/joint Yes No Yes 40 hrs (Yes) Yes Yes Yes

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4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive

HR

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No (No) (Yes) (No) No No (Yes) (Yes) 2003 2011 Yes Yes (No) Yes Yes €50-250 (est.) €65-120 (est.) (Yes) (Yes) Yes (Yes)

Yes (Yes) Yes (Yes) Yes Yes (Yes) (Yes) No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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5. CYPRUS1 Prepared by Agis Chr. Georgiades2

1.

Attempt to mediate

a. Always voluntary Yes. The Certain Matters Relating to Mediation in Civil Cases Act of 2012 (‘the Act) only allows voluntary recourse to mediation. b. Mandatory (in some cases) No. The Act does not allow mandatory mediation under any circumstances. c. Court referral or court-connected mediation possible Yes. Section 15(a) of the Act allows the court to suggest that the parties consider mediation for their case. Furthermore, Section 15(b) makes it possible for the parties to jointly apply for the case to be referred to mediation. d. Court-ordered mediation possible No e. Sanctions by the court if mediation is not tried (in good faith) No. The Act does not make any such provision. It is possible for limited sanctions to be introduced in future case law. f. Sanctions by law if mediation is not tried (in good faith) No. The Act does not make any such provision. g. Incentives if mediation is tried voluntarily before going to court No. Unfortunately, the Act does not contain any relevant provision. h. Outside counsel presence/representation during mediation sessions allowed Yes. Under Section 21(1) of the Act, a party may appear in the mediation with any other person, including an advocate. i. Outside counsel presence mandatory No.

1 2

Last update of information: January 2013. Agis Chr. Georgiades was admitted to the Cyprus Bar Association in 2006 and is the first Cypriot lawyer to be certified as an Accredited Mediator by the Chartered Institute of Arbitrators. Agis is currently the secretary of the Cyprus Branch of the Chartered Institute of Arbitrators, of which he has been a member (MCIArb) since 2006. He has published articles in relation to arbitration and mediation. Agis has regular appearances in the Supreme Court of the Republic of Cyprus and the Tenders Review Authority and also represents clients in mediation and arbitration proceedings. Contact: agis@ georgiades-law.com.

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Mediation clause

a. Case admissible in court with a mediation clause (Yes). The Act is silent on the matter. Therefore it would appear that a party can proceed in court irrespective of the mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. The Act is silent on the matter. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). The Act is silent on the matter.

2. Mediation procedure

CY

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. The procedure is left to the parties and the mediator to decide under Section 16 of the Act. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. See 3.a. c. Mediator can offer a non-binding opinion (Yes). Under Section 11(6) of the Act, the mediator may, at the parties’ request, make suggestions to the parties. Such suggestions are of a non-binding nature. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. Since mediation has only recently been introduced in Cyprus, the answer to this question is not clear. It is expected that mediators will use both facilitative and evaluative styles. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. See 3.e.

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j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. See 3.e. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.e.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Mediators are required to be registered with the Ministry of Justice and Public Order. Section 7(a) requires training in mediation for a person to be so registered. b. Set by market (private certifying bodies) No. Currently, there are no organisations in Cyprus offering mediator training or accreditation. c. Set by public regulation Yes. Section 7(a)(ii) provides for mediation training by the Cyprus Chamber of Commerce and Industry and the Cyprus Scientific and Technical Chamber. d. Number of hours for basic mediator training 40 hours. Section 7(a)(i) allows lawyers who have been accredited in mediation to be registered. There is no express requirement for particular type of length of training. For members of the Cyprus Chamber of Commerce and Industry and the Cyprus Scientific and Technical Chamber, Section 7(a)(ii) requires 40 hours of training for a member of the said chambers to be allowed to be registered. e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. This matter is expressly dealt with in Section 12. It provides that each registered mediator should attend at least 24 CPD hours every 3 years, through the Cyprus Chamber of Commerce and Industry or the Cyprus Scientific and Technical Chamber. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) No. See 4.1.b. g. Accreditation through written exam No. See 4.1.b. The Act does not place such requirement. h. Accreditation through performance-based assessment No. See 4.1.g.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. The law does not stipulate any requirements in this regard. j. Set by market (private certifying bodies) No. See 4.2.i.

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k. Set by public regulation No. See 4.2.i.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. See 4.1.g. b. Set by public regulation Yes. See 4.1.d. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 4.1.d. However, for civil cases that are not commercial, only lawyer-mediators are allowed to be appointed (Section 5(1)(b)). d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

CY

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. Section 3 determines the scope of application of the Act. Accordingly, the Act applies to all civil (and commercial) cases (with certain exceptions). But it only applies to cross-border labour disputes. b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases (Yes). See 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2012. b. Legislation updated since EU mediation directive (date update) No. The Act was enacted to implement the EU mediation directive.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms (Yes). The Act does not deal with mediation providers. b. Individuals may be providers of mediation services Yes. See 8.a.

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c. Mediation provider qualifications/requirements determined by public regulation No. See 8.a.

9.1. Mediator fees a. Freely contracted Yes. The Act leaves it to the parties and the mediator to decide (Section 16). b. Fixed in some cases by public regulation No. See 9.1.a. b. Average mediator fee per hour for commercial or cross-border cases € 120 (estimate). This is a rough estimate as mediation has only recently been introduced in Cyprus. c. Average mediator fee per hour in civil cases € 80 (estimate). See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services No. Cyprus law does not allow legal aid for mediation. f. Mediator fees covered by legal insurance schemes No. Now that mediation has been introduced by law, it is probable that such fees will be covered by legal insurance schemes in the near future. g. Mediator fees subsidised in court-connected schemes No. The Act does not make such provision.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Since mediation can be utilised pending a court case, it can be considered as ‘complimentary’ to the legal system. c. Mediation procedure has impact on statute of limitations Yes. Section 27 states that the period from commencement to termination of the mediation is not included in the limitation period.

11. Mediated settlement a. Contract Yes. A settlement can only be achieved by agreement (Section 29(a)).

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b. Automatically enforceable No. The court has a discretion to reject an application for enforcement if the settlement agreement is against the law or cannot be enforced or the subject matter of the mediation is not capable of being resolved by mediation (Section 32(3)). c. Enforceable under some circumstances which are up to the parties (Yes). Section 32(1) provides that a settlement agreement can be enforced by joint application of the parties, or by the application of one of the parties, with the consent of the other. d. Enforceable under some circumstances defined by public regulation No. The Act does not make such provision.

12. Confidentiality a. Regulated by law Yes. Sections 23(1) & 24 place an express duty of confidentiality on the mediator and all other persons involved in the mediation.

CY

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). Under Sections 23(1) & 24, evidence heard before the mediator cannot be used in subsequent proceedings, subject to limited exceptions.

13. Education a. Mediation education is a common component of legal education curriculum No. Introducing ADR as part of undergraduate law degrees is under consideration by local universities. b. Mediation advocacy education is a common component of legal education curriculum No. The Bar training and examinations do not include mediation advocacy.

14. Most relevant literature or references, case law, articles, law –– Agis Georgiades, ‘Evaluation Tactics in Mediation’ 20(2) Kuπριακό Νομικό Bήμα 39 (2011). –– Agis Georgiades ‘Chapter 6: Cyprus’ (in collaboration with Guiseppe De Palo & Mary Trevor), in EU Mediation Law and Practice (Oxford: 2012, Oxford University Press).

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.cylaw.org/ b. Weblink to English or other translation NA.

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c. Other references NA.

16. Country specific remarks Use of mediation is still very limited. Mediation definition Περί Ορισμένων Θεμάτων Διαμεσολάβησης σε Αστικές Διαφορές Νόμος του 2012 2. «διαμεσολάβηση» σημαίνει διαρθρωμένη διαδικασία, ανεξαρτήτως ονομασίας, στην οποία δύο ή περισσότερα μέρη μιας διαφοράς επιχειρούν εκουσίως να καταλήξουν σε συμφωνία σχετικά με την επίλυση της διαφοράς τους, με τη βοήθεια διαμεσολαβητή· The Certain Matters of Mediation in Civil Disputes Act of 2012 2. ‘Mediation means a structured process, however named, whereby two or more parties to a dispute attempt, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.’

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Mediation regulation and approach Country: Cyprus Prepared by Agis Chr. Georgiades 1. Attempt to mediate

2. Mediation clause

CY

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes No Yes No No No No Yes No (Yes) No (No) No Yes (Yes) No F/E F/D F/E F/D NA Mix Mix Yes No Yes 40 hrs Yes No No No

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Mediation regulation and approach Country: Cyprus Prepared by Agis Chr. Georgiades 4.2. Mediation advocacy accreditation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

No No No

5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

(Yes) Yes No

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

No No Yes (Yes) 2012 No

Yes No €120 (est.) €80 (est.) No No No No

(Yes) Yes Yes No (Yes) No Yes (Yes) No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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6. The CZECH Republic1 Prepared by Bie Heyninck 2

1.

Attempt to mediate

a. Always voluntary (Yes). Czech law does not provide for regulation of compulsory mediation. It only allows that in cases where it is practical and appropriate, the court refers the dispute to a compulsory meeting with a mediator and for that purpose a court abandons the proceedings. Mediation is initiated by a voluntary contract to mediate between the mediator and the parties. The contract should explain the nature of the dispute and identify the parties to the conflict.

CZ

b. Mandatory (in some cases) (No). See 1.a. c. Court referral or court-connected mediation possible Yes. The court does not refer to mediation hearing, but only to a first meeting with a mediator for at least 3 hours. The presiding judge in a court proceeding may, if practical and appropriate, order the parties to attend a three-hour introductory meeting with a registered mediator. Such a referral always stays the proceedings, but for no longer than three months. The objective of the introductory meeting is solely to familiarise the parties with the process of mediation and its main advantages. After the prescribed three hours have lapsed, it is completely up to the parties whether they wish to start the mediation process. d. Court-ordered mediation possible (Yes). Although mediation is usually voluntary, courts will now have the power to order litigating parties to resolve their dispute through the mediation process. e. Sanctions by the court if mediation is not tried (in good faith) No. Although the court may refer the parties to an introductory meeting, there is no provision that would allow the court to force the parties to attend it. Only in a situation in which the court refers to an introductory meeting and a party refuses for no reason to attend this meeting, it may not be acknowledged partial compensation of costs if they succeed in their case. f. Sanctions by law if mediation is not tried (in good faith) No. Claims for damages will only be considered if damage, a determinable amount and a causal relationship have been proven.

1 Last update of information: April 2013. 2 Bie Heyninck is registered as a lawyer both with the Brussels Bar Association and the Czech Bar Association. She is a recognised mediator in civil and commercial proceedings, accredited by the Federal Mediation Committee and BBMC. She has been based in Prague since 1993. Contact: bie. [email protected].

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109

g. Incentives if mediation is tried voluntarily before going to court No. The legal system does not foresee incentives for using ADR. h. Outside counsel presence during mediation sessions allowed Yes. The law does not regulate this matter. In general, the Act does not regulate the participation of legal representatives or any other professionals in the mediation process. Therefore no specific duties are imposed on those persons, especially in relation to their participation or representation in mediation. There is only one instance where the Act’s regulation relates to people other than the parties and the mediator. Section 9(4) states that the mediator’s obligation of confidentiality shall analogously apply to any person involved in the preparation and progress of the mediation together with the mediator. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Cases are admissible without limitation, at any time, including the time period when mediation takes place. An initiated mediation does not create the plea of litispendence, nor does it prevent the locus standi of the dispute. The Mediation Act does not stipulate any mediation clause provisions. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. There is full admissibility. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. Mediation is voluntary; it is only a contractual obligation, breaching of which breach may give rise to a claim for damages.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. The Czech Republic implemented the Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 by issuing the Mediation Act on 1 September 2012. As there is no tradition of mediation regulation in the Czech Republic; the legislative process had been somewhat extended, and the discussions on this subject had been difficult. However, the serious examinations that occurred showed a genuine interest in establishing a strong mediation tradition in the Czech Republic, for both domestic and cross-border mediation, moving forward (CPR). The Mediation Act (Act No. 202/2012 Coll.) regulates the duty of the court to instruct prior to mediation, the moment of the commencement of mediation (execution of a contract for mediation) and the close of mediation (conclusion of mediation agreement).

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b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Should the parties choose to mediate, Section 3(1) of the Act states that mediation is initiated by the contract on mediation. The contract on mediation is an agreement concluded between the mediator and the parties. Among other things, it contains the specifications of the parties for the conduct of the mediation and the definition of the conflict which is the subject matter of that particular mediation. It rests on the professionalism of a mediator. The procedure is included in a contract for mediation. c. Mediator can offer a non-binding opinion Yes. A mediator can express a legal opinion in a case or can answer some question.

CZ

d. Mediator can offer a binding opinion No. The mediator can, however, express a legal opinion during the mediation process. See 3.c. The mediator, although an advocate, is not permitted to provide the parties with legal services as a mediator, although it is understandable that mediators use their education and make suggestions to the parties regarding their opportunities in the matter. Whether such an approach is appropriate is questionable. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Mix. It is up to the professionalism and technical skills of a mediator. Since mediation has not been used much in business-to-business disputes, it is not yet possible to assess which of style is predominant. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Mix. Difficult to evaluate because there have not been many cases. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Mix. See 3f. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Mix. See 3f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Mix. See 3f. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. See 3f. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3f.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. The educational process is based on the mediator’s obligation to perform the test at the Ministry of Justice (Czech Bar Association). Regarding the content of the test, see the

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implementing degree for law. The educational process (the content, scope, etc.) is deliberately not regulated by the Mediation Act. Section 2(c) of the Act states that a mediator is a natural person who is registered on the list of mediators. The list is classified as an informational system of public administration managed by the Ministry of Justice. According to paragraph 14 of the Act, only a person registered on the list is entitled to provide the services of a mediator provided his or her license for conducting the practice of a mediator has not been suspended. It should be noted that the references in the Act to mediator are intended to be read as references to registered mediators. Mediators who are not registered may still mediate, but they are not covered by the Act. This rule applies only to Czech citizens. A citizen of another EU Member State, or other natural person under Act 18/2004 COll on Recognition of qualifications of nationals of another Member State, who occasionally or temporarily practice mediation in the Czech Republic, may mediate in the Czech Republic as a guest mediator. The Memorandum advised refraining from regulating the network of educational institutions at this point, and to consider implementation of such regulations in the future, based on the models of other Member States. b. Set by market (private certifying bodies) (Yes). See 4.1.a. c. Set by public regulation (Yes). See 4.1.a. d. Number of hours for basic mediator training NA. There is no set number of training hours for accreditation. Currently training is organised by the Czech Bar Association, by the Ministry of Justice and by other accredited centres to prepare for mediation exams. e. Mandatory Continuing Professional Development for accredited/certified mediators No. See 4.1.a. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (No). See 4.1.a. g. Accreditation through written exam (Yes). See 4.1.a. h. Accreditation through performance-based assessment (Yes). See 4.1.a.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. See 4.1.a. j. Set by market (private certifying bodies) (No). See 4.1.a. k. Set by public regulation No. See 4.1.a.

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The Variegated Landscape of Mediation

Who can be a mediator?

a. Set by market (private certifying bodies) No. Not possible, only as described below. See 5.b. b. Set by public regulation Yes. The Ministry of Justice maintains a list of mediators. Mediation may only be provided by a person who is registered on the list (registered mediator). Specific exams must be taken as a condition for registration. See 5.c. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Conditions: 18 years or older, of good character, integrity (in the sense of the Mediation Act), a completed university education (master’s degree) and to having passed specialised tests. The Mediation Act divides registered mediators into two categories: mediator advocates, who are also lawyers, and non-advocate mediators.

CZ

d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Conditions: 18 years or older, of good character, integrity (in the sense of the Mediation Act), a completed university education (master’s degree) and to having passed specialised tests.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. b. EU Directive implemented for all national and cross-border commercial cases Yes. The Directive has been fully implemented. The Mediation Act applies to both cross-border and national mediation. The Mediation Act was adopted by Parliament on 2 May 2012 and became effective on 1 September 2012. The Act is the first legislation on mediation in the Czech Republic and serves as a legal basis for the amicable settlement of private disputes within mediation proceedings. c. EU Directive implemented for all national and cross-border civil cases Yes. The Directive has been fully implemented. The Mediation Act applies to both cross-border and national mediation. The Mediation Act was adopted by Parliament on 2 May 2012 and became effective on 1 September 2012. The Act is the first legislation on mediation in the Czech Republic and serves as a legal basis for the amicable settlement of private disputes within mediation proceedings.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2012. The Czech Mediation Act came into effect on 1 September 2012. The Mediation Act was adopted by Parliament on 2 May 2012 and became effective on 1 September 2012. The Act is the first legislation on mediation in the Czech Republic and serves as a legal basis for the amicable settlement of private disputes within mediation proceedings.

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b. Legislation updated since EU mediation directive (date update) No.

8.

Mediation providing bodies

a. Mediation bodies may have various legal forms No. Only natural people. The law does not recognise mediation centres (legal person as provider of mediation services). b. Individuals may be providers of mediation services Yes. See 8.a. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. The basis for establishing fees is an agreement concluded within the framework agreement on the execution of mediation. The agreement also includes an agreement on the allocation of costs for carrying out mediation. The mediator is entitled to the negotiated fee for performing mediation and to reimbursement of negotiated cash expenses (Section 10 of the Mediation Act). b. Fixed in some cases by public regulation Yes. In the case where a court refers parties to the first meeting with the mediator, the fee for 3 hours is set by the implementing regulation (400 CZK/per hour). If the court orders a first meeting with a mediator (3 hours) and if the parties to the proceedings do not agree with the mediator, the mediator is entitled to a fee laid down by an implementing legal regulation. The parties of the conflict must contribute equally to the payment of this fee. c. Average mediator fee per hour for commercial or cross-border cases € 80+ (estimate). According to our personal research, the average hourly fee for commercial cases is higher than the fee in civil cases, mostly starting from € 80. Some mediation providers charge a success fee or a fee based on the amount in dispute on top of the hourly fee. d. Average mediator fee per hour in civil cases € 40-50+ (estimate). According to our personal research, the average basic hourly fee is around € 40-50. On top of this basic fee for the mediation meeting itself, mediation providers charge extra fees for the following: – preparing the mediation meeting (mapping the dispute and identifying the interest) – preparing written documents – other necessary expenses

9.2. Financing and legal aid e. Legal aid available for mediation services No.

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f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). Judges only refer parties to mediation; no other relationship is known.

CZ

b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). It is regulated by a separate law as a purely voluntary institute. c. Mediation procedure has impact on statute of limitations Yes. Suspension of limitation periods is one of the main benefits of the Mediation Act in comparison with the legislation before the effective date of this Act. Directive 2008/52/EC contains a requirement that parties who choose mediation in order to settle their dispute should not be prevented by the expiration of the limitation period during the mediation process from exercising their rights in legal or arbitration proceedings. In response to this demand, the limitation periods are suspended by concluding a contract on the implementation of mediation.

11. Mediated settlement a. Contract Yes. Defined as a mediation agreement, by its legal nature it is usually an agreement on settlement. The contract on mediation is an agreement concluded between the mediator and the parties. Among other things, it contains the specifications of the parties for the conduct of the mediation and the definition of the conflict in question. b. Automatically enforceable No. A mediation agreement is not directly enforceable. There is no specific provision in the Act dealing with the enforceability of mediation agreements. However, mediation agreements are not intended to be directly enforceable. To have a mediation agreement enforced, court approval in the form of a conciliation agreement must be obtained, or there must be a subsequent agreement addressing the fulfilment of any claims arising out of the mediation agreement. However, as of yet, there are no specific rules prescribing how court approval is obtained, or what the conditions or requirements are for the subsequent agreement to be concluded in an appropriate form. c. Enforceable under some circumstances which are up to the parties Yes. The parties may take advantage of a notarial or executorial deed which includes a clause of direct enforceability, or the parties can get an approval by a court in a form of a court order.

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d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. Section 9 of the Act deals with the mediator’s obligation of confidentiality. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. The mediator is not bound by the obligation of confidentiality to the extent necessary for proceedings before a court or other relevant authority if the subject of the proceedings is a dispute arising from the mediator’s activities in relation to the party of the conflict or its legal representative, and also to the extent necessary for the mediator’s protection as part of the performance of supervision of the mediator’s activities or in disciplinary proceedings. The duty of confidentiality only applies to the mediator. The parties are not bound by the obligations. Contractual provisions related to confidentiality may be problematic and may not be clear.

13. Education a. Mediation education is a common component of legal education curriculum No. Does not exist and not regulated by law. b. Mediation advocacy education is a common component of legal education (No). Organised by Czech Bar Association to a limited extent (to a limited number of candidates).

14. Most relevant literature or references, case law, articles, law –– Holá. L.: Mediace v teorii a praxi. Grada Publishing. 2011.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.urmr.cz/files/file/Zakon_o_mediaci.pdf –– http://www.cak.cz/assets/zakon-o-mediaci_cz.pdf b. Weblink to English or other translation –– http://www.cak.cz/assets/zakon-o-mediaci_aj.pdf c. Other references NA.

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16. Country specific remarks Mediation definition The legislative definition of ‘mediation’ is defined in the Czech Mediation Act No. 202/2012. Czech version: §1 Základní pojmy Pro účely tohoto zákona se rozumí a) mediací postup při řešení konfliktu za účasti jednoho nebo více mediátorů, kteří podporují komunikaci mezi osobami na konfliktu zúčastněnými (dále jen„strana konfliktu’) tak, aby jim pomohli dosáhnout smírného řešení jejich konfliktu uzavřením mediační dohody,

CZ

English translation: Section 1 Basic terms For purposes of this Act a) mediation means a process to resolve the conflict with one or more mediators who promote communication between individuals involved in the conflict (hereinafter referred to as ‘party to the conflict’) in order to help them reach an amicable settlement of their conflict by concluding the mediation agreement.

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Mediation regulation and approach Country: The Czech Republic Prepared by Bie Heyninck 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) (No) Yes (Yes) No No No Yes No Yes Yes No Yes Yes Yes No Mix Mix Mix Mix Mix Mix Mix Yes (Yes) (Yes) NA No (No) (Yes) (Yes) No (No) No

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Mediation regulation and approach Country: The Czech Republic Prepared by Bie Heyninck 5. Who can be mediator?

6. EU directive

CZ

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No No Yes Yes 2012 No No Yes No Yes Yes > €80 (est.) > €40-50 (est.) No No No (No)

(No) Yes Yes No Yes No Yes Yes No (No)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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7. DENMARK 1 Prepared by Ass. Professor Lin Adrian. Ph.D.2

1.

Attempt to mediate

a. Always voluntary Yes. b. Mandatory (in some cases) No. Mediation is never mandatory. c. Court referral or court-connected mediation possible Yes. There is a national, government system of court-connected mediation. In civil suits, the parties in all courts of the first instance and at appeals level have an option of mediation. Mediators are judges and attorneys with special training appointed by the court, and the service is provided by the courts free of charge for the participants. Court-connected mediation is regulated in the Administration of Justice Act, Section 27. d. Court-ordered mediation possible No. Mediation is always voluntary. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. The parties must attend themselves as a general rule, but attorneys or others are allowed to attend the session as well if the parties agree to it. During mediation sessions, the attorney or others do not act as representatives but rather as someone who is there to support the party, who is the central actor. The parties usually sit closest to the mediator who presents the case, engages in negotiations etc. (The exception is victim-offender mediation where attorneys are not allowed by law to participate.) i. Outside counsel presence mandatory No. It is up to the parties and there is no pressure towards attorney presence.

1 Last update of information July 2013. 2 Ass. Professor Lin Adrian. Ph.D., Law Faculty, University of Copenhagen. Contact: lin.adrian@jur. ku.dk.

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2. Mediation clause a. Case admissible in court with a mediation clause (No)/(Yes). There is no statute regulating this, and there is legal uncertainty on this point as to what a court of justice will do in a case regarding this. No case has been heard on this issue yet. On the one hand, as a general principle agreements are upheld in Denmark unless there are (rare) circumstances that counter this, but on the other hand, it would run counter to the voluntary nature of mediation if a mediation clause in effect makes mediation mandatory. I am inclined to think that the case would not be admitted before mediation has been tried. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No)/(Yes). See 2a.

DK

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (No). The law on court-connected mediation in civil cases provides some details of procedure. There is less detail in the administrative family area and none in other areas. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). There is some regulation of court-connected mediation but none in other areas of practice. c. Mediator can offer a non-binding opinion (Yes). There is no statute hindering this, but the role of the mediator is in all settings described as facilitative. Hence, standard practice does not include offering non-binding advice. This is the main rule in court-connected mediation too, but in this area of practice the mediator can offer non-binding advice in the rare case, provided that the parties ask for it and if the mediator finds it productive for the mediation. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. In court-connected mediation: facilitative. In mediation outside court-connected mediation there are no studies but, according to anecdotal evidence, it is primarily facilitative. In all instances, it is mediation orientation towards interests and needs and not primarily legal rights. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. In court-connected mediation, it is a mix of facilitative/directive. Outside court-connected mediation there are no studies, but according to anecdotal evidence it is a mix facilitative/directive as well.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. In court-connected mediation: facilitative. In mediation outside court-connected mediation, there are no studies but according to anecdotal evidence, mediation is primarily facilitative. In all instances, mediation is orientation towards interests and need, and its does not focus primarily on legal rights. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. In court-connected mediation, it is a mix of facilitative/directive. Outside court-connected mediation there are no studies, but according to anecdotal evidence it is a mix of facilitative/directive as well. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice/indirect legal opinions. In court-connected mediation, with regard to process, it is general advice and, to the extent that there is evaluative practice, with regard to substance it is general advice and indirect legal opinions. Outside court-connected mediation, there are no studies, but anecdotal evidence suggests that it is similar. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. In court-connected mediation, predominantly joint sessions mixed with some caucuses. In half of the cases, caucus is not held. Outside court-connected mediation, anecdotal evidence suggests that it is similar. In any event, most of the mediation session is generally spent in joint sessions. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. In court-connected mediation, predominantly joint sessions mixed with some caucuses. In half the cases, caucus is not held. Outside court-connected mediation, anecdotal evidence suggests that it is similar. In any event, most of the mediation session is generally spent in joint sessions.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. b. Set by market (private certifying bodies) No. c. Set by public regulation No. d. Number of hours for basic mediator training 7 days. The most common is 7 days divided into shorter sessions (1,2 or 3 days) spread over a period of time with reading, practicing and reflections between sessions. e. Mandatory Continuing Professional Development for accredited/certified mediators No.

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f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

DK

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation (No). Court-connected mediation is the exception in regulating that only judges and attorneys (with mediation training) can become mediators. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA. Denmark is exempt from the EU Directive.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2005/2008. Very limited legislation in disputes regarding custody and visitation rights since 2005, and more comprehensive legislation regarding court-connected mediation since 2008. b. Legislation updated since EU mediation directive (date update) No.

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123

Bodies providing mediation

a. Mediation bodies may have several legal forms Yes. There is a variety of different providers ranging from private non-profit to private for-profit as well as professional organisations (lawyer mediators, for example) and government bodies. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees d. Freely contracted Yes. a. Fixed in some cases by public regulation Yes. Court-connected mediation is regulated (free of charge). b. Average mediator fee per hour for commercial or cross-border cases € 225-500 (estimate). c. Average mediator fee per hour in civil cases € 225-500 (estimate).

9.2. Financing and legal aid d. Legal aid available for mediation service? Yes. e. Mediator fees covered by legal insurance schemes (Yes). Many insurances cover mediation fees but not all. f. Mediator fees subsidised in court-connected schemes Yes.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Only in court-connected mediation in that both groups mediate in this area. In other ­areas there is so special relationship. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation is part of the legal system in civil court cases as well as in certain family matters in administrative agencies, and is used regularly.

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c. Mediation procedure has impact on statute of limitations No.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties (No). Only under very limited circumstances is it possible to make the mediated agreement enforceable. In court-connected mediation, the parties can decide to make it enforceable. d. Enforceable under some circumstances defined by public regulation Yes.

DK

12. Confidentiality a. Regulated by law (No). There is not a general law on confidentiality. Only court-connected mediation and certain types of family mediation in administrative bodies have formal confidentiality rules. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (No). Only for court-connected mediators (and mediators in victim-offender mediation).

13. Education a. Mediation education common component in legal education curriculum (Yes)/(No). Mediation is a common elective at law schools in Denmark, and is taken by a varying number of law students. b. Mediation advocacy education common component in legal education curriculum No. Only to the extent that it is part of mediation education in general.

14. Most relevant literature or references, case law, articles, law –– Lin Adrian, Mellem retssag og rundbordssamtale: retsmægling i teori og praksis, ­Jurist- og Økonomforbundets Forlag, København 2012. –– Hans Boserup og Susse Humle, Medationsprocessen i praksis, 2. udg., Nyt Juridisk Forlag, København 2012. –– Claus Kaare Pedersen, Erhvervslivets konfliktløser – Mediation i erhvervstvister, Karnov Group, København 2012. –– Vibeke Vindeløv, Reflexive Mediation – with a Sustainable Perspective, Djøf Publishing, Copenhagen 2012 + the Danish edition: Konfliktmægling – en refleksiv model, 3. udg., Jurist-

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og Økonomforbundets Forlag, København 2013 (forthcoming). –– Pia Deleuran, ed., Konflikthåndtering i IT projekter – mediation som mulighed, Jurist- og Økonomforbundets Forlag, København 2011. –– Pia Deleuran, ed., Partsadvokatens rolle – mediation som mulighed, Jurist- og Økonomforbundets Forlag, København 2011. –– Pia Deleuran, ed., Konflikthåndtering af sager om fast ejendom og byggeri – mediation som mulighed, Jurist- og Økonomforbundets Forlag, København 2011. –– Jørgen Dalberg-Larsen, Mægling, ret og samfund – Perspektiver på mægling, Jurist- og Økonomforbundets Forlag, København 2009. –– Lars Økjær Jørgensen og Martin Lavesen, Mediation – ret og rammer, Forlaget Thomson, København 2006. –– Tina Monberg, To vindere – Mediation som positiv konfliktløsning, Børsens Forlag A/S, København 2002. –– Vibeke Vindeløv, Konflikt, tvist og mægling, Akademisk Forlag, København 1997.

15. Mediation legislation texts a. Weblink to legislation in national language: –– https://www.retsinformation.dk/Forms/r0710.aspx?id=115711 b. Weblink to English or other translation: A brief description of the regulation: –– https://e-justice.europa.eu/content_mediation_in_member_states-64-dk-en.do c. Other references NA.

16. Country specific remarks Mediation is provided free of charge in some settings (family, court-connected). In Denmark, the distinction between civil and commercial does not make much sense with regard to mediation practice. A more logical distinction would be between business-to-business on one side, and other civil and commercial matters on the other, in that there might be some variation between these two groups. Mediation definition There is no definition of mediation in any legislation in Denmark.

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Mediation regulation and approach Country: Denmark Prepared by Lin Adrian 1. Attempt to mediate

2. Mediation clause

DK

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes No Yes No No No No Yes No (No)/(Yes) No (No)/(Yes) (No) (Yes) (Yes) No F F/D F F/D GA/indirect LO Mix Mix No No No 7 days No No No No

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Mediation regulation and approach Country: Denmark Prepared by Lin Adrian 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only a. Mediation legislation since b. Legislation updated since EU mediation directive (date update) a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No (No) No No NA 2005/2008 No Yes Yes No Yes Yes € 225-500 (est.) € 225-500 (est.) Yes (Yes) Yes No

Yes No Yes No (No) Yes (No) (No) (Yes)/(No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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8. ESTONIA 1 Prepared by Triinu Hiob2

1.

Attempt to mediate

a. Always voluntary No. Mediation is usually a voluntary method of dispute resolution. The Estonian Code of Civil Procedure, however, stipulates that the court has to take all possible measures to settle the case or a part thereof through compromise or in another manner. In the attempt to do so, the court may insist that the parties settle the dispute with the assistance of a mediator. b. Mandatory (in some cases) Yes. See 1.a.

EE

c. Court referral or court-connected mediation possible Yes. It is mandatory for the parties to attempt to reach a settlement via mediation only if the court has insisted upon using mediation as an alternative for civil trial in court. d. Court-ordered mediation possible Yes. See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) (Yes). The only sanction that the court may implement according to the Code of Civil Procedure is that the court may decide that all or most of the procedural expenses must be borne by the party that did not accept the compromise offer if an action is satisfied in part, and is to an extent similar to the compromise offered by one of the parties. f. Sanctions by law if mediation is not tried (in good faith) (No). The only sanction that the court may implement according to the Code of Civil Procedure is that the court may decide that all or most of the procedural expenses must be borne by the party that did not accept the compromise offer if an action is satisfied in part, and is to an extent similar to the compromise offered by one of the parties. g. Incentives if mediation is tried voluntarily before going to court (No). The regulation does not enact any incentives per se. The party who offers a settlement agreement or accepts the agreement proposed by the mediator can, however, benefit regarding procedural expenses when the case is tried in court (See point 1.f.). b. Outside counsel presence/representation during mediation sessions allowed Yes. Either of the parties is allowed to use representation (regardless of profession or education), but it is noteworthy that the representative has the right to sign the settlement only if a corresponding authorisation document has been issued by the respective party.

1 2

Last update of information: January 2014. Triinu Hiob is a senior associate at LAWIN Attorneys-at-Law. Contact: [email protected].

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i. Outside counsel presence mandatory No. The regulation does not stipulate that mandatory outside counsel is necessary.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. The Conciliation Act Section 1(2) stipulates that mediation proceedings are voluntary and thus a mediation clause stipulated in a binding contract cannot impair the parties right of recourse to courts. The opposite party may only file a claim damage compensation or for contractual penalties because the other party has breached the mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (No). Civil Procedure Act Section 4(4) stipulates that the court may obligate the parties to settle the dispute with the assistance of a mediator. The said regulation, however, applies to all civil cases and it cannot be claimed that the discretional decision that the judge makes is only due to the fact that a mediation clause was present. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The Conciliation Act provides for the course of the mediation proceedings. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). As pointed out in 3.a., the Conciliation Act does regulate the course of mediation proceedings. However, the parties to the dispute may agree on a different course for the proceedings. c. Mediator can offer a non-binding opinion Yes. If the parties have addressed a mediation body to settle the dispute between the parties and the mediation body fails to reach a settlement during a mediation meeting, the mediation body may present the parties with its own settlement proposal if it deems such a proposal reasonable considering the facts of the dispute. d. Mediator can offer a binding opinion No. The agreements that are made in the mediation proceedings can, however, be deemed as enforceable (see 11.) e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative. There is no actual practice in mediation of commercial disputes in Estonia but, on the basis of the Conciliation Act of Estonia, the evaluative method would be predominant in commercial disputes re substance, with the facilitative method being recognised too.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. With no actual practice in mediation of commercial disputes, on the basis of the Conciliation Act, the directive method would be predominant in commercial disputes re process. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative. In insurance mediation, which is the only functioning mediation in Estonia, the evaluative method is predominant. There is no actual practice in any other mediation but, on the basis of the Conciliation Act of Estonia, the evaluative method would be predominant in other civil disputes as well, with the facilitative method being recognised too. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. In insurance mediation, being the only functioning mediation in Estonia, the directive method is predominant re process. On the basis of the Conciliation Act, the directive method would be predominant re process in other civil disputes as well.

EE

i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Legal opinion. In insurance mediation practice, as well as according to the Conciliation Act, the mediator explains the legally weak points of the parties’ arguments, and on the basis of that, proposes a settlement. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint sessions. According to the Conciliation Act, joint sessions should be held with the parties be present in person as a rule. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions. In the practice of insurance mediation, as well as according to the Conciliation Act, holding joint sessions is predominant in mediation of civil disputes. However, the mediator may contact the parties separately by phone, email etc. in order to reach a settlement before arranging a joint session.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. According to Estonian legislation, mediators are not subject to accreditation or certification procedures. b. Set by market (private certifying bodies) No. The market has established accreditation or certification of mediators. c. Set by public regulation No. According to Estonian legislation, mediators are not subject to accreditation or certification proceedings. d. Number of hours for basic mediator training NA. No specific mediation training is provided in Estonia, and there are not many mediators who have trained abroad to act as mediators.

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e. Mandatory Continuing Professional Development for accredited/certified mediators No. According to Estonian legislation, mediators are not subject to accreditation or certification proceedings. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. According to Estonian legislation, mediators are not subject to accreditation or certification proceedings. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) (Yes). According to the Conciliation Act, Section 2, any natural or legal person can be a mediator if the parties have entrusted the task of carrying out the mediation proceedings to that person. However, for some types of mediator the enforceability proceedings of the mediated settlement is easier and quicker. b. Set by public regulation Yes. According to the Conciliation Act, Section 2, a mediator can be either a natural person whom the parties have entrusted to carry out the task of mediation, a legal person, be employed by the legal person or hold a contract of another type of with the legal person, a sworn advocate, a notary or a government or a local authority mediation body for cases provided by law. The law may prescribe that for certain matters a mediator is a governmental or local authority body. For instance, collective labour disputes are subject to a mediation procedure carried out by a Public Conciliator before employees may commence a strike. Mediators are not subject to accreditation or certification in Estonia. According to the Bar Association Act, Section 26(1), a member of the Bar Association may become a sworn advocate on the basis of a written application if he or she has passed the sworn advocate’s examination and has practised as a sworn advocate’s clerk for at least two years, or as a sworn advocate’s senior clerk for at least one year. Only a sworn advocate may act as a mediator. The legal system of Estonia distinguishes three types of advocates – sworn advocates, senior clerks of sworn advocates and clerks of sworn advocates. The senior clerks and clerks of sworn advocate cannot act as advocate mediators but they may

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act as mediators as just natural persons. Also, Estonian law acknowledges that associated members of the Bar Association – citizens of other Member States of the European Union – have the right to practise as advocates on a permanent basis in the respective Member States. The associated members of the Bar Association have qualifications similar to sworn advocates, and they can act as advocate mediators as well. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. According to Conciliation Act Section 2(2), a sworn advocate may be a mediator and settlements that are concluded through the mediation of a sworn advocate are easier to deem enforceable (See 3.d.). Sworn advocates have to submit an application to the Estonian Bar Association in order to act as mediators. See 5.b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.b. and c.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No.

EE

b. EU Directive implemented for all national and cross-border commercial cases Yes. c. EU Directive implemented for all national and cross-border civil cases Yes.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2010. None before the implementation of the EU Mediation Directive. The Estonian parliament adopted the Conciliation Act on the 1st of January 2010. b. Legislation updated since EU mediation directive (date update) No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. See 5.b. b. Individuals may be providers of mediation services Yes. See 5.b. c. Mediation provider qualifications/requirements determined by public regulation No.

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9.1. Mediator fees a. Freely contracted (Yes). According to the Conciliation Act, mediation fees are freely negotiable between the parties and the mediator. b. Fixed in some cases by public regulation Yes. Mediator fees are fixed in insurance mediation, which is the only actually functioning mediation in Estonia. The price for insurance mediation proceedings consists of a basic fee of € 50 and of the mediator’s rate up to a maximum of € 160 per insured event. Only 50% of the mediator’s fee is paid if no settlement is reached during the course of mediation proceedings. c. Average mediator fee per hour for commercial or cross-border cases NA. There is no actual mediation practice in commercial cases/cross-border. d. Average mediator fee per hour in civil cases NA. There is no actual mediation practice in civil cases other than insurance disputes (see 9.1.b.).

9.2. Financing and legal aid e. Legal aid available for mediation services (No). State legal aid includes representing a person in pre-trial proceedings in a civil case and in court, and providing other legal counselling to a person or otherwise representing a person. This may include mediation proceedings. However, state legal aid does not apply to mediator fees but only to advocate fees related to the mediation proceedings. f. Mediator fees covered by legal insurance schemes Yes. According to Estonian law, for legal expenses insurance the insurer must, to the extent prescribed by the contract, protect the legal interests of the policyholder upon the occurrence of an insured event and cover the costs of legal assistance, procedure expenses and other similar expenses incurred as a result thereof. Thus it can be stated that legal expenses which derive from mediation proceedings can be covered by legal insurance schemes. The international insurance company, DAS, which is one of the best known insurance groups in Estonia, offers full cover for representation costs deriving from mediation proceedings. g. Mediator fees subsidised in court-connected schemes Yes. As a form of procedural assistance, and at the request of a participant to the proceedings, the court may order that those ordered by the court to take part in mediation proceedings be exempt from all or a part of the expenses related to mediation proceedings charged by the Republic of Estonia.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Mediation is uncommon in Estonia but considering that the Conciliation Act has been enacted by parliament it is to be considered as a part of the legal system. c. Mediation procedure has impact on statute of limitations Yes. According to Estonian civil law, the limitation period for claims is suspended for the period of the negotiations between the entitled and the obliged party. Mediation procedure, based on its nature, is considered a form of negotiations concerning a claim. According to law, the limitation period is suspended until the end of the agreed conciliation procedure. Hence, the limitation period is extended by the time of the mediation proceedings.

11. Mediated settlement

EE

a. Contract Yes. If a settlement agreement is reached, the mediator formulates a written settlement agreement which is signed by the mediator and the parties if the parties wish to conclude a written agreement. b. Automatically enforceable (No). A settlement agreement validated by a mediation body is binding and automatically enforceable. Settlement agreements reached by other kinds of mediators are not automatically enforceable and are subject to enforceability proceedings. c. Enforceable under some circumstances which are up to the parties No. The agreement will be deemed enforceable only if a mediation body validated the agreement or if the agreement is deemed enforceable by the court or notary (See 11.d.). d. Enforceable under some circumstances defined by public regulation Yes. A settlement agreement reached between the parties as a result of mediation proceedings conducted by a sworn advocate or a notary can be declared enforceable by a county court or a notary, provided the agreement concerns a property claim. A settlement agreement concerning a non-property claim is declared enforceable by the county court only if the parties to the mediation proceedings are in a position to make a compromise agreement in respect of the subject matter of the dispute. The court does not validate settlement agreements which concern disputes regarding the validity of residential lease contracts, their cancellation or the vacation of residential premises. In order for the said agreement to be declared enforceable, either of the parties or both parties have to file a corresponding declaration which the court declares enforceable by making a ruling. A settlement agreement validated by a mediation body is automatically enforceable. A settlement agreement reached between the parties as a result of mediation proceedings conducted by a natural person who is not a sworn advocate or a notary may be declared enforceable by a county court. In order for the said agreement to be declared enforceable, the court conducts a court hearing in which the court hears the mediator and the parties and verifies that the mediation proceedings were carried out impartially, fairly and in accordance with the law.

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12. Confidentiality a. Regulated by law Yes. Mediation negotiations are not public and the mediator has a duty of confidentiality in respect of the facts of the mediation proceedings to which he or she has become privy in the course of the proceedings or outside the proceedings. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). A mediator who is heard as a witness may not be asked questions about or required to explain the facts of the mediation proceedings which he or she has become privy to in the course of those proceedings. This protection is not applied if there is substantial public interest, especially where the protection of a child’s interests or a threat to a person’s health or life is concerned when hearing a criminal, civil or administrative matter in court. The court may, if the previous conditions are met, order a mediator to provide information regarding the facts of mediation proceedings. In addition to the abovementioned, the mediator must provide information regarding the facts of mediation proceedings to investigative bodies if ordered to do so by a court.

13. Education a. Mediation education is a common component of legal education curriculum No. However, Tartu University´s law faculty does have one postgraduate elective course entitled ‘Alternative Dispute Resolution’ which also deals with the issues deriving from mediation proceedings. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, case law, articles, law –– Supreme Court judgements: 3-2-1-32-11, 3-2-1-64-10, 3-2-1-118-09, 3-2-1-95-09, 3-2-1-1307 (all judgments made in family law matters regarding procedure of relations with a child). –– Articles: V. Kõve. Tsiviilvaidluste kohtuvälisest lahendamisest Eestis. (About extrajudicial resolution of civil disputes in Estonia) Juridica III 2005. –– J. Erne. Vahendusmenetlus tsiviilvaidluste kohtuvälise lahendamise võimalusena. (Mediation proceedings as option for extrajudicial resolution of civil disputes) Juridica VII 2003.

15. Mediation legislation texts a. Weblink to legislation in national language –– https://www.riigiteataja.ee/akt/13240243# b. Weblink to English or other translation –– http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=2012X06&pg=1&tyyp= X&query=lepitus&ptyyp=RT&keel=en (unofficial translation)

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c. Other references No.

16. Country specific remarks Mediation definition The definition of ‘mediation’ is provided in Section 1(2) of the Conciliation Act. The definition in Estonian reads as follows:

EE

‘Lepitusmenetlus käesoleva seaduse tähenduses on poolte vabatahtlikkusel põhinev tegevus, mille käigus käesoleva seaduse §-s 2 sätestatud erapooletu isik (edaspidi lepitaja) toetab lepitusosaliste suhtlust eesmärgiga aidata neil leida vaidlusküsimusele lahendus. Lepitaja võib lepituse asjaolude ja lepitusmenetluse kulgemise põhjal esitada pooltele omapoolse lahendusettepaneku.’ A translation of the said definition would be as follows: ‘For the purposes of this Act, conciliation proceedings means a voluntary process in the course of which an impartial third party, defined in Section 2 of this Act (hereinafter, ‘a conciliator’ or ‘the conciliator’), facilitates communication between parties to conciliation proceedings with the purpose of assisting them in finding a solution to their dispute. A conciliator may, on the basis of the facts of conciliation and the progress of conciliation proceedings, propose to the parties his or her own solutions to the dispute.’ The section referred to (Section 2) of the same law provides for a list of persons who may act as mediators. A translation of this section would read as follows: ‘For the purposes of this Act, a conciliator is:
1) a natural person whom the parties have entrusted the task of carrying out the activity described in Section 1(2) of this Act. A conciliator may act through a legal person, be employed by the legal person or hold a contract of another type of with the legal person;
2) a sworn advocate in the case specified in Section 17 of this Act;
3) a notary in the case specified in Section 16 of this Act;
4) in the cases provided by law, a conciliation body of the government or a local authority.’ (The original wording in Estonian language: Lepitajaks käesoleva seaduse tähenduses on:
1)  füüsiline isik, kellele pooled on teinud ülesandeks käesoleva seaduse 1 lõikes 2 kirjeldatud tegevuse. Lepitaja võib tegutseda juriidilise isiku kaudu, olles sellega töö- või muus lepingulises suhtes;
2)  vandeadvokaat käesoleva seaduse §-s 17 nimetatud juhul;
3)  notar käesoleva seaduse §-s 16 nimetatud juhul;
4) seaduses sätestatud juhul riigi või kohaliku omavalitsuse lepitusorgan.)

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Mediation regulation and approach Country: Estonia Prepared by Triinu Hiob 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

No Yes Yes Yes (Yes) (No) (No) Yes No Yes (No) No (Yes) (Yes) Yes No E D E D LO Joint Joint No No No NA No No No No

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Mediation regulation and approach Country: Estonia Prepared by Triinu Hiob 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive

EE

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No No No (Yes) Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes Yes No

No No Yes Yes 2010 No

(Yes) Yes NA NA (No) Yes Yes No

(Yes) Yes Yes (No) No Yes Yes (Yes) No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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9. FINLAND1 Prepared by Antti Heikinheimo2

1.

Attempt to mediate

a. Always voluntary Yes. Under Finnish law, there are no requirements for parties to participate in mediation. Because mediation is voluntary, the parties must agree on mediation whether it is undertaken in or out-of-court. Commencing mediation in court, either before or during pending legal proceedings, is therefore at the discretion of the parties. b. Mandatory (in some cases) No. c. Court referral or court-connected mediation possible Yes. The judge has a duty to explore the possibility that parties could settle the dispute. d. Court-ordered mediation possible No. Judges can advise parties to try mediation, but cannot mandate parties to go to mediation. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. The representation of the parties in court mediation is governed by the statutory provisions on a party exercising its right to be heard in court. In out-of-court mediation, the decision is up to the parties and the mediator. i. Outside counsel presence mandatory (No)/Yes. In court mediation, the presence of outside council may at times be mandatory. In out-of-court mediation, the decision is up to the parties and the mediator.

1 2

Last update of information: April 2013. Antti Heikinheimo has worked in dispute resolutions at Hannes Snellman Attorneys Ltd for the past 30 years. He has been partner at the firm since 1988. Antti was head of the firm’s dispute resolution group from 1995 to 2000 and the firm’s managing partner from 2000 to 2004. Antti is a CEDR Accredited Mediator. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. Under Finnish law, there is no enforceable obligation for parties to participate in mediation. Because mediation is, as a general rule, voluntary, the parties must voluntarily participate in the mediation session whether it is undertaken in or out-of-court. Thus, a mediation clause in an agreement mainly has the legal effect of providing the contractual basis for mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. the case is admissible in court. The judge always has a duty to explore the possibility that parties could settle dispute, but cannot force parties into mediation. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 2.a.

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3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No/Yes. Court mediation is regulated in the ‘Mediation in Civil Matters and Confirmation of Settlements in General Courts Act (394/2011), hereinafter the ‘Mediation Act’. This Act describes the mediation procedure in general terms, but how the mediation is otherwise arranged is up to the parties and the mediator. The Mediation Act (394/2011), Section 2(6) states ‘Court mediation shall proceed promptly, even-handedly and impartially. The mediator shall hear the parties and consult with them. With the consent of the parties, other persons may also be heard and other information submitted. The mediator may consult with a party without the other parties present, if all the parties consent to this. The mediator decides, after consultation with the parties, on how the mediation shall otherwise be arranged.’ The out-of-court mediation procedure is not governed by statute. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes/(Yes). In court mediation is to some extent contractual, see 3.a. Out-of-court mediation is always contractual. c. Mediator can offer a non-binding opinion Yes. In court mediation, on request or with the consent of the parties, the mediator may offer a non-binding advice or may even make a proposal for an amicable resolution. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. The style of mediation is not explicitly defined in the Mediation Act. The possibility that the judge mediator may make settlement proposals without the parties’ request should be used with extreme caution and generally only as a last resort to break a

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deadlock that would otherwise cause the mediation to end. On the other hand, the Mediation Act states that the judge mediator’s proposal may be based on what the judge mediator considers to be ‘purposeful’, not ‘reasonable’ as stated in the aforementioned Mediation Act. The Finnish Government Bill confirms that this provision was changed to convey a more forward-looking approach to the mediator’s proposal. Although not explicitly stated in the law, this change is in line with the core ideas of facilitative mediation in which the focus should be on interests and not on legal considerations and evidence. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). Facilitative with evaluative elements. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. No specific method. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Under the Mediation Act, enforceability of a mediated settlement agreement requires that the mediator has been trained in mediation. In court mediation, the mediator is a judge in the court where the matter is pending. Judges who act as mediators must undertake the mediation training provided by the Ministry of Justice. The purpose of the training is to guarantee the quality of mediation, and to ensure that mediation is ‘efficient, unbiased and skilled’. The training comprises both theory and practical exercises. The training is based on the philosophy of facilitative mediation, and it was originally developed in cooperation with the English mediation specialists, Lawrence Kershen and David Richbell (CEDR/MATA). For bar members acting as mediators, the Bar Association provides mediation training. The Bar Association’s training is based on the same philosophy and developed by the same specialists as the training for judges, and it is designed to give practical skills to advocates acting as mediators. The practical exercises are considered particularly important because the role of the mediator is somewhat different from that of an advocate (as it is from the role of a judge, for that matter). Since 1998, the Finnish Bar Association has given basic training in mediation to approximately one-third of its 1,900 members, of whom 317 have also completed an advanced mediation training module.

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b. Set by market (private certifying bodies) Yes. Different organisations can provide mediation training. It is not regulated by law. c. Set by public regulation No/Yes in court. For out-of-court mediation there are no regulations stipulating who can be a mediator, only for in-court mediation. There the mediator has to be a judge trained in mediation to be able to be an accredited mediator. d. Number of hours for basic mediator training 21 hours. e. Mandatory Continuing Professional Development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No.

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h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. j. Set by market (private certifying bodies) No. However, advocates are always obliged to act in accordance with advocacy rules. k. Set by public regulation (No)/(Yes) In court mediation, the representation of the parties is governed by statutory provisions on a party’s right to be heard in court. Mediation advocates are, furthermore, always bound by general advocacy rules.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No/Yes. There is only public regulation regarding court mediation. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

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EU Directive

a. EU Directive implemented for cross-border cases only No. b. EU Directive implemented for all national and cross-border commercial cases Yes. c. EU Directive implemented for all national and cross-border civil cases Yes.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2006. The Act on Mediation in Courts (1015/2005) came into force on 1 January 2006. b. Legislation updated since EU mediation directive (date update) Yes 2011. The Act was repealed in 2011 when the Finnish parliament implemented the European Union Directive on certain aspects of mediation in civil and commercial matters (Directive 2008/52/EC). The Directive was implemented by enacting the Mediation and Confirming Settlements in Courts Act (394/2011). It deals primarily with mediation in court in civil matters, and also entails some provisions regarding enforcement of settlement agreements made out-of-court. The new Mediation Act 2011 repealed the 2005 Mediation in Courts Act, but the changes it brought were relatively small. Therefore, the implementation did not generate much debate.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. The general courts of law and the Finnish Bar Association, for example, both provide mediation proceedings. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes/No in court. In court mediation has a set fee, but in out-of-court mediation the fee of the mediator may be freely agreed between the parties and the mediator. b. Fixed in some cases by public regulation No/Yes in court. See 9.1.a.

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c. Average mediator fee per hour for commercial or cross-border cases The costs of court mediation consist of the service charges of the court (including the application processing fee of € 113, the costs of the assistant to the judge mediator (if appointed). The parties do not need to pay judge mediator fees, because those services – just as in litigation – are provided as a public service. In comparison to mediation out-of-court, court mediation charges are therefore quite insignificant. € 180 (estimate). In private out-of-court mediation, the mediator charges a fee for the services. The mediator fees may be freely agreed between the parties and the mediator. For example, where the mediation is carried out under the Mediation Rules of the Bar Association, the mediator charges an hourly fee, that is usually split equally between the parties. However, the Bar Association does not charge administrative fees for nominating the mediator or proposing a mediator to the parties. At the other end of the scale, the Arbitration Institute of the Finland Chamber of Commerce charges a flat fee of € 5,000 for nominating a mediator. Cost efficiency is therefore clearly a factor in favour of court mediation. There are no statistics about the expected fee, but it may be similar to lawyer fees, which are around € 180 per hour (data 2007). d. Average mediator fee per hour in civil cases € 180 (estimate). See 9.1.c.

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9.2. Financing and legal aid e. Legal aid available for mediation services No/Yes in court. Legal aid cannot be obtained in out-of-court mediation. However, legal aid can be given in court mediation to natural persons, but not to companies or corporations. f. Mediator fees covered by legal insurance schemes Yes (companies)/No (natural persons). The answer depends on the terms and conditions of the insurance. A company’s liability insurance usually covers mediator fees, but these are usually not covered by a natural person’s liability insurance. g. Mediator fees subsidised in court-connected schemes Yes. The parties do not need to pay judge mediator fees because those services – as is the case in litigation – are provided as a public service.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. In court mediation the mediator is a judge in the court where the matter is pending. For out-of-court mediation there is no special relationship. See also 16. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. c. Mediation procedure has impact on statute of limitations Yes. According to the Finnish Limitation Act, claims presented against a debtor in the court, the Consumer Disputes Board, or in any other procedure or institution based on regulation

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will interrupt the limitation period. Court and out-of-court mediation are regulation-based procedures, so the mediation procedure will interrupt the limitation period.

11. Mediated settlement a. Contract Yes. A mediated settlement will in most cases qualify as a binding contract. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. In order to become enforceable, both court and out-of-court settlements between the parties must be confirmed in the court. c. Enforceable under some circumstances which are up to the parties Yes. The district court may confirm that all or part of a settlement reached in out-of-court mediation is enforceable. Proceedings commence once a written application is submitted to the district court office. The parties must submit the application together, or with the explicit consent of the other party. d. Enforceable under some circumstances defined by public regulation Yes. The Mediation Act specifies the circumstances that must be met for a mediated settlement out-of-court to be enforceable.

12. Confidentiality a. Regulated by law Yes. Confidentiality of proceedings/documents is assured in out-of-court mediation. Confidentiality of court mediation is not guaranteed because proceedings open to public (though caucus sessions and mediations which have a compelling reason are private). All documents associated with court mediation are subject to presumption of public access, and thus made available to public, if officially filed during the proceedings. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No/Yes in court. There is an exception from the obligation to give evidence for in-court mediation. In out-of-court mediation, there is only confidentiality based on advocacy rules, if the mediator is a lawyer.

13. Education a. Mediation education is a common component of legal education curriculum No. Certain universities in Finland offer a course in mediation, but it is not seen as a common component of the legal curriculum. b. Mediation advocacy education is a common component of legal education curriculum No.

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14. Most relevant literature or references, case law, articles, law –– Gustaf Möller, Välimiesmenettelyn perusteet, Lakimiesliiton kustannus 1997. –– Kaijus Ervasti, Sovittelu tuomioistuimessa, WSOY 2005. –– Petri Taivalkoski, Mediation poised to take off in Finland as an alternative to litigation and arbitration (article). –– Petri Taivalkoski, EU Handbook on Mediation: Chapter on Finland (article). –– www.arbitration.fi –– http://www.rilsovittelu.fi/web/index.php –– http://www.asianajajaliitto.fi/ –– http://www.comi.fi/english/arbitration/ –– http://www.keskuskauppakamari.fi/site_eng/About-us/Executive-Bodies/The-Board-ofBusiness-Practice –– http://www.pif.fi/frontpage/pharmaceutical_industry/marketing/supervisory_commission _of_medicinal_products –– http://www.fine.fi/index.php?item=3 –– http://www.stat.fi/til/koikrs/index_en.html

15. Mediation legislation texts

FI

a. Weblink to legislation in national language –– http://www.finlex.fi/fi/laki/alkup/2011/20110394 b. Weblink to English or other translation –– http://www.finlex.fi/en/laki/kaannokset/2011/en20110394.pdf c. Other references NA.

16. Country specific remarks − In Finland, mediation is still in its early stages, but the number of court mediations is increasing rapidly. The experiences with court mediation have been generally positive, with settlement in around two-thirds of the disputes referred to mediation. These settlement rates are similar to those of other types of mediation schemes. It is likely that good reception of court mediation in Finland will have a positive impact on out-of-court mediation services as well. − In-court mediation means finding an amicable resolution of the matter. The matter in question must be amenable to mediation, and the settlement must appropriate in view of the claims of the parties. The mediator, a judge in the court where the matter is pending, is appointed to mediate the matter. However, the mediator shall not adjudicate in the same case. Mediation definition There are two mediation acts in Finland, namely the Mediation in Civil Matters and Confirmation of Settlements in General Courts Act and the Conciliation in Criminal and Certain Civil Cases Act. Neither of these laws has an exact definition for mediation.

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1. Mediation in Civil Matters and Confirmation of Settlements in General Courts Act (394/2011) Mediation in Civil Matters and Confirmation of Settlements in General Courts Act (Laki riitaasioiden sovittelusta ja sovinnon vahvistamisesta yleisissä tuomioistuimissa 29.4.2011/394) does not have a clear definition for mediation. Nevertheless, below we list sections related to the scope of application, mediators and the objectives of court mediation. Section 1. Scope of application (1) This Act applies to mediation in civil matters and contested petitionary matters in general courts (court mediation). (2) The Act also provides for confirmation of enforceability of a settlement reached in out-ofcourt mediation. (3) The provisions on confirmation of enforceability of a settlement reached in out-of-court mediation apply also to a settlement reached in out-of-court mediation in a Member State of the European Union and in court mediation which is comparable to the procedure provided in chapter 2 of this Act. However, the provisions do not apply to a settlement reached in Denmark or to a settlement which does not pertain to a cross-border dispute as defined in Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters. Section 3. The objective of and preconditions for court mediation (1) The objective of court mediation is an amicable resolution of the matter. (2) The precondition for court mediation is that the matter is amenable to mediation, and a settlement is appropriate in view of the claims of the parties. Section 5. Mediator and auxiliary (1) A mediator shall be appointed to mediate in the matter. The mediator shall be a judge in the court where the matter is pending. (2) In order to secure the expertise necessary in the matter or otherwise to further the mediation, the mediator may with the consent of the parties have an auxiliary. The mediator appoints the auxiliary once the parties have accepted the nominee. The fee of the auxiliary shall be paid and his or her expenses shall be reimbursed by the parties. 1 § Soveltamisala Tätä lakia sovelletaan riita-asioiden ja riitaisten hakemusasioiden sovitteluun yleisessä tuomioistuimessa (tuomioistuinsovittelu). Laissa säädetään lisäksi tuomioistuimen ulkopuolisessa sovittelussa tehdyn sovinnon vahvistamisesta täytäntöönpanokelpoiseksi. Lain säännöksiä tuomioistuimen ulkopuolisessa sovittelussa tehdyn sovinnon vahvistamisesta täytäntöönpanokelpoiseksi sovelletaan myös muussa Euroopan unionin jäsenvaltiossa tuomioistuimen ulkopuolisessa sovittelussa tai tämän lain 2 luvun menettelyyn rinnastuvassa tuomioistuinsovittelussa tehtyyn sovintoon. Lain säännöksiä ei kuitenkaan sovelleta Tanskassa tehtyyn sovintoon tai sovintoon, joka ei koske tietyistä sovittelun näkökohdista siviili- ja kauppaoikeuden alalla annetussa Euroopan parlamentin ja neuvoston direktiivissä 2008/52/EY määriteltyä rajat ylittävää riitaa.

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3 § Tuomioistuinsovittelun tavoite ja edellytykset Tuomioistuinsovittelulla pyritään asian sovinnolliseen ratkaisuun. Tuomioistuinsovittelun edellytyksenä on, että asia soveltuu soviteltavaksi ja sovittelu on tarkoituksenmukaista osapuolten vaatimuksiin nähden. 5 § Sovittelija ja sovittelijan avustaja Asiaa sovittelemaan määrätään sovittelija. Sovittelijana toimii asiaa käsittelevän tuomioistuimen tuomari. Sovittelun kohteena olevassa asiassa tarvittavan asiantuntemuksen turvaamiseksi tai sovittelun edistämiseksi muuten sovittelija voi osapuolten suostumuksella käyttää avustajaa. Sovittelija nimeää avustajan saatuaan valinnalle osapuolten hyväksymisen. Avustajan palkkion ja korvauksen hänen kuluistaan suorittavat osapuolet. Link to the law (Finnish): http://www.finlex.fi/fi/laki/ajantasa/2011/20110394 Link to the unofficial translation made by Ministry of Justice (English): www.finlex.fi/fi/laki/ kaannokset/2011/en20110394.pdf

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2. Conciliation in Criminal and Certain Civil Cases Act (1015/2005) General provisions and definitions are included in the first chapter of Conciliation in Criminal and Certain Civil Cases Act (Laki rikosasioiden ja eräiden riita-asioiden sovittelusta 9.12.2005/1015). Chapter 1 – General provisions Section 1 – Scope of application (1) For the purposes of this Act, conciliation in criminal cases (conciliation) means a nonchargeable service in which a crime suspect and the victim of that crime are provided the opportunity to meet confidentially through an independent conciliator to discuss the mental and material harm caused to the victim by the crime and, on their own initiative, to agree on measures to redress the harm. (2) Conciliation may also be used in civil cases in which at least one of the parties is a natural person. Civil cases other than those concerning claims for damages based on a crime may, however, only be referred to conciliation if the dispute is of a minor nature, taking into account the subject and the claims put forward in the case. What is provided on conciliation in criminal cases in this Act applies, as appropriate, to conciliation in civil cases. Section 2 – General conditions for conciliation (1) Conciliation may be carried out only between parties that have personally and voluntarily expressed their agreement to conciliation and are capable of understanding the meaning of conciliation and the solutions arrived at in the conciliation process. Before the parties agree to conciliation, they must be explained their rights in relation to conciliation and their position in the conciliation process. Each party has the right to withdraw its agreement at any time during the conciliation process. (2) Underage persons must give their agreement to conciliation in person. In addition, an underage person’s participation in conciliation requires that his/her custodian or other legal representatives agree to it. Legally incompetent adults may participate in conciliation if they understand the meaning of the case and give their personal agreement to conciliation.

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Section 3 – Issues dealt with through conciliation (1) Conciliation may deal with crimes that are assessed as eligible for conciliation, taking into account the nature and method of the offence, the relationship between the suspect and the victim and other issues related to the crime as a whole. Crimes involving underage victims must not be referred to conciliation if the victim needs special protection because of the nature of the crime or because of his/her age. If a crime cannot be referred to conciliation, issues related to compensation of the damage caused by it must not be referred to conciliation either. (2) Civil cases may be referred to conciliation if dealing with them through conciliation can be considered expedient. (3) Even if a case is dealt with and decided by a police or prosecuting authority or in a court of law, this does not preclude conciliation. Section 4 – Definitions For the purposes of this Act: 1) conciliation office means an operating unit with the duty of providing conciliation services in a particular area under section 8; 2) conciliator means a person with appropriate training who handles individual conciliation duties under the supervision and monitoring of the conciliation office; 3) person in charge of conciliation services means a person whose duty it is to be responsible for planning, developing and appropriately implementing conciliation services within the operating area of the conciliation office and of acting as conciliator where necessary; and 4) conciliation advisor means a person with the duty of supervising and monitoring the work of the conciliators and acting as conciliator where necessary. 1 luku Yleiset säännökset 1 § Lain soveltamisala Rikosasioiden sovittelulla (sovittelu) tarkoitetaan tässä laissa maksutonta palvelua, jossa rikoksesta epäillylle ja rikoksen uhrille järjestetään mahdollisuus puolueettoman sovittelijan välityksellä kohdata toisensa luottamuksellisesti, käsitellä rikoksesta sen uhrille aiheutuneita henkisiä ja aineellisia haittoja sekä pyrkiä omatoimisesti sopimaan toimenpiteistä niiden hyvittämiseksi. Sovittelu voi kohdistua myös sellaisiin riita-asioihin, joissa ainakin yksi osapuoli on luonnollinen henkilö. Muu kuin rikokseen perustuvaa vahingonkorvausvaatimusta koskeva riita-asia voidaan kuitenkin ottaa soviteltavaksi vain, jos riita sen kohde ja asiassa esitetyt vaatimukset huomioon ottaen on vähäinen. Riita-asian sovittelusta on soveltuvin osin voimassa, mitä tässä laissa säädetään rikosasian sovittelusta. 2 § Sovittelun yleiset edellytykset Sovittelu voidaan toteuttaa vain sellaisten osapuolten kesken, jotka ovat henkilökohtaisesti ja vapaaehtoisesti ilmaisseet suostuvansa sovitteluun ja jotka pystyvät ymmärtämään sovittelun sekä siinä tehtävien ratkaisujen merkityksen. Ennen kuin osapuoli antaa suostumuksensa sovitteluun, hänelle tulee selvittää hänen sovitteluun liittyvät oikeutensa ja asemansa sovittelussa. Osapuolella on oikeus peruuttaa suostumuksensa milloin tahansa sovittelun aikana. Alaikäisen henkilön on annettava suostumuksensa sovitteluun henkilökohtaisesti. Alaikäisen henkilön osallistuminen sovitteluun edellyttää lisäksi, että myös hänen huoltajansa tai muut lailliset edustajansa suostuvat siihen. Vajaavaltaiseksi julistettu täysi-ikäinen henkilö voi osallistua sovitteluun, jos hän ymmärtää asian merkityksen ja antaa henkilökohtaisesti suostumuksensa sovitteluun. 3 § Sovittelussa käsiteltävät asiat Sovittelussa voidaan käsitellä rikoksia, joiden arvioidaan soveltuvan soviteltaviksi, kun otetaan huomioon rikoksen laatu ja tekotapa, rikoksesta epäillyn ja uhrin keskinäinen suhde sekä muut rikokseen liittyvät seikat kokonaisuutena. Soviteltavaksi ei saa ottaa alaikäiseen kohdistunutta

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rikosta, jos uhrilla rikoksen laadun tai ikänsä vuoksi on erityinen suojan tarve. Jos rikosta ei voida sovitella, myöskään siitä aiheutuneen vahingon korvaamista koskevaa asiaa ei saa ottaa soviteltavaksi. Riita-asia voidaan ottaa soviteltavaksi, jos sen käsittelemistä sovittelussa voidaan pitää tarkoituksenmukaisena. Asian käsittely ja ratkaisu poliisi- tai syyttäjäviranomaisessa taikka tuomioistuimessa eivät estä sovittelua. 4 § Määritelmät Tässä laissa tarkoitetaan: 1) sovittelutoimistolla toimintayksikköä, jonka tehtävänä on 8 §:n mukaisesti tuottaa sovittelupalvelut tietyllä alueella; 2) sovittelijalla tehtävään koulutettua henkilöä, joka hoitaa yksittäisiä sovittelutehtäviä sovittelutoimiston ohjauksen ja valvonnan alaisena; 3)  sovittelutoiminnan vastuuhenkilöllä  henkilöä, jonka tehtävänä on vastata sovittelutoiminnan suunnittelusta, kehittämisestä ja asianmukaisesta toteuttamisesta sovittelutoimiston toimialueella sekä toimia tarvittaessa myös sovittelijana; ja 4)  sovittelun ohjaajalla  henkilöä, jonka tehtävänä on ohjata ja valvoa sovittelijoiden toimintaa sekä toimia tarvittaessa sovittelijana. Link to the law (Finnish):  http:/www.finlex.fi/fi/laki/ajantasa/2005/20051015 Link to the unofficial translation made by Ministry of Justice (English): http:/www.finlex.fi/fi/ laki/kaannokset/2005/en20051015.pdf

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Mediation regulation and approach Country: Finland Prepared by Antti Heikinheimo 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of procedure the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes No Yes No No No No Yes (No)/Yes Yes Yes No No/Yes Yes/(Yes) Yes No F/E D F/(E) D All Mix Mix Yes Yes No/Yes in court 21 hrs No No No No No No (No)/(Yes)

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Mediation regulation and approach Country: Finland Prepared by Antti Heikinheimo 5. Who can be mediator?

6. EU directive

FI

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing e. Legal aid available for mediation services and Legal f. Mediator fees covered by legal insurance schemes aid

g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No/Yes No No No Yes Yes 2006 2011 Yes Yes No Yes/No in court No/Yes in court € 180 (est.) € 180 (est.) No/Yes in court Yes (companies)/ No (natural persons) Yes Yes

Yes Yes Yes No Yes Yes Yes No/Yes in court No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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10. FRANCE1 Prepared by Dr Paola Cecchi Dimeglio2

1.

Attempt to mediate

a. Always voluntary (Yes). Under French law, parties may refer a matter to mediation in all areas of law, provided the mediation does not undermine rules of public policy regulating social and financial conduct. The legal basis for all civil (including commercial and work-related) mediation is Act No. 95-125 of 8 February 1995, the Decree of 22 July 22 1996, and Decree No. 2012-66 of 20 January 2012. This latest decree of 2012 is the transposition of Order No. 2011-1540 of 16 November 2011, implementing Directive No. 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. The process of mediation is set forth in Sections 131(1) to 131(15) and Sections 1528 to 1568 of the Code of Civil Procedure. b. Mandatory (in some cases) (No). However, specific laws include a mandatory ‘conciliation’ procedure in the pre-trial stage. This applies to proceedings in front of family court judges (in divorces cases), employment councils and rural rent tribunals. c. Court referral or court-connected mediation possible Yes. The law gives the judge the option of appointing a mediator in all civil matters and at any time during the court procedure. Mediation referral is subject to the prior consent of the parties. If a court action has already started, ‘the court dealing with the dispute may, with the consent of the parties, appoint a third person to ascertain the parties’ positions and to present their points of view so as to enable them to find a solution to their dispute’ (Section 131(1) of the Civil Procedure Code). Specific laws in family matters (Act of 4 March 2002 relating to parental authority, now Section 373(2)(10) of the Civil Code and the Act of 26 May 2004 relating to divorce, which became Section 255 of the Civil Code) give judges the power to order the parties to meet with a family mediator who will inform the parties of the objectives and the procedure for mediation. The meeting is free of charge, and cannot result in any type of sanction being imposed (Sections 255 and 373-2-10 of the Civil Code). In the field of labour law, specific provisions exist referring to meditation. (For the use of ADR in labour relations in general, see Section 1529 CPC and Section L.122(54) of the Labour Code for cases involving psychological bullying). d. Court-ordered mediation possible (No). The judge can advise parties to try mediation, but cannot mandate parties to go to mediation. If the parties refuse to mediate, the court proceedings will continue. See 1.c.

1 Last update of information: June 2013. 2 Paola Cecchi Dimeglio (Magistere-DJCE, LL.M., Ph.D.) is currently a post-doctoral reseacher at Harvard Law School (PON) and at Harvard Kennedy School (WAPPP). Contact pcecchidimeglio@law. harvard.edu or [email protected].

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e. Sanctions by the court if mediation is not tried (in good faith) No. As a rule there are no sanctions, however, there is some case law pointing in that direction. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. It is common practice in complex commercial cases or cross-border cases to have lawyers present during mediation.

FR

2. Mediation clause a. Case admissible in court with a mediation clause Yes. The Supreme Court held that legal proceedings initiated by a party before the court without first attempting to mediate are no longer admissible, if the contract stipulates a mediation clause. Even if the parties believe that mediation would fail once the dispute had arisen, and that mediation would therefore be a waste of time, the judges held that the parties must attempt to reach an agreement with the assistance of a neutral third party in a confidential environment, as this was their will and state of mind at the time the contract was signed. If such a clause exists, but does not provide specific information on who should be the mediation provider and other details about the mediation process, the court will refer them to a provider of the court’s choice and the mediation rules of that specific provider will apply. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. See 2.a. The courts cannot impose mediation upon the parties. They can only propose it. In France, the courts can oblige the parties to attend an information session on mediation. Section 131(1) Civil Procedure Code, provides that after having obtained the consent of the parties, a French court may appoint a third person to help the parties in the mediation process. In such a case, the mediator is a delegate of the court. At the request of the parties, the court shall declare enforceable the written agreement (Section 131(12) Civil Procedure Code). The exequatur proceedings apply to non-contentious matters (‘L'omologation relève de la matière gracieuse'). Section 1441(4) Civil Procedure Code concerns the enforcement of agreements reached in mediation processes conducted out-of-court by a third party. In these cases, the mediator is not a delegate of the court. Pursuant to Section 1441(4) Civil Procedure Code, the president of the court, who would have had subject matter jurisdiction, can confer enforceability to the written settlement submitted before him (Cour de cassation, 1 ch. civ., April 16, 1985, Juris-Data No.1985-799685). The proceedings apply to non-contentious matters. Enforcement is refused if the court finds that the agreement is contrary to French public policy. In any case, it is possible for a party to obtain, in subsequent proceedings, the rescission of the agreement declared enforceable on

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grounds of error in persona, error concerning the subject matter of the dispute, deception or duress (Section 2053 of the French Civil Code). Additionally, in a recent decision of 2010, the ‘Cour de cassation’ held that, as an alternative to the exequatur procedure, it is possible to have the mediated agreement made into a notarial instrument by a notary. In this way, the mediated agreement becomes enforceable without the intervention of a court (see Cour de cassation, 2 ch. civ., October 21, 2010 No. 09-12378, available at www.legifrance.gouv.fr). See also 1.e.c. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). See 1.b. and 2.a-2.b.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). Mediation is regulated by law but the rules are not rigid. Section 131(1) of the new Civil Code Procedure stipulates: ‘The judge officiating a dispute may, after obtaining the agreement of the parties, appoint a third person to hear out the parties and compare their points of view to enable them to find a solution to their conflict. This authority also lies with the judge in chambers during interim proceedings.’ The new Civil Code Procedures contain provisions for: the duration of the mediation (Section 131(3)), the mediator (Sections 131(4) and 131(5)), the powers of the mediator (Section 131(8)), the implementation of mediation (Section 131(7)), the end of the mediation (Sections 131(10) and 131(11)), approval of the agreement (Section 131(12)), financial compensation for the mediator (Section 131(13)), the principle of confidentiality (Section 131(14)), and the lack of possibilities for appeal against the decision ordering or renewing mediation (Section 131(15)). b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation and the mediation process are governed by the contract between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. As a rule a mediator does not offer advice, however, the mediator is allowed to do so if the parties request this (see par 3.e., 3.g., 3.i.). In commercial and cross-border mediation it is common practice for mediators to offer their opinion about the case and most mediators do so at the parties’ request. d. Mediator can offer a binding opinion Yes. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). The predominant style is facilitative. The French mediation style has its roots in a facilitative approach, which is still common practice among many French practitioners. The latest trend in France is moving towards a mix between facilitative and evaluative techniques, depending on the parties’ preferences and circumstances. Generally, evaluative aspects are introduced later on in the process, especially in commercial cases. See 3.i.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Evaluative/Directive. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Transformative/Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Evaluative/Directive. Mediators with a legal background commonly stick to a more evaluative-directive approach. However, there is a trend in France which involves mediators are using a facilitative approach.

FR

i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative techniques are used (for when they are used, see 3.e. and 3.g.). Mediators often use neutral opinions as well as introduce options, ways to improve the agreement and suggest mechanisms to move forward in the process, such as engaging another expert or combining processes. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Caucus/Mix. The French mediation approach has its roots in a caucus approach, which is still common practice among many French practitioners. However, commercial and cross-border mediations generally use a mix of joint sessions with caucuses as a tool to break impasses or move the process forward. The joint session model was introduced in a training setting in France in 2008 (See Gary Friedman Training at the Paris Mediation and Arbitration Centre (Centre de Médiation et d'Arbitrage de Paris (CMAP)), co-organised by Paola Cecchi-Dimeglio, Adrian Boberly and CMAP). k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. Common practice in civil mediations, especially in family and labour cases, is a mix of both joint sessions (only) and mediations using caucus elements.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. At a national level, there is no unique ‘code of conduct’ for mediators; each association has its own. Also, each association has different requirements for accreditation or certification of mediators. The Paris Chamber of Commerce and Industry created a code of good conduct and guarantees to ensure that mediation is properly regulated. CMAP handles disputes between businesses, usually big companies. The National Association of Mediators (Association Nationale des Médiateurs (ANM)) was established in 1997, and brings together a number of associations and mediators. This association has drawn up a national code of conduct for ANM mediators. The Institute of Expertise, Arbitration and Mediation (l'Institut d'Expertise, d'Arbitrage et de Médiation (IEAM)) and the Federation of Mediators and Project Coordinators (Fédération des Médiateurs et Chargés de Mission libéraux (FMCML)) have their own code of conduct. The National Federation of Mediation Centres (Fédération Nationale des Centres de Médiation (FNCM)) brings together 60 bar association mediation centres, organised along regional lines. A professional code of conduct can be downloaded free of charge from their website.

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In family matters, whether through their own compliance or through the intervention of the body which employs them, family mediators are guided by the ethical codes or charters of the two federations of family mediators, the Association for Family Mediation (Association Pour la Médiation Familiale (APMF)) and the National Federation of Family Mediation Associations) (Fédération Nationale des Associations de Médiation Familiales (FENAMEF)). These codes or charters encompass the ‘ethical rules of family mediation’ adopted on 22 April 2003 by France’s National Advisory Counsel on Family Mediation (CNCMF). In March 2008, the FNCM (adopted an ‘ethical code’ based on the ‘European Code of Conduct for Mediators’. b. Set by market (private certifying bodies) Yes. There are several mediation and mediator organisations including providers of mediation services or mediator interest representation groups. None of these organisations or the eligibility criteria for mediators are regulated by law. c. Set by public regulation No. Not presently. However, see specific rule set by Decree No. 2012-66 of 20 January 2012. Court-appointed mediators are not required to have had training or experience in the practice of mediation as long as they can prove they are familiar with the nature of the dispute at hand through the exercise of an activity that would have given this qualification. d. Number of hours for basic mediator training 50+ hours. The organisations of mediators referred to in 4.a. and 4.b. all have their own standards, which differ from each other. The average number of hours for a basic level mediator training is around 50 hours, but in certain cases 560 hours are required (see 4.f.). e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. Each organisation of mediators referred to in 4.a. and 4.b. has its own regulations concerning the amount of CDP hours a year. f. Accreditation through set of rules (e.g. age, education, professional background, experience, etc.) No. However, at the moment, French substantive law does not have any provisions requiring specific training in mediation, except for family matters, for which a family mediator diploma was created by the Decree of 2 December 2003 and the Ministerial Order of 12 February 2004. Each organisation of mediators mentioned above in 4.a. and 4.b has its own set of rules and conditions concerning the accreditation of their mediators. Most organisations request additional practical experience and/or a performance-based assessment. Regarding family mediation, the legislation makes provision for training to be given by approved institutions and a diploma to be granted by a regional agency after the training or certification tests for the acquired knowledge have been validated. The training is provided by centres approved by the Regional Health and Social Services Offices (DRASS). In these centres, the students undergo 560 hours of training spread out over three years, with at least 70 hours of practice. At the end of the training the candidate must pass a test. g. Accreditation through written exam Yes. Some of the organizaisations mentioned in 4.a. and 4. h. Accreditation through performance-based assessment (Yes). Some of the organizaisations mentioned in 4.a. and 4.b.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates (No). To date, there is no official scheme to certify or accredit mediation advocates. See 4.a., b., c., and d. j. Set by market (private certifying bodies) Yes. Most initiatives are private. There is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

FR

a. Set by market (private certifying bodies) Yes. See 4.a, 4.b. and 4.c. b. Set by public regulation Yes. See rule set by the Decree No. 2012-66 of 20 January 2012. The Decree of 20 January 2012 specifies that the mediator – who can be a natural person or a legal entity – must be able to prove, through his/her/its past or present activities, that he/she/it ‘possesses the skills required by the nature of the dispute or that he/she/it has the training, experience or expertise suited to conducting the mediation’ (Section 1533-2 of the FCCP). Therefore, the mediator qualifications primarily depend on the nature of the dispute. It is important to note the difference between the roles of conciliators and mediators. Conciliators are sworn court official who perform their duties on a voluntary basis and who must have at least 3 years of legal experience. Conciliators are appointed pursuant to an order of the First President of the Court of Appeals, after consultation with the Public Prosecutor, upon proposal of the trial judge (Sections 1, 2 and 3 of Decree No. 78-381 of March 20, 1978 on judicial conciliators). c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone may be a mediator once accredited by one of the organizaisations mentioned in 4.a and 4.b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. As mentioned in 1.b, cross-border mediations within the European Union are covered by the EU Directive on Mediation.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The French government chose to extend the scope of the Directive in their transposition of the Directive, as the Directive made possible in its Recital 8. It extended the Directive to purely internal disputes (except in matters relating to employment law and administrative public law, and to the extent that it does not concern any exclusive powers of the State). Section 1528 of the French Code of Civil Procedure now provides that ‘the parties to a dispute can, at their initiative and in the conditions provided for in this Book, attempt to amicably settle such disputes with the assistance of a mediator, judicial conciliator or, in the scope of a participatory procedure, of their Counsel’.

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Originally, France did not manage to transpose the Directive into national law within the required time frame. In July 2011, France was among nine other members of the European Union to receive letters from the European Commission, serving as formal notice for failure to transpose the Directive on time. In November 2011, the French Ministry of Justice and Liberty published an ordinance, No. 2011-1540, setting a standard for the mediation procedures. The stated purpose of the ordinance is to ‘contribute to the development of alternative methods of resolving disputes’. The ordinance, for the first time in French law, gives a definition to the term ‘mediation’ that is purposefully broad. The Ministry of Justice and Liberty stated to have been directly inspired for this definition by the 2008 EU Directive on mediation. Mediation is defined as ‘a process by which two or more parties in dispute attempt to resolve their problems amicably with the aid of a neutral third party.’ This ordinance was then officially included in the French Civil Code on 20 January 2012 as Decree No. 2012-66. The main provisions of the ordinance are as follows: The ordinance assures a level of quality of the mediation proceedings by requiring that the mediator be competent and impartial. The ordinance also provides that, unless the parties agree otherwise, the procedure will be confidential. b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since 1995. See 1.a. See No. 95-125 of 8 February 1995, Decree of 22 July 1996, Decree No. 2012-66 of 20 January 2012. b. Legislation updated since EU mediation directive (date update) 2011. See 1.a. See Decree No. 2012-66 20 of January 2012.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are associations, partnerships or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being mediation provider. Also, see 8.c. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes.

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b. Fixed in some cases by public regulation Yes. See special rules for legal aid cases. c. Average mediator fee per hour for commercial or cross-border cases € 200-350 (estimate). d. Average mediator fee per hour in civil cases € 150-250 (estimate).

FR

9.2. Financing and legal aid e. Legal aid available for mediation service (Yes). Regarding judicial mediation, the mediator may be remunerated from the legal aid fund. In all cases, remuneration is fixed by the taxing judge after the work is complete and on submission of a memorandum or costs statement (Section 119 of Decree No. 91-1266 of 19  December 1991). The judge fixes the amount of the deposit and the remuneration (Sections 131(6) and 131(3) of the Civil Code of Procedure). In the absence of any costs scale defined precisely by the legislation, the unitary cost for the provision of family mediation services therefore varies. As part of the national protocol, signed by the Ministry of Justice, the Ministry of Employment, Social Affairs, the Family and the Solidarity Fund, the National Family Allowance Fund and the Central Agricultural Mutual Benefit Fund, services which benefit from the provision of a ‘family mediation’ service have undertaken to follow a national scale, which varies depending on the income of the parties. Subject to the judge’s assessment, the financial share to be borne by the parties per mediation session ranges from € 5 to € 131.21. In family matters, the National Family Allowance Fund (CNAF) has put in place a funding procedure enabling organisations to receive family mediation services subject to certain rules. f. Mediator fees covered by legal insurance schemes Yes. See 9.2.e. g. Mediator fees subsidised in court-connected schemes Yes. See 1.c, 9.2 e.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Not at present, although all judges and courts can refer cases to mediation at every stage of the proceedings. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Yes to some extent. It is integrated into the law. c. Mediation procedure has impact on statute of limitations Yes. The French legislature has adopted a significant reform of the statute of limitations, by adopting the Act No. 2008-561 of 17 June 2008, amending the terms of Section 2238 of the Civil Code.

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This legislative changes came shortly after the release of the Magendie Report, the Working Group on Mediation.3 In this report, the working group recommended the legislative adoption of the solution rendered by the combined Chamber of the Cour de Cassation on 14 February 2003 regarding pre-mediation clauses (Cass. ch. mixte., 14 Febr. 2003, Bull. Civ. n. 1). In this landmark decision, the Cour de Cassation clearly established that a dispute’s referral to conciliation and mediation clauses proceedings pursuant to a contractual conciliation or mediation clause suspends the limitation period for bringing court proceedings.4 The newly amended Section 2238 of the Civil Code only applies to conventional mediation proceedings and stipulated the following: ‘the statute of limitations is suspended as of the day when, after a dispute arises, the parties agree to resort to mediation or conciliation or, in the absence of a written agreement, as of the day of the first mediation or conciliation meeting…’.5 In other words, the limitation period is suspended from the date when the parties agree to refer the case to mediation or in the absence of written agreement, from the date of the first mediation meeting. The limitation period is reopened for a period no less than six months from the date on which the mediation is declared over.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement. Another body of specific rules for conventional mediation was created to allow for the approval of the agreement to be reached at the end of the process and to make it enforceable. This certification was made possible by the Order of 16 November 2011 (L. No. 95-125, s. 21-5 created; Ord. No. 2011-1540, Section 1). Approval may be requested by both parties to the mediation or by only one of them (see CPC Section created in 1534, D. No. 2012-66, s. 2). b. Automatically enforceable (No). The Directive as well as its transposition texts does not enable the homologation of mediation agreements without the consent of the two parties to the agreement (Section 6(1) of the Directive, Sections 1534 and 1541 of the French Code of Civil Procedure). However, mediation agreement initiated by the parties whilst the proceedings were pending can be enforced (CPC Section 131-12,(3) and see also 11.a.). In addition, mediation agreements are enforceable if they have been recognised and been made enforceable in another Member State of the EU.

3 Report of the Working Group on Mediation, October 2008, 73. Jean-Claude Magendie, former First President of the Paris Court of Appeal, led the working group to carry out a comprehensive study of the French justice system. The group’s report entitled ‘Speed and Quality of the Justice System – Mediation: Another Way’. This report is mainly known as the Magendie Report. It provides several recommendations related to mediation, including legislative changes related to the impact of mediation procedure on the statute of limitations. 4 In this ruling the court affirmed two essential points regarding pre-mediation clauses. First, ‘it follows from Sections 122 and 124 of the Civil Procedure Code that grounds for estoppel (e.g., ‘fins de nonrecevoir’) are not enumerated limitatively.’ Second, ‘the clause of a contract instituting a mandatory mediation procedure prior to submission to the court, the implementation of which suspends the running of the statute of limitation until its conclusion, constitutes a ground of estoppel that are imposed on the court if the parties invoke it.’ 5 Section 2241 of the Civil Code provides that an application to court, including emergency procedures, automatically interrupts the prescription time period.

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c. Enforceable under some circumstances which are up to the parties Yes. See 2b. d. Enforceable under some circumstances defined by public regulation (Yes). ‘To become enforceable, the agreement reached by the parties to a mediation, conciliation or participative process may be submitted for the approval of the judge who is competent to hear the dispute’ (Section 1565 of the FCCP). The request for approval must be filed with the judge through a petition. The Decree therefore allows a settlement agreement to become enforceable, thereby considerably strengthening the efficiency of amicable dispute resolution techniques. See also 2.b.

12. Confidentiality

FR

a. Regulated by law (Yes). The 2012 ordinance assures a level of quality for mediation proceedings by requiring that mediators be competent and impartial. The ordinance also provides that, unless the parties agree otherwise, the procedure will be confidential. In the event that the judge orders the mediation, the confidentiality of the discussions is required, pursuant to Sec­ tion 131.14 of the Civil Procedure Code and Section 24 of the Act of 8 February 1995. While the Directive’s confidentiality requirements only apply to mediators and administrators, the French version seems to apply to the whole mediation proceeding in general, although perhaps it remains to be seen whether and how it will be applied. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. For national cases mediators do not have the general right to refuse to give evidence in subsequent proceedings. It is important to note the following difference with the participative process introduced by Section 37 of Act No.2010-1609 of 22 December 2010 on the enforcement of court decisions, the conditions of exercise of certain regulated professions and court experts. The participative process agreement is an agreement whereby the parties to a dispute which has not yet been referred to a judge or arbitrator undertake to work together in good faith to resolve their dispute amicably (Section 2062 of the FCC). Pursuant to the Decree, the production and communication of submissions and exhibits by and between the parties must take place through the parties’ lawyers, in accordance with the provisions set forth in the participative process agreement. When an exhibit is produced, a list of exhibits must be drawn up (Section 1545 of the FCCP). If the parties do not reach an amicable settlement, the exhibits produced and communicated in the framework of the participative process can be subsequently used and relied upon before the judge. Indeed, when the parties have only settled part of their dispute, they may refer the matter to the judge and ask that the unsettled aspects of the dispute be ruled upon, either in compliance with the procedural rules applicable before the judge, or pursuant to a joint petition of the lawyers who assisted the parties during the participative process.

13. Education a. Mediation education is a common component of legal education No. Mediation courses are offered at several universities, but it is not seen as a common component of the legal curriculum.

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b. Mediation advocacy education is a common component of legal education No. Mediation advocacy is slowly picking up as a separate field of study. However, there is no real trend and it has not translated into specific classes being taught in this field.

14. Most relevant literature or references, case law, articles, law –– Béatrice BLOHORN-BRENNEUR, Justice et Médiation, Un juge du travail témoigne, Le Cherche Midi, Paris, 2006. –– Béatrice BLOHORN-BRENNEUR, La nouvelle conciliation judiciaire, Actes du Colloque de Grenoble du 2 juin 2005, Petites affiches n° 245 du 9.12.2005. –– Béatrice BLOHORN-BRENNEUR, Exemple de médiation judiciaire dans les conflits individuels pratiquée à Grenoble, Conférence des juges, Conseil de l’Europe, intervention n° 3, Strasbourg, novembre 2003. –– Jean-Pierre BONAFE-SCHMITT, Jocelyne DAHAN, Jacques SALZER, Marianne SOUQUET, Jean-Pierre VOUCHE, Les médiations, la médiation, Ed. Erès, Ramonville, 1999. –– Martine BOURRY d’ANTIN, Gérard PLUYETTE et Stephen BENSIMON, Art et techniques de la médiation, Litec, Paris, 2004. –– Loïc CADIET, Thomas CLAY, Emmanuel JEULAND, Médiation et Arbitrage, Alternative dispute resolution, Alternative à la justice ou justice alternative ?, Perspectives comparatives, Litec, Paris, 2005. –– Guy CANIVET, La médiation comme mode de résolution des conflits dans la vie des affaires, Petites Affiches 13.07.1999, n° 138. –– Paola CECCHI DIMEGLIO, La Directive 2008/52/CE: Pourquoi ? Comment Améliorer son Champ d’Application? Le Droit Collaboratif, une des Solutions Possibles ?, 1(2) Revue d’­A rbitrage et de Médiation (RCAM/CJAM), 2011, p.53-76. –– Pierre CHEVALIER, Yvon DESDEVISES, Philip MILBURN, Les modes alternatifs de règlement des litiges : les voies nouvelles d’une autre justice, La documentation française, Paris, 2003. –– Jacques FAGET, La médiation, essai de politique pénale, Trajets, Ed. Erès,1997, p. 14. –– Roger FISHER, William URY et Bruce PATTON, Comment réussir une négociation, Seuil, Paris, 1982. –– Béatrice GORCHS, La Médiation dans le Procès Civil : sens et contresens, RTD civ. n° 3-2003, p. 409 à 425. –– Michèle GUILLAUME-HOFNUNG, La Médiation, Que sais-je ?, PUF, 3èmeédition, Paris, 2005. –– Charles JAROSSON, Modes alternatifs de règlement des conflits, RGDP, 1999, p.133 ss. –– Charles JAROSSON, Les modes alternatifs de règlement des conflits, Présentation générale, RID comp. 1997 -2. –– Xavier LAGARDE, Droit processuel et modes alternatifs de règlement des litiges, in Revue de l’arbitrage 2001, n° 3, p. 423 ss. –– Alain LEMPEREUR, Aurelien COLSON, Méthode de négociation. Second ed. Paris: Dunod, 2010. –– Alain LEMPEREUR, Aurélien COLSON, Jacques SALZER, Méthode de médiation, la place de l’autre au coeur de la conciliation. Paris: Dunod, 2008. –– Philip MILBURN, La médiation: expériences et compétences, La Découverte, 2002, p. 127 ss. –– Jacqueline MORINEAU, L’Esprit de la médiation, Trajets, Ed. Erès, 2001, p. 82 ss. –– SEVERIN, Le médiateur civil et le service public de la justice, RTDciv., juin 2003, p. 229 ss. –– Arnaud STIMEC, La Médiation en entreprise, Ed. Dunod, Paris, 2004. –– Hubert TOUZARD, La médiation et la résolution des conflits, PUF, 1997, p. 155.

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15. Mediation legislation texts a. Weblink to legislation in national language –– Loi n° 95-125 of 8 February 1995 and decree n° 96-652 of 22 July 1996: http://www. legifrance.gouv.fr/affichTexte.do;jsessionid=74A A118151FAD220475A8757ADAB5076. tpdjo04v_2?cidTexte=JORFTEXT000000730803&dateTexte=19960723 –– Ordinance of November 16, 2011 & Decree n° 2012-66 of January 20, 2012: http://www. legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20111117&numTexte= 10&pageDebut=19286&pageFin=19287 –– http://www.justice.gouv.fr/le-ministere-de-la-justice-10017/direction-des-affairesciviles-et-du-sceau-10023/un-nouveau-cadre-pour-la-mediation-23229.html –– http://w w w.textes.justice.gouv.fr/lois-et-ordonnances-10180/ordonnance-fixantun-cadre-general-a-la-mediation-23201.html –– Family Law: –– http://w w w.textes.justice.gouv.fr/lois-et-ordonnances-10180/ordonnance-fixantun-cadre-general-a-la-mediation-23201.html

FR

b. Weblink to English or other translation No. c. Other references –– Bulletin d’information spécial de la Cour de cassation http://www.courdecassation. fr/publications_cour_26/bulletin_information_cour_cassation_27/hors_serie_2074/ mediation_8925.html

16. Country specific remarks Mediation definition Ordinance of 16 November 2011 (Decree No. 2011-1540) Section 21: ‘Mediation under the present chapter refers to any structured process, however named or referred to, whereby two or more parties to a dispute attempt to reach an agreement on the settlement of their dispute with the assistance of a third party, the mediator, chosen by them, or designated by the judge seized of the dispute, with the parties’ consent.’6

6 This translation is unofficial and is provided by Jean-Georges Betto and Adrien Canivet, France, in G. De Palo and M.B. Trevor, EU Mediation Law and Practices, Oxford, Oxford University Press, 2012 at pp. XXXV, 593. The Ordonnance n°2011-1540 du 16 novembre 2011 – Section 1 defines mediation as: ‘La médiation régie par le présent chapitre s’entend de tout processus structuré, quelle qu’en soit la dénomination, par lequel deux ou plusieurs parties tentent de parvenir à un accord en vue de la résolution amiable de leurs différends, avec l’aide d’un tiers, le médiateur, choisi par elles ou désigné, avec leur accord, par le juge saisi du litige.’ The text is available on: http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=8D0B0202E58CD48C38EC37B39A2D64CB. tpdjo09v_3&dateTexte=?cidTexte=JORFTEXT000000350926&categorieLien=cid

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Mediation regulation and approach Country: France Prepared by Paola Cecchi Dimeglio 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation clause a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties procedure of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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(Yes) (No) Yes (No) No No No Yes No Yes Yes (No) (Yes) Yes Yes Yes F/(E) F/E/D E/T/F E/D All Caucus/Mix Mix Yes Yes No >50 hrs Yes No Yes (Yes) (No) Yes No

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Mediation regulation and approach Country: France Prepared by Paola Cecchi Dimeglio 5. Who can be mediator?

6. EU directive

7. Mediation legis­ lation (besides Directive) 8. Bodies providing mediation

FR

9.1. Mediator fee

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

Yes Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes Yes No

No No Yes Yes 1995 2011

Yes Yes €200-350 (est.) €150-250 (est.) (Yes) Yes Yes No

(Yes) Yes Yes (No) Yes (Yes) (Yes) No No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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11. GERMANY1 Prepared by Professor Dr Renate Dendorfer-Ditges2 – Professor Dr Ulla Gläßer3

1.

Attempt to mediate

a. Always voluntary (Yes). Mediation remains completely voluntary even after the enactment of the German Mediation Act (Mediationsgesetz). Mediation cannot be ordered either by law or by the courts (before or during a court proceeding). See 1.b. b. Mandatory (in some cases) No. Only in family cases (divorce, child custody, etc.) can the family court order the parties to participate in a purely informative meeting on the option of mediation (Section 135 of the Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction). c. Court referral or court-connected mediation possible Yes. See 1.a. d. Court-ordered mediation possible No. See 1.a. and 1.b. The judge can only recommend mediation and – if the parties agree to mediation during an ongoing court proceeding – stay the court proceeding for the duration of mediation proceeding (Section 278a(2) German Code of Civil Procedure). e. Sanctions by the court if mediation is not tried (in good faith) No. However, in Section 7 of the Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung the legislator considered the possibility of honouring the abandonment of action after a settlement in mediation is reached by the reduction or complete waiver of court fees. It is up to the German states (Bundesländer) to allow for such a financial benefit system by separate legal ordinances. f. Sanctions by law if mediation is not tried (in good faith) No. See 1.e.

1 Last update of information: January 2013. 2 Professor Renate Dendorfer-Dittges is admitted as a lawyer to the courts of Germany as well as to the courts of the State of New York and to the US Federal Courts. She has been working as a partner in the Munich office of HEUSSEN Rechtsanwaltsgesellschaft mbH since 2004. She has also served as a Professor of Law at the Baden-Wuerttemberg Cooperative State University, Campus Ravensburg since 2002, and as an Honorary Professor for Dispute Resolution at the EBS – European Business School, Oestrich-Winkel since 2010. Contact: [email protected]; [email protected]. 3 Professor Ulla Gläßer is academic director of the Institute for Conflict Management and the postgraduate, interdisciplinary Master’s Programme on Mediation at the European University Frankfurt (Oder). She is also partner of the Berlin-based mediation firm, TGKS Troja Glaesser Kirchhoff Schwartz. Contact: [email protected],[email protected].

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g. Incentives if mediation is tried voluntarily before going to court No. There are no legal or financial incentives. h. Outside counsel presence/representation during mediation sessions allowed Yes. Especially in commercial cases or in cross-border cases, party representatives, especially lawyers or tax advisors, are regularly included in mediation proceedings. Depending on the case in question, experts or witnesses can be called if all parties agree to it (Sec­ tion 2.4 of the German Mediation Code). However, according to this legal provision, lawyers are considered as ‘third persons’, therefore the inclusion of lawyers also needs the prior approval of all parties. i. Outside counsel presence mandatory (No). In general no, however, in many German states (Bundesländer) the presence of outside council/attorneys used to be a mandatory precondition for conducting court mediation by a judge mediator. Now, since the German Mediation Act has changed the approach to court mediation, it can no longer be mandated for court cases in which the parties are allowed to represent themselves.

DE

2. Mediation clause a. Case admissible in court with a mediation clause No. A case is not admissible in court if a valid mediation clause exists if the parties have not at least tried to mediate (in good faith). The German Federal Court of Justice (Bundesgerichtshof) decided in a – structurally comparable – case of conciliation that the court proceeding is inadmissible as long as the contractually agreed upon conciliation has not been tried before the statement of action has been filed (BGH 23.11.2004 – VI ZR 336/03, NJW 2005, 437). However, the parties can initiate summary proceedings or preliminary injunctions in urgent cases, even if a mediation clause exists. b. Case admissible in court, however, the judge may take this into account and there is some case law No. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). A contractual mediation clause obliges the parties to enter into mediation in good faith. However, it would probably be hard for one party to force the other into mediation proceeding on this basis against their declared will in a specific case due to the overriding principle of voluntariness of the mediation procedure (see Section 1.1 of the German Mediation Code). Also, the party who denies the mediation process would lose their right to bring action in court (see 2.a.).

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. This is described in the German Mediation Act (especially in Sections 1 and 2). According to Section 1.1 of the German Mediation Act, the mediation proceeding must be structured. No further legal requirements for the mediation procedure are included in the

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German Mediation Act or in the German Code of Civil Procedure. However, the following provisions of the German Mediation Act, also referring to the mediation procedure, must be considered as mandatory: • Section 2.1: the parties choose the mediator. • Section 2.2: the mediator has to ensure that the parties understand the principles and the structure of the mediation proceeding and that the parties participate in mediation voluntarily. • Section 2.3: the mediator must be neutral and has to facilitate the communication of the parties. He/she has to assure that the parties are involved in the mediation proceeding in an adequate and fair manner. He/she needs the approval of all parties for private sessions (caucuses). • Section 2.4: third parties can only be involved in the mediation proceeding if all parties agree to it. • Section 2.5: the parties can terminate the mediation at any time. The mediator can terminate the mediation proceeding if he/she is of the opinion that the parties will not reach a settlement or if the parties can no longer communicate in an appropriate way. • Section 2.6: the mediator has to work towards a settlement whose content is understood by the parties. The mediator has to inform the parties who are not represented by advisors that they have the possibility of seeking the advice of external counsel before closing. • Section 3.1: the mediator has to reveal all circumstances that could affect his/her neutrality and impartiality. • Section 3.2: if a person has acted as an advisor to one of the parties, he/she cannot act as a mediator in the same matter. • Section 3.5: the mediator is obliged to inform the parties at their request about his/her background, education and expertise in the area of mediation. • Section 4: the mediator is obliged to keep confidential all information received in the course of the mediation proceedings. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (No). Within the framework of the mandatory provisions of the German Mediation Act (see 3.a.), the parties are flexible to agree on the procedure, either ex ante contractually in the mediation agreement or ad hoc during the mediation itself. c. Mediator can offer a non-binding opinion Yes. If the parties wish/agree to it, the mediator can offer a non-binding advice. The German Mediation Act does not restrict this procedural option. d. Mediator can offer a binding opinion No. According to section 1.2 of the German Mediation Act, the mediator has no power of decision at all. Therefore, mediators cannot offer binding advice. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. Traditionally, in Germany a mix of facilitative and evaluative mediation is used, especially in commercial mediation proceedings. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Evaluative. See 3.e.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) All. All mediation styles are possible – depending on the personal mediation style of the mediator. Traditionally, in disputes involving family relationships (divorce, custody, succession etc.) or other long-standing relationships (between neighbours, business partners or colleagues etc.), mediators tend to use a facilitative or transformative style, sometimes even therapeutic. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) All. See 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. In commercial cases, mediators use elements of evaluative mediation but always in a neutral way. General advice is also used, preferably in caucus. Oft-used techniques are risk assessment or BATNA (‘best alternative to a negotiated agreement’) analysis. For mediators to offer legal opinions is less readily accepted and generally regarded as very risky to the mediator’s neutrality.

DE

j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint sessions/(caucus). In general, German mediators prefer joint sessions focusing on the interests and needs of the parties, also for commercial disputes. However, private sessions (caucuses) are increasingly being used. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions/(caucus). German mediators generally prefer to work in joint sessions focusing on the interests and needs of the parties. However, private sessions (caucuses) are increasingly being used to overcome impasse (e.g., by inviting parties explicitly to change their perspective on the conflict or to self-critically rethink their own behaviour and attitude).

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). At present no specific regulation for the professional title ‘mediator’ exists. However, the German Mediation Act provides authority for the Department of Justice to enact a legal ordinance which will establish detailed requirements for qualification as a so-called ‘certified mediator’ in the future. According to Section 6 of the Mediation Act, the legal ordinance has to include regulations referring to • the requirements for the basic training and practical experience of certified mediators; • the requirements for continued education; • minimum hours for basic and advanced training and education; • requirements for trainers who are appointed for mediation training; • requirements for final exams in mediation training; and • transitional arrangements for mediators trained and working before the enactment of the legal ordinance. The intention is that the legal ordinance will be enacted one year after the legal validity of the German Mediation Act, which would be mid to late 2013. Thus, in the future there will

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be a two-tier-system of certified mediators and non-certified mediators in Germany (see Sections 5 and 6 of the Mediation Act). The assumptions is that certified mediators will have a better market position and will be considered as better qualified and more experienced mediators. This will be supported by the requirement that certified mediators will be forced to provide evidence regarding practical experience and mediation cases. In addition to the (future) legal condition for certification as a mediator, the various mediators’ organisations are free to keep their own standards of qualification for certification. So far, many of these organisations’ standards require about 200 hours of training and thereby surpass the current draft legal certification standard of 120 hours of training. Therefore, mediators who are certified by certain sophisticated organisations will probably be the best-qualified ones (at least in terms of quantitative training time). b. Set by market (private certifying bodies) (Yes). See 4.1.a. At first, the legislator’s idea was to leave the accreditation/certification requirements to the market. However, mediation experts and mediation organisations pushed for minimum regulation as described. c. Set by public regulation (No). See 4.1.a. d. Number of hours for basic mediator training 120-200 hours. The minimum hours of basic training for mediators will also be regulated in the subsequent legal ordinance, see 4.1.a. The legislator proposes at least 120 hours for a basic level of mediation training. Many mediation organisations require 200 hours. e. Mandatory Continuing Professional Development for accredited/certified mediators No. There is no CPD system. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) Yes. For the time being, different mediation organisations have their own set of rules for accreditation (see 4.1.a.). After the enactment of the legal ordinance, see 4.1.a., a legal set of rules will exist. It is completely undecided at the moment which – private or official  – organisation will be responsible in the future for the certification of mediators. A kind of overarching accreditation system that refers to training organisations is intended. g. Accreditation through written exam (No). For the time being, it is up to mediation organisations and institutes/organisations offering mediation training to decide upon the requirements of an exam. Usually, instead of an exam, the documentation and critical reflection of 3 to 4 practical cases is often demanded for certification. For the future, it is up to the legislator of the legal ordinance, see answer to 4.1.a., to decide whether a written exam will also be required. As far as academic master’s programmes for mediators are concerned, a written thesis is obligatory. h. Accreditation through performance-based assessment (Yes). See 4.1.g. Some providers of mediation training and some mediation organisations require performance-based assessment for accreditation/certification.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no system of accreditation/certification for mediation advocacy. j. Set by market (private certifying bodies) No. See 4.2.i. k. Set by public regulation No. See 4.2.i.

5.

Who can be a mediator?

DE

a. Set by market (private certifying bodies) Yes. There are no official or legal requirements for entry qualifications to the mediator profession. Therefore, people from all educational backgrounds can become mediators. However, the market sets demands on mediators from different professions – depending on the area of conflict, there is a tendency to ask for mediators with legal or psychological background. b. Set by public regulation No. There are no regulations or limitations regarding the basic profession of mediators nor are there regulations requiring a certain education, e.g., university or other qualifications. With respect to immigration or tax issues or regarding the work of foreign mediators, no special regulations exist. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. There are no limitation to lawyers or legal profession, see. 5.a. and b. However, lawyers are often preferred for commercial mediation. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There are no limitation to lawyers or legal profession, see 5.a. and b. However, lawyers are often preferred for commercial mediation.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. See 6.b. b. EU Directive implemented for all national and cross-border commercial cases Yes. The Mediation Act is the primary source of law for mediation in Germany as well in domestic as in international cases. There is no differentiation between national and cross-border commercial cases regarding the applicability of the law. c. EU Directive implemented for all national and cross-border civil cases Yes. The same answer as 6.b. applies for civil cases.

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7.

173

Mediation legislation besides Directive

a. Mediation legislation since 2012. German Mediation Act, in force since 26.07.2012,4 see 1.a. b. Legislation updated since EU mediation directive (date update) No. See 7.a.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. There is no legal limitation at all. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No. There is no public regulation regarding the mediation provider qualifications/requirements.

9.1. Mediator fees a. Freely contracted (Yes). Mediator fees are not regulated by law and are therefore free for negotiation. Fixed fee scales only apply to cases involving mediation organised by mediation providers. b. Fixed in some cases by public regulation No. There is no public regulation regarding mediator fees. c. Average mediator fee per hour for commercial or cross-border cases € 150-450 (estimate). In commercial cases the mediator fees range from € 150 to € 450 per hour plus VAT, depending on the expertise and standing/reputation of the mediator and on the size of the case in dispute. In workplace disputes, daily rates are also common. Often, an additional fee (per hour or in form of a flat rate) is agreed upon for the preparation and the follow-up work. The parties usually split the mediator fees and agree on joint and several liability. The administration fees of mediation organisations are – for example – as follows: DIS – German Institution of Arbitration • Procedural fee amounts to € 250. • Fee for nomination of a mediator by the DIS amounts to € 250. • Fees of a mediator amount to € 300 per hour, unless agreed otherwise. • All fees are subject to VAT.

4

Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung vom 21.07.2012.

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EUCON – Europäisches Institut für Conflict Management Value of the dispute

Basic fee for administration

up to € 200,000 up to € 500,000 up to € 1 million up to € 3 million up to € 10 million more than € 10 million

€ 500 € 750 € 1,250 € 2,000 € 2,800 € 3,400

Fee for appointment of the mediator € 500 € 1,000 € 1,500 € 3,000 € 3,500 € 3,800

d. Average mediator fee per hour in civil cases € 75-300 (estimate). In civil cases, the mediator fees range from about € 75 to € 300 per hour plus VAT, depending on the expertise and standing/reputation of the mediator and on the type and size of the case in dispute. Sometimes, an additional fee (per hour or in form of a flat rate) is agreed upon for the preparation and the follow-up work. The parties usually split the mediator fees and agree on joint and several liability.

DE

9.2. Financing and legal aid e. Legal aid available for mediation service (No). There is no legal aid or other financial support by the state for mediation proceedings if parties cannot afford to pay the mediator. However, German courts are willing to include the costs for mediation proceedings into the general assessment of costs if the mediation has been conducted by a judge mediator. f. Mediator fees covered by legal insurance schemes Yes. Mediator fees are covered by most legal expenses insurance providers. Furthermore, insurance companies educate their own case managers to advise insurance holders to opt for mediation. Some companies also offer mediation by their own in-house mediators. The legal expenses insurance sector is currently considering offering incentives with respect to premiums or cost sharing if the insurance holders opt for mediation. However, there is a case pending at the Federal Court of Justice (Bundesgerichtshof) referring to such incentive systems, specifically referring to the choice of the lawyer influenced by the insurance companies (see Court of Appeal Bamberg, 20. 6.2012 − 3 U 236/11, NJW 2012, 2282). g. Mediator fees subsidised in court-connected schemes Yes. In court-annexed mediation schemes, the mediation/conciliation with a judge mediator (Güterichter) is free of extra charges or fees. Such mediation/conciliation is part of the regular court fees.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. There is no special relationship between judges and external mediators. However, several hundred judges have been trained as mediators over the course of the last years by working in court mediation schemes. Some judges also refer suitable cases to external mediators and stay the proceedings for this purpose.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The German Supreme Court decided on 14 February 2007 (1 BvR 1351/01, see NJW-RR 2007, 1073) regarding the question of whether it is in accordance with the German Constitution to require conciliation/mediation as a first step before an action in court is admissible and stated literally: ‘To resolve a disputable state of a problem by an amicable solution takes ... principle preference over a judicial decision.’ Mediation is considered as one ADR proceeding which must be conducted in the light of the law and within the legal framework. Since the enactment of the German Mediation Act, mediation has also a codified basis. According to Section 203 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)), the statutory limitation period is suspended for the duration of the mediation proceedings. Furthermore, the German Code of Civil Procedure (Zivilprozessordnung (ZPO)) and other statutes have been amended by several provisions, for example, Section 253(3) of the ZPO: ‘When an action commences, the claimant should declare in the statement of claim whether mediation has been tried beforehand, and if not, the relevant reasons for the refusal of conducting mediation in the given case. In addition, the court can recommend mediation during the court proceeding; for the time of mediation, the court can stay the proceeding’ (Section 278a ZPO). Therefore, mediation can be regarded has having been integrated into the German legal system. c. Mediation procedure has impact on statute of limitations Yes. According to Section 203 of the BGB, the limitation period is suspended for the duration of the mediation proceedings. As soon as the mediation proceeding is terminated, a grace period of three months starts. After the three months grace period, the limitation period continues.

11. Mediated settlement a. Contract Yes. The settlement agreement at the end of a mediation proceeding essentially has the character of a contract that is binding between the parties. If the contract is not binding, it must be stated explicitly. All statutory regulations of German contract law apply for the mediation settlement agreement. This means that revision and withdrawal of or a challenge to the final settlement agreement follow the general rules of German contract law. b. Automatically enforceable No. Mediation settlement agreements are not enforceable in the same way as a judgment or an arbitral award (but see 11.c.). c. Enforceable under some circumstances which are up to the parties Yes. The enforceability of the settlement agreement requires further efforts by the parties and can be achieved in a number of ways: • approval by a notary public, Section 794(1) No. 5 ZPO; • a court-approved settlement agreement if the mediation was conducted in parallel to a court proceeding, Section 794(1) No. 1 ZPO; • transfer of the settlement agreement into an arbitral award with agreed terms, Section 794(1) No. 4a ZPO; or

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• transfer of the settlement agreement into an agreement by the lawyers of the parties and recorded by the responsible district court, Section 796a(1) ZPO. d. Enforceable under some circumstances defined by public regulation (Yes). See 11.c.

12. Confidentiality

DE

a. Regulated by law (Yes) (mediator) and No (others): According to Section 4 of the Mediation Act, mediators have a duty of confidentiality under the law regarding mediation proceedings. However, the Mediation Act does not cover the confidentiality obligation of the parties, experts or other external persons who are involved in mediation proceedings. Such confidentiality must be agreed upon by separate contracts or explicit confidentiality declarations. The exceptions to the mediator’s confidentiality obligations are also governed by Section 4 of the Mediation Act. The disclosure of the content of the mediation proceeding is allowed if • it is necessary for the implementation or enforcement of the settlement agreement; • it is necessary for overriding considerations of public policy, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or • the disclosure refers to facts that are obvious or that are not sufficiently important to necessitate their remaining confidential. The disclosure of confidential information by the parties or other persons involved in the mediation proceeding depends on the provisions of the confidentiality agreement or on professional regulations, for example, those that apply to lawyers or tax advisors. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. According to Section 4, sentence 1, of the German Mediation Act in connection with Section 383(1) No. 6 of the ZPO all mediators are exempted from the obligation to give evidence in court proceedings or in arbitration. This is applicable for civil cases, not for criminal cases. The parties can release the mediator from the duty of confidentiality for civil cases according to Section 385(2) of the ZPO. This would lead to the possibility of the mediator giving evidence in court or arbitration proceedings.

13. Education a. Mediation education is a common component of legal education curriculum Yes. However, only within a relatively small time frame. Mediation is regarded as one of the so-called ‘key qualifications’ of law students. Therefore, introductory mediation courses are offered at most law schools as an elective within the ‘key qualifications’ programme; attendance is voluntary. b. Mediation advocacy education is a common component of legal education curriculum No. Most law schools do not give these courses. In some cases, if university teams take part in the ICC mediation competition, there may be specific training or at least coaching regarding mediation advocacy.

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14. Most relevant literature or references, case law, articles, law –– Breidenbach, Stephan, Mediation, Cologne 1995 –– Duve, Christian/Eidenmüller, Horst/Hacke, Andreas, Mediation in der Wirtschaft, 2nd edition, Cologne 2011 –– Gläßer, Ulla/Schroeter, Kirsten (eds.), Gerichtliche Mediation, Baden-Baden 2011 –– Gläßer, Ulla/Kirchhoff, Lars/Wendenburg, Felix (eds.), Konfliktmanagement in der Wirtschaft, Baden-Baden 2013 –– Haft, Fritjof/Schlieffen, Katharina Gräfin von, Handbuch Mediation, 2nd edition, Munich 2009 –– Ponschab, Reiner/Schweizer, Adrian, Kooperation statt Konfrontation, 2nd edition, Cologne 2010 –– Risse, Jörg, Wirtschaftsmediation, Munich 2003 –– Trenczek, Thomas/Berning,Detlef/Lenz, Cristina (eds.), Mediation und Konfliktmanagement, Baden-Baden 2012 –– Walz, Robert (ed.), Formularbuch Außergerichtliche Streitbeilegung, Cologne 2006 For commentaries on the Mediation Act, please see 15.c.

15. Mediation legislation texts a. Weblink to legislation in national language: –– http://www.gesetze-im-internet.de/bundesrecht/mediationsg/gesamt.pdf –– http://gesetzgebung.beck.de/news/mediationsgesetz b. Weblink to English or other translation NA. c. Other references –– Three legal/scholarly commentaries on the Mediation Act have been published or are due for publication: –– Fritz, Roland/Pielsticker, Dietrich, Kommentar zum Mediationsgesetz, 2012 –– Greger, Reinhard/Unberath, Hannes, Mediationsgesetz, Munich 2012 –– Klowait, Jürgen/Gläßer, Ulla, Praxiskommentar Mediationsgesetz, Baden Baden 2013

16. Country specific remarks It is to be expected that the German Mediation Act and its implementation in practice will increase public awareness of mediation as worthy alternative for resolving disputes. The implementation of certification for mediators should increase the quality and the acceptance of mediator services in the future. In the courts, the German Mediation Act brings a big change from a ‘system of judge mediators’ to a system of so-called ‘Güterichter’. ‘Güterichter’ can also use mediation methods and procedures, but are not considered to be mediators in the sense of the Act (therefore, the German Mediation Act does not apply to their work). In the corporate sector, the interest in conflict management and mediation has increased significantly. The number of workplace mediations is growing substantially – and the establishment of conflict management systems is being discussed more and more. In May 2008 the ‘Round

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Table Mediation and Conflict Management of the German Corporate Sector’ was established with the aim of fostering open exchange on best practice models etc. (see www.rtmkm.de). Many large German/transnational corporations, such as SAP AG, E.ON Kernkraft GmbH, AUDI AG, Bombardier Transportation GmbH, Deutsche Bahn AG, EnBW AG, Fraunhofer Gesellschaft, Siemens AG and others were founding partners. The Round Table is supported by the Institute for Conflict Management of the European University Viadrina with scientific research and evaluation. Over the last five years, 15 regular plenary meetings have been organised by the Round Table; between meetings, the members work together in specific working groups. Major topics were the optimisation of conflict analysis, choice of procedure, the development of conflict management systems and the documentation of cases.

DE

In addition, several empirical studies have been conducted on the use of and attitudes towards ADR methods and conflict management systems (see EUV/PwC: ‘Commercial Dispute Resolution’ (2005), ‘The Practice of Conflict Management’ (2007), ‘Conflict Management – From Single Elements to a System’ (2011) to be found on www.europa-uni.de/ikm or www.pwc.com; see also KPMG: ‘Cost of Conflicts – The Costs of Friction Loss in Industrial Enterprises’ (2009) be found on www.kpmg.de). Regarding consumer mediation for small claims in particular, no comparable initiatives exist in Germany so far. Insurance companies not only recommend mediation for all suitable cases, but also offer mediators and mediation services (mostly in the form of shuttle mediation on the phone). In addition, the insurance sector has appointed an ombudsman, who provides his services for disputes between insurance companies and consumers. There is also a bank ombudsman for disputes between banks and customers.

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Mediation regulation and approach Country: Germany Prepared by Renate Dendorfer-Ditges, Ulla Gläßer 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accredita­ tion

4.2. Mediation advocacy accredita­ tion

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) No Yes No No No No Yes (No) No No (Yes) Yes (No) Yes No F/E F/E All All All Joint/(caucus) Joint/(caucus) (No) (Yes) (No) 120-200 hrs No Yes (No) (Yes) No No No

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Mediation regulation and approach

DE

Country: Germany Prepared by Renate Dendorfer-Ditges, Ulla Gläßer 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases 7. Mediation a. Mediation legislation since legislation b. Legislation updated since EU mediation directive (date update) (besides Directive) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing e. Legal aid available for mediation services and Legal f. Mediator fees covered by legal insurance schemes aid g. Mediator fees subsidised in court connected schemes 10. Legal a. Is there a special relationship between judges and mediators/ context mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality

13. Education

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No No No No Yes Yes 2012 No Yes Yes No (Yes) No €150-450 (est.) €75-300 (est.) (No) Yes Yes No

Yes Yes Yes No Yes (Yes) (Yes) (mediator)/No (others) Yes Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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12. GREECE1 Prepared by Dimitrα K. Triantafyllou2 – Lila A. Bakatselou3

1.

Attempt to mediate

a. Always voluntary Yes. According to Greek law, enacted by the Mediation in Civil and Commercial Matters Act (No. 3898/2010), mediation is of a voluntary nature. b. Mandatory (in some cases) No. Not yet. There is a discussion to make it mandatory for small claims cases (not higher than € 5,000) and for the settlement of claims against excessively indebted individuals/ households. c. Court referral or court-connected mediation possible Yes. According to Section 3(2) of the Greek Mediation in Civil and Commercial Matters Act (No. 3898/2010), a court before which an action is brought may, during any civil and commercial procedure, at any stage of the trial, and while taking into account all circumstances of the case, invite the parties to try to settle their dispute through mediation. Upon approval of this invitation by both parties, the initiated trial is postponed mandatorily for a period of at least 3 months; this period may not exceed 6 months. d. Court-ordered mediation possible No. Mediation is voluntary. The court may advise parties to try mediation but cannot mandate parties to go to mediation unless parties are subject to a court-ordered mediation from a court of another Member State or if there is such a provision in the future (Section 3(c) and (d) Act 3898/2010) (See 1.b.) e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No.

1 2

Last update of information: March 2014. Dimitra K. Triantafyllou is an IMI certified civil, commercial and family mediator at DELTAtotheEPSILON and Piraeus Mediation Center (PMC), JAMS International Weinstein Fellow (2011), a civil, commercial and family mediator, negotiation consultant, dispute resolution systems designer, an advanced mediation trainer and a practicing lawyer (since 1996 at Thessaloniki Bar Association) in the field of corporate, business and commercial law, specialising in the south eastern European region. Contact: [email protected]. 3 Lila A. Bakatselou has been a lawyer since 1982 (Thessaloniki Bar), lawyer at the Supreme Court of Greece, a European patent attorney since 1987 and an accredited mediator since January 2011 (ADR Group UK/ Mata Advanced Training/Harvard Negotiation Institute at Harvard Law School), as well as a certified mediator according to Greek law since December 2012. Contact: [email protected].

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g. Incentives if mediation is tried voluntarily before going to court Yes. Mediated agreements are not subject to judicial stamp costs in order to become enforceable (see 11c). (According to Greek Act No. 4111/2013, such specific costs for filed cases are fixed at 8% of the value of the claim surcharged by 37.4%.) Only a procedural fee of € 100 applies (Ministerial Decree 85485/2012). h. Outside counsel presence/representation during mediation sessions allowed Yes. Greek law provides that legal entities can be represented by their lawyer and this decision is up to the parties. It is, however, compulsory for each party to have a lawyer attend the mediation. See 1.i. i. Outside counsel presence mandatory Yes. In an effort to enhance the outcome and quality of mediation, the presence of a legal counsel is mandatory for both parties during the entire mediation under Greek law. It is expected that sophisticated and professional mediation advocacy practices can add value and contribute to the development of the mediation field.

GR

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Greek law does not regulate the subject. According to the basic principles of Greek civil law (‘pacta sunt servanda), mediation clauses provide only for contractual liabilities and do not have any procedural consequences b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties included a mediation clause in a contract, they have to mediate first before they can go to court No. (See 2a) Mediation is not mandatory if there is a mediation clause in a contract.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. In Greece’s Mediation Act (L.3898/2010) together with the Greek Code of Conduct for accredited mediators (MD 109088/2011), the mediation procedure is described mainly in broad terms under some specific restrictions. The way mediation is conducted, however, is not regulated and neither is the mediation approach. Parties entering a mediation procedure sign a mediation agreement to initiate the mediation procedure. The mediator is not obliged to accept his assignment and may refuse to undertake a requested mediation. The mediation procedure is designed by the mediator in cooperation with the parties, who can terminate the procedure at their discretion, without cause, whenever they want. Mediation procedures are confidential and no record of the procedure is kept. During mediation, the mediator can meet in private with the parties (caucus). Any information that is obtained during those private meetings cannot be revealed to the other party without the party’s consent. The mediator demonstrates impartiality and neutrality, conducts the mediation in fairness and is liable only for wilful misconduct. The mediator fees

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and mediation cost are agreed between the parties. Parties share the charges equally, unless otherwise agreed. The mediated settlement agreement that results from the mediation is binding and enforceable. According to Section 5 of the Greek Code of Conduct for accredited mediators, any breach of mediator obligations that are set forth in the Code of Conduct could induce sanctions that vary from permanent to temporary revocation of their accreditation depending on the significance of breach and whether they fail to meet their obligations again. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). Mediation is governed by the contract between the parties. c. Mediator can offer a non-binding opinion Yes. As a general approach a mediator does not offer advice or an opinion, however, the mediator is not prohibited by law to do so if the parties request this. Judicial mediation that was introduced through Section 7 of Act 4055/2012 and was set forth in Section 214B of the Greek Code of Civil Procedure (Act 4055/2012), which also prescribes the possibility of an evaluative approach for judge mediators. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). Mediation styles conceived by training providers are mainly facilitative and have some evaluative elements. At the Piraeus Mediation Centre (PMC), where the first official mediation training in Greece took place, all styles are taught based on the philosophy of designing a tailor-made approach based on the dispute and needs of the parties. The styles and approaches still need to be developed in practice as the law does not regulate them. g. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/directive. Facilitative/(Directive). See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. See 3.c. and 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Not applicable in private practice yet. In judicial mediation, however, judge mediators can make non-binding proposals (Section 214B(3) of the Code of Civil Procedure). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. The mediation process as conceived by training providers are mainly mixed models and some are based on a caucus model. In the Piraeus Mediation Centre (PMC) a mixed model based on a case-by-case approach is taught and applied, The same approach (mainly mixed model) applies to judicial mediation as well. The predominant mediation process still needs to be developed in practice as the law does not regulate it.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation

GR

a. Accreditation/certification or recognition of mediators Yes. Mediators are accredited by the Administration Directorate General of the Hellenic Ministry of Justice, Transparency and Human Rights after having been trained as mediators at a public mediator training centre according to Greece’s Act No. 3898/2010 and Presidential Decree 123/2011 that stipulates the conditions and requirements for the authorisation and operation of mediators training centres for civil and commercial matters. Only an entity consisting of a combination of a Bar Association together with a chamber of commerce/industry/ professionals/small business is allowed to offer basic mediator training in Greece as a public mediator training centre after they have been licensed by the Administration Directorate General of the Hellenic Ministry of Justice, Transparency and Human Rights (Section 1&3 of P.D.123/2011). In practice these centres initiate their training activities through collaborations with a specific international mediation training provider to deliver the actual training. Most mediator training is therefore taught in English by foreign institutes and trainers (for example, the ADR Group in Thessaloniki, Facilit8 in Athens). The Piraeus Mediation Centre (PMC) (collaborating with the Dutch training provider, Toolkit Company) was the first officially licenced mediator training provider in Greece and they offer mediator training entirely in Greek. b. Set by market (private certifying bodies) No. c. Set by public regulation Yes. See 4.1.a. d. Number of hours for basic mediator training 40+ hours. According to P.D. 123/2011 there is a requirement for at least 40 hours of basic training. e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. There is a ten hours obligation for CPD every two years (P.D 123/2011). f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) Yes. An undergraduate/bachelor diploma is required in order to qualify as a mediation training candidate (P.D 123/2011). g. Accreditation through written exam Yes. The Administration Directorate General of the Hellenic Ministry of Justice, Transparency and Human Rights accredits mediators that have passed written exams held by a specific, three-member body, the ‘Committee for the examination of Candidate Mediators’, formed by two members of the Mediators Accreditation Committee and a Supreme Court judge. h. Accreditation through performance-based assessment (Yes). The above mentioned committee also holds oral exams. Some public training bodies (for example Piraeus Mediation Centre and the Training Institute of Thessaloniki) offer a performance-based assessment at the end of their training programme.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Not yet. j. Set by Market (private certifying bodies) Yes. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation Yes. Mediators are listed in a public register after approval by the Minister of Justice, Transparency and Human Rights. This register is distributed to all courts and published on the Ministry of Justice website. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) (No). According to Greece's Act 3898/2010 Article 4c only lawyers can be accredited/certified mediators. On March 30 2014 the Ministry of Justice announced that this article is changed and that professionals with all kinds of backgrounds can become accredited mediators. There is an exception for domestic violence cases. According to Section 11 Chapter D of Act 3500/2006 (Off. Gaz. A 231/24.10.2006) that introduced mediation into criminal law, for domestic violence cases in particular, only public prosecutors can serve as mediators in such cases. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. For cross-border mediation, the EU directive is followed and professionals with various backgrounds can be mediators.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The EU Directive has been incorporated as a whole into Greek law under the Mediation for Civil and Commercial Matters Act No. 3898/2010’, published in the Official Gazette (A’ 211/16.12,1010) of the Hellenic Republic on 16 December 2010 as it has been amended by Act 4111/2013 and as such is implemented in all cases (national civil and commercial, as well as in cross-border cases). There was no previous legislation on the subject. b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.a.

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GR

7.

The Variegated Landscape of Mediation

Mediation legislation besides Directive

a. Mediation legislation since 2010. Greek law on mediation is provided for by an act under the title ‘Mediation in civil and commercial matters’ (Act 3898/2010 Off. Gaz. A 211/15.12/2010). See 6.a. as it has been amended by Act 4111/2013 (Off. Gaz. 18A 25.1.2013).4 − Presidential Decree 123/2011 (Off. Gaz. A 255/9.12.2011) which stipulates the conditions and requirements for the authorisation and operation of mediator training centres for civil and commercial matters. − Ministerial Decision 109087/2011 (Off. Gaz. YOΔΔ 436/14.12.2011) which established the Mediator Certification Committee. − Ministerial Decision 109088/2011 (Off. Gaz. B 2824/14.12.2011)which sets up the procedure for recognising mediators accredited abroad that has been amended by Ministerial Decision 107309/2012 (Off. Gaz. B 3417/21.12.2012). − (combined with Act 4111/2013) and the Accredited Mediators’ Code of Conduct. − Ministerial Decision 1460/2012 (Off. Gaz. B 281/13.2.2012) that stipulates mediator fees. − Ministerial Decisions 34801/2012 and 34802/2012 (Off. Gaz. B 1363/26.4.2012) that regulate the operation of the Committee for the Examination of Candidate Mediators and sets up the procedure through which mediator training centres and accredited mediators will be assessed. − Ministerial Decision 85485/2012 (Off. Gaz. B 3417/21-12-2012) on the procedural fees applicable to mediation. − Act 4055/2012 that introduces judicial mediation/court-connected mediation in the Greek courts of first instance. − Act 4139/2013 (Off. Gaz. A 74/20.3.2013) that extends judicial mediation/court-connected mediation to the Greek courts of Appeal. − Act 4111/2013 (Off. Gaz. 18A 25.1.2013) that ratifies the Legislative Act of the 12 December 2012 (Off. Gaz. 240A/12.12.2012). b. Legislation updated since EU mediation directive (date update) No. See 6.a.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are associations, partnerships or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider.

4

Apart from the regulation of mediation in civil and commercial matters in general, Greek law includes provisions that deal with mediation in certain types of disputes. In particular, Section 15 of Act 4013/2011 (Off. Gaz. A 204/15.09.2011) provides for the establishment of special committees to act as dispute settlement boards in commercial rent review cases. Section 12 of the same Act amends Chapter 6 of Insolvency Act 3588/2007 of which Sections 99-106 regulate business recovery procedure during which an agreement between debtors and creditors may be reached with a mediator’s assistance. Act 3869/2010 (Off. Gaz. 130/3.8.2010) provides additionally to court procedures for recourse to mediation for the settlement of claims against excessively indebted individuals/households. Act 3500/2006 (Off. Gaz. A 231/24.10.2006) introduces mediation in domestic violence cases (See. 5.c.).

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c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted (No). The Greek Mediation Act 3898/2010 Section 12 stipulates that the maximum number of hours that can be charged for a mediation procedure and its preparation is 24 hours. However, it allows the mediator and the parties to decide fees (Section 12(1)). The same section also stipulates also that the hourly fee is set by ministerial decision (3). This Ministerial Decision 1460/2012 sets mediator fees to € 100 per hour. b. Fixed in some cases by public regulation (Yes). The amount that is charged per hour can be contracted freely, however, the number of hours is fixed (see 9.1.a). Moreover, to the legislator is contemplating introducing a € 200 fixed fee for cases that are referred to mediation under Act 3869/2010 for the settlement of claims against excessively indebted individuals/households. c. Average mediator fee per hour for commercial or cross-border cases € 100. Unless otherwise agreed (See 8.a.) d. Average mediator fee per hour in civil cases € 100. Unless otherwise agreed (See 8.a.)

9.2. Financing and legal aid e. Legal aid available for mediation services Νο. f. Mediator fees covered by legal insurance schemes Νο. g. Mediator fees subsidised in court-connected schemes Νο.

10. Legal context a. Is there a special relationship between judges and mediators, apart from court-connected mediation or the possibility of referring cases to mediation? No. None, except that they have the same education (law degree). b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Since there is specific legislation, mediators are lawyers and there is compulsory representation by a lawyer, mediation is part of the legal system. See also 11.c. c. Mediation procedure has impact on statute of limitations Yes. Section 11 of L.3898/2010 provides that recourse to mediation suspends limitation and prescription periods during the mediation process.

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11. Mediated settlement a. Contract Yes. A mediated settlement agreement is always in writing, signed by the mediator, the parties and their lawyers, and is binding in all cases. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties Yes. The mediated settlement agreement, signed by the mediator, the parties and their lawyers, can be submitted by the mediator at the request of one of the parties (unilaterally) to the secretariat of the court of first instance in the local jurisdiction where the mediation took place. Once submitted in this manner the mediated agreement becomes enforceable according to Section 904(2)(c) the Greek Code of Civil Procedure (Section 9 of the Greek Mediation Act 3898/2010). d. Enforceable under some circumstances defined by public regulation No. See 11.c.

GR

12. Confidentiality a. Regulated by law Yes. Greek law stipulates that mediators, parties, their lawyers and any other person involved in the mediation process must undertake in writing to uphold the confidentiality of the procedure and they cannot be summoned as witnesses nor may they be compelled to produce evidence in any subsequent judicial or arbitral proceedings, except when public policy reasons prevail (See 12.b.) (Section 10 of the Greek Mediation Act 3898/2010). b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes.) Greek law prescribes exceptions to the abovementioned prohibition (see 12.a.) for public policy reasons and in particular to ensure the protection of the best interests of children or to prevent harm to the physical integrity of a person (Section 10(2) of the Greek Mediation Act 3898/2010).

13. Education a. Mediation education is a common component of legal education No. However, mediation has been introduced in some law school syllabuses at postgraduate level (master’s degree). b. Mediation advocacy education is a common component of legal education No. This is not yet the case but the Hellenic Ministry of Justice, Transparency and Human Rights encourages lawyers to undergo vocational specialisation through mediation advocacy training.

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14. Most relevant literature or references, case law, articles, law –– Pocket Toolkit Mediation Advocacy, Greek edition (2012), author Manon Schonewille, D ­ imitra K. Triantafyllou (editor) –– Pocket Toolkit Mediation, Greek edition (2013), author Manon Schonewille, D ­imitra K. ­Triantafyllou (editor) –– Mediation under Act 3898/2010 – A Mediation day, Vassiliki Skordaki, Athens 2012 –– Toolkit Generating Outcomes, Greek edition, author Manon Schonewille, Dimitra K. Triantafyllou (editor) –– ‘Mediation in civil and commercial matters (L.3898/2010)’, Dimitra K. Triantafyllou, ­SINIGOROS, issue 82/2010. –– ‘The necessity of using ADR (part I & part II), Dimitra K. Triantafyllou, SINIGOROS, issue 81/2010 & 83/2011. –– ‘The ‘Dum Pendet Rendet’ practice doesn’t ‘flow’ any more’, Dimitra K. Triantafyllou, ­SINIGOROS, issue 90/2011. Interview with Manon Schonewille & Dimitra K. Triantafyllou ‘We cannot afford to lose the opportunity of mediation’, SINIGOROS, issue 98/2013. –– Greek Law Digest The Ultimate Legal Guide to Investing in Greece, chapter on Alternative Dispute Resolution – Mediation, Dimitra K. Triantafyllou, 2012, Nomiki Bibliothiki publ.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.ministryofjustice.gr/site/LinkClick.aspx?fileticket=W16E-iMSUYw%3d& tabid=132 b. Weblink to English or other translation –– http://greeklawdigest.gr/topics/judicial-system/item/18-alternative-dispute-resolutionmediation c. Other references NA.

16. Country specific remarks Greece’s policy on mediation is based on the importance of the quality of mediation training and the significant role of lawyers and business people in the development and promotion of mediation. In that regard, the Hellenic Ministry of Justice, Transparency and Human Rights has introduced two basic pillar policies: the compulsory presence of lawyers during the mediation procedure, on the one hand, and the engagement of Bars combined with chambers of commerce/industry/professionals/small business in the mediation training, on the other hand, in order for users and advocates to synergise for an optimal outcome. In ancient Greece, a mediation procedure was customary in the drafting of peace agreements (following a one text procedure) between the City-States of Greece, as Thucydides describes in his work (a Greek Athenian historian from the 5th century BC). Apart from interstate relations and mediation’s role in peace building, mediation was also used in everyday life interactions. Demonax, a Greek philosopher (2nd century AD), who was born in Cyprus and lived in Athens, is described by Lucian (Lucian, Demonax, 9), as a peacemaker who conducted mediations

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between spouses to bring harmony to domestic life and between siblings when allocating parental property. Definition of mediation In English: The EU Directive’s definition is used in Greece. Mediation is defined as ‘a structured process, regardless of its name, where two or more parties to a dispute voluntarily attempt to resolve this dispute by an agreement reached with the assistance of a mediator’.

GR

In Greek: Ως διαμεσολάβηση νοείται διαρθρωμένη διαδικασία ανεξαρτήτως ονομασίας, στην οποία δύο ή περισσότερα μέρη μιας διαφοράς επιχειρούν εκουσίως να επιλύσουν με συμφωνία τη διαφορά αυτή με τη βοήθεια διαμεσολαβητή.

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Mediation regulation and approach Country: Greece Prepared by Dimitra K. Triantafyllou, Lila A. Bakatselou 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes No Yes No No No Yes Yes Yes Yes No No Yes (Yes) Yes No F/(E) F/(D) F/E F/D NA Mix Mix Yes No Yes >40 hrs Yes Yes Yes (Yes) No Yes No

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Mediation regulation and approach Country: Greece Prepared by Dimitra K. Triantafyllou, Lila A. Bakatselou 5. Who can be mediator?

6. EU directive

GR

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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No Yes (No) No No Yes Yes 2010 No Yes Yes No (No) (Yes) € 100 € 100 No No No No

Yes Yes Yes No Yes No Yes (Yes) No No

No = No (No) = No as a rule, but with (informal) exceptions

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13. HUNGARY1 Prepared by Manuela Grosu2

1.

Attempt to mediate

a. Always voluntary (Yes). Mediation is voluntary in the sense that parties cannot be obliged to settle. See 1.b. In addition to this (under the new Civil Code), the parties are not required to participate in mediation, but they can be obliged to join the first, so-called information session. b. Mandatory (in some cases) (Yes). At the moment, according to Act III of 1952 on the Code of Civil Procedure (‘Code of Civil Procedure’),3 in legal disputes between business entities with a legal personality, the parties must try to settle the case out-of-court before lodging the claim. Hence, the parties are not obliged to mediate, but to attempt to settle the case in some way, applying any method they prefer. Nevertheless, this procedure is not required if the parties make a joint statement about their disagreement. If the parties are unable to settle their dispute out-of-court, and the plaintiff files for action, documents containing the written statements made by the plaintiff and the defendant and the document underlying the plaintiff’s claim to attempt to reach a settlement out-of-court are attached to the statement of the claim. Obviously there are situations where this is not applicable under the Code of Civil Procedure. Some examples: in actions involving orders for payment procedures, in high profile actions, if the time limit prescribed by the relevant legislation for lodging the claim is not more than sixty days. c. Court referral or court-connected mediation possible (Yes). According to the Code of Civil Procedure,4 the court may attempt at any time during the proceedings to steer the parties towards a settlement concerning the whole or certain parts of the dispute. In addition the court – if there is any possibility of it succeeding, particularly if requested by either of the parties – informs the parties about the essence of mediation, on the availability of such a process and, in that context, on the rules for the stay of proceedings.

1 Last update of information: May 2013. 2 Manuela Grosu is a Ph.D. candidate at Eötvös Loránd University. She is also studying for an LL.M. in the US and Global Business Law for International Business Lawyers, Suffolk University, Boston, and has a Master of Law and Political Sciences with a summa cum laude qualification. As a visiting researcher at the Kukin Programme for Conflict Resolution at Cardozo School of Law, she is continuing her research on the possible interactions between non-binding ADR methods and arbitration in commercial and international commercial disputes, with special emphasise on multi-step clauses and hybrid procedures. Contact: [email protected]. 3 Code of Civil Procedure, Section 121/A. 4 Code of Civil Procedure, Section 148.

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Although strictly speaking this provision has not established the institution of court referral mediation, it is a demonstration of the involvement of the court to promote mediation. Furthermore, before bringing action, a citation may be requested for settlement proceedings before the local court of competent jurisdiction to hear the case. The party requesting the citation is informed of the day in court orally as well. The settlement reached is fixed in a report that can be approved and it will have the same effect as a judgment.5 Seemingly these provisions have nothing to do with mediation, albeit they can be an opportunity for the judge to counsel the parties on the availability of mediation. Regarding the strictly speaking court referral or court-connected mediation, the provisions of Act V of 2013 on the Civil Code (‘new Civil Code’) are crucial. The new Civil Code will come into force on 15 March 2014. In the new Civil Code there are essential provisions regarding mediation, emphasising that in the course of legislation there was a general agreement regarding the importance of mediation in resolving particular disputes. First, the parties at the time of filing for divorce or during the divorce action may participate in mediation initiated by the judge or on their own initiative in order to settle the disputes arising out of and in connection with their relationship. However, the existence or non-existence of the marriage, as well as the annulment or dissolution of a marriage, can only be resolved by the court (Act LV of 2002 on Mediation (‘Mediation Act’)). Should the parties reach a settlement in the mediation, then the court can approve it and this court-approved settlement is enforceable in the same manner as a judgment. Secondly, if it is reasonable and justified, the court may oblige the parents to participate in mediation in order to resolve particular issues in connection with parental discretion, such as exercising parental rights, discussing visitation rights to the child. However, this ‘may oblige the parents to participate’ phrasing needs to be treated with reservation since it does not establish the obligation to actually participate in mediation session, but join a so-called information session. Under the Mediation Act, the so-called information session takes place even before the mediation process commences in order to help the parties/parents to learn about the principles, goals and stages of the mediation process, and to give informed consent to the process before they proceed. In accordance with the Mediation Act, if in this information session the parties request continuation of the mediation process, it is recorded in writing and signed by both parties and the mediator.6 Based on this, the parties/parents are not required to participate in mediation, and they may decide to return to the court after the information session. Finally, at the parties’ request or to serve the interest of the child, the child welfare agency may order the parents to participate in mediation ex officio. Adding that the abovementioned stands for this obligation, as well and the child welfare agency may order the parents to participate in the first part of the mediation, i.e., the information session. This is done in order to establish cooperation between the parents and preserve the rights of the separated parent, including how to maintain the relationship between the child and the separated parent. In terms of court mediation, this is a relatively new institution in Hungary. The provisions governing court mediation under the Mediation Act came into force on 24 July 2012. Under Section 38/B of the Mediation Act,7 the parties submit their joint request for court mediation to the competent court.

5 Code of Civil Procedure, Section 127. 6 Mediation Act, Section 30(2): This statement shall also contain an agreement between the parties and the mediator on the terms of advances and the payment of the costs and expenses involved in the process, which shall also cover rescission and termination, and it may also contain the parties’ agreement on confidentiality and any other issue they deem necessary. 7 Mediation Act, Section 38/B.

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d. Court-ordered mediation possible (Yes). From 15 March 2014. No (for the moment, but see 1.b., and the remarks on legislation.) e. Sanctions by the court if mediation is not tried (in good faith) (Yes). In legal disputes between business entities with a legal personality, the parties must make an attempt before lodging the claim to settle the case out-of-court. (See 1.) If the respondent does not meet this requirement, the court, taking into consideration all aspect of the case and irrespective of the outcome of the litigation, may order the respondent to bear the costs incurred in the litigation or to bear all or part of the costs otherwise to be borne by the plaintiff.8 f. Sanctions by law if mediation is not tried (in good faith) (No). It depends on the interpretation of trying mediation in good faith. If the turning to the court after reaching a settlement in the course of mediation is included, then the answer is yes. In accordance with the Code of Civil Procedure,9 where either of the parties to mediation brings the case before the court in spite of having reached an agreement for the settlement of the dispute, the party bringing the action may be ordered to bear all the costs of the proceedings irrespective of the outcome. The general provisions on the bearing of court costs apply if the plaintiff brings action solely for reasons of non-compliance with the agreement. (The general rule is that the losing party bears the costs.) In terms of the costs associated with mediation, the Code provides that if any of the parties to mediation proceedings brings the case before the court in spite of having reached an agreement, such party may be ordered – irrespective of the outcome of the litigation – to compensate the other party for the costs borne covered in the mediation (mediator fees and justified expenses, expert fees and expenses). The general provisions on the bearing of court costs apply in actions brought for non-compliance with the agreement, however, the court may nevertheless order the party in default to bear the costs that the party incurred in the mediation proceedings. g. Incentives if mediation is tried voluntarily before going to court No. However, intensive discussion is going on about how to encourage mediation through financial incentives as well. There is an incentive but it refers to a situation after going to court. According to Act XCIII of 1990 on Duties,10 the duty is 50 per cent of the duty on judicial proceedings if a settlement is concluded following the first hearing. If the parties engaged in mediation that is governed by other specific legislation after the first hearing, and the court approved the resulting settlement, 50 per cent of the normal court costs of judicial proceedings is reduced by the mediator fees, including value added tax, not exceeding 50,000 forints (approximately, € 170 to 175), provided that the mediation is not precluded by law. In either case, the amount of duty payable may not be less than 30 per cent of the duty chargeable for judicial proceedings. h. Outside counsel presence/representation during mediation sessions allowed Yes. The parties are allowed to obtain representation, to appear in mediation sessions with counsel. Under the Mediation Act,11 if the mediator accepts the invitation, he or she must send the parties a statement of acceptance, inviting the parties to the first mediation hearing and informing them of their right to obtain representation. The representative may be a person 8 9 10 11

Code of Civil Procedure, Section 80(6). Code of Civil Procedure, Section 80 (3)(4). Act XCIII of 1990 on Duties, Section 58(3). Mediation Act, Section 28.

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of legal age and legal capacity, or a legal counsel acting under a power of attorney. The parties or, if the party is a legal person, the authorised representative, must appear together in person at the first mediation hearing and for the conclusion of the agreement. In addition the mediator must hold the mediation hearing in the place indicated in the register as the official location of mediation activities or at some other location subject to the parties’ approval. i. Outside counsel presence mandatory No. It is not mandatory, even though in high profile commercial and/or complicated cases the parties join the mediation process with their lawyers. At the moment in Hungary mediation is not frequently used to resolve commercial disputes.

HU

2. Mediation clause a. Case admissible in court with a mediation clause (No). In fact there is not much case law about mediation in general. I cannot put forward a case, a particular decision in connection with the interpretation of mediation clauses, or the enforceability of mediation clauses, even though I conducted interviews that involved mediators, arbitrators, counsels, and attorneys. From these discussions I assume that most practitioners would argue that mediation clauses are enforceable if the wording of the clause clearly demonstrates that the intention of the parties was to make mediation a precondition to arbitration and/or litigation. My hypothesis was as follows: what would the consequences be if there is a multi-step clause and one party is reluctant to negotiate or mediate, and initiates arbitration or litigation? Most of the professionals argued that even if they did not close the procedure (the arbitrators) it would be still important to point out the existence of the mediation clause. A common answer was to stay the process (for example, arbitration) and ensure that there is enough time to fulfil the pre-mediation requirement of the clause. A general concern was the enforceability of the award if the mediation step was ignored and there was a party who insisted on the mediation proceeding while the other party was reluctant to participate in it, and initiated the process clarified as a next step. I would like to draw attention to the fact that this interview research was not a quantitative analysis but rather a qualitative analysis, and my short summary is the summary of my assumptions rather than a general statement. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (No). See 4.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 4.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). Mediation was enacted in law when the Mediation Act laid down the fundamental principles of mediation as a process. This Act has the following mediation definition: mediation

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is a special non-litigious procedure conducted according to the Act to provide an alternative to court proceedings in order to resolve conflicts and disputes where the parties involved voluntarily submit the case to a neutral third party (hereinafter referred to as ‘mediator’) in order to reach a settlement in the process and lay the ensuing agreement down in writing. The Act I am referring to covers mediation in a particular context. The objective of that Act is not to offer an alternative in general but for natural and other persons to settle their disputes arising in connection with personal and property rights where the parties are not bound by statutory provision. In addition it has provisions regarding the mediators, more precisely: the register of mediators, the conditions for being listed in the register, the details that the register needs to cover and collect in connection with mediator applications for registration. Moreover there are provisions on the control of mediators. Obviously there are provisions about the mediation process itself (including the conclusion of the process) with special emphasis on confidentiality, conflict of interest, and remuneration of mediators. Furthermore there are provisions on expert involvement in mediation. Albeit in a different chapter, this Mediation Act governs court mediation as well. Although the Act provides for all aspects mentioned above, it does not regulate the way in which the mediation should be conducted. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). Mediation is a flexible process that can be negotiated by the parties. Since some aspects of mediation are prescribed by law, there are certain requirements that must be kept, for example, confidentiality. In addition, the registration of mediators and issues related to registration cannot be negotiated but in fact these rules govern mediators, not the mediation process itself. c. Mediator can offer a non-binding opinion Yes. However, mediators rarely offer advice or give a direct evaluation of the case. The mediator’s proposal is known as a tool, especially if the parties reach an impasse, but mediators apply it rarely rather than routinely. d. Mediator can offer a binding opinion (Yes). Theoretically a mediator can offer a binding opinion with the consent of the parties. According to the prevailing opinion of the Hungarian ADR community, a mediator should not give a binding opinion to the parties. I would argue ‘No’, because in practice mediators rarely offer binding opinions. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Transformative). The Hungarian mediation style is primarily facilitative. The transformative approach is well known and predominantly used in family mediation and sometimes in disputes arising in connection with personal and property rights. Regarding evaluative mediation, at the moment it is rarely used. Business mediation exists but is not used as frequently used as family mediation. I assume that some of the parties in a business mediation setting would encourage and expect some level of evaluation from the mediator. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. I would assume facilitative and directive, but currently mediation is underused in this field.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Transformative. See 3 e. Lawyer mediators tend to be facilitative and mediators with a social worker, pedagogy, and psychology background often use the transformative method, especially when resolving family disputes. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Transformative/Facilitative. Mediators with a social worker, pedagogy, and psychology background often use the transformative method especially when resolving family disputes, while lawyers tend to use facilitative and directive approaches. Giving evaluation is rare, even among the lawyer mediators.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral. According to my understanding and talking to lawyer mediators, they prefer not to give a legal opinion themselves, but rather invite a lawyer colleague to do that if it seems that one of the parties or both need a legal opinion. Neutral advice is used through introducing a neutral factor or perspective. As a result the mediator would not say ‘I think/my professional concerns/according to my practice etc.’ but rather the mediator would introduce another perspective or tell a story, or mention a similar case (while maintaining confidentiality) and broadly explain what the resolution was and the method the parties used to get there. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. All of them are used and known but the predominant mediation process is to have both joint and separate sessions. The joint session model only is rarely used and the private session model is usually a tool for breaking impasses and avoiding deadlocks. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint session/(caucus). See 3.j. In a family mediation setting, mediators try to keep the parties together in order to empower them and to demonstrate recognition of their viewpoints. However, if the parties do not want joint sessions, they are usually reluctant to participate in them because of emotional concerns and they generally do not want to be in the same room even for the opening statement. Under these circumstances, mediators are keen to separate them right from the beginning.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. In Hungary there is a strict registration system governed by the Mediation Act. b. Set by market (private certifying bodies) No. I would say no, because even if organisations participate in training, offer programmes and enable the applicant to be listed in the register, the requirements are set by the Mediation Act and the 63/2009 Decree of the Minister of Justice and Administration on the mediators’ professional training and continuing education. (‘Decree’)

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c. Set by public regulation Yes. The Mediation Act and the Decree clarify the system of registration of mediators. More precisely, under the Mediation Act, the minister in charge of the judicial system must maintain a register of mediators that also contains the names of legal persons and unincorporated business associations employing mediators. Mediators must a) have a degree in higher education and at least five years’ experience in the respective field from the time of obtaining the said degree; b) provide proof of having completed the professional training course decreed by the minister for mediators; c) have no prior criminal record and not be restrained by court order from practicing the activities of mediators. Legal persons who satisfy the following criteria may be admitted to the register: a) those who have the activity of mediation registered in their charter document; and b) have a member, employee or subcontractor who is licensed to engage in professional mediation and whose licence to engage in professional mediation has not been suspended. In addition to these requirements the applicant shall also provide proof of payment of the fee charged for admission into the register. Moreover natural persons are required to verify, in the way decreed by the minister, having completed the professional training prescribed for mediators comprising theoretical and practical study. The register must contain the following information: a) the natural person’s surname and forename; b) the natural person’s date and place of birth and mother’s maiden name; c) the number of the natural person’s diploma or certificate as proof of education or qualification, the date of issue and degree of the diploma or certificate, the duration of experience in the respective field, and the serial number and the date of the certificate verifying completion of the professional training (continuing education) prescribed for mediators; d) the date of admission into the register and the number of the relevant resolution; e) the date of commencement, suspension and termination of mediation activities; f) the foreign language indicated by the natural person in which he or she is able to conduct mediation procedures; g) the natural person’s field of expertise, as indicated in the application; h) office address; i) the address of the legal person indicated by the natural person in whose employment this person is engaged in professional mediation, or the address of the location in which he or she conducts mediation activities if it differs from the registered address of the legal person; j) the natural person’s office contact details (postal address, phone and fax numbers and email address); k) the natural person’s residential address (postal address, phone and fax numbers and mail address); l) the natural person’s work address (postal address, phone and fax numbers and email address); m) membership in a professional association, including the name of the association; and n) the number of the natural person’s mediator license.

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The register must also contain a) the legal person’s name; b) the legal person’s corporate headquarters; c) the name of the court or other authority where the legal person is registered and the registration number; d) data on the legal person’s employees; e) the address of the location in which it conducts mediation activities if it differs from the registered address of the legal person; and f) the date of admission into the register and the number of the relevant resolution. With some understandable exceptions, the register is treated as public information, accessible on the ministry’s website. The minister also publishes the public information specified in legal regulation in the Hivatalos Értesítő (Official Bulletin).

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d. Number of hours for basic mediator training 60 hours (theory) + practice. According to the Decree, the required number of hours for mediator training is at least 60 (each hour in fact means a 45-minute long session). This is the theoretical stage of the training and there is practical training as well. e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. According to the Decree, mediators need to attain 50 credits. In terms of timing, under the Mediation Act the continuing professional training programme comprises consecutive educational cycles arranged in a sequence over a period of five years. As a result, the first continuing professional training cycle begins on the day of admission to the register of the person required to participate in continuing professional training. The person required to participate in continuing professional training has to attend training courses specified in the Decree, such as: attending a theoretical training module again, joining a course to improve professional practice (simulation exercises, case study), participating in co-mediation with a trainer, attending a professional conference that focuses at least at a certain level on civil mediation. From these four methods of continuing professional training, mediators are expected to select at least two methods. In terms of the amount of credits: each training method results in 10 credits. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) (Yes). See: 4.1.c., d., e. g. Accreditation through written exam (No). This is not the main feature of the accreditation, although I think there is no limitation on that. According to the Decree, the training has two parts: Firstly, the theoretical part which includes assignments in the syllabus because the Decree determines issues and topics to be covered in the course of the training. As an example: conflict theory, negotiation theory and skills, mediation approaches, introducing techniques in order to deal with difficult people, the legal background of mediation, and psychology. As a result it is possible to have a written exam at the end before handing over to the participant the relevant document to initiate the registration process at the Ministry of Justice and Administration. h. Accreditation through performance-based assessment (Yes). The second part of the training is a performance-based assessment (see 4.1.g.). However, this is not the only element and method of the training. Under the performance-based assessment, the Decree refers to particular ways of performance or activity.

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These are the following: simulation exercise, exercise with the guidance of a peer mentor (a kind of peer review), attending a group exercise on discussing a particular case, preparing a case study, and method-specific supervision.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Taking into consideration the current stage of mediation these kinds of accreditation or initiatives will only appear in the distant future in Hungary. j. Set by market (private certifying bodies) (No). If there is any initiative, then that will be private. Albeit I am sceptical if mediation advocacy is something that is deeply discussed and particular initiatives are taken in connection with it. k. Set by public regulation No. There is no law governing mediation advocacy, unless we consider the provisions on representation in the Mediation Act.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation Yes. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) (No). However, in court mediation there is an important requirement. In accordance with the Mediation Act,12 the court secretary and the judges on the attached list mandated by the president of the Országos Bírósági Hivatal (National Office for the Judiciary) may practice as court mediators upon verifying completion of the professional training prescribed for mediators. So far fifty of them have undergone the training and obtained court mediator certificates, and thirteen from this group of professionals are actually practicing as mediators. In practice, at the moment the Hungarian court mediation system is primarily based on retired judges, albeit there is a need and initiatives are being taken to involve the younger generation. This seemingly closed system does not mean that the courts are not allowed to work with mediators from private ADR providers under cooperation agreements and in particular situations, especially if a co-mediator or a mediator with a particular expertise is involved, even though the involvement of an ‘outside’ mediator may invite some tension, since the service of the ‘inside’ court mediator is free while ‘outside’ mediator services have to be paid for by the parties. In terms of statistics, court mediators received the first cases in December 2012. At the time of my submission, there are around fifty ongoing mediation processes, while the parties were able to reach a settlement with the help of the mediator in twelve cases.

12 Mediation Act, Section 38/A.

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(Even though court mediation started in 2012, there were pilot programmes between 2009 and 2010 in certain courts. The mediated cases were primarily related to family disputes and child support issues. In addition, there were few cases in connection with warranties and damages.) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The Decree also implements the EU Directive.

HU

b. EU Directive implemented for all national and cross-border commercial cases. (No). The objective of the Hungarian Mediation Act is to offer an alternative for natural and other persons to settle their disputes arising in connection with personal and property rights where the parties are not bound by statutory provision. The Mediation Act was promulgated on 17 December 2002. As a result the legal environment was established a long time ago; what is problematic is the lack of actual practice. c. EU Directive implemented for all national and cross-border civil cases (No). Mediation under the Mediation Act is not be applied in all cases. For example: matrimonial proceedings, termination of parental custody and, as I have already mentioned, a court decision is required in terms of the validity, the existence or non-existence of a marriage as well as the annulment or dissolution of a marriage. In cases pertaining to the termination of a registered partnership by a notary, the notary’s decision is required to have the registered partnership declared terminated. In fact there is nothing new in these exceptions because the EU Directive itself also highlights that it should not apply to rights and obligations for which the parties are not free to decide themselves under the relevant applicable law. Such rights and obligations are particularly common in family law and employment law.

7.

Mediation legislation besides Directive

a. Mediation legislation 2002. The Mediation Act was promulgated on 17 December 2002. b. Legislation updated since EU mediation directive (date update) 2012. The provision regarding the court mediation came into force on 24 July 2012; this is an update, but it was not only motivated by EU mediation directive. In July 2009 a complex act came into force that modified many acts in connection with the justice system. In terms of harmonisation, this act also served to implement the EU Directive. In addition, in terms of the implementation process, the Civil Procedure Code was also part of it. In terms of timing, the provisions of the previously introduced mediation process between business entities (See 1., b., c.) came into force on 1 March 2011.

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Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. According to the Mediation Act, a legal person may also be registered. There are not many mediation bodies. The one that comes to mind is Partners Hungary, wellknown mediation provider. In terms of legal form, it is a foundation. b. Individuals may be providers of mediation services Yes. See in 4.1.c. a description of the register. c. Mediation provider qualifications/requirements determined by public regulation Yes. Hungary has a register of mediators and this system is based on law. In connection with mediators who are legal persons, the Mediation Act requires them to have the activity of mediation registered in their charter document, and have a member, employee or subcontractor who is licensed to engage in professional mediation and whose licence to engage in professional mediation has not been suspended.

9.1. Mediator fees a. Freely contracted Yes. According to the Mediation Act, the fee for any given case is subject to negotiation between the parties and the natural person or legal person mediator. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases € 30-100 (estimate)/€ 150-250 cross-border (estimate). In cross-border cases I would assume more, between € 150 and € 250. d. Average mediator fee per hour in civil cases € 25-100 (estimate). These numbers are assumptions based on what I have learned about fees in general.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. In the sense that it is definitely not a general practice. g. Mediator fees subsidised in court-connected schemes Yes. We have court mediation (I make a distinction between court-annexed mediation and court mediation). In terms of financial incentives: court mediation is free.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No.

HU

b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). But it is not clarified like that directly. On the one hand, it needs to be treated as part of the legal system; this principle appears indirectly in the EU Directive. From the commentary of the Mediation Act it turns out that the ultimate goal of mediation is to make the justice system more efficient and productive, and to help the courts to deal with the growing number of dockets. On the other hand, I am almost sure that there is a disagreement among practitioners on how to think about and picture mediation: is it outside or part of the legal system? c. Mediation procedure has an impact on statute of limitations Yes. According the Mediation Act,13 signing a mediation statement constitutes commencement of a mediation process. In fact the commencement of the mediation process means the discontinuation of the limitation period. Regarding the limitation period, it is suspended by a written notice for submission of a claim, the judicial enforcement of a claim, the amendment of a claim by agreement (including its composition), and the acknowledgment of a debt by the obligor. Then later, the period of limitation recommences after suspension or following the non-appealable outcome of a suspension proceeding14 if the mediation process is successful. If mediation is not successful, i.e., the obligee is unable to enforce a claim for an excusable reason, the claim shall remain enforceable within one year from the time the said reason is eliminated or, in respect of a period of limitation of one year or less, within three months, even if the period of limitation has already lapsed or there less than one year or three months, respectively, remains. This is also applicable if the obligee has granted a respite for performance after expiration.15 In other words, the (mediation) statement means that if the parties in the first mediation session invariably request continuation of the mediation process, it is recorded in writing signed by both parties and the mediator. This statement will also contain an agreement between the parties and the mediator on the terms of advances and the payment of the costs and expenses involved in the process, which shall also cover rescission and termination, and it may also contain the parties’ agreement on confidentiality and any other issue they deem necessary.

11. Mediated settlement a. Contract Yes. The mediation proceeding leads to an agreement not judgment but see 1. b. Automatically enforceable No. The mediated agreement does not result in a final and binding enforceable decision as judgments or arbitral awards do.

13 Mediation Act, Section 31. 14 Civil Code (Act IV of 1959), Section 327(1) and (2). 15 Civil Code (Act IV of 1959), Section 326(2).

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c. Enforceable under some circumstances which are up to the parties Yes. According to the Civil Procedure Code, Section 148, if the parties reach a settlement in the mediation proceedings, it may be submitted to the court for approval within a specified time limit specified (during the suspension of the proceeding, it is a maximum of 6 month). If the settlement is found in conformity with the relevant legislation, the court will approve it by way of a ruling, or reject it and move on with the proceedings. A court-approved settlement is enforceable in the same manner as a judgment; an appeal lodged against the ruling of approval has no suspensory effect on the enforcement of the settlement. d. Enforceable under some circumstances defined by public regulation Yes. See 11.c.

12. Confidentiality a. Regulated by law Yes. Under the Mediation Act,16 unless otherwise prescribed by law, mediators must handle any and all data and information obtained in a mediation process with strict confidentiality. In addition, mediators remain under the obligation of confidentiality following termination of professional mediation activities. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. In accordance with the Code of Civil Procedure Code,17 having to testify may be refused in certain situations, and for mediators and experts involved in mediation proceedings pertaining to the litigation in question.

13. Education a. Mediation education is a common component of legal education (No). At the moment, mediation is not part of the curriculum as a distinct subject. However, there are a few law faculties in the country that offer mediation courses and try to emphasise ADR education. Also, universities provide ADR and ADR-related courses as an alternative or facultative course as well. b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, case law, articles, law –– Kertész Tibor, Mediáció a Gyakorlatban, Bíbor Kiadó; Miskolc, 2010 –– Dávid János: Mediáció a szociológus szemével, Pereskedni rossz! Mediáció: A szelíd konfliktuskezelés Szerkesztette: Dr Eörsi Mátyás –– Dr Ábrahám Zita, Minerva Kiadó, Budapest 2003

16 Mediation Act, Section 26. 17 Code of Civil Procedure, Section 170.

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–– Barcy Magdolna-Szamos Erzsébet: ‘Mediare necesse est’: a mediáció technikái és társadalmi alkalmazása – Animula, Budapest 2002 –– Sáriné Dr Simkó Ágnes, A mediáció – A közvetítői tevékenység, HVG-ORAC Lap- és Könyvkiadó Kft., Budapest 2003 –– Herczog Mária (szerk), Együtt vagy külön? – Maradjunk együtt vagy váljunk el?, KJK-Kerszöv Jogi és Üzleti Kiadó Kft., Budapest 2002 –– Sáriné Simkó Ágnes (szerk), Mediáció – Közvetítői eljárások, Hvgorac Lap- és Könyvkiadó Kft., Budapest 2012 –– Bándi Gyula: A közvetítés (mediáció) jogi szabályozásának továbbfejlesztése, Jogtudományi Közlöny, 2000. január, 13p. (article)

15. Mediation legislation texts a. Weblink to legislation in national language –– http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A0200055.TV&celpara=#xcelparam

HU

b. Weblink to English or other translation NA. There is an official translation, however, no weblink available. a. Other references –– http://www.partnershungary.hu/en/ –– http://www.mediacio.hu/ (Website of the Mediators’ Association –– http://www.mkik.hu/index.php?id=51- (Website of the Hungarian Chamber of Commerce and Industry. Rules of proceeding). –– http://www.mediaciovalacsaladokert.hu/ -family mediation, divorce mediation –– http://mediation.hu/node/2 –– http://www.rezler-foundation.hu/index_en.html –– The foundation’s primary aim is to introduce and propagate dispute resolution and arbitration techniques in Hungary and the central European region.

16. Country specific remarks Mediation definition In the Mediation Act, mediation is defined as follows: 2002. évi LV. törvény a közvetítői tevékenységről A közvetítés fogalma 2. § A közvetítés e törvény alapján lefolytatott olyan sajátos permegelőző, konfliktuskezelő, vitarendező eljárás, amelynek célja – összhangban az 1. § (1) bekezdésében foglaltakkal (E törvény célja, hogy elősegítse a természetes személyek és más személyek személyi és vagyoni jogaival kapcsolatban felmerült azon polgári jogviták rendezését, amelyekben a felek rendelkezési jogát törvény nem korlátozza) – a vitában érdekelt felek kölcsönös megegyezése alapján a vitában nem érintett, harmadik személy (a továbbiakban: közvetítő) bevonása mellett a felek közötti vita rendezésének megoldását tartalmazó írásbeli megállapodás létrehozása. A közvetítő feladata 3. § A közvetítő feladata, hogy a közvetítés során pártatlanul, lelkiismeretesen, legjobb tudása szerint közreműködjön a felek közötti vitát lezáró megállapodás létrehozásában.

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Act LV of 2002 on Mediation In order to facilitate out-of-court settlement of civil disputes, Parliament has adopted the following Act: Mediation Defined: Section 2. Mediation is a special non-litigious procedure conducted according to this Act to provide an alternative to court proceedings in order to resolve conflicts and disputes where the parties involved voluntarily submit the case to a neutral third party (hereinafter referred to as ‘mediator’) in accordance with Subsection (1) of Section 1 (The objective of this Act is to offer an alternative for natural and other persons to settle their disputes arising in connection with personal and property rights where the parties are not bound by statutory provision) in order to reach a settlement in the process and lay the ensuing agreement down in writing. Responsibilities of Mediators Section 3. Mediators shall be responsible for mediating negotiations between the parties to the best of their abilities in an unbiased and conscientious manner in order to reach an agreement in conclusion of the process.

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Mediation regulation and approach

HU

Country: Hungary Prepared by Manuela Grosu 1. Attempt to a. Always voluntary mediate b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of procedure the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accredita­ b. Set by market (private certifying bodies) tion c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accredita­ k. Set by public regulation tion

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(Yes) (Yes) (Yes) (Yes) (Yes) (No) No Yes No (No) (No) No (Yes) (Yes) Yes (Yes) F/(T) F/D F/T T/F N Mix Joint/(caucus) Yes No Yes >60 hrs Yes (Yes) (No) (Yes) No (No) No

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Mediation regulation and approach Country: Hungary Prepared by Manuela Grosu 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU a. EU Directive implemented for cross-border cases only directive b. EU Directive implemented for all national and cross-border commercial cases

No Yes (No)

c. EU Directive implemented for all national and cross-border civil cases 7. Mediation a. Mediation legislation since legislation b. Legislation updated since EU mediation directive (date update) (besides Directive) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator a. Freely contracted fee b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

(No)

d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal a. Is there a special relationship between judges and mediators/ context mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum 9.2. Financing and Legal aid

No No (No)

2002 2012 Yes Yes Yes Yes No € 30-100 (est.)/€150-250 cross-border (est.) € 25-100 (est.) No No Yes No

(Yes) Yes Yes No Yes Yes Yes Yes (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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1.Attempt to mediate a. Always voluntary (Yes). See 1.b.

IE

b. Mandatory (in some cases) (No). Mediation is not mandatory in Ireland. However, under Section 15 of the Civil Liability and Courts Act, 2004,3 a court hearing a personal injuries action may direct mediation conference chaired by a person agreed by the parties or, in default of agreement, by a mediator appointed by the court who is a lawyer of at least 5 years’ standing or a mediator accredited by certain prescribed bodies, namely: 1. Friary Law. 2. Mediation Forum-Ireland. 3. Mediators Institute of Ireland. 4. The Bar Council. 5. The Chartered Institute of Arbitrators Irish Branch. 6. The Law Society of Ireland. 7. The International Centre for Dispute Resolution. Failure to comply with an order under Section 15 may result in adverse consequences in terms of costs.4 c. Court referral or court-connected mediation possible Yes. Court-based mediation may take place after parties have commenced litigation proceedings, for example, in the Commercial List of the High Court, under the Multi-Unit Developments Act 2011, in the case of cross-border disputes (European Communities (Mediation) Regulations 2011 (S.I. No. 209 of 2011)) or in the case of civil proceedings where the court of its own motion or the application of a party may invite the parties to participate in an ADR process or, by consent of the parties, refer them to such a process and adjourn the proceedings pending the determination of such process.5 1 Last update of information: April 2012. 2 James Gilhooly is a Senior Counsel who was called to the Bar of Ireland in 1982 and admitted to the Inner Bar in 1998. Before going into legal practice, he had extensive experience as a merchant banker and corporate finance advisor. His undergraduate degree is in business (BComm, University College Dublin, 1969). He holds postgraduate qualifications in European Law, domestic arbitration and international arbitration. He is a Bar Council accredited mediator and a Fellow of the Chartered Institute of Arbitrators, a Fellow in International Legal Practice of the International Bar Association and a Fellow of the European Legal Institute. He is also a member of the German/Irish Lawyers Association. Contact: [email protected]. 3 http://www.irishstatutebook.ie/2004/en/act/pub/0031/print.html#sec15 4 http://www.irishstatutebook.ie/2004/en/act/pub/0031/print.html#sec16 5 See e.g., http://courts.ie/rules.nsf/SuperiorAmdLookup/No56A-S.+I.+No.+357+Of+2012:+Rules+Of+T he+Superior+Courts+(€opean+Communities+(Mediation)+Regulations+2011)+2012.

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d. Court-ordered mediation possible No. e. Sanctions by the court if mediation is not tried (in good faith) Yes. The court reserves the right to take into account unsatisfactory reasons for not attempting mediation or unreasonable termination of mediations when making cost orders.6 f. Sanctions by law if mediation is not tried (in good faith) No. Apart from costs as mentioned in 1.b. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. The lawyers of the parties may play an important role in assisting the mediator and advising the parties during the settlement process. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. However, such a clause is an ordinary contractual provision with no special status. b. Case admissible in court, however, the judge may take this into account and there is some case law Yes. See e.g., Byrne v. Byrne [2005], High Court Unrep. IEHC 55, Macken, J. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 2.a. and 2.b.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. There is no legislation in Ireland prescribing the procedure for mediation. There is a draft Mediation Bill 2012, which if and when passed will regulate some aspects of procedure but not the actual conduct of the mediation proceedings. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes.

6 See e.g., http://courts.ie/rules.nsf/SuperiorAmdLookup/No99-S.I.+No.+502+Of+2010:+Rules+Of+The +Superior+Courts+(Mediation+And+Conciliation)+2010.

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c. Mediator can offer a non-binding opinion Yes. In principle, mediators can offer non-binding opinions, but this would be unusual in mediation, as distinct from conciliation. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. Usually, the parties accept that the mediator should provide the framework for the conduct of proceedings. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative.

IE

h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. See 3f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Generally it is not applicable, but none of these approaches should be regarded as excluded. It depends primarily on the attitudes of the parties. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. See 1.b. However, the parties are in principle entitled to choose their own mediator if they can agree on a suitable person who need not be accredited, even in court-directed mediation. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. d. Number of hours for basic mediator training 20-60 hours (estimate). Not fixed. Generally, the profit-driven accreditation bodies require longer (and therefore more expensive) training.

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e. Mandatory Continuing Professional Development for accredited/certified mediators No. But see 4.1.d. f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) No. g. Accreditation through written exam (Yes). Differing types of examination and assessment are required by different accreditation bodies. h. Accreditation through performance-based assessment (Yes). Performance-based assessment can be part of the accreditation procedure, but not necessarily so.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. In Ireland, there is no accreditation/certification or special recognition of mediation advocates. Generally, the advocacy is done by lawyers but is also done by trade union officials, social workers or family dispute specialists, for example, depending on the precise matters in issue. j. Set by market (private certifying bodies) Yes. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Any person can be a mediator save where qualification as a lawyer or membership of a prescribed accreditation body is required, e.g., by statute, court rules or contractual provisions. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

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The Variegated Landscape of Mediation

EU Directive

a. EU Directive implemented for cross-border cases only Yes. See S.I. No. 209/2011 – European Communities (Mediation) Regulations 2011. b. EU Directive implemented for all national and cross-border commercial cases No. c. EU Directive implemented for all national and cross-border civil cases No.

7.

Mediation legislation besides Directive

a. Mediation legislation since No. There is no legislation for mediation in Ireland at present. However, the scheme for a Mediation Bill has been published and legislation is likely in the near future. b. Legislation updated since EU mediation directive (date update) No.

IE

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Services are provided through a number of professional bodies and also a number of private for-profit bodies. Family mediation services are also provided by the State and a number of voluntary and community bodies provide mediation services within their areas of interest. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. The mediation industry is not regulated in Ireland.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases € 500 (estimate). Varies widely, depending on individual mediators and quantum in issue. A fair estimate is considered to be € 500 probably plus a fixed initial fee. d. Average mediator fee per hour in civil cases € 200 (estimate). Varies widely, depending on individual mediators and quantum in issue. A fair estimate is considered to be € 200 probably plus a fixed initial fee.

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9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Although not compulsory, mediation is encouraged in the legal system. c. Mediation procedure has impact on statute of limitations No. The position in Ireland is that the initiation of a mediation procedure prior to the issue of legal proceedings does not affect the running of time for the purpose of the statute of limitations. Once legal proceedings have been issued, the statute will have ceased to run in any event, so that the initiation of any mediation procedure at that stage will likewise have no effect on the running of time.

11. Mediated settlement a. Contract Yes. In most private mediation, parties would reduce the terms of the agreement to writing as heads of agreement to be settled and engrossed later by their respective lawyers for execution as a binding agreement. The enforceability of such settlement agreements is subject to normal contractual principles. Where there are pending court proceedings, the settlement agreement may provide for its terms to be recorded as a consent judgment or court order. It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties (Yes). This will depend on the terms of agreement reached by the parties. d. Enforceable under some circumstances defined by public regulation (Yes). Depending on agreed terms, an agreement may possibly be made a rule of court or incorporated in a court order or binding arbitration award.

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12. Confidentiality a. Regulated by law Yes. Generally, at common law, statements made on a ‘without prejudice’ basis during negotiations towards settlement of a dispute are inadmissible in subsequent court proceedings relating to the same subject matter. In equity, persons who receive information in circumstances of confidence may not make unauthorised use of the information. A court may grant relief if there has been actual abuse or threatened abuse of confidential information. Statutory protection for confidentiality in mediation proceedings is very likely in pending legislation. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes.

13. Education

IE

a. Mediation education is a common component of legal education curriculum No. However, ADR is frequently offered as an elective course. There are also electives offered as part of the curriculum of the courses before candidates for admission of solicitors and barristers. b. Mediation advocacy education is a common component of legal education curriculum No. However, mediation advocacy education may form part of the mediation education component.

14. Most relevant literature or references, case law, articles, law –– Alternative dispute resolution: mediation and conciliation (LRC 98/2010); http://www.law reform.ie/Reports_Published/Default.135.html. –– The Commercial Court (Stephen Dowling, Thompson Reuters (2007) (2nd Edition available 12/2012). –– Family Mediation in Ireland (Sinead Conneely, Ashgate Publishing Ltd (2004).

15. Mediation legislation texts a. Weblink to legislation in national language –– http://mediateireland.com/mediation-law-ireland b. Weblink to English or other translation NA. c. Other references –– http://www.themii.ie/index.jsp –– http://www.cedrsolve.ie/?page=mediation125

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16. Country specific remarks The General Scheme of the Mediation Bill has been published.7 Definitive legislation is expected in 2013. Mediation definition At present, there is not, so far as I know, any statutory definition either of ‘mediation’ or ‘conciliation’. The terms are indeed often used interchangeably. However, I think that lawyers would tend to see conciliation as more formal, structured and advisory in nature in that a conciliator will frequently seek to propose a solution to the parties. Mediation, on the other hand, is seen as more facilitative in nature and it would be regarded as rather unusual for a mediator to propose a solution. Conciliation tends to be used in the industrial relations context (e.g., by the Labour Relations Commission) or in some industries, such as the construction industry, where contracts often provide for a number of resolution procedures, including adjudication, conciliation and arbitration. However, it can be used in any dispute resolution context suitable for ADR generally. The Law Reform Commission recently analysed the nature of the resolution procedures applied in mediation and conciliation.8 Among its recommendations was the provision of statutory definitions for conciliation and mediation. The interesting distinction proposed was that conciliation was to be regarded as advisory (with the conciliator being entitled, even expected, to make a proposal for resolution), while mediation was to be regarded as primarily facilitative, with the mediator being forbidden to make a proposal for resolution. I assume these issues will be addressed in the forthcoming Mediation Bill. Pending the enactment of legislation, whilst I would be of the view that the distinction is well understood by lawyers, the boundaries must still be regarded as somewhat blurred.

7 (http://www.justice.ie/en/JELR/MedBillGSFinal.pdf/Files/MedBillGSFinal.pdf). 8 (see its 2010 Report on http://www.lawreform.ie/_fileupload/consultation%20papers/cpADRpdf).

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Mediation regulation and approach Country: Ireland Prepared by James Gilhooly SC 1. Attempt to mediate

2. Mediation clause

IE

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) (No) Yes No Yes No No Yes No Yes Yes No No Yes Yes No F D F D NA Mix Mix Yes Yes No 20-60 hrs (est.) No No (Yes) (Yes) No Yes No

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Mediation regulation and approach Country: Ireland Prepared by James Gilhooly SC 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No No No Yes No No No No Yes Yes No Yes No €500 (est.) €200 (est.) No No No No

Yes No Yes No (Yes) (Yes) Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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15. ITALY1 Prepared by Professor Giuseppe De Palo2 – Chiara Massidda3

1.

Attempt to mediate

IT

a. Always voluntary Yes. Anyone can go to mediation to reconcile civil and commercial disputes regarding any of their so-called dispensable rights (Section 2.1, Legislative Decree 28). b. Mandatory (in some cases) Yes. On 9 August 2013, the Italian parliament ‘converted into law’ the new mediation rules approved by the government with Legislative Decree 69, dated 21 June 2013.4 The new rules came into force on 20 September 2013. As a consequence, the debated mandatory mediation will also be reintroduced in Section 5(1), Legislative Decree 28. According to said Sec­ tion 5(1), the case subjects to be referred to mandatory mediation are: tenancy, land rights, partition of property, hereditary succession, leases, loans, rental companies, medical and sanitary malpractice, defamation by the press or other means of advertising, contracts, insurance, banking and finance.5 Pursuant to CC Judgment 27‑2, Section 5(1) of Legislative Decree  28, prescribing the mediation process as a condition for viability of a claim was declared illegitimate because it is in contradiction with the Constitution.6 In 2011, a leading Italian organisation of lawyers, ‘OUA’, challenged Legislative Decree 28 in the Italian Constitutional Court. In particular, Section 5(1) was challenged, because it was deemed to be in violation of Section 24 of the Italian Constitution, which states that, ‘Anyone may bring 1 Last update of information: September 2013. 2 Professor Giuseppe De Palo is President of the ADR Center and a director of London-based JAMS International. A full-time mediator since 1998, he has contributed to the resolution of over 500 complex commercial disputes. An International Professor of Alternative Dispute Resolution Law & Practice at Hamline University School of Law in St Paul (USA), he is the editor, author and co-author of several books and articles in the field of ADR. Professor De Palo has spoken about mediation before the Italian and European parliaments, and has been the team leader of projects – funded by the World Bank, the European Commission, the Inter-American Development Bank – to promote ADR. Contact: giuseppe. [email protected]. 3 Chiara Massidda is an Italian lawyer and mediator based in the Netherlands. Chiara is specialised in International and European Law, works as in-house legal counsel and is consultant in several legal areas (international contracts, corporate and commercial law, M&A, IP, general conditions, compliance, international tenders). Chiara works on a daily basis with different cultures and languages (English, Dutch and Italian). She is registered at the Yong Mediation Initiative and collaborates on the Business Mediation and Mediation in Dutch Legal Practice courses given at Utrecht University. Contact: info@ chiaramassidda.com. 4 Law August 9, 2013, No. 98 ((GU Serie Generale n.194 del 20-8-2013 – Suppl. Ordinario n. 63). The text of Legislative Decree 28 as integrated by the new legislation is available on the web-site of mondoadr.it at: http://www.mondoadr.it/cms/articoli/testo-coordinato-della-nuova-normativa-sulla-mediazione. html 5 According to Section 5(1), a party can start mediation in accordance with the procedure set forth in Legislative Decree 28/2010, or the conciliation procedure (‘procedimento di conciliazione’) according to Legislative Decree 8 October 2007, No. 179, or the procedure set forth by legislative decree 1 September 1993, No. 385 on banking matters. 6 The provisions on mandatory mediation came into effect on 21 March 2011, and were in force until the judgment from the Constitutional Court.

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cases before a court of law in order to protect their rights under civil and administrative law’. Section 5(1) was, however, found to be in violation of Section 77 of the Italian Constitution, according to which, ‘The Government may not, without an enabling act of Parliament issue a decree having force of law’. Regarding the latter assumed violation, it is claimed that the Government (with Legislative Decree 28) went beyond the delegation received by Parliament with Section 60, Act 69/2009.7 It is interesting to note that the Constitutional Court did not address the claimed violation of Section 24 of the Italian Constitution, i.e., the court did not consider mandatory mediation to be in violation of the European Directive, nor the Italian Constitution. The relevant sections of Legislative Decree 28 on mandatory mediation were barred solely because of Section 77 of the Italian Constitution. The new legislation has introduced some new rules on mandatory mediation, such as the compulsory assistance of outside counsel and the probationary character of mandatory mediation. Section 5(1) is effective for four years, and after two years from its introduction (i.e., September 2015), the Ministry of Justice will monitor its results. The mediation process is then a condition of admissibility of the claim to the courts. The admissibility must be raised by the defendant or by the judge at the first hearing, and the judge gives the parties a period of fifteen days for the submission of the request for mediation. The new legislation has introduced a new paragraph to Section 5, namely 2, according to which the condition of admissibility is considered fulfilled if the first meeting before the mediator ends without agreement. c. Court referral or court-connected mediation possible Yes. The judge, even during appeal, in evaluating the nature of the case, may invite the parties to proceed with mediation (Section 5(2), Legislative Decree 28). Also, Section 185 of the Code of Civil Procedure states that judges are encouraged to invite parties involved in disputes, covering any subject matter, to participate in optional judicial conciliation. This can occur via a motion by one of the parties. Notwithstanding these regulations, and the high percentage of cases pending in the Italian Courts, judges seldom use such power.8 d. Court-ordered mediation possible Yes. Further to the new mediation rules enacted by Parliament in August 2013, a judge, at any stage in the dispute, can order the parties to start mediation procedure, even during appeal (see Section 5(2) new text Legislative Decree 28). e. Sanctions by the court if mediation is not attempted (in good faith) Yes. Sanctions by the court were previously set forth in Section 8(5) of Legislative Decree 28 for cases of mandatory mediation; they were barred by CC Judgment 272. Sanctions have been restored by Act No. 98/2013, which introduced paragraph 4, Section 8, of the Legislative Decree. According to Section 8(4) if a party refuses to participate in mediation without valid justification, the judge may make presumptions about evidentiary issues in a subsequent trial. Furthermore, according to Section 13, the judge can condemn the party that did not participate in the mediation process, without a valid justification, to pay into the state budget an additional amount equal to the administrative fee due in judicial proceedings, i.e., the court fees to be paid by the party would be doubled. Another restored sanction is that if the mediation proposal was rejected and a subsequent settlement was not reached, the proposal would be submitted for inclusion in the court’s file. If, consequently, the court’s

7 For the text of the Italian Constitution in English: www.senato.it/documenti/repository/istituzione/ costituzione_inglese.pdf 8 According to the report on mediation compiled by the Ministry of Justice (March 2011-March 2012), only 2.7% of mediations were referred by the judge. The report is available online: http://www.giustizia.it/ giustizia/it/mg_6_6_1.wp?contentId=NOL787710

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ruling coincided with the mediator’s proposal, the parties could incur litigation expenses (see Section 13(1)).9

IT

f. Sanctions by law if mediation is not attempted (in good faith) Yes. See 1.e. Furthermore a negative repercussion is noted in Section 4(3) of Legislative Decree 28, according to which the lawyer, when hired, must clearly inform his clients in writing about the possibility of using mediation. The attorney must also provide information about tax breaks available to parties who participate in mediation. If the lawyer fails to do so, the client may void the attorney-client contract. g. Incentives if mediation is voluntarily attempted before going to court No. If this is intended only with reference to pre-trial mediation, but the answer is affirmative if the question means to indicate an incentive for the parties to choose mediation, instead of initiating a court proceeding. In particular, Section 17 of Legislative Decree 28 sets forth financial and tax exemption provisions for mediation proceedings. All acts and documents related to mediation are exempt from stamp duty, all expenses, taxes, or charges of any kind. The final agreement is also exempt from registration tax (up to a maximum value of € 51,646). Section 20 grants the parties a tax credit towards the mediation fee if mediation is concluded. The tax credit available depends upon the amount paid to the mediation organisation, with a maximum of € 500 for a successful mediation. If the mediation fails, the maximum tax credit is reduced by half. Furthermore, a recent Ministry Decree (June 2012) sets forth an incentive of twenty-five per cent compensation of the attorney fees if mediation has settled the case. A kind of incentive can be seen in a new rule introduced by Act No. 98/2013. According to Section 17.5 ter, if the first meeting with the mediator ends without agreeing to proceed with the mediation, no compensation is owed to the mediation organisation.10 h. Outside counsel presence/representation during mediation sessions allowed Yes. i. Outside counsel presence mandatory Yes. It is mandatory further to the new rule introduced by Act No. 98/2013.11 Prior to the new legislation, even though the presence of counsel in mediation sessions was not required by Italian legislation, it was encouraged.12 However, it is worth noting that a report by the Ministry of Justice containing statistical data on mediation from March 2011 to June 2012 shows that 86% of the parties participating in mediation were represented by counsel.13

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Cases are only admissible if the contract and/or the articles of incorporation of a company include a clause for mediation., If no attempt is made to mediate, the judge or arbitrator

9 If the court awards the same amount as was offered (and then rejected) that party is subject to penalty. 10 The rule of the first meeting with the mediator is introduced at Section 8 of legislative decree no 28/2010 wherein the mediation procedure has been revised. 11 See the revised Sections 5 and 8 of legislative decree No. 28/2010. 12 See G. De Palo, ‘Mediating between the Bar and the Government? Italy’s attorneys strike over a new ADR Law’, 29 CPR Alternatives 84-7 (2011). 13 See footnote 111.

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can, by his own motion or by demand of a party, give the parties a term of fifteen days to submit the request for mediation (Section 5(5)). b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. See 2.a. However, if the parties refuse to participate, there is no formal method of enforcement.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The regulations of the mediation organisation chosen by the parties to conduct the mediation will govern the mediation process. However, such regulations must always ensure certain rules as they are set forth in Legislative Decree 28, such as, the confidentiality of the proceedings; the rules for appointing the mediator must ensure his/her impartiality and ability to deal with the matter promptly (Section 3, Legislative Decree 28); the mediation process must not last for a period exceeding three months (Section 6.1, revised, the first version indicated four months); the assistance of the outside counsel; the first meeting between the parties, the lawyers and the mediator wherein this latter gives information on the mediation procedure;14 and the first meeting between the parties and the appointed mediator must be set within thirty days from the filing of the application (Section 8.1). b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual (Yes). See 3.a. The parties always sign an agreement with the mediator at the beginning of the procedure. Within the rules of most mediation organisations, the parties and the mediator agree upon certain guidelines to be followed. The flexibility of this process makes it easier to determine the interests of the parties, and to design a solution that satisfies those interests.15 c. Mediator can offer a non-binding opinion Yes. If an agreement cannot be reached, the mediator may make a proposal for conciliation. If unanimously requested by the parties, the mediator may make a proposal at any time during the proceedings (Section 11.1). The proposal will be communicated to the parties in writing, and then the parties have seven days to accept or reject the proposal. If the parties do not answer by the deadline, their silence is deemed as a rejection of the proposal (Section 11.2). According to Section 13.1 revised, if the mediation proposal is rejected and a subsequent settlement is not reached, the proposal will be submitted for inclusion in the

14 As mentioned above the mandatory assistance of the outside counsel is introduced by Act 98/2013 and as well the informative character of the first meeting with the mediator (Section 8, Legislative decree 28/2010, revised). 15 G. De Palo, L. Keller, Mediation in Italy, Alternative Dispute Resolution for all, p. 13, ‘Principles and Regulation in Comparative Perspective’, edited by Klaus J. Hopt and Felix Steffek, Oxford 2012.

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court’s file. If, consequently, the court’s ruling coincides with the mediator’s proposal, the parties can incur the sanctions. d. Mediator can offer a binding opinion (No). See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The predominant mediation style for commercial and civil disputes, regarding both substance and process, is the classic facilitative style. The mediator is in charge of facilitating a process which assists the parties to reach a mutually agreeable resolution. The mediator asks questions, searches for interests behind the positions taken by parties, and assists them in finding and analysing options for resolution. Even if, as stated previously, Italian legislation allows the mediator to offer non-binding advice to the parties, what is seen in practice shows that the mediators do not often utilise this option. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e.

IT

g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Other. Under Section 11 of Legislative Decree 28/2010, in cases that do not seem to be heading towards a resolution, or upon request of the parties, a mediator may offer a conciliation proposal based on their evaluation of the case. The proposal is submitted to each party, and they are free to accept or reject it (see also 3.c.). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. The predominant mediation process for both commercial and civil disputes is a mix of joint session(s) followed by private session(s). Therefore, the mediator starts the mediation process with an initial joint session, usually followed by a caucus. There may be one caucus or more, depending on the complexity of the case and the demand of the parties. The case will normally then conclude with a joint session. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Certification is issued by the mediation organisations registered with the Ministry of Justice. A register is maintained that lists organisations authorised to offer accreditation training for mediators (Section 16, Legislative Decree 28). The criteria for the registration of

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these organisations, and the development and certification of the mediators, are set forth in Ministerial Decree 180 (MD 180), as modified by Ministerial Decree 145 (MD 145). Therefore, Italy has a system for accreditation of the mediation organisations (these being both private and public) and mediator accreditation. A mediator can practice mediation only if he or she is registered with one of the numerous ministry-approved mediation organisations. Local bar associations can set up mediation organisations in the relevant court of justice. In addition, chambers of commerce and various professional organisations can establish mediation organisations to deal with specific types of disputes. All of these mediation organisations must be registered with the Italian Ministry of Justice before commencing operation. The quality of mediation providers is very important to the Ministry of Justice. For this reason, the Ministry created a questionnaire in January 2013 (‘Libro Verde’) in which it invites all interested parties to answer several essential questions. This research will ultimately result in the creation of a manual on the quality of mediation16 b. Set by market (private certifying bodies) No. But MD 145 states that the regulations of each mediation organisation must include a valuation schedule to be signed by the parties at the end of mediation (Section 7(5)((b)), MD 180). c. Set by public regulation Yes. See 4.1.a. d. Number of hours for basic mediator training 50 hours is the required amount for mediation development training. Furthermore, MD 145 requires refresher courses for mediators at a minimum of 18 hours every two years. (Sec­ tion 18, MD 180). e. Mandatory Continuing Professional Development for accredited/certified mediator Yes. see 4.1d. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc) Yes. As set forth by MD 180, Section 18(f), a mediator should meet specific educational requirements namely, having a three-year university degree or being enrolled in a professional society. Furthermore, the newly certified mediator must assist an experienced mediator in at least 20 mediations throughout the two years immediately following certification. It should be noted that, aside from the requirements set forth by the statute, each mediation organisation creates its own internal requirements. These may be more demanding than those contained in the statute.17

16 The text is available online on the Ministry of Justice website http://www.giustizia.it/giustizia/it/ mg_1_12_1.wp?facetNode_1=0_10&previsiousPage=mg_1_12&contentId=SPS808345. According to the Ministry’s survey the criteria for the measurement of the quality of the mediation bodies are the following: professionalism, independence and stability (as stated in Section 60(3)(1)(l), 18 June 2009 No. 69); seriousness, efficiency and confidentiality (as stated in Section 16(1)(1),d. lgs. 28/2010). 17 See G. De Palo, L. Keller, Mediation in Italy, Alternative Dispute Resolution for all, principles and regulation in comparative perspective, edited by Klaus J. Hopt and Felix Steffek, Oxford 2012.

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g. Accreditation through written exam No. This is not required by the Italian statute, although each mediation organisation can prescribe more stringent internal requirements. h. Accreditation through performance-based assessment No. But see 4.1.f. and 4.1.g.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. This is not set forth by any Italian statutes nor public regulation; nevertheless, the bar associations, mediation organisations and chambers of commerce organise several courses and training on mediation advocacy. j. Set by market (private certifying bodies) No. k. Set by public regulation No. See 4.2.i.

IT

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation Yes. See Legislative Decree 28, MD 180, and 4.1.f. c. Only a lawyers/legal professionals can be an accredited/certified mediators (domestic) No. but lawyers registered at the bar are ‘automatically’ mediators when they are registered with mediation organisation. They must, however, follow the formation courses, see 4.1.d. d. Only a lawyer/legal professional can be an accredited/certified mediators (cross-border) No. Cross-border mediator requirements are basically the same as those for mediators dealing with domestic matters (see 5.(b.)). However, to be qualified as a mediator in international matters it is also necessary to provide documentation confirming language knowledge.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. b. EU Directive implemented for all national and cross-border commercial cases Yes. c. EU Directive implemented for all national and cross-border civil cases Yes.

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227

Mediation legislation besides Directive

a. Mediation legislation since 1865/2010. Mediation was first mentioned in the Italian Civil Code as far back as 1865. Then in 1931 mediation appeared in the context of public safety provisions. In 1940, mediation was included in the Code of Civil Procedure as an internal court procedure conducted by judges. In the 1960s, Italy began using mediation in labour disputes; and, pursuant to No.Act No. 533 of 11 August 1973, mediation/conciliation was established in the Code of Civil Procedure. Later, pursuant to Act No. 580, 29 December 1993 (Act 580/1993), chambers of commerce had the ability to establish mediation and arbitration commissions for the purpose of resolving disputes among companies, or between companies and their clients. In 2003, Legislative Decree 5/2003 initiated mediation in certain financial matters and all corporate matters. Notwithstanding the abovementioned legislation, mediation has remained almost unknown to the general public as method of alternative dispute resolution. The public became aware of mediation as a procedure in 2009 when, in accordance with the implementation process of the EU Mediation Directive, the Italian parliament issued Act No. 69, 19 June 2009 (Act 69/2009). Section 60 of this Act recognised mediation as an option in civil and commercial disputes and granted the Italian government the power to issue a legislative decree on mediation.18 As a result, in 2010, Legislative Decree 28 was enacted. It is worth mentioning that in some situations, mainly concerning financial matters, there are alternative mediation procedures available which pre-date Legislative Decree 28. In such cases, the claimants have the option of using either the procedure as set out in Legislative Decree 28, or these alternatives. The first of the two alternative procedures is related to disputes arising between investors and financial institutions, and concerns breaches by the latter of its duty to inform, and duties of transparency and fairness. The second procedure, (implemented pursuant to. Section 128 bis of Legislative Decree, No. 385, 1 September 1993) applies to disputes arising between banks/financial promoters on one hand, and their clients on the other, in relation to banking, financial products and services. b. Legislation updated since EU mediation directive (date update) 2013. As modified by Act No. 69 of 21 June 2013No., converted into law by Act No. 98 of 9 August (legge di conversione).

8.

Mediation organisations

a. Mediation organisations can have various legal forms Yes. They can be private or public entities. b. Individuals may be providers of mediation services No. See 8.c. c. Mediation provider qualifications/requirements determined by public regulation Yes. MD 145 sets forth the criteria to be upheld by the applicant entity that is to be registered as mediation provider (Section 4). Among those, the financial and organisational capacity of the applicant entity is taken into account. For the purposes of demonstrating such a capacity, the applicant must prove:

18 See G. De Palo, L. Keller, Mediation in Italy, Alternative Dispute Resolution for All, p. 2, Principles and Regulation in Comparative Perspective, edited by Klaus J. Hopt and Felix Steffek, Oxford 2012.

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(1) an ability to carry out mediation activities in at least two Italian regions (or in at least two provinces in the same region); (2) an insurance policy for an amount not less than € 500,000 to cover liability connected, in any way, with the mediation activity; (3) that the integrity requirements of the partners, associates, directors or representatives of such organisations, align with those set out in Section 13 of Legislative Decree, 24 February 1998, No. 58; (4) compliance with the legislation on mediation; (5) independence, impartiality and confidentiality in the provision of the mediation service; (6) employment of at least five mediators.

9.1. Mediator fees

IT

a. Freely contracted (No). Mediation costs are a tariff specified by the Ministry of Justice. The Ministry of Justice sets the maximum fee that a mediation organisation can charge, based on the stated value of the dispute. The Ministry of Justice does not set minimum tariff amounts; hence, in principle, lower mediation costs can always be negotiated. The mediator’s fee is then taken as a percentage of the total mediation costs. This percentage can vary as it is subject to negotiation between the organisation and the mediator. b. Fixed in some cases by public regulation Yes. See 9.1.a. The following chart shows the maximum tariff amounts per mediation, as set by MD 145. Value of the claim Up to € 1,000 From € 1,001 up to € 5,000 From € 5,001 up to € 10,000 From € 10,001 up to € 25,000 From € 25,001 up to € 50,000 From € 50,001 up to € 250,000 From € 250,001 up to € 500,000 From € 500,001 up to € 2,500,000 From € 2,500,001 up to € 5,000,000 Above € 5,000,000

Cost for each of the parties (excluding 21% VAT) € 65 € 130 € 240 € 360 € 600 € 1,000 € 2,000 € 3,800 € 5,200 € 9,200

The foregoing maximum tariff amounts can be increased by each mediation organisation according to the criteria set forth in Section 13 of MD 145. In particular, the amount can be increased by no more than twenty per cent in cases of particular complexity, or if a mediation proposal has been formulated by the mediator. If the mediation is successful, the amount of mediation costs can be further increased, but the increase can be by no more than twenty-five per cent. The mediator’s fee may also be affected by this; but again, this is dependent on agreements made between the organisation and the mediator. The parties are jointly and severally bound to pay all mediation costs, and at least half of the payment must be made at the beginning of the mediation. The mediation cost is calculated for the entire mediation proceeding irrespective of the number of meetings and hours spent with the mediator.

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c. Average mediator fee per hour for commercial or cross-border cases € 65-9,200 per party per mediation. Fees per mediation range from a maximum of € 65 to € 9,200. See 9.1.b. d. Average mediator fee per hour in civil cases € 65-9,200 per party per mediation. Fees per mediation range from a maximum of € 65 to € 9,200. See 9.1.b.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid is available (‘gratuito patrocinio’ according to Statute D.P.R. 30 May 2002 No. 115, Section 76) if mediation is mandatory or mediation is ordered by the judge, respectively according Section 5. 1-bis, and Section 5.2 of legislative decree No.28/2010. f. Mediator fees covered by legal insurance schemes (No). It is possible under the law, however, in Italy such coverage is not common. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). As we have seen in 1.b., 1.c., and 1.d., there are several circumstances in which the judge can invite the parties to initiate mediation. In which case, the judge will give the parties fifteen days to submit a request for mediation and then set the subsequent hearing. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. As it is regulated by national legislation and applicable to all civil and commercial disputes regarding all dispensable rights (see 1.a. and 1.b.). According to Section 6 of Legislative Decree 28, when parties mediate their dispute the mediation proceedings suspend the statute of limitations for a maximum period of three months. The three-month period starts on the date the mediation organisation receives the request to mediate.19 Even if a dispute is referred to mediation by the judge, the mediation process does not preclude the granting of interim and precautionary measures. In the interests of preventing frivolous spending and wasting time, Legislative Decree 28 had adopted a ‘consequence’ provision for certain cases that proceed from a failed mediation to litigation proceedings. As also seen in 1.f., when a judgment is ‘consistent’ with a previously rejected mediation proposal, the rejecting party is penalised by having to cover the litigation and mediation expenses (see Section 13(1) of Legislative Decree 28, which was barred by CC Judgment 272 and restored by Act No. 98/2013).20

19 M. Marinari, EU Mediation Law and Practice, edited by G. De Palo, M. Trevor, EU Mediation Law and Practice, Oxford University Press (2012) p. 192. 20 If the court awards the same amount as was offered (and then rejected) that party is subject to penalty.

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c. Impact of mediation procedure on statute of limitations Yes. Mediation has an impact on the statute of limitations. According to Section 5(6) of Legislative Decree 28, the demand for mediation suspends the statute of limitations. However, as noted in 10.b., the statute of limitations can only be suspended for a limited time.

11. Mediated settlement a. Contract Yes. If the parties have reached an agreement, it is summarised in the minutes (verbale). The verbale must be signed by the mediator, both parties and their lawyers, and it is then attached to the agreement. If the case includes a transfer of real estate, the agreement must also be authenticated by the competent public officer. b. Automatically enforceable (Yes). According to Section 12 of Legislative Decree 28, each of the parties may file the mediated settlement agreement with the court. The settlement then becomes a writ of execution, having the same legal effect as a court judgment. However, the court will not accept the agreement if it is in violation of public policy or mandatory rules.

IT

c. Enforceable under some circumstances which are up to the parties No. See 11.a. and 11.b. d. Enforceable under some circumstances defined by public regulation No. See 11.a. and 11.b.

12. Confidentiality a. Regulated by law Yes. Section 9 of Legislative Decree 28 sets forth an obligation of confidentiality applicable to each individual involved in the mediation process. Therefore, such an obligation applies to the mediator, participants and all other actors involved in the mediation. This is also applicable to documented statements and information acquired throughout the proceedings. However, the mediator is exempt from the obligation of confidentiality if the parties have consented to disclosure of the information, or if keeping the information confidential is in violation of the law. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. As regulated by Section 10 of Legislative Decree 28, as well as Section 200 of the Italian Code of Criminal Procedure. According to both, a mediator cannot be required to testify about information obtained during his mediation activities, inclusive of all related declarations and communications exchanged between the parties and the mediator.

13. Education a. Mediation education is a common component of legal education curriculum (No). Mediation is seldom a component of the law degree. If it is included, it is normally only as a module of regular civil procedure classes.

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b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, case law, articles, law Literature –– Bertoldini Antonio e Morello Lorenza, La Cassazione nega l'ammissione al patrocinio a carico dello stato per le prestazioni stragiudiziali: dubbi di legittimità sul piano costituzionale, amministrativo e comunitario, in il Foro Amministrativo 2012, 1, 35 (comment to judgment Cassazione civile, 23/11/2011, n. 24723, sez. II). –– Brunialti Massimo, ‘Dovere di riservatezza e segreto professionale nella mediazione’, in La Giustizia Civile 2011, 10, 487. –– Cesaretti Marianna, Inapplicabilità delle norme di cui al d.lg. n. 28 del 2010 in caso di domanda giudiziale per una c.t.u. preventiva, (nota a Tribunale Varese, 21/04/2011, sez. I), in La Giurisprudenza di Merito 2012, 4, 856. –– De Palo Giuseppe, D’Urso Leonardo, Golann Dwight, Manuale del mediatore professionista, Giuffré, 2010. –– D’Alessandro Elena, Il conferimento dell'esecutività' al verbale di conciliazione stragiudixiale e la sua circolazione all'interno dello spazio giudiziario europeo?, in Rivista Trimestrale di Diritto e Procedura Civile, 2011, 04, 1157. –– De Palo Giuseppe and Trevor Mary B. (ed.) EU Mediation Law and Practice, Oxford, 2012, pages 187-203 Italy. –– De Palo Giuseppe, Cross-Border Commercial Mediation: How legislation affects mediation use (2007), presentation to the European Parliament, available online at: < http://www.europarl. europa.eu/comparl/juri/hearings/20071004/depalo5_en.pdf > accessed 5 March 2012. –– De Palo Giuseppe and Keller Lauren, The Italian mediation explosion: Lessons in Realpolitik, (2012) 28(2) Negotiation Journal 181 http://onlinelibrary.wiley.com/doi/10.1111/nejo.2012.28. issue-2/issuetoc. –– De Palo Giuseppe and Keller Lauren, Mediation in Italy, Alternative Dispute Resolution for All, chapter 12 in ‘Principles and Regulation in Comparative Perspective’, edited by Klaus J. Hopt and Felix Steffek, Oxford 2012. –– De Palo, Giuseppe and D’Urso, Leonardo, Explosion or Bust? Italy’s New Mediation Model ­Targets Backlogs to ‘Eliminate’ One Million Disputes, Annually, 28 CPR Alternatives 93−5 (2010) –– De Palo, Giuseppe, D’Urso, Leonardo and Gabellini, Rachele, Il Ruolo Dell’Avvocato Nella Mediazione, Giuffrè, Milan, 2011. –– Lupoi Michele Angelo, Rapporti tra procedimento di mediazione e processo civile, on line http:// www.academia.edu/1632921/Rapporti_tra_procedimento_di_mediazione_e_processo_ civile. –– Maniori Fabio, Mediazione ed azione di classe: un’analisi sulla interazione tra I due istituti, in Rivista di Diritto dell’Economia e delle Assicurazioni, 2012, 01, 39. –– Marano Alessandro, La mediazione civile e commerciale: principali novità e prime osservazioni, in Giustizia Civile 2012, 03, 127. –– Marinaro M., Mediazione e processo. Rassegna tematica di giurisprudenza, Roma (Aracne ed.), 2012. –– Masoni Roberto, Mediazione e Processo: rassegna della prima giurisprudenza edita, in Giurisprudenza di Merito, 2012, 5, 1085. –– Pagni Maria Cristina, La Mediazione: esempi di successo nel settore assicurativo e riassicurativo, in il Diritto dell’Economia e delle Assicurazioni, 2011, 03, 983. –– Palermo Gianfranco, Mediazione e Conciliazione. Riflessioni sulla disciplina introdotta dal D.L. 4.3.2010 N. 28, in Riv. Notariato 2012, 03, 543.

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Cases/Case law –– European Court of Justice, combined cases of Rosalba Alassini and Others (C-317/08 and C-320/08). –– Regional Administrative Tribunal of Lazio, decision No. 03202/2011 REG.PROV. –– COLL., referring recourse nos. 10937/2010 and 11235/2010 to the Italian Constitutional Court. –– Considering that legislation on mediation is quite recent, the case law mainly concerns the Court of First Instance (‘Tribunale’) and the Court of Appeal. Hereby a list of some recent case law dated 2012, but also case law from 2010 and 2011 is present. –– Tribunale Vasto 4 July 2012 on mandatory mediation. –– Tribunale Mantova 25 June 2012 on the differences between the formulation of a demand before the judge and the mediator. –– Tribunale Lamezia Terme 22 June 2012 and Tribunale Bursto Arstizio 15 June 2012 on the rejection of a claim in first hearing because the previous mediation procedure was not initiated according Section 5 of the Legislative Decree (mandatory mediation on a tenancy contact). The Tribunale of Lamezia Terme also ordered the applicant to pay the costs of the judicial proceedings. –– Tribunale Varese, 21/04/2011, sez. I, on the not applicability of the Legislative decree 28/2010 in case technical consultancy prior to the judicial demand. – Corte Appello Modena, 06/03/2012 – Corte Appello Como, 02/02/2012 – Corte Appello Varese, 20/01/2012, sez. I – Corte Appello Verona, 18/01/2012, n. 7113 – Corte Appello Prato, 16/01/2012 – Corte Appello Brindisi, 09/01/2012-, –– Cassazione civile, 23/11/2011, n. 24723, sez. II, on the state legal aid (‘gratuito patrocinio’) only for the judicial proceedings. Legislation –– Legislative Decree No. 28 of 4 March 2010, ‘Attuazione dell’articolo 60 della legge 18 giugno 2009, n. 69, in materia di mediazione finalizzata alla conciliazione delle controversie civili e commerciali’. –– Ministry of Justice Decree No. 180 of 18 October 2010, ‘Registro degli organismi di mediazione e elenco dei formatori per la mediazione’. –– Ministry Decree No. 145 of 6 July 2011, ‘Regolamento racante modifica al decreto del Ministro della giustizia 18 ottobre 2010, No. 180, sulla determinazione dei criteri e della modalità di iscrizione e tenuta del registro degli organismi di mediazione e dell’elenco dei formatori per la mediazione, nonché sull’approvazione delle indennità spettanti agli organismi, ai sensi dell’articolo 16 del decreto legislativo No. 28 del 2010’. –– Italian Code of Civil Procedure.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.lider-lab.sssup.it/lider/it/mediazione/news/norme.html –– http://w w w.mondoadr.it/cms/ar ticoli/testo-coordinato-della-nuova-normativasulla-­mediazione.html

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b. Weblink to English or other translation –– http://www.adrcenter.com/procedure/international procedures/mediation italian law/ c. Other references –– http://www.concilialex.it/centro-studi/giurisprudenza-conciliazione-e-mediazione.html

16. Country specific remarks Even as far back as 1931, the term mediation can be found in Italian public regulations and law books. Nevertheless, until the Legislative Decree of 4 March 2010, No. 28 (Legislative Decree  28), a complete set of rules on mediation did not exist in Italy, and mediation as a process and method of alternative dispute resolution was almost unknown. Therefore, this grid has been drafted taking into consideration Legislative Decree 28, as modified by the judgment of the Italian Constitutional Court, dated 6 December 2012, No. 272. (CC Judgment 272) and most recently by the Act 69 of 21 June 2013 as converted into Act No. 98 of 9 August 2013, No. 98. Also relevant to the regulatory framework of mediation in Italy is Ministerial Decree, 18  October 2010, No. 180 (MD 180), as modified by Ministerial Decree, 6 July 2011, No. 145 (MD 145). Together, these legal instruments make up the current regulatory framework for mediation in civil and commercial matters. Mediation definition Section 1 of Legislative Decree 28/2010 includes the definitions of Mediation and Mediator: Mediation is an activity carried out by an impartial third party and designed to assist two or more parties in the search for an amicable agreement for the settlement of a dispute, even with the formulation of a proposal for resolution of the dispute. Mediator: is the person or persons who, individually or jointly, exercise the mediation activity without any power to make judgments or decisions binding on the recipients of the mediation service itself.

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Mediation regulation and approach Country: Italy Prepared by Giuseppe De Palo, Chiara Massidda 1. Attempt to mediate

2. Mediation clause

IT

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes (Yes) (Yes) Yes (No) F F F F Other Mix Mix Yes No Yes 50 hrs Yes Yes No No No No No

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Mediation regulation and approach Country: Italy Prepared by Giuseppe De Palo, Chiara Massidda 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

Yes No Yes

No No Yes Yes 1865/2010 2013

(No) Yes € 65-9.200 per party per mediation

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes

€ 65-9.200 per party per mediation Yes (No) No

10. Legal context

(No)

a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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Yes Yes Yes (Yes) No No Yes Yes (No) No

No = No (No) = No as a rule, but with (informal) exceptions

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16. LATVIA 1 Prepared by Daiga Zivtiņa2 – Anete Dimitrovska3

1.

Attempt to mediate

a. Always voluntary Yes. Section 3 of the draft law on mediation sets the voluntary nature of the mediation as the core principle.

LV

b. Mandatory (in some cases) No. According to Section 18 of the draft law on mediation, the court can suggest that the parties choose mediation as a more successful way of resolving the dispute in question, especially if the dispute concerns family law and attendant emotions, subjective views and sensitive information that precludes the court from successfully continuing the court proceedings. Nevertheless, the parties are not obliged to opt for mediation and the suggestion of the court is not of a binding nature. c. Court referral or court-connected mediation possible No. According to Section 18 of the draft law on mediation, the court can suggest that the parties choose mediation as a more successful way of resolving the dispute in question. In this case the court can approve a mediation result as a settlement in the case according to the Civil Procedure Law. d. Court-ordered mediation possible No. According to the Section 18 of the draft law on mediation, the judge can advise the parties to try mediation, but cannot mandate parties to go to mediation. If the parties refuse to mediate, the court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. As a rule of law there are no sanctions. Also, the draft law on mediation does not contain such a provision. f. Sanctions by law if mediation is not tried (in good faith) No. The draft law on mediation does not contain such a provision.

1 Last update of information: January 2014. 2 Daiga Zivtina is a partner and head of the Baltic Dispute Resolution practice group at LAWIN. With primary specialisation in dispute resolution, Daiga Zivtina represents corporate clients in litigation cases in public courts, negotiations in out-of-court settlements and arbitration cases. Daiga also acts as an arbitrator at the Arbitration Court of the Latvian Chamber of Commerce and Industry. Contact: [email protected]. 3 Anete Dimitrovska is an associate at LAWIN, specialising in dispute resolution, real estate and labor and employment matters. She has received a Bachelor of Laws degree from the University of Latvia, Faculty of Law and an LL.M. degree from the Riga Graduate School of Law with a specialisation in the European Union and International law. Contact: [email protected].

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g. Incentives if mediation is tried voluntarily before going to court No. The current draft law on mediation does not contain such a concept. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. also the draft law on mediation does not contain such a provision. In complex commercial cases or cross-border cases, the presence of lawyers or qualified specialists during mediation is, however, common practice and is advisable in order to achieve more successful results.

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). However, according to the Section 8(2) of the draft law on mediation, if there is a mediation clause, the parties can only refer the case to the court if the initiation of mediation has been denied by the other party; if mediation has not been successful and has not resulted in an agreement between the parties; the party has informed the other party in writing about withdrawal from the mediation agreement. Nevertheless, the general, core principle is that mediation is of a voluntary nature, therefore an oral or a written mediation clause is not binding for the parties. Currently, the draft law on mediation does not stipulate any clarifying rules on this matter and any gap will most likely be filled by a case law when the Law on Mediation enters into force or the whole approach will be changed during the adoption process. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). but the applicable law does not allow the judge to use such a fact as an argumentation that could influence the outcome of the case or damage the position of any party (see also 2.a). Also, the draft law on mediation does not stipulate as a rule of law that the judge can take into account if the mediation clause is or is not being used or has been unsuccessfully applied. Unfortunately, since the Law on Mediation is still a draft, there is no case law on particular matter. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). However, the draft law on mediation, Section 8(2) stipulates that, if there is a mediation clause, the parties can only refer the case to court if: 1) the initiation of mediation has been rejected; or 2) if mediation has not been successful and has not resulted in agreement between the parties; 3) the party has informed the other party in writing about withdrawal from the mediation agreement.

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3.

The Variegated Landscape of Mediation

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. The mediation procedure is not regulated by the applicable law and will also not be included in the draft law on mediation that aims to implement European Union Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters. The draft law on mediation will introduce a legal framework on mediation. The effect of the draft law on mediation will be that mediation – as a phenomenon within the judicial system ­procedurally – will be described by law, specifically in relation to the law and court procedure. The way mediation is conducted will not be regulated and neither will the mediation approach. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation procedure is solely governed by the individual contract between the parties and the mediator. This approach is also stipulated in the draft law on mediation, Section 8(1).

LV

c. Mediator can offer a non-binding advice Yes. Also in accordance with the draft law on mediation, as a rule a mediator does not offer advice and holds a neutral position in proceedings, however, the mediator is allowed to provide the parties with a solution-oriented advice if the parties request it, but in any case the final decision should be adopted by parties. According to the Section 15(2) of the draft law on mediation, the mediator is also allowed to participate in drafting an agreement between the parties. d. Mediator can offer a binding advice No. The draft law on mediation also does not stipulate such a right. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The predominant mediation style in Latvia for commercial disputes is facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. The predominant Mediation style in Latvia for commercial disputes is facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Transformative. In family law, the same as in labour law disputes, the transformative style is used more often. In disputes concerning commercial law, as already previously indicated, the facilitative style is used more often. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Transformative. See 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Evaluative mediation is used in rare cases; therefore there is no dominating approach. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. The predominant mediation process for commercial disputes uses a mixed approach.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. The predominant mediation process for civil disputes uses a mixed approach.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). The certification of mediators, when the draft law on mediation enters into force, will most likely be under the auspices of the Ministry of Justice of the Republic of Latvia. The draft law on mediation will also stipulate the procedural aspects that will regulate the certification of mediators. b. Set by market (private certifying bodies) Yes. There are several organisations and unions of mediators (providers of mediation services or mediator interest representation groups), which are united under the ‘Mediation Council’ (Mediācijas padome in Latvian), which represents their common interests and stimulates the growth of the sector. None of these organisations, or the rules concerning who can join these organisations as a mediator, are regulated by the applicable laws and regulations. c. Set by public regulation No. At present, mediation accreditation is not regulated, however, when the draft law on mediation, which implements European Union Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters, enters into force, the mediation profession, and therefore the certification of mediators, will be publicly regulated by the applicable law of the Republic of Latvia. d. Number of hours for basic mediator training 40-45 hours. The organisations of mediators referred to in 4.1.b. all have their own individual standard; so there is no uniform standard as yet, but on average the number of hours for training is around 30 hours and it can go up to 45 hours if the training is more advanced. The draft law on mediation also holds no specific requirements regarding this issue but after the law comes into force the Cabinet of Ministers will set the rules for mediator training, including duration of training and certification of mediators. e. Mandatory Continuing Professional Development for accredited/certified mediators (Yes). Depends on the internal procedure and rules of each individual organisation of mediators referred to in 4.1.b. The draft law on mediation also requires the review of certification not less than once in every five years. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) No. Currently each organisation of mediators has its own set of rules and conditions concerning the accreditation of their mediators. The majority of these organisations do not require additional practical experience and/or performance-based assessments, usually the basic requirement is to pass the test of academic skills and undergo specific training organised by the individual organisation of mediators. The draft law on mediation will stipulate that the certification of mediators will be under the auspices of the Ministry of Justice. g. Accreditation through written exam (No). Currently each organisation of mediators has its own set of rules and conditions concerning the accreditation of their mediators. When the Mediation Act enters into force, the

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Mediation Council which will be under subordination of the Ministry of Justice will organise and conduct written examinations (Section 21, 22, 25). h. Accreditation through performance-based assessment No. The draft law on mediation also does not contain provisions on this issue.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. there is no official scheme to certify or accredit the mediation advocates. Also the draft law on mediation contains no such provisions on this matter. j. Set by market (private certifying bodies) Yes. All initiatives are private and there is no applicable law governing mediation advocacy, nor does the draft of the law on mediation include such a concept. k. Set by public regulation No. There is no applicable law or regulation governing mediation advocacy, nor does the draft of the law on mediation include such a concept.

LV

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Currently, since there is no applicable legislation, the organisations of mediators set their own, individual standards. b. Set by public regulation (No). Currently, there is no existing applicable law that would govern the standard. Nevertheless the draft law on mediation, Section 20, stipulates some core requirements in order to be certified as a mediator. The prospective mediator must: – be at least 25 years old; – possess an impeccable reputation; – holds a university degree; – fluent in the Latvian language at the highest level; – have a certificate proving that the prospective candidate has undergone mediator training and has successfully passed the applicable examination. Section 20 of the draft law on mediation also stipulates limitations that would preclude a prospective candidate from being certified as a mediator. In addition to this, a candidate must not be convicted of an intentional criminal offence or against whom criminal proceedings have been terminated for an intentional criminal offence on non-vindicatory grounds, must not be a suspect or the accused in criminal proceedings or is not allowed to provide a mediation services according to the judgement of the court. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. There is also no such requirement included in the draft law on mediation. Presently anyone can be a mediator once accredited by one of the mediator organisation. In fact anyone can claim the title ‘mediator’ as no regulation exists that protects the mediation profession. This will most likely change within the near future when the Mediation Act enters into force.

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Once mediation is publicly regulated, it will be a profession that is open to every professional that meets the standards set by the applicable laws and regulations. Nevertheless, the current draft law on mediation does not include this as a stipulation and it most likely will not. However, it is clear that professional experience, education and background in any legal fields could only set the standard higher and benefit all parties involved. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There is no also such requirement included in the draft law on mediation. Cross-border mediations within the European Union are provided for by European Union Directive 2008/52/ EC on certain aspects of mediation in civil and commercial matters, mentioned in 1.b., which does not preclude lawyers or legal professionals from being certified or accredited as mediators. In addition, currently there is no applicable regulation concerning cross-border mediation outside the European Union.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. European Union Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters will be implemented in the Mediation Act which has not yet entered into force. Nevertheless, from the stipulations approved as a draft law on mediation it is evident that it will concern all civil and commercial cases, also including cross-border cases. b. EU Directive implemented for all national and cross-border commercial cases No. c. EU Directive implemented for all national and cross-border civil cases No. See 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since No. Currently the Mediation Act is only being drafted and it will most likely enter into force during 2014. b. Legislation updated since EU mediation directive (date update) No. There is currently no legislation on mediation in Latvia. See 7.a.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Mediation bodies are mostly associations, partnerships or private companies. There are also no limitations included in the draft law on mediation. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. There are also no limitations included in the draft of the law on mediation, except the ones mentioned in 5a.

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c. Mediation provider qualifications/requirements determined by public regulation No. The Mediation Act will however, introduce a register of certified mediators that will be governed by public regulation. When the Mediation Act enters into force, only mediators registered in this register will be allowed to use the title ‘mediator’ and render such services.

9.1. Mediator fees a. Freely contracted Yes. The draft law on mediation also provides for this. b. Fixed in some cases by public regulation No. The draft law on mediation also does not provide for this. c. Average mediator fee per hour for commercial or cross-border cases € 28-30 (estimate). Average mediator fees in commercial cases/cross-border cases varies on a case to case basis, but statistics show that they are at least € 28. d. Average mediator fee per hour in civil cases € 28-30 (estimate). Average meditator fees per hour in civil cases, especially family law cases, are around € 28.

LV

9.2. Financing and legal aid e. Legal aid available for mediation services No. A legal aid concept has not yet been developed by the applicable laws and regulations of the Republic of Latvia, nor does the draft law on mediation include it. f. Mediator fees covered by legal insurance schemes (No). According to the information available to us, there is only one insurance company in Latvia that that covers mediator fee s as part of is a legal insurance scheme – ‘BTA Insurance Company’ SE (http:/www.bta.eu.com/). g. Mediator fees subsidised in court-connected schemes No. The draft law on mediation also does not provide for this.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Not at present, in accordance with the draft law on mediation, Section 18, all judges and courts can refer cases to mediation at any stage of the proceedings until completion of reviewing the case on its merits (See 1.c.). The draft law on mediation does not indicate any other relationship between judges and mediators. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. The Mediation Act will define the legal position of mediation.

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c. Mediation procedure has impact on statute of limitations No. Currently, mediation procedures have no impact on the statute of limitations. Nevertheless, the draft law on mediation, Section 11(1) stipulates that the limitation term on any statute of limitations period set by the law is suspended when the offer to undergo a mediation procedure is made. The limitation term is renewed on the day that the offer to undergo a mediation procedure is rejected or a mediation procedure is terminated or completed in accordance with the draft law on mediation.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases qualifies as a binding settlement agreement between the involved parties, but the enforcement and execution is up to both parties and at the moment there is no specific procedure under public regulation on how to enforce a mediated settlement. Only the Mediation Act, when it enters into force, will provide a legal framework for the conclusion of the mediated settlement and its enforcement. b. Automatically enforceable No. Not at present, nevertheless the draft law on mediation, Section 12(3), stipulates that the parties agree to enforce the mediated settlement voluntarily and within the agreed term. Mediated settlements that are concluded within the scope of out-of-court mediation will also can be enforceable in accordance with the Civil Procedure Act of the Republic of Latvia in the order stipulated within the provisions of these laws by bringing the claim to the court. c. Enforceable under some circumstances which are up to the parties No. Currently the enforceability is solely up to the parties. d. Enforceable under some circumstances defined by public regulation No. Currently there is no public regulation regarding enforceability.

12. Confidentiality a. Regulated by law No. However, the draft law on mediation, Section 4, stipulates confidentiality as one of the core principles. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. But this concept is included in the draft law on mediation, Section 4(3).

13. Education a. Mediation education is a common component of legal education curriculum No. Mediation education is offered as a university elective, but it has not yet been included in official programmes and is still a type C study course which students can choose on voluntary bases. It is not seen as a common component of the legal curriculum.

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b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, jurisprudence, articles, law

LV

Most relevant literature –– Artūrs Trosens, Rolands Hofmans, Dorisa B. Rotfišere. Mediation. Basics of mediation in theory and practice. VAS ‘Tiesu namu aģentūra’, 2007. –– Jānis Bolis Mediation. Juridiskā koledža, 2007. Articles –– Gatis Litvins. Mediation as commercial activity. Jurista vārds, No 44 (691), 2011. (See: http:// www.juristavards.lv/index.php?menu=DOC&id=238545). –– Eva Branta-Nellemane. Mediation is not meditation. Jurista vārds, No 42 (637), 2010. (See: http://www.juristavards.lv/index.php?menu=DOC&id=219647). –– Sannija Matule. Mediation in legal disputes. Jurista vārds, No 17 (570), 2009. (See: http:// www.juristavards.lv/index.php?menu=DOC&id=191069). –– Matjušina Rada. Introducing mediation for resolving commercial disputes. Jurista vārds No 7 (511), 2008. (See: http://www.juristavards.lv/index.php?menu=DOC&id=171001). –– Velga Gailīte. Mediation as alternative dispute resolution. Jurista vārds, No 45 (448), 2006. (See: http://www.juristavards.lv/index.php?menu=DOC&id=147780). –– Artūrs Trosens. Mediation: understanding and concept in Latvian language. Jurista vārds, No 29 (432), 2006. –– See: http://www.juristavards.lv/index.php?menu=DOC&id=140441).

15. Mediation legislation texts a. Weblink to legislation in national language –– The draft law on mediation: http://titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste? OpenView&count=1000&restricttocategory=477/Lp11 –– 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: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:01:LV:HTML. b. Weblink to English or other translation No. Currently, there is no official, publically available translation of the Mediation Act. c. Other references NA.

16. Country specific remarks It must be emphasised that currently in Latvia there is no binding provisions or procedural rules and regulations that concern mediation. Nevertheless, the draft law on mediation has been prepared and was approved by the Cabinet of Ministers on 6 November 2012. It aims to implement the European Union Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters. Further the draft law on mediation will be put to the vote and Parliament (Saeima) will need to approve it in three readings. On November 7, 2013, the draft

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law on mediation was supported in the second reading of the Parliament. The expectation is that the final version will enter into force during 2014, but the content of the legislation will most possibly be changed and clarified. Mediation definition Currently, in Latvia there is no official, legal definition of the concept ‘mediation’ that would be included in the applicable laws and regulations. Nevertheless, in the draft law on mediation the definition of the concept ‘mediation’ is being set as follows: In Latvian: Mediācija – brīvprātīgas sadarbības process, kurā puses cenšas panākt savstarpēji pieņemamu vienošanos savu domstarpību atrisināšanai ar mediatora starpniecību (Mediācijas likuma likumprojekts, 1.panta 1. punkts); In English:  Mediation – process of voluntary collaboration where parties attempt to reach a mutually acceptable agreement to resolve disagreement through a mediator (draft law on mediation, Section 1(1)).

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Mediation regulation and approach Country: Latvia Prepared by Daiga Zivtina, Anete Dimitrovska 1. Attempt to mediate

2. Mediation clause

LV

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes No No No No No No Yes No (Yes) (Yes) (No) No Yes Yes No F F T T NA Mix Mix (No) Yes No 40-45 hrs (Yes) No (No) No No Yes No

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Mediation regulation and approach Country: Latvia Prepared by Daiga Zivtina, Anete Dimitrovska 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

Yes (No) No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

Yes Yes No

d. Average mediator fee per hour in civil cases 9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No No No

Yes No €28-30 (est.) €28-30 (est.) No (No) No No

No No Yes No No No No No No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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17. LITHUANIA 1 Prepared by Assoc. Professor Ph.D. Natalija Kaminskienė2

1.

Attempt to mediate

a. Always voluntary Yes. Mediation is always voluntary.3 The application of mediation is regulated by the Conciliatory Mediation in Civil Disputes Act of the Republic of Lithuania which does not entrench mandatory elements for mediation.4 Other applicable acts also affirm that mediation is of a voluntary nature. However, the possibility of mandatory application of mediation in specific cases (for example, family cases) is being discussed in Lithuania at an academic level.

LT

b. Mandatory (in some cases) No. There are no legal provisions or judicial practice which would attribute mandatory element to mediation.5 c. Court referral or court-connected mediation possible Yes. But only with the consent of the parties. The Pilot Project of Judicial Mediation was launched in the year 2005. Primarily it envisaged only the application of judicial mediation in civil cases in the Second District Court of Vilnius City. Later this project was extended to other courts that were ready to apply judicial mediation. Judicial mediation now is regulated by the Act and Judicial Mediation Rules. According to Section 6 of the Judicial Mediation Rules, a judge hearing a case or any of the parties to a dispute may initiate the referral of the dispute to judicial mediation. However, a dispute may be referred to this alternative dispute resolution procedure only if the judge explains the essence of the judicial mediation process to the parties to a dispute, and there is written consent or the request of both parties to refer the dispute to judicial mediation. d. Court-ordered mediation possible No. However, this possibility is being discussed at an academic level (see 1.a). The judge hearing the case may suggest that the parties try mediation, but cannot oblige parties to go to mediation. If the parties refuse to mediate, the court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. 1 Last update of information: January 2014. 2 Assoc. Professor Ph.D.Natalija Kaminskienė is Director of the Institute of Communication and Mediation, Faculty of Social Policy, Mykolas Romeris University, Lithuania. Contact: n.kaminskiene@ gmail.com. 3 The term ‘conciliatory mediation’ is applied in Lithuanian framework. 4 The Conciliatory Mediation in Civil Disputes Act of The Republic of lihuania, 15 July 2008 – No X-1702 (As last amended on 24 May 2011 – No XI-1400) (‘Act’). 5 The term mediation is used here, in the terms of the Law, to describe a civil dispute settlement procedure whereby one or several mediators in civil disputes assist the parties to a civil dispute in reaching an amicable agreement.

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f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. However, The Minister of Justice of the Republic of Lithuania approved the Plan on the Encouragement of the Development of Conciliatory Mediation and Peaceful Dispute Resolution (adopted by the Order No 1R-256 of 23 November 2010 and amended by Order No 1R-147 of 6 June 2011), which envisages the possibility of an amendment of the Code of Civil Procedure. This amendment would be entail an insertion of a provision that cost relief is applied for persons who, before referring dispute to the court or in the course of litigation, attempt to resolve dispute by way of conciliatory mediation; insertion of a provision that allows for disputes for which attempts were made for resolution through mediation (albeit unsuccessful) tried should be heard by the courts more quickly than usual. An amendment of the Code of Civil Procedure was made in November 2011, but the abovementioned provisions were not enacted. h. Outside Council presence/representation during mediation sessions allowed Yes. It is usually at the discretion of the parties to the dispute to decide upon the procedure of mediation, thus they also determine all the questions related to the representation. i. Outside Council presence mandatory No. Applicable legal provisions do not include such obligation.

2. Mediation clause a. Case admissible in court with a mediation clause No. The general principle applies whereby parties to a dispute agree to settle the dispute through conciliatory mediation, and that they must attempt to settle the dispute by this procedure before referring to court or arbitration (Section 3(2) of the Act). If a conciliatory mediation agreement sets time limits for the termination of conciliatory mediation, the party to the dispute may refer to the court or arbitration only after the expiry of these time limits. Where no time limits for the termination of conciliatory mediation have been set in the conciliatory mediation agreement, the party to the dispute may refer to the court or arbitration one month after suggesting to the other party to the dispute in writing to settle the dispute through conciliatory mediation. Legal provisions do not clearly specify court actions if mediation is not attempted before going to the court if there is a mediation clause. Presumably, the case would not be admissible, taking into consideration legal provisions of the Act. However, there is no relevant case law to affirm this conclusion. b. Case admissible in court, however, the judge may take this into account and there is some case law No. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). See 2.a.

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3.

The Variegated Landscape of Mediation

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is regulated by the Act which has implemented the provisions both of 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 and the Council of Europe Committee of Ministers Recommendation (2002) 10 on mediation in civil matters. However, it regulates mediation procedure only by implementing the most general principles. The same could be said about judicial mediation rules which govern the procedure of judicial conciliatory mediation. Mediation is generally seen as a voluntary process; therefore parties to the dispute are given wide discretion to decide upon procedure themselves. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Legal provisions regulate only the most general issues related to this procedure, whereas all other aspects are decided by the parties to the dispute. See 3.b.

LT

c. Mediator can offer a non-binding opinion Yes. Legal provisions do not provide a rigid definition of the mediator’s role in the mediation process. Therefore, the parties to the dispute may define the mediator’s role by deciding which procedural rules will be applied. d. Mediator can offer a binding opinion No. Legal provisions define mediation as a voluntary process which may be ended by the conclusion of the settlement agreement by the parties. Parties are provided with the discretion to decide upon the procedure, as well as the essence of the dispute. According to the definition of mediator stipulated by the Act (Section 2(5) of the Act), ‘mediator’ means a third party impartial natural person who is involved in settling a civil dispute between other persons with a view to assisting them to reach an amicable agreement. Thus, mediators in Lithuania cannot offer binding advice to the parties. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Facilitative/Mix. As mediation is has hardly been applied in practice, data about individual mediation processes that have already taken place is mostly confidential. It is therefore impossible to define the predominant mediation style for commercial disputes (as well as for all other civil disputes). So far there have only been a few cases of private and judicial mediation, thus even if all relevant information were known about these processes, it would be hard to point out any particular predominant mediation style. Depending on the mediator and their personal predominant mediation style, it is more likely that commercial disputes in Lithuania would either use evaluative (especially in cases involving lawyer mediators) or facilitative mediation styles, or a mix of these styles. f. Predominant approach in commercial disputes re process (facilitative, directive, other) (Directive). See 3.e. Depending on the mediator and their personal predominant mediation style, it is likely that a directive mediation style is used in commercial disputes processes in Lithuania.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Facilitative/Mix. See 3.e. Depending on the mediator and their personal predominant mediation style, it is more likely that civil disputes in Lithuania would either use evaluative (especially in cases involving lawyer mediators) or facilitative mediation styles, or a mix of these styles. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) (Directive). See 3.e. Depending on the mediator and their personal predominant mediation style, it is more likely that civil disputes in Lithuania would use a directive mediation style. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral, general advice/legal opinion. See 3.e. Evaluative mediation in Lithuania is understood as mediation in which the mediator gives their legal opinion on the prospective outcome of the case and the merits of the parties’ positions in court. Evaluative mediation may also include mediator’s advice on possible alternatives of solving the dispute based on the experience of mediator in other mediation or court processes that ended in a settlement agreement. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) (Joint Sessions). See 3.e. Depending on the mediator and their personal predominant mediation style, commercial disputes in Lithuania would most likely be handled using joint mediation sessions with caucuses used only in cases involving fierce confrontation between the parties or the need for confidential information to be provided by the party to the mediator in private. In most commercial dispute mediation only joint sessions are used, whereas using only caucuses in such cases is very rare. The reason for this is that very often parties raise doubts about the impartiality of the mediator if only caucuses are used. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) (Joint sessions). See 3.e. Depending on the mediator and their personal predominant mediation style, civil disputes in Lithuania would most likely be handled using joint mediation sessions with caucuses used only in cases involving fierce confrontation between the parties, risk of physical aggression, the need for confidential information to be provided to mediator in private or the need for the mediator to protect the weaker party to the dispute from having their rights abused by the other party. In most civil dispute mediation procedures only joint sessions are used, whereas using only caucuses in such cases is very rare. The reason for this is that very often parties raise doubts about impartiality of mediator if only caucuses are used.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). There is no general system of accreditation or certification of mediators. According to legal provisions, a mediator is any third party impartial natural person who is involved in settling a civil dispute between other persons with a view to assisting them to reach an amicable agreement. However, judicial mediation may be performed only by a judge, assistant of the judge or other person registered on the list of judicial mediators. The said registration is performed by the Work Group of the Judicial Council after the examination of documents, inter alia a certificate which justifies participation in judicial mediation courses, provided by the

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LT

person applying to become a judicial mediator. However, these provisions only apply to judicial mediators and are almost not applied in practice at the moment due to the lack of demand for judicial mediation and do not constitute general accreditation or a certification system. b. Set by market (private certifying bodies) (Yes). Vilnius International and National Commercial Arbitration has instituted the mediation/conciliation procedure. According to the Rules of Mediation/Conciliation Procedures, lawyers and any other financial or commercial specialists may be appointed as mediators if the parties appoint them to resolve their dispute; mediators may either be specialists included on the list of recommended arbitrators or other persons chosen and agreed to by the parties. Persons applying to be on the list of mediators must be members of the Lithuanian Arbitration Association and must also meet the qualification requirements set forth for an LAA recommended arbitrator: a person should preferably possess a completed higher education in any discipline of social sciences; be informed of the main requirements of business law; be knowledgeable about the possibilities of their application in the practice of mediation; possess basic knowledge about ways to prevent conflicts, essential issues of psychology, art of negotiation, professional communication; be knowledgeable about the reasons why business (financial) disagreements and the methods of their resolution (conciliation of interests of parties to a dispute); and have work (practical) experience in any field of financial activities (Section 3). Thus, certain accreditation requirements are laid down in the framework of Vilnius International and National Commercial Arbitration. In addition, almost analogous requirements are also laid down by the Rules of Mediation and Conciliation Procedure of the Vilnius Court of Commercial Arbitration. However, parties to the dispute may still choose mediators who are not on the these lists. As long as Vilnius International and National Commercial Arbitration does not give any statistics about mediation processes that have been organised, it is hard to evaluate the effectiveness of the abovementioned stipulations and the frequency of mediation procedures in this institution. The Vilnius Court of Commercial Arbitration has also instituted the mediation/conciliation procedure and enacted the Regulations of Mediation/Conciliation Procedure. The Lithuanian Confederation of Industrialists offers mediation services for its members. Mediation services are rendered by a private mediator. As long as none of these institutions give statistics about mediation processes that have already taken place, it is hard to evaluate the effectiveness of the abovementioned rules and frequency of mediation procedures in these institutions. c. Set by public regulation No. See 4.1.a. d. Number of hours for basic mediator training 8-500 hours. Not specified in any legal acts. However, there is an option to be trained as a mediator through the master’s degree in law mediation programme at Mykolas Romeris University (the number of hours according to that programme is 524 auditoria hours). According to the Rules of Judicial Mediation, participation in judicial mediation courses is required for those applying to be on the list of court mediators. The number of hours for these judicial mediation courses is not set, but in practice these courses have only taken place a couple of times and the number of training hours did not exceed 8 hours. e. Mandatory Continuing Professional Development for accredited/certified mediators No. There are no particular requirements for mandatory continuing professional devel­­ opment.

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f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. See 4.1.a and 4.1.b. h. Accreditation through performance-based assessment No. See 4.1.a. and 4.1.b.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. j. Set by market (private certifying bodies) No. Mediation is still almost not applied in practice (see 3.e.) and there are no provisions governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.1.b. According to the Rules of Mediation/Conciliation Procedure of Vilnius International and National Commercial Arbitration, lawyers and any other financial or commercial specialists may be appointed as mediators if the parties entrust them to resolve their dispute; mediators may either be specialists included on the list of recommended arbitrators or other persons chosen and agreed to by the parties. b. Set by public regulation (No). See 4.1.a. There are no common requirements for a person willing to act as a mediator. However, only judges, assistants to judge and other persons enlisted to the list of judicial mediators may act as judicial mediators. There are still no clear criteria to determine which persons may be registered on this list. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 4.1.a, 4.1.b. Presently anyone can act as a mediator and there is no common system of accreditation or certification. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 4.1.a., 4.1.b., 5.c.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The Act which implemented the EU Directive is applicable for national as well as cross-border cases.

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b. EU Directive implemented for all national and cross-border commercial cases Yes. The Act is applicable to the settlement of national and cross-border disputes. It is also applicable for all civil disputes, with the exception of disputes that arise out of civil rights and duties for which the settlement agreement concluded would be considered void under the law. In this context a civil dispute is understood to be a dispute that is or may be heard in civil proceedings in a court of general jurisdiction. According to Section 22(2) of the Code of Civil Procedure, civil, labour, family, intellectual property, competition, bankruptcy, restructuring public procurement and other disputes arising from private legal relations are adjudicated in the courts of general jurisdiction. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.b.

7.

Mediation legislation besides Directive

LT

a. Mediation legislation since 2008 (15 July 2008). b. Legislation updated since EU mediation directive (date update) 2011. The Conciliatory Mediation in Civil Disputes Act of the Republic of Lithuania was originally adopted on 15 July 2008 with regard to the draft EU mediation directive. It was subsequently amended on 24 May 2011 in order to fully transpose the EU mediation directive. Judicial mediation rules were also amended with the aim of fully transposing the Directive. Some amendments were also made to the Code of Civil Procedure. The Minister of Justice of the Republic of Lithuania approved the Plan on the Encouragement of the Development of Conciliatory Mediation and Peaceful Dispute Resolution (adopted by the Order No 1R-256 of 23 November 2010 and amended by the Order No 1R-147 of 6 June 2011).

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Legal provisions do not specify the requirements for bodies providing mediation services. However, mediator is understood as a natural person (see 4.1.a). As mediation services are still not provided in practice (see 3.e), it is difficult to define which legal forms could be apply to the provision of mediations services. b. Individuals may be providers of mediation services Yes. See 8.a. Legal provisions do not set requirements for providing mediation services or acting as a representative of a legal entity. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. Mediation may be provided for remuneration and free of charge. The parties and mediator must agree upon the amount of remuneration and payment. However, the Vilnius Court of Commercial Arbitration has set a mediation fee of 2% of the disputed amount (net of VAT).

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b. Fixed in some cases by public regulation No. See 9.1.a. c. Average mediator fee per hour for commercial or cross-border cases € 100 (estimate). It is not possible to define the average mediator fee per hour as this procedure is not widely applied and there is no official information related to the application of mediation. As long as mediation is not widely used in Lithuania, mediators prefer not to indicate any fees for their work, making it mostly dependent on the difficulty of the case, financial situation of the parties, estimated number of mediation sessions, international elements etc. However, based on the hourly fee for attorneys-at-law in Lithuania, the average mediator fee per hour for commercial or cross-border disputes could be about € 100. See also 9.1.a. d. Average mediator fee per hour in civil cases € 70-85 (estimate). See 9.1.a and 9.1.c. However, based on the hourly fee for attorneys-atlaw in Lithuania, the average mediator fee per hour for civil cases could be about € 70 to € 85.

9.2. Financing and legal aid e. Legal aid available for mediation services No. There is no regulation to provide for state financed legal aid in the case of mediation. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes Yes. Judicial mediation is provided free of charge. There are no other legal provisions related to this issue.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. The mediator may be appointed by the judge. In judicial mediation the judge assigns the mediator (a judge, assistant judge, or other person) who is on the list of court mediators. If necessary, two mediators may be appointed. When assigning court mediators, the judge assesses the opinion of the parties on the candidature of mediator. Thus, the judge appoints a specific mediator. The mediator is appointed and replaced by the chairman of the court, head of the civil division of the court or by the judge who is appointed to decide on that matter. Also, in the course of judicial mediation, the mediator is provided with case material (which he/she must return to the judge hearing the case when mediation terminates). b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation is regulated by the Act and other applicable legal acts; however, it is barely applied in practice.

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c. Impact mediation procedure on statute of limitations? Yes. Based on Section 8 of the Conciliatory Mediation in Civil Disputes Act, upon commencement of conciliatory mediation, limitation periods are suspended. For the purposes of the suspension of limitation periods, commencement of conciliatory mediation is considered to be the day on which one party to a dispute directly or through another person (representative, mediator, administrator of conciliatory mediation services or any other authorised person) sends a written proposal to the other party to the dispute on the settlement of the dispute through conciliatory mediation. If conciliatory mediation terminates without a settlement agreement, the limitation period resumes. In this case, the remaining limitation period is extended in accordance with general rules stipulated in paragraph 3 of Section 1.129 of the Civil Code of the Republic of Lithuania.

11. Mediated settlement

LT

a. Contract Yes. Mediation, if successful, results in the conclusion of a settlement agreement. A settlement agreement concluded by the parties to a dispute in the course of conciliatory mediation has a statutory effect on the parties to the dispute. b. Automatically enforceable No. A settlement agreement is treated as a final judgment (res judicata) and its execution may be enforced after its approval by the court. Thus, where a dispute being settled through conciliatory mediation is not simultaneously heard in court, a settlement agreement may, at the joint request of the parties to the dispute, or one of the parties to the dispute with the written consent of the other party to the dispute, be submitted to court for approval in accordance with the simplified procedure set forth in Chapter XXXIX of the Code of Civil Procedure. c. Enforceable under some circumstances which are up to the parties Yes. Parties or one of the parties must submit a concluded settlement agreement for the approval to the court. Also see 11.b. d. Enforceable under some circumstances defined by public regulation Yes. See 11.b.

12. Confidentiality a. Regulated by law Yes. According to the Act, unless parties to a dispute have agreed otherwise, the parties to the dispute, mediators and administrators of conciliatory mediation services must keep confidential all information regarding conciliatory mediation and related issues, with the exception of the information required to approve or execute a settlement agreement concluded in the course of conciliatory mediation and if failure to disclose the information in question would contravene public interest (particularly where a child’s interests need to be safeguarded or where a risk of damage to a natural person’s health or life needs to be prevented). The Act also obliges mediators not to disclose any information received from one of the parties to the other party without the consent of the first party.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. This is regulated by the Act. According to the Section 189(2) of the Code of Civil Procedure, mediators cannot be questioned as witnesses about information that obtained in the course of conciliatory mediation. According to the Section 177 of the Code of Civil Procedure, information obtained in the course of conciliatory mediation cannot be submitted as evidence in civil procedure, with exception of cases settled under the Act.

13. Education a. Mediation education is a common component of legal education curriculum No. Despite the fact that mediation is taught as a discipline in universities, it is still not a common component of legal education. However, it should be noted that, as an exception to this general rule, there is mediation master’s programme at Mykolas Romeris University. This university also offers ‘Basics of mediation’ as an elective in the general university studies curriculum. b. Mediation advocacy education is a common component of legal education curriculum No. However, some of its aspects are covered in the mediation master’s programme at Mykolas Romeris University.

14. Most relevant literature or references, case law, articles, law –– Kaminskienė N. Alternatyvus civilinių ginčų sprendimas : monografija. Vilnius :  Registrų centras, 2011. –– Kaminskienė N. Teisminė mediacija Lietuvoje, quo vadis? // Socialinis darbas, 2010. Nr. 9(1). ISSN 1648-4789. –– Kaminskienė N. Alternatyvus ginčų sprendimas // Jurisprudencija, 2006. T. 9(87). ISSN 1392-6195. –– Kaminskienė N. Civilinių ir komercinių ginčų alternatyvus sprendimas // Jurisprudencija, 2005. T. 69(61). ISSN 1392-6195. –– Kaminskienė, N. Alternatyvus civilinių ginčų sprendimas. Vilnius: Valstybės įmonė Registrų centras. 2011. –– Žalėnienė, I., Tvaronavičienė, A. The Main Features and Development Trends of Mediation in Lithuania: the Opportunities for Lawyers. Jurisprudencija. 2010, 1(119): 227-242. –– Simaitis, R. Mediacijos privačiuose ginčuose teisinio reguliavimo tendencijos Lietuvoje. Justitia. 2007, 2:64, 21-32. –– Simaitis R. Development of Mediation in Lithuania // The Recent Tendencies of Development in Civil Procedure Law – Between East and West. International Conference to Celebrate the 100th Anniversary of the Birth of Professor Jonas Žėruolis. Vilnius: Justitia, 2007. –– Simaitis R. Racionalus sprendimas be pykčio – teisminės mediacijos rezultatas // Juristas. Nr. 5, 2006. – P. 32-34. –– Kaminskienė N. et al. Mediacija. Mykolo Romerio universitetas, Vilnius, 2013. ISBN 9789955-19-567-2. –– Sondaitė J. Tarpvalstybinė šeimos mediacija: psichologiniai aspektai. Psichologija sveikatai ir gerovei: Lietuvos psichologų kongresas 2013: 2013 m. balandžio 25-27 d. Vilnius: kongreso pranešimų santraukų leidinys / Vilniaus universitetas, Lietuvos psichologų sąjunga. Vilnius: Vilniaus universiteto leidykla, 2013. ISBN 9786094591945.

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–– Mienkowska-Norkienė R. Inequality in divorce mediation – reasons, manifestations and ways to avoid it. Lessons for Lithuania // Socialinis darbas: mokslo darbai = Social work: academic papers / Mykolo Romerio universitetas. Vilnius: Mykolo Romerio universitetas. ISSN 1648-4789. 2012, Nr. 11(1).

15. Mediation legislation texts a. Weblink to legislation in national language –– Conciliatory Mediation in Civil Disputes Act of the Republic of Lithuania http://www3.lrs. lt/pls/inter3/dokpaieska.showdoc_l?p_id=400026 –– Judicial Mediation Rules http://www.teismai.lt/dokumentai/teismines%20mediacijos% 20taisykles_aktuali%20redakcija.doc b. Weblink to English or other translation –– Conciliatory Mediation in Civil Disputes Act of the Republic of Lithuania http://www3.lrs. lt/pls/inter3/dokpaieska.showdoc_l?p_id=404617 c. Other references NA.

LT

16. Country specific remarks The notion of justice in Lithuania throughout the last couple of decades has changed significantly and is still in the process of change. At the moment we can say that the restoration of peace and peaceful dispute resolution are becoming meaningful cornerstones of the present civil justice system in Lithuania. That opens a niche for mediation to develop, although at the moment mediation is more of an unusual and cautiously received novelty than a time-tested classical court procedure in Lithuania. Mediation definition Conciliatory Mediation in Civil Disputes Act: weblink:  http://www3.lrs.lt/pls/inter3/ dokpaieska.showdoc_l?p_id=404617 (REPUBLIC OF LITHUANIA Conciliatory Mediation in Civil Disputes Act 15 July 2008 – No X-1702 (As last amended on 24 May 2011 – No XI-1400) Section 2, part 3 in Lithuanian:  
Civilinių ginčų taikinamasis tarpininkavimas (mediacija) (toliau –  taikinamasis tarpininkavimas) – civilinių ginčų sprendimo procedūra, kurios metu vienas ar keli civilinių ginčų taikinimo tarpininkai (mediatoriai) padeda civilinio ginčo šalims taikiai spręsti ginčą.
Definition for mediator we find in Section 2, part 5 of the same law:
Civilinių ginčų taikinimo tarpininkas (mediatorius)  (toliau –  taikinimo tarpininkas) – trečiasis nešališkas fizinis asmuo, kuris dalyvauja sprendžiant kitų asmenų civilinį ginčą, siekdamas padėti jį išspręsti taikiai.
In English translation of this law the wording is the following:
’Conciliatory mediation in civil disputes’  (hereinafter referred to as ‘conciliatory mediation’) means civil dispute settlement procedure whereby one or several mediators in civil disputes assist the parties to a civil dispute in reaching an amicable agreement.
’Mediator in civil disputes’  (hereinafter referred to as a ‘mediator’) means a third impartial natural person who is involved in settling a civil dispute between other persons with a view to assisting in reaching an amicable agreement.

A link to the Lithuanian version of the law is: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_ l?p_id=400026

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Mediation regulation and approach Country: Lithuania Prepared by Natalija Kaminskienė 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes No Yes No No No No Yes No No No (Yes) No Yes Yes No E/F/Mix (D) E/F/Mix (D) N/GA/LO (Joint) (Joint) (No) (Yes) No 8-500 hrs No No No No No No No

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Mediation regulation and approach Country: Lithuania Prepared by Natalija Kaminskienė 5. Who can be mediator?

6. EU directive

LT

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes (No) No No No Yes Yes 2008 2011 Yes Yes No Yes No €100 (est.) €70-85 (est.) No No Yes Yes

Yes Yes Yes No Yes Yes Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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18. LUXEMBOURG1 Prepared by Alain Grosjean2 – Guy Arendt3 – Julia Senior4

1.

Attempt to mediate

a. Always voluntary Yes. b. Mandatory (in some cases) (No). Apart from criminal cases, the prosecutor can decide to rely on mediation before taking judiciary measures against someone and if he believes that the issue can be resolved through mediation. c. Court referral or court-connected mediation possible Yes. Since the Act of 24 February 2012, the judge can always suggest that the parties rely on mediation. The parties themselves can ask the judge for mediation. d. Court-ordered mediation possible No. The judge can advise parties to try mediation, but cannot mandate parties to go to mediation. If the parties refuse to mediate, the court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes.

1 Last update of information: January 2013. 2 Alain Grosjean is a certified mediator at the Centre de Médiation Civile et Commerciale, a Luxembourg mediation centre established by the Luxembourg bar. He is also a partner in the Luxembourg firm Bonn & Schmitt and in charge of the dispute resolution department. Contact: [email protected]. 3 Guy Arendt is a partner in the Luxembourg firm Bonn & Schmitt and in charge of the dispute resolution department. He is a generalist lawyer whose activities cover matters in the areas of commercial law (negotiation of contracts), litigation and arbitration, bankruptcy & restructuring, IP/IT law, real estate law, e-commerce and new technologies. He was admitted to the Bar in 1980. Contact: garendt@ bonnschmitt.net. 4 Julia Senior was admitted to the Paris Bar and Luxembourg Bar (under her home title) in 2011. She is an associate in the dispute resolution practice of Bonn & Schmitt. She previously trained in mediation and participated in the 2009 ICC International Commercial Mediation Competition. Contact: jsenior@ bonnschmitt.net.

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i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). If there is a mediation clause, and only if one of the party refers to the clause to object to the jurisdiction of the court, the judiciary procedure is put on hold while the mediation proceedings take place. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). See 2.a.

LU

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The Act of 24 February 2012 introduces a legal framework on mediation. The effect of the law is that mediation – as a phenomenon within the judicial system – is described procedurally by law, specifically in relation to the law and court procedure. The way mediation is conducted is not regulated and neither is the mediation approach (evaluative, facilitative, transformative, directive, etc.). b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). See 3.a. c. Mediator can offer a non-binding opinion No. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Accreditation is understood here in the sense of the wording of the Act of 24 February 2012. Accreditation is under the auspices of the Ministry of Justice of Luxembourg. b. Set by market (private certifying bodies) No. However, there are several mediator organisations (providers of mediation services or mediator interest representation groups). None of these organisations or the rules about joining these organisations are regulated by law. c. Set by public regulation Yes. The Act of 24 February 2012 and the Grand Ducal ruling of 25 June 2012 apply. d. Number of hours for basic mediator training Around 60 hours. e. Mandatory Continuing Professional Development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates Yes. j. Set by market (private certifying bodies) No. k. Set by public regulation Yes.

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The Variegated Landscape of Mediation

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation Yes. See 4.1 c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No.

LU

b. EU Directive implemented for all national and cross-border commercial cases Yes. c. EU Directive implemented for all national and cross-border civil cases Yes.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2012. The Act of 24 February 2012 and Grand Ducal ruling of 25 June 2012. b. Legislation updated since EU mediation directive (date update) No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are associations. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes.

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b. Fixed in some cases by public regulation Yes. For judiciary mediation it is € 57 per hour. c. Average mediator fee per hour for commercial or cross-border cases € 200-300 (estimate). d. Average mediator fee per hour in civil cases € 200-300 (estimate).

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid is available for judicial mediation. f. Mediator fees covered by legal insurance schemes No. At the moment, there is no facility for this. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. It is regulated by Act of 24 February 2012. c. Mediation procedure has impact on statute of limitations Yes. The statute of limitations is interrupted at the time of signature of the parties’ agreement to follow a mediation procedure.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement. b. Automatically enforceable No. A procedure of homologation before a judge is necessary for the settlement to be enforceable. c. Enforceable under some circumstances which are up to the parties No. d. Enforceable under some circumstances defined by public regulation Yes. Following the aforementioned homologation procedure.

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12. Confidentiality a. Regulated by law Yes. It is regulated by the Act of 24 February 2012 b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

13. Education

LU

a. Mediation education is a common component of legal education curriculum (No). The University of Luxembourg has started a master degree course in general mediation. Regarding general legal education, there is no specific training in mediation. However, as the Act on mediation in Luxembourg was enacted and integrated the mediation process within the Luxembourg Civil Procedure Code quite recently (24 February 2012). We will probably see in the coming years a change in mediation training within legal education. b. Mediation advocacy education is a common component of legal education curriculum (No). The University of Luxembourg has not integrated mediation training yet as part of the general legal course. However, an association (Centre de Médiation Civile et Commerciale) was created in 2003 within the Luxembourg bar to advocate for mediation and help parties in litigation to start the mediation process before going on trial. The association also informs and trains lawyers involved in the mediation process.

14. Most relevant literature or references, case law, articles, law –– ‘Le nouveau droit de la médiation civile et commerciale au Grand-Duché de Luxembourg’ article written by Jan Kayser published in the Journal des Tribunaux de No. 20 – 2/2012 on 5 April 2012.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.legilux.public.lu/leg/a/archives/2012/0037/ b. Weblink to English or other translation NA c. Other references NA

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16. Country specific remarks NA. Mediation definition ‘Mediation’ is defined in the Luxembourg new Code of Civil Procedure in Section 1251-2 as ’(1) On entend par «médiation» le processus structuré dans lequel deux ou plusieurs parties à un litige tentent volontairement par elles-mêmes, de parvenir à un accord sur la résolution de leur litige avec l'aide d'un médiateur indépendant, impartial et compétent.' This definition could be translated into English as ‘(1) ‘Mediation’ is understood to be the structured process whereby two or several parties to a dispute attempt by themselves on a voluntary basis to reach an agreement on the settlement of their dispute with the assistance of an independent, impartial and competent mediator’. Please this is our translation of the definition for the purpose of this question as there is no official English translation of the aforementioned section of the code.

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Mediation regulation and approach Country: Luxembourg Prepared by Alain Grosjean, Guy Arendt, Julia Senior 1. Attempt to mediate

2. Mediation clause

LU

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes (No) Yes No No No No Yes No (Yes) (Yes) (No) (Yes) (Yes) No No F F F F N Mix Mix Yes No Yes 60 hrs (est.) No Yes No No Yes No Yes

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Mediation regulation and approach Country: Luxembourg Prepared by Alain Grosjean, Guy Arendt, Julia Senior 5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes Yes No

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

No No Yes Yes 2012 No

Yes Yes € 200-300 (est.) € 200-300 (est.) Yes No No No

Yes Yes Yes No No Yes Yes No (No) (No)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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19. MALTA 1 Prepared by Oscar Grech2

1.

Attempt to mediate

MT

a. Always voluntary (No). Disputes may be referred to the Malta Mediation Centre for mediation: – voluntarily, that is following a decision made by the disputing parties; or – following a decree or order by the court or other adjudicatory authority or by the parties to the proceedings after litigious proceedings would have already commenced; or – by law, that is to say by any authority not being an adjudicatory authority or through the execution of a clause in a contract requiring the parties to submit to mediation any dispute arising under or out of the terms of the contract. b. Mandatory (in some cases) (Yes). Although the court has power to order the parties to proceed to mediation, the process is still a voluntary one since proceedings are stayed for the duration of the mediation process; the court merely imposes a short delay to offer the parties the opportunity to settle. Any party may, in fact, elect not to continue with the process and initiate or continue judicial proceedings. c. Court referral or court-connected mediation possible Yes. See 1.a. d. Court-ordered mediation possible Yes. The court can, on its own initiative and where it considers it appropriate that the dispute may be resolved through the assistance of a mediator, direct that the dispute be referred to mediation. e. Sanctions by the court if mediation is not tried (in good faith) Yes. Article 223 (5) of the Code of Organisation and Civil Procedure provides that when a party without just cause refuses or fails to participate before or collaborate with a mediator, the court may award double costs in the other party’s favour under such refusal or failure. f. Sanctions by law if mediation is not tried (in good faith) Yes. See 1.e. g. Incentives if mediation is tried voluntarily before going to court No. The law does not contain such a provision.

1 2

Last update of information: July 2013. Oscar Grech is Registrar of the Malta Mediation Centre and Secretary to the Board of Governors of the Centre. Contact: [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes. Mediation party may, during mediation proceedings, be assisted by an advocate, legal procurator or any individual designated by him/her before or during the mediation. i. Outside counsel presence mandatory No. It is up to the parties to decide.

2. Mediation clause a. Case admissible in court with a mediation clause No. A mediation clause is a contractual obligation and as such the case is not admissible in court. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. See 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. Mediation is regulated by the Mediation Act, 2004 (Chapter 474 of the Laws of Malta). b. Mediation procedure, style and approach of the mediator fully flexible/contractual No. Mediation is regulated by law and by the Centre’s Code of Conduct for Mediators. c. Mediator can offer a non-binding opinion Yes. The principal role of the mediator is to facilitate communication between the parties in conflict with a view to helping them reach a voluntary resolution to their dispute that is timely, fair and cost-effective. Although the mediator manages the meeting and is in charge of the proceedings, he/she should not impose solutions or decisions and has no power to force a settlement. However, he may raise issues and help parties explore options. d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. In its interpretation clause, the Mediation Act defines ‘mediation’ as a process in which a mediator facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Prior to the commencement of the mediation proceedings, the parties are required to sign, jointly with the mediator, the Centre’s Model Mediation Agreement setting out the terms and framework for the conduct of the mediation process. The Mediation Agreement provides, inter alia, that at any time before or during the mediation, the mediator may have private meetings separately with either or any of them, or with the person or persons assisting them. Since the Agreement is a ‘model’ the parties may opt to delete the provision under reference.

MT

k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. The Act provides that the Centre should set up the criteria for the appointment of mediators and to approve nominated mediators. b. Set by market (private certifying bodies) No. See 4.1.a. c. Set by public regulation Yes. See 4.1.a. d. Number of hours for basic mediator training NA. Persons wishing to be accredited as mediators must attend a three-year evening course leading to a Master of Arts Degree in Mediation. This university course, which covers 6 semesters, 2 semesters per year, is open to applicants in possession of a Bachelor’s degree with at least second class honours or a higher degree in any of the following areas: counselling, criminology, ICT, law, management, planning and environment, psychology, social policy, social work, social studies, sociology or youth and community studies. e. Mandatory Continuing Professional Development for accredited/certified mediators (No). Although the Act does not impose mandatory continuing professional development for accredited mediators, the Centre’s Code of Conduct for Mediators provides that ‘a mediator is under an obligation to improve the requisite professional skills and abilities through proper ongoing training and updating of his/her education and practice in mediation skills’. The Board of Governors of the Centre has plans to hold courses from time to time to serve as ongoing training and practice, thereby promoting proficiency in mediation skills.

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f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. See 4.d. g. Accreditation through written exam Yes. See 4.d. h. Accreditation through performance-based assessment Yes. See 4.d.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. j. Set by market (private certifying bodies) No. See 4.2.i. k. Set by public regulation No. See 4.2.i.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. See 4.d. b. Set by public regulation Yes. See 4.d. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 4.d. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 4.d.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The provisions of the EU Directive on Mediation were transposed into national legislation and are applicable both for cross-border and domestic cases. b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.a.

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274

7.

The Variegated Landscape of Mediation

Mediation legislation besides Directive

a. Mediation legislation since 2004. The Mediation Act, 2004 (Chapter 474 of the Laws of Malta) came into force on 21 December 2004. b. Legislation updated since EU mediation directive (date update) 2011. The principal Act was amended by Act IX of 2010, which came into force on 14 January 2011.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms No. Section 5(d) of the Mediation Act provides that it is the function of the Centre to set up the criteria for the appointment of mediators. It is the policy of the Centre to nominate and approve as mediators and enter their names in the register of mediators only those persons who obtain the master’s degree in mediation. The Centre has no plans to accredit any organisation, body, etc. as a mediation provider in Malta.

MT

b. Individuals may be providers of mediation services No. See 8.a. c. Mediation provider qualifications/requirements determined by public regulation Yes. See 8.a.

9.1. Mediator fees a. Freely contracted (Yes). Legal Notice 309 of 2008 lays down that mediators are entitled to receive such fees from the parties to the mediation as may be agreed in writing between the mediator and the parties. In the absence of an agreement, mediators are entitled to a fee of € 50 per hour, excluding VAT. b. Fixed in some cases by public regulation Yes. See 9.1.a. c. Average mediator fee per hour for commercial or cross-border cases € 50. d. Average mediator fee per hour in civil cases € 50.

9.2. Financing and legal aid e. Legal aid available for mediation services No. Legal aid is available for persons who are declared by the Advocate for Legal Aid as not having the means to access the courts of justice. f. Mediator fees covered by legal insurance schemes No.

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g. Mediator fees subsidised in court-connected schemes NA. There are no court-annexed schemes in Malta.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes?? (Yes). Only in the sense that the court can refer cases to mediation at every stage of the proceedings. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The Mediation Act forms part of the Laws of Malta. c. Mediation procedure has impact on statute of limitations (Yes). Section 27(A)(1) of the Mediation Act provides that parties who opt to settle their dispute by mediation do not lose their right to litigate or arbitrate and the statute of limitations or prescription periods are suspended for the duration of the mediation process. The said provision is without prejudice to provisions on limitation or prescription periods in international agreements to which Malta and the other Member State concerned are signatories.

11. Mediated settlement a. Contract Yes. It qualifies as a binding contract. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. If both or all the parties agree, as the case may be, that the content of the settlement agreement be made enforceable subject to the provisions of the Code of Organisation and Civil Procedure, then the agreement will be classified as an executive title under Section 253(f) of the said Code and is equivalent to a judgment and enforceable by a court of law. d. Enforceable under some circumstances defined by public regulation Yes. See 11 c.

12. Confidentiality a. Regulated by law Yes. Both the Act and the Code stipulate that everything said during the course of mediation, including all communications between the parties and the mediator are confidential and no evidence of anything said or documents produced during the mediation process are admissible in any litigation proceedings. The mediator may, however, disclose to the court any information obtained during the mediation process provided all the parties to the mediation give their written consent. Besides, the disclosure of the content of the agreement resulting

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from mediation (i.e., the settlement agreement) is also permitted when required to prevent harm to the physical or psychological integrity of a person or where the disclosure is necessary in order to implement or enforce the agreement. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. The mediator cannot be summoned as a witness to what took place and on what came to his/her knowledge during mediation. The court may only ask the mediator to submit a report which states whether an agreement was reached (see 12.a.).

13. Education

MT

a. Mediation education is a common component of legal education curriculum (No). See 4.1.d. Topics covering conflict management, good communication skills, cooperation and teamwork have been recently incorporated in the public and social development curriculum in schools. These topics are being taught from 6th year primary. There are plans to introduce a peer mediation programme in schools whereby students, already trained in the skills of mediation, would be given further training to act as mediators and help disputants of their own age group or younger to find solutions to their conflict. Besides, in order to motivate the educators and have their support and co-operation to make the mediation programme in schools a success, the Faculty of Education has included modules on mediation in the B.Ed. (Hons) course as from the year 2013. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, case law, articles, law –– The ADR Practice Guide (3rd Ed.) by Karl Mackie, David Miles, William Marsh and Tony Allen.

15. Mediation legislation texts a. Weblink to legislation in national language Yes. The Ministry for Justice website www.justiceservices.gov.mt brings together all the chapters of the Laws of Malta currently in force, regularly updated with amendments and new legislation approved by the House of Representatives. –– www.justiceservices.gov.mt b. Weblink to English or other translation Yes. See 15.a. c. Other references –– Mediation Act, 2004 www.justiceservices.gov.mt –– and Code of Conduct for Mediators https://mhas.gov.mt/en/MHAS-Department/Justice/ Pages/Malta-Mediation- Centre.aspx

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16. Country specific remarks Mediation definition –– The definition of ‘mediation’, both in the Maltese and English languages according to the definition clause Section 2 of the Mediation Act, 2004 (Chapter 474 of the Laws of Malta) reads: –– ‘medjazzjoni’  tfisser proċess li bih medjatur jiffaċilita ttrattattivi bejn il-partijiet sabiex jgħinhom jaslu għal kunsens volontarju bejniethom dwar it-tilwima li jkollhom –– ‘mediation’ means a process in which a mediator facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute –– The definition of ‘mediator’ according to the aforesaid Act reads: –– ‘medjatur’ tfisser persuna newtrali, kwalifikata u imparzjali li tmexxi medjazzjoni –– ‘mediator’ means a neutral, qualified and impartial individual who conducts a mediation.

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Mediation regulation and approach Country: Malta Prepared by Oscar Grech

MT

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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(No) (Yes) Yes Yes Yes Yes No Yes No No No Yes Yes No Yes No F F F F NA Mix Mix Yes No Yes NA (No) Yes Yes Yes No No No

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Mediation regulation and approach Country: Malta Prepared by Oscar Grech 5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No Yes

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

No No Yes Yes 2004 2011

(Yes) Yes € 50 € 50 No No NA (Yes) Yes (Yes) Yes No Yes Yes Yes Yes (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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20. The NETHERLANDS1 Prepared by Dr Fred Schonewille2 – Manon Schonewille3

1.

Attempt to mediate

NL

a. Always voluntary Yes/(No) 2013 draft law. Dutch courts – including the Supreme Court (Hoge Raad) – see HR 20 January 2006, LJN AU3724 – generally judge that mediation is of a voluntary nature. The draft for the Dutch Mediation Act (2013 draft law, see 1.c.) that has been initiated by MP Van der Steur (of the VVD, the Dutch liberal party) will, however, introduce some mandatory elements. b. Mandatory (in some cases) (No)/(Yes) 2013 draft law. See 1.a., although an informal mandatory element exists in labour conflicts (between employers and employees, usually in dismissal cases). As the Dutch Civil Code states that employers have to be ‘good employers’ and employees have to be ‘good employees’ (Book 7, Section 611 of the Dutch Civil Code), most judges expect the parties in these cases to have tried mediation before going to court. Often the party that refuses to try mediation or has not tried mediation in good faith will be held responsible for ‘unnecessarily escalating the conflict’ by deciding to some extent in favour of the other party.4 This situation will change under the Dutch Mediation Act (2013 draft law), see 1.c. c. Court referral or court-connected mediation possible Yes. As a result of the court-connected mediation project (Mediation naast Rechtspraak), all courts have implemented a referral system to mediation. Section 818 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) states specifically that the judge may refer parties in divorce cases to a mediator to try to draw up a parenting plan. This specific rule will be replaced by a general referral rule on certain aspects of mediation in civil and commercial matters, as a result of the implementation of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008. The original draft law of the Minister of Justice (No. 32 555) aimed to implement this EU Directive as a ‘light implementation’ which would only govern the mandatory aspects of the EU directive and introduce a general referral rule which would have offered judges the option of advising parties to try mediation for all cases in every stage of the procedure. However, after the draft law had been adopted by the House of Representatives (Tweede Kamer), the Senate (Eerste Kamer) rejected it mainly because there were no professional standards in place for mediators. Under this 1 Last update of information: January 2014. 2 Dr Fred Schonewille is legal family mediator, a partner in the Legal Mediation Firm Schonewille & Schonewille as well as researcher and lecturer. Email: [email protected]. 3 Manon A. Schonewille is legal business mediator, a partner in the Legal Mediation Firm Schonewille & Schonewille and a partner in Toolkit Company, as well as President of ACB Foundation, Corporate ADR & Mediation in the Netherlands. She is an IMI certified mediator, IMI certified mediation advocate and JAMS International panelist. Contact: [email protected]. 4 See e.g., Rechtbank ‘sHertogenbosch, sector kanton, Eindhoven 24 May 2012 (LJN BW6702) – Hof Amsterdam 10 July 2012 (LJN BX3176) – Kantonrechter Zwolle-Lelystad 14 September 2010, COMSTAD B.V. – and Rb. Zwolle 6 October 2005, LJN AU4483.

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draft law, mediators would be given a broad range of privileges, such as the refusal to testify in court. (The Senate does not have the power to propose amendments but is only allowed to accept or reject a draft law.) After that the Minister of Justice drafted a short new law (No. 33 320) to implement the EU Directive which only addresses cross-border mediation; this law became effective on 21 November 2012 and prescribes among other things that a judge in a cross-border case is entitled to propose mediation to the parties in every stage of the procedure (Section 3). Currently a ‘private’ draft law (initiatiefwetsvoorstel, a legislation proposal on initiative of a MP) for the future Dutch Mediation Act (Nos. 33 722, 33 723 and 33 727) that has been drafted by MP Van der Steur (Liberal Party) is being discussed in Parliament. This Mediation Act is likely to be introduced in the course of 2014. This law will also introduce a general court referral rule that urges a judge to refer the parties to mediation in every stage of the proceedings if they haven’t tried mediation before going to court in a number of cases specified rather comprehensively, meaning that it is applicable in nearly all cases (new Section 22a Dutch Code of Civil Procedure). Connected to this Section are the new Sections 111, 2 sub f. and 278, 2 Dutch Code of Civil Procedure of the Dutch Mediation Act, which state that a lawyer needs to make clear in his summons whether the parties tried mediation before starting a civil procedure. d. Court-ordered mediation possible No/(Yes) 2013 draft law. The judge can advise parties to try mediation, but cannot oblige parties to go to mediation. If the parties refuse to mediate the court proceedings will ­continue. See 1.a., 1.b. and 1.c. The Dutch Mediation Act (2013 draft law) will, however, change this situation (see 1.c.). e. Sanctions by the court if mediation is not tried (in good faith) (No)/(Yes) 2013 draft law. As a rule there are no sanctions, however, there is some case law pointing in that direction in labour cases (see 1.b.). The Dutch Mediation Act will probably result in sanctions if the parties have not tried mediation without good reason (see 1.c.). f. Sanctions by law if mediation is not tried (in good faith) No/(No) 2013 draft law. There are no sanctions currently; it is however, likely that the Dutch Mediation Act (see 1.c.) will introduce indirect sanctions (see 1.b.). g. Incentives if mediation is tried voluntarily before going to court No/(Yes) 2013 draft law. The Dutch Mediation Act will imply some incentives, e.g., the exclusive (digital) access for the registered mediator to a special judge that solves disputes for the parties quickly in case they need a decision, the option of getting an enforcement order for their agreement easily and – in divorce cases – the option of getting through the necessary formalities rapidly – and at considerable lower cost. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. In complex commercial cases or cross-border cases the presence of lawyers during mediation is, however, common practice.

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2. Mediation clause a. Case admissible in court with a mediation clause (Yes)/(No) 2013 draft law. Most Dutch courts – including the Supreme Court (Hoge Raad), see 1.b. – generally rule that as mediation is of a voluntary nature, an oral or a written mediation clause is not binding for the parties, especially not if it concerns private persons. It may, however, be assumed that this line in the present Dutch case law is strongly influenced by the inadequate quality of mediation clauses which in most cases are short, vague and not specific. The Dutch Mediation Act (see 1.c.) will, however, introduce the enforceability of a written mediation clause in the new Section 22a(2) Dutch Code of Civil Procedure. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes/(No) 2013 draft law. Under the 2013 draft law. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No)/Yes 2013 draft law. See 1.b. and 2.a.

NL

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law yet / (Yes) 2013 draft law. The 2012 draft law of the Minister of Justice that aimed to implement the EU Directive on Mediation only regulates cross-border cases and not some aspects of mediation for domestic cases. The Dutch Mediation Act (see 1.c.) will, however, introduce a legal framework for mediation. The effect of this law will be that mediation – as a phenomenon within the judicial system – will be described by law in terms of procedure, specifically in relation to the law and court procedure. The way a mediation procedure is conducted by a mediator will not be regulated and neither will the mediation approach (evaluative, facilitative, transformative, directive, solution-focussed, etc., see 3.e., 3.f., 3.g., 3.h., and 3.i.). b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes/(Yes) 2013 draft law. Mediation is solely governed by the contract between the parties and the mediator. The Dutch Mediation Act (see 1.c.) will introduce a legal standard (especially in new Sec­ tion 424a of the Dutch Civil Code) but parties can decide to deviate from this standard. c. Mediator can offer a non-binding opinion Yes. As a rule mediators do not offer advice or opinions in the Netherlands, however, the mediator is allowed to do so if the parties request this (see 3.e., 3.g., 3.i.). Some mediation rules or mediator codes of conduct (gedragsregels) require a specific written request (for example, Section 3 of the Netherlands Mediation Institute (Nederlands Mediation Instituut, (NMI)) rules of conduct). In commercial and cross-border mediation it is less unusual for mediators to offer opinions and most mediators do so if the parties request this in general or in a specific case, even orally (for example, Section 5.2. of the ACB code of conduct).

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d. Mediator can offer a binding opinion Yes. At the request of the parties. See 3.c. and 3.e. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). The Dutch mediation style has its roots in a facilitative mode, which is still common practice among many Dutch practitioners. There is, however, a trend towards a mix, depending on the parties and circumstances, and towards introducing evaluative aspects in the later stages of a mediation process, especially in commercial cases. See 3.i. The Dutch Mediation Act (see 1.c.) requires that a registered mediator has to make sure that parties are informed about the legal framework of their conflict, either by informing them himself or having a third party do so (e.g., a lawyer or a civil-law notary). Also, in business mediation the common view is shifting more towards the necessity or added value of introducing legal or other objective or subjective norms and mediators, having substantive expertise and using it. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. The purely facilitative approach, also regarding the process, is increasingly being replaced by a more directive approach (see also 3.e.). g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Transformative/Facilitative. Especially in family cases, a facilitative or some­times transformative approach are used, especially by practitioners with a social/ psychological background, whereas mediators with a legal background have a strong tendency towards a more facilitative-evaluative style. Lawyer mediators (members of the Dutch association for family lawyers and divorce mediators) in divorce mediation have traditionally been obliged to use evaluative aspects by educating the parties on relevant legal aspects. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. Mediators with a social/psychological background will generally use a facilitative approach; mediators with a legal background commonly stick to a more directive approach as this in most cases goes hand-in-hand with an evaluative mediation style. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used (see 3.e. 3.g). Besides neutral or general opinions, and legal opinions, mediators often introduce options, actively support parties to improve the sustainability of the outcome and particularly ways to help the process to move forward (e.g., engaging another expert, combining processes, offering to give mediator advice or an opinion). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. The Dutch mediation approach has its roots in a joint session mode, which is still common practice among many Dutch practitioners. The trend in commercial and cross-border mediations is, however, towards a mix of joint sessions with caucus as a tool to for example break impasses or move the process forward, meaning that caucuses are used in most commercial mediations nowadays.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint session/(Caucus). In civil mediation, especially in family and labour cases, joint sessions (only) is the common practice. However, there is a tendency to use caucus elements, especially in mediation in which online procedural elements are used.

NL

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are several organisations who accredit mediators. The Netherlands Mediation Institute offered until December 2013 registration as ‘NMI registered mediator’ (NMI register mediator) after successfully completing a training course, recognized by the NMI, followed by a written exam as well as a performance-based assessment. Mediators who are eligible for court-referred cases needed to be NMI registered mediators and either to have successfully completed a performance-based assessment or have submitted themselves to a peer review based on 9 mediations in the 3 years prior to registration. Since January 2014 all NMI registered mediators are merged into a new register of a Dutch Mediation Federation (MfN, Mediationfederatie Nederland) and NMI registered mediator is changed to ‘MfN registered mediator’. Besides NMI registered mediators, also members of the other mediator organisations that are participating in MfN can qualify to become MfN register mediator. In addition to this domestic certification, international certification by the International Mediation Institute (IMI) is offered based on accreditation by an IMI qualified assessment program, a performance-based assessment for experienced mediators who have completed 200 hours of mediation or 20 mediations (e.g., offered by the ACB Foundation) is generally part of the assessment program.5 The Dutch Mediation Act (see 1.c) will introduce a specific register of experienced and highly qualified mediators – registered mediators – that will be under the auspices of the Justice Department. b. Set by market (private certifying bodies) Yes. There are several organisations of mediators (providers of mediation services or mediator interest representation groups), among which the NMI was the largest. Since January 2014 the MfN is the largest mediator federation (see 4.1.a). None of these organisations or the rules governing who can join them as mediators are regulated by law (see 4.c.). The Dutch Mediation Act (see 1.c.) will not change this. c. Set by public regulation No /(Yes) 2013 draft law. Presently not. However, the result of both the Minister of Justice Act that implemented the EU Directive on Mediation for cross-border cases and the Dutch Mediation Act (see 1.c) will be that a part of the mediation profession and therefore the accreditation of mediators will be publicly regulated, including among other things the condition of mandatory experience prior to accreditation and the amount of experience per year after accreditation. After the Dutch Mediation Act becomes effective, generally speaking there will be three mediator categories in the Netherlands: (1) registered mediators who are subject to the Dutch Mediation Act (see 1.c.), (2) mediators who perform cross-border mediation in which at least two EU states are involved: these mediators will be subject to the Minister of Justice Act of November 2012 (see 1.c.) and (3) mediators who are not registered mediators and do not do cross-border mediation involving at least two EU states either.

5 www.acbmediation.nl

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d. Number of hours for basic mediator training 40-80 hours. The organisations of mediators referred to in 4.a and 4.b. all have their own standards which differ from each other. All organisations, however, seem to maintain a basic standard that obliges new mediators to first complete an initial mediation training of about 50 hours. Some institutes, like Schonewille & Schonewille Legal Mediation,6 offer an initial course for at least 80 hours, followed by specialisation courses of 40 hours at minimum. See, however, 4.c. The standards that will be set by the Dutch Mediation Act (see 1.c.) are not known yet. e. Mandatory Continuing Professional Development for accredited/certified mediators (Yes). Each organisation of mediators referred to in 4.a. and 4.b. has its own regulations concerning the amount of CDP hours per year. For the NMI, it was 48 hours per 3 years including peer review; for the IMI it is an update of user feedback by a reviewer which takes place at least once a year. See, however, 4.c. The standards that will be set by the Dutch Mediation Act (see 1.c.) are not known yet. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (No). Each organisation of mediators referred to in 4.a. and 4.b. has its own set of rules and conditions concerning the accreditation of their mediators. Most organisations ask for additional practical experience and/or a performance-based assessment. See 4.c. g. Accreditation through written exam (Yes). Some of the organisations referred to in 4.a. and 4.b. – e.g., the NMI – have made a written exam a part of their accreditation procedure. See, however, 4.c. h. Accreditation through performance-based assessment Yes. Some of the organisations referred to in 4.a. and 4.b. – e.g., the NMI and IMI Qualified Assessment Programmes in the Netherlands – have made a performance-based assessment a part of their accreditation procedure. See, however, 4.c.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates (No). There is no official system to certify or accredit mediation advocates. Mediation advocacy is slowly being developed into a separate field of mediation study, see 13.b. The IMI initiated a task force on mediation advocacy certification. In July 2013, this task force compiled and published criteria for programmes to qualify competent mediation advocates/advisors in order to establish a professional and technical basis for enabling disputing parties to identify professionals experienced in advising and representing clients in the resolution of disputes through mediation and related dispute resolution processes. The criteria are presented in two broad categories: general requirements for the assessment programmes and substantive criteria for mediation advocates/advisors competency. The first IMI certified qualified assessment programmes and IMI certified mediation advocates/advisors are operating from the first quarter of 2014.7

6 www.schonewille-schonewille.com – www.legalmediation.nl 7 http://imimediation.org/mediation-advocacy-criteria.

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j. Set by market (private certifying bodies) Yes. All initiatives are private, there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.a, 4.b. and 4.c.

NL

b. Set by public regulation No/(Yes) 2013 draft law. Not yet, the 2013 draft law provides for this. See 4.a., 4.b. and 4.c. Once the Dutch Mediation Act (see 1.c.) becomes effective, there will be a public register of mediators; consequently a part of the profession (see 4.c.) will then be publicly regulated and protected. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No/(No) 2013 draft law. The 2013 draft law provides for this for registered mediators. Presently anyone can be a mediator once accredited by one of the organisations mentioned in 4.a and 4.b. In fact anyone can call themselves a mediator as no regulation exists that protects the mediation profession. This will most likely change in the near future: see 4.a. and 5.a. Once mediation is publicly regulated by the Dutch Mediation Act (see 1.c.) it will be a profession that is open to any professional that meets the standards set by law. It is highly probable that one of these standards will be having considerable legal knowledge in the field(s) of interest in which the mediator claims to be specialised. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Cross-border mediations within the European Union are regulated by the EU Directive on Mediation mentioned in 1.b., which does not reserve mediation for lawyers or legal professionals exclusively. There is no regulation concerning cross-border mediation beyond the European Union.

6.

EU Directive

a. EU Directive implemented for cross-border cases only Yes/No 2013 draft law. The draft law of 2013 will not restrict mediation to cross-border cases only. The law implementing the EU Directive on Mediation – see 1.c. – was initially also not confined to cross-border cases only, but was changed after massive criticism from the Senate (Eerste Kamer), which focused on the absence of regulations regarding to the quality of mediators (see 1.c.). b. EU Directive implemented for all national and cross-border commercial cases No/(Yes) 2013 draft law. The draft law of 2013 will provide for national and cross-border cases. See 6.a. The Dutch Mediation Act (see 1.c.) will be applicable to all commercial cases, although private parties are not forced to engage a registered mediator.

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c. EU Directive implemented for all national and cross-border civil cases No/(Yes) 2013 draft law. The draft law of 2013 will provide for national and cross-border cases. See 6.a. The Dutch Mediation Act (see 1.c.) will be applicable to all civil cases, although private parties are not forced to engage a registered mediator.

7.

Mediation legislation besides Directive

a. Mediation legislation since No/Yes 2013 draft law (expected 2014). There is no mediation legislation yet, however, the Dutch Mediation Act is being discussed in Parliament (see 1.c.). b. Legislation updated since EU mediation directive (date update) 2012. The Minister of Justice Act that implemented the EU Mediation Directive became effective on 21 November 2012 (see 1.c.).

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are associations, partnerships or private companies but some are foundations (e.g., the NMI, ACB and the IMI). b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. Also see 8.c. c. Mediation provider qualifications/requirements determined by public regulation No. The Dutch Mediation Act (see 1.c) will, however, introduce a register of mediators that is governed by public regulation. After that, only mediators registered in this register will be allowed to use the title ‘registered mediator’; all professionals will be free to use the title ‘mediator’. It is not foreseen that there will be legislation to govern the structure of bodies providing mediation.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. For legal aid cases that are financially supported by the government, the mediator is bound by limited hourly rates that are set by the Legal Aid Council (Raad voor de Rechts­ bijstand). Mediators that meet certain quality standards are admitted to this system of legal aid that is financially supported by the government on more or less the same conditions as for lawyers. Once the Dutch Mediation Act (see 1.c.) becomes effective, the Legal Aid Council will only engage registered mediators. c. Average mediator fee per hour for commercial or cross-border cases € 200-400 (estimate). Fees vary considerably.

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d. Average mediator fee per hour in civil cases € 150-250 (estimate). Fees vary considerably.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid for mediators is available under similar conditions to legal aid for lawyers (see 9.b.). f. Mediator fees covered by legal insurance schemes (Yes). Fees are not generally covered but some insurance companies cover mediator fees in a limited way under their insurance schemes. There are currently also no incentives in insurance companies schemes to promote the use of mediation in preference to court proceedings. The Dutch Mediation Act (see 1.c.), however, may change this situation. g. Mediator fees subsidised in court-connected schemes No. During the introduction of court-connected mediation schemes, all parties, including companies trying mediation after referral by a judge or during court proceedings, were eligible for a subsidy of € 200 to cover the initial cost of the mediation. This arrangement was terminated in January 2012.

NL

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No/Yes 2013 draft law. Not at present, although all judges and courts can refer cases to mediation at any stage of the proceedings. The Dutch Mediation Act (see 1.c.), however, will introduce the concept of an e-judge: a judge who is directly accessible to registered mediators only, through electronic means, to be consulted on legal matters, for making (partial) decisions when requested by parties, to formalise a divorce and to make mediated settlements enforceable. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No/Yes 2013 draft law. Mediation is not an (official) part of the legal system yet, however, the Dutch Mediation Act (see 1.c.) will change this by defining the legal position of mediation. c. Mediation procedure has impact on statute of limitations (No)/(Yes) 2013 draft law. Both the Minister of Justice Act that implemented the EU Mediation Directive for cross-border cases and the Dutch Mediation Act (see 1.c.) stipulate that limitation rules are suspended during mediation that is covered by one of these Acts.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement (vaststellingsovereenkomst) as provided by Sections 900-906 Book 7 of the Dutch Civil Code.

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b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Parties can ask a civil-law notary or judge to make their settlement agreement enforceable. The Dutch Mediation Act (see 1.c.) will introduce a quick and easy way to make a mediated contract enforceable via a special e-judge (digital judge) to whom only registered mediators will have access (see 8 c. and 10.c.). d. Enforceable under some circumstances defined by public regulation No. See 11.c.

12. Confidentiality a. Regulated by law (No)/(Yes) 2013 draft law. Confidentiality is only regulated by law for cross-border mediations within the European Union. The Dutch Mediation Act will however, introduce a general confidentiality for mediations conducted by Registered Mediators (new article Section 424a Book 7 Dutch Civil Code). b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (No)/(Yes) 2013 draft law. For national cases mediators do not have the general right to refuse to give evidence in subsequent proceedings (verschoningsrecht). The Act of the Minister of Justice that has implemented the EU Mediation Directive (see 1.c.) has introduced a general exemption for mediators that are engaged in a EU-cross-border mediation to give evidence in judicial proceedings; the Dutch Mediation Act (see 1.c.) will introduce a general exemption for registered mediators to give evidence in judicial proceedings (see 8. c.).

13. Education a. Mediation education is a common component of legal education curriculum (No). Mediation courses are offered at several universities, but it is not seen as a common component of the legal curriculum. At Utrecht University an elective minor in mediation was offered (a minor is a coherent set of courses in a particular field) which could be chosen as a topic by students on a voluntary base. Even though there was a lot of interest from the students to participate in this elective, the offer has in 2013 been reduced to one general introductory mediation course, and may be even further reduced in the future. At Leiden University and Rotterdam University elective mediation course components are offered and more and more universities are planning to picking up the topic. b. Mediation advocacy education is a common component of legal education curriculum (No). Mediation advocacy is slowly being developed into a separate field of study, e.g., at Nijmegen University, the Bar Association and the Law Firm School (funded by large law firms in Amsterdam) are offering some training in this field for young lawyers. The Dutch Ministry of Justice is promoting the professionalisation of mediation advocacy by having sponsored the development of a specific academic mediation advocacy module. The complete teaching

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module – which has been developed by the ACB Foundation – is made freely available to all Dutch universities.8

14. Most relevant literature or references, case law, articles, law

NL

–– Toolkit Mediation, resultaat bereiken als mediator, manager en onderhandelaar, 3e druk 2012, M.A. Schonewille. –– Toolkit Mediation Advocacy. De kunst uw cliënt bij te staan in mediation en bij andere methoden van conflictoplossing, M.A. Schonewille e.a. (2007, 2nd edition forthcoming 2014). –– Handboek mediation, editors A.F.M. Brenninkmeijer, H.J. Bonenkamp, 
K. van Oyen, H.C.M. Prein (2013, 5th edition). –– Rechtspraak mediation, editors Ton Jongbloed, Fred Schonewille (2013, 2nd edition). –– Juridische aspecten van mediation, Eva Schutte, Jacqueline Spierdijk (3rd edition 2011). –– MvT 32555. –– Tijdschrift Conflicthantering, Sdu. –– Nederlands-Vlaams Tijdschrift voor mediation en conflictmanagement, BJu. –– Kluwer Publisher recently announced a new magazine that will give an extensive overview of the outcomes of mediation (settlements) in the five most important areas of interest in a structured manner and accompanied by professional commentary and analysis. The aim of this magazine is to give insight into the mediation process and its outcomes and to contribute to providing data for research.

15. Mediation legislation texts a. Weblink to legislation in national language NA. See 1.c. and 15.c. b. Weblink to English or other translation NA. See 1.c. and 15.c. c. Other references –– http://www.eerstekamer.nl/wetsvoorstel/32555_implementatie_richtlijn –– https://zoek.officielebekendmakingen.nl/dossier/33320

16. Country specific remarks There is an official complaint procedure for NMI (now MfN) and ACB mediators, followed by a Disciplinary Court for Mediators consisting of two instances: a Disciplinary Committee and an Appeals Board. Sanctions include warnings, reprimands, suspension of mediator registration with the relevant affiliated institution for a maximum period of one year, or being struck off the list of mediators kept by the relevant affiliated institution. The Dutch regulatory approach has traditionally been ‘private’ ADR: meaning regulation by the mediation market itself, resulting in hardly any mediation legislation or public regulation and no mediation laws. The reasoning for this was to preserve the flexibility of the process.

8 www.acbmediation.nl

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This approach has changed and extensive mediation legislation is currently being drafted (as a private law initiative of MP Van der Steur, see 1.c). In anticipation of the introduction of the Mediation Act among other things, all mediator organisations in the Netherlands, including the NMI, have joined in a federation, the Dutch Mediation Federation, MfN, since January 2014. Mediation definition There is no official definition for mediation or mediator in the Netherlands yet. The Dutch Mediation Act (see 1.c.) will provide for a definition. The final text of the definition is not available at the time of the publication of this book and will also be discussed in Parliament. The Dutch Mediation Act including the definition will be made available at www.schonewilleschonewille.com. How mediation is seen in the Netherlands can also be deduced from a ­combination of mediator duties and powers, as well as the description of the mediation process in the Dutch Mediation Act (see 1.c.).

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Mediation regulation and approach Country: The Netherlands Prepared by Fred Schonewille, Manon Schonewille

NL

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific procedure duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accredita­tion b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocacy advocates accredita­tion j. Set by market (private certifying bodies) k. Set by public regulation

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Yes/(No) 2013 draft law (No)/(Yes) 2013 draft law Yes No/(Yes) 2013 draft law (No)/(Yes) 2013 draft law No/(No) 2013 draft law No/(Yes) 2013 draft law Yes No (Yes)/(No) 2013 draft law (Yes)/(No) 2013 draft law (No)/Yes 2013 draft law No/(Yes) 2013 draft law Yes/(Yes) 2013 draft law Yes Yes F/(E) F /D E /T /F F/D All Mix Joint/(Caucus) Yes Yes No/(Yes) 2013 draft law 40-80 hrs (Yes) (No) (Yes) Yes (No) Yes No

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Mediation regulation and approach Country: The Netherlands Prepared by Fred Schonewille, Manon Schonewille 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive)

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/ certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/ certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since

b. Legislation updated since EU mediation directive (date update) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or crossborder cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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Yes No/(Yes) 2013 draft law No/(No) 2013 draft law No Yes/No 2013 draft law No/(Yes) 2013 draft law No/(Yes) 2013 draft law No/Yes 2013 draft law (expected 2014) 2012 Yes Yes No Yes Yes € 200-400 (est.) € 150-250 (est.) Yes (Yes) No No/Yes 2013 draft law

No/Yes 2013 draft law (No)/(Yes) 2013 draft law Yes No Yes No (No)/(Yes) 2013 draft law (No)/(Yes) 2013 draft law (No) (No)

No = No (No) = No as a rule, but with (informal) exceptions

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21. POLAND1 Prepared by Dr Ewa Gmurzyńska2

1.

Attempt to mediate

a. Always voluntary (Yes). There is one exception. CCP (Code of Civil Procedure) provides that a respondent in a court proceeding may raise an objection that the agreement to mediate was previously signed by both parties. In such case, the court does refer the case to mediation. See 1.d.

PL

b. Mandatory (in some cases) No. c. Court referral or court-connected mediation possible Yes. In Poland, court-referred mediation has been introduced in the CCP (amendments of 28  July 2005). One of the options to conduct mediation is to sign an agreement to mediate, outside of the court proceedings. Contractual mediation is an independent method for a dispute resolution, and takes place outside of the court system, but there are connections between contractual mediation and court proceedings. For example, according to Section  18313 § 1 and Section 18314 CCP, the court may approve such a settlement, which becomes an execution tile and is enforceable, if the parties submit the motion to approve the settlement to the court. d. Court-ordered mediation possible Yes. According to Section 10 CCP, all civil matters, including family, labour and commercial cases, can be referred to mediation by the judge. This refers to all cases in which the agreement is permissible. The court may issue an order to mediate on the motion of one party or at its own initiative (Section 183 1 § 2 CCP). Additionally, the parties may together submit a joint motion for mediation to the court. Polish law does not provide the criteria for selection of cases for mediation by the judge. The parties may submit a motion to mediate at any time during the court proceeding. Court may order the case for mediation only until the end of the first hearing. Parties may object against the court’s referral to mediation within one week (Section 183 3 § 3 CCP). e. Sanctions by the court if mediation is not tried (in good faith) No. 1 2

Last update of information: July 2013. Ewa Gmurzyńska, Ph.D., associate professor at Warsaw University Faculty of Law and Administration; director of the Center for American Studies, a joint programme of Warsaw University and University of Florida; practising mediator in civil and commercial disputes; involved in many mediation-related initiatives in Poland including: vice-presidency of the Civil Council for Alternative Dispute and Conflict Resolution at the Ministry of Justice, co-founder and member of the board of directors of the Center for the Amicable Dispute Resolutions, director of the Mediation Clinic at the Faculty of Law and Administration of Warsaw University; author of: Mediation in American Legal System (in Polish) and editor and co-author of a book in Polish on the theory and practice of mediation, as well as many articles on the subject of mediation and negotiation. Contact: [email protected].

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f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties. There is no restrictions on the presence of council during mediation. The parties can be represented by the council and do not have to appear themselves during mediation. There is no obligation that the parties have to attend mediation. In practice, mediators try to convince the parties to participate because of the character of mediation. In commercial cases, the presence of lawyers during mediation is common practice. In most commercial mediation, parties are present together with councils. In commercial mediation which includes very big corporations, the parties are often represented by council only. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. According to Section 202 CCP if the parties signed an agreement to mediate (mediation clause) before starting court proceedings, the court will not hear that case and instead send the case to mediation, if the plaintiff brings a claim, before the parties get involved in a court dispute on the merits of the case.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (No). Mediation is described in the law, but most of the provisions of the Code of Civil Procedure are quite general and are flexible as to the proceedings. There are some rules, however, provided by law which are quite strict (e.g., confidentiality, enforceability, impartiality of mediators). b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). Contractual mediation is governed by mediation rules established by mediation centres. The parties may agree to accept those rules but usually have also an opportunity to change them according to their needs.

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c. Mediator can offer a non-binding opinion Yes. However, the mediator is obligated to preserve impartiality (Section 183 3 CCP), and most mediators in Poland believe that offering even non-binding solutions or advice would be against the rule of neutrality. There is nothing in the Polish law which prevents mediators from giving a non-binding advice or opinion. As mediation is becoming more popular, some mediators are applying an evaluative model of mediation. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. e. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative.

PL

f. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice/legal opinion. It is very rarely used in Poland so far, so it is hard to say. In some cases it involves general advice concerning possible solutions and sometimes it involves evaluation of what the legal position of the parties is (only if the mediator is also a lawyer). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint sessions (Mix). Joint sessions are the common practice, but often caucuses are used. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions (Mix). Joint sessions are the common practice, but sometimes caucuses are used.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are several mediation organisations that accredit mediators and issue certification, but there are no requirements for certification or special qualifications under national law, even for mediators who mediate in court-ordered meditations or outside court. For these reasons, the Civic Council for ADR, the advisory body of the Minister of Justice, adopted standards for mediator training in 2007 which recommends a length of basic training for mediators (40 hours), as well as teaching methodology and topics to be covered during the training. Those standards are not mandatory and are recommendations for mediator organisations. However, in a situation where there are not official requirements for mediators

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under national law, the standards issued by the Council are important guidelines for organisations which hold courses for mediators. b. Set by market (private certifying bodies) Yes. There are several mediator organisations, which have their own standards. c. Set by public regulation No. d. Number of hours for basic mediator training 40 hours. The Civic Council recommends that each person who wishes to become a mediator must participate in at least 40 hours of basic training, confirmed by a certificate of completion. For certain fields, such as family, commercial, labour or criminal mediation, the Council recommends specialist training. According to the Council, basic mediation training should include the following topics: rules and elements of mediation proceedings, mechanism of conflict creation, escalation and resolution, effective communication, practical skills to conduct mediation, and the legal and organisational aspects of mediation proceedings. e. Mandatory Continuing Professional Development for accredited/certified mediators (Yes). It depends on the organisation. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (Yes). Each organisation of mediators has its own set of rules and conditions concerning the accreditation of their mediators. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Each organisation of mediators has its own set of rules, which describes who can be a mediator in their organisation.

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b. Set by public regulation (No) (commercial)/Yes (family). According to Section 1832 § 1 CCP every person who has full legal capacity and a full range of public rights may be a mediator in civil disputes. There are no requirements regarding the type of education or training. The requirements are stricter for mediators in family mediations. According to Section 436 § 4 of the CCP, mediators in family matters are required to have an education in psychology, education, sociology or law, as well as practical knowledge of conflict resolution. There is no special requirement for mediators in commercial matters. The provisions of the CCP exclude all active judges from the being mediators. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

PL

a. EU Directive implemented for cross-border cases only No. b. EU Directive implemented for all national and cross-border commercial cases Yes. c. EU Directive implemented for all national and cross-border civil cases Yes.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2005. Civil mediation is regulated by the Code of Civil Procedure (amendments of 9 September 2005 Dz.U.05.172.1438) and the Minister of Justice ordinance of 30 November 2005 (Dz.U. 2005.239, 2005) regulates some costs of mediation and remuneration of mediators in civil matters. b. Legislation updated since EU mediation directive (date update) 2011. The amendments of the CCP of 16 September 2011 deformalised the procedure to approve mediation agreements. The parties no longer have to submit a separate motion to approve an agreement signed as a result of a court-ordered mediation. The court does it automatically after the agreement is presented to the court by the mediator.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. The law (CCP) provides that non-governmental organisations, as well as universities, may submit lists of permanent mediators to the district court (Section 1832 § 3 CCP).

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b. Individuals may be providers of mediation services Yes. But only NGOs and universities, not individual mediators, may submit a list of mediators to the courts. Individuals have to be on the list of mediators in those organisations. The definition of NGO organisations for the purpose of the Mediation Act is very broad in Poland, e.g., mediation centres at organisations like the National Legal Counsel Association or the mediation centre at the National Chamber of Commerce are considered to be such organisations. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. In all contractual mediations. a. Fixed in some cases by public regulation Yes. In all court-ordered mediations, the costs of mediation equals 1% of the value of the dispute, however, not less than 30 PLN (€ 8) and not more than 1000 PLN (€ 250). In court-ordered mediation it is not possible to negotiate the fee with the parties. For civil matters, some mediation fees and costs are strictly limited by the Minister of Justice ordinance of 30 November 2005 (Dz.U. 2005.239, 2005). b. Average mediator fee per hour for commercial or cross-border cases 1,000 zlotys per mediation (in court)/€ 50-100 (commercial). In court-annexed mediation, fees are limited by law – up to 1,000 zlotys for whole mediation. Since mediation in commercial matters takes on average about 12 to 15 hours, it means that in court-annexed commercial mediation a mediator earns on average about € 15 per hour. In mediations outside court-annexed programmes (private mediation), fees may vary. Sometimes mediation fees are set by the hour, e.g., € 50 to 100. In some commercial centres, fees are set according to the value of the case, and in others as a flat fee plus an amount which depends on the value of the case. c. Average mediator fee per hour in civil cases 1,000 zlotys per mediation (in court)/€ 20-50 (commercial). In court-annexed mediation, fees are limited by law (up to 1,000 zlotys). Contractual mediation fees may vary between € 20 and 50 per hour.

9.2. Financing and legal aid a. Legal aid available for mediation services No. b. Mediator fees covered by legal insurance schemes No. c. Mediator fees subsidised in court-connected schemes No. In commercial and civil disputes.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. There is an understanding between judges and mediators that cooperation between them is necessary and may be very helpful for mediation. Office for mediation coordinators have been formed in each regional court. The main goal of coordinators, who are judges, is to contact mediators, to organise meetings and cooperate with mediators, and to discuss together all problems and uncertainties concerning mediation. b. Relationship of mediation and legal system (is mediation seen as part of the legal system?) Yes. Since mediation in civil matter was introduced in the CCP in 2005, it has become a part of the legal system. c. Mediation procedure has impact on statute of limitations Yes. The commencement of any mediation interrupts the statute of limitations period (Section 123(1), item 3 of the Polish Civil Code). Once mediation is completed, the statute of limitations period starts running again. This provision has a very strong legal effect, much stronger than suspension of the statute of limitations. If the statute of limitations is ‘interrupted’ it means that, after a mediation attempt, the limitation period starts running again.

PL

11. Mediated settlement a. Contract Yes. In contractual mediation, if an agreement is signed, the parties may submit a mediation agreement to the court with the motion to approve the agreement. The fee for submitting the motion equals 50 zlotys (€ 12). After the agreement is approved by the court, it becomes enforceable. b. Automatically enforceable No. If the case is referred to mediation by the judge and agreement is signed as an effect of that mediation, the mediator submits the mediation agreement to the court and the court approves the agreement. Once it is approved, the agreement becomes enforceable. The court may, however, refuse to approve the agreement if it violates the law, is unclear or it violates the rules of social policy. c. Enforceable under some circumstances which are up to the parties (Yes). In contractual mediations, it is entirely up to the parties to submit the motion to approve the settlement and make it enforceable. d. Enforceable under some circumstances defined by public regulation Yes. See above.

12. Confidentiality a. Regulated by law (Yes). According to. Section 183 4 § 2 of the CCP, mediators have a duty to keep confidential all facts disclosed during the mediation process, unless the parties exempt the mediator from keeping such information confidential. Mediators may not be witnesses in court proceedings

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regarding the facts disclosed in mediation, unless the parties excuse the mediator from that duty. The CCP provides that if the parties disclose the information about the settlement proposal, mutual concessions or other statements made in mediation to the court, the court will not take such information into consideration when making a final decision (Section 183 4 § 3). The law does not stipulate an explicit obligation of the parties to keep all information from the mediation confidential. The parties, however, may sign a confidentiality clause which obliges them to keep all information regarding the mediation confidential. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Both parties may agree to exempt mediators from keeping information regarding the mediation confidential.

13. Education a. Mediation education is a common component of legal education (Yes). Most law schools in Poland now have at least one non-mandatory class on mediation and some have a class on negotiation. For instance, the University of Warsaw Law School has both as well as a mediation programme, but so far it is the only mediation programme in Poland. All professional associations for lawyers (Association of Advocates, Association of Legal Counsel, Association of Notaries, National School for Judges and Prosecutors), which provide 3 to 4 years of apprenticeship training for all legal professions after completing law school, have very recently introduced into their curriculum some basic classes on mediation (usually 3 to 5 hours). b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, case law, articles, law –– –– –– –– –– –– –– –– –– –– –– –– –– –– ––

Bobrowicz M., Mediacja. Jestem za, Warszawa 2008. Bobrowicz M., Mediacje gospodarcze – jak mediować i przekonywać, Warszawa 2004. Deutsch M., Coleman P. T. (red.), Rozwiązywanie sporów: teoria i praktyka, Kraków 2005. Doherty N., Guyler M., Mediacje i rozwiązywanie konfliktów w pracy, Warszawa 2010. Gmurzyńska E., Morek R. (red.), Mediacje. Teoria i Praktyka, Warszawa 2009. Gmurzyńska E., Mediacja w sprawach cywilnych w amerykańskim systemie prawnym – ­zastosowanie w Europie i w Polsce, Warszawa 2006. Gmurzynska E., Morek R., Poland, (in:) EU Mediation Law and Practice; ed. De Palo G. and Trevor M.B., Oxford, 2012. Gójska A., Huryn V. Mediacja w rozwiązywaniu konfliktów rodzinnych, Warszawa 2007. Jakubiak-Mirończuk A., Alternatywne a sądowe rozstrzyganie sporów sądowych, Warszawa 2008, książka dostępna również jako EBOOK (książka elektroniczna). Jakubiak-Mirończuk A., Negocjacje dla prawników. Prawo cywilne, Warszawa 2010. Kmieciak Z., Mediacja i koncyliacja w prawie administracyjnym, Kraków 2004. Moore Ch., Mediacje. Praktyczne strategie rozwiązywania konfliktów, Warszawa 2009. Morek R., ADR – w sprawach gospodarczych, Warszawa 2004. Morek R., Mediacja i arbitraż (art. 183[1]-183[15], 1154-1217 KPC). Komentarz, Warszawa 2006. Pieckowski S., Mediacja w sprawach cywilnych, Warszawa 2006.

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–– Tabernacka M., Negocjacje i mediacje w sferze publicznej, Warszawa 2009, – podręcznik akademicki.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://ms.gov.pl/pl/dzialalnosc/mediacje/publikacje-akty-prawne-statystyki/ b. Weblink to English or other translation There is no official translation. Translation: Gmurzynska E., Morek R., and Mediation in Poland, EU Mediation Law and Practice ed. Giuseppe de Palo, Marty B. Trevor, Oxford, 2011. c. Other references –– http://ms.gov.pl/pl/dzialalnosc/mediacje/ –– www.cmg.kirp.pl –– http://www.mediacja.org/ –– http://www.sakig.pl/pl/mediacje/o-mediacji –– http://mediacje.wpia.uw.edu.pl/ –– http://pkpplewiatan.pl/uslugi/centrum_mediacji

PL

16. Country specific remarks In December 2012, the Codification Committee of the Ministry of Justice presented a proposal for major changes to the law on civil mediation in the CCP. The main goal of those changes is to promote high standards for mediation and wider use of mediation. The main proposals include: mandatory mediation in civil cases (including commercial cases), mandatory informative meetings (with judges, mediators), informing parties about mediation and its benefits before the parties accept or refuse to take a part in mediation, a much more active role for judges in referring cases for mediation, high qualifications for mediators – requirements for mediators who mediate court-ordered cases, special incentives to mediate for low-income parties, penalties for parties who reject mediation without good reasons (e.g., the party who unreasonably refuses to mediate may be ordered to pay court costs, even if that party wins the case). Mediation definition There is no legal definition of mediation and mediator in Polish law. The definition of mediation and mediator contain in 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 Section 3(a) and (b) serve as a model.

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Mediation regulation and approach Country: Poland Prepared by Ewa Gmurzynska 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accredita­ tion

4.2. Mediation advocacy accredita­ tion

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) No Yes Yes No No No Yes No Yes Yes Yes (No) (Yes) Yes No F F F F GA/LO Joint/(Mix) Joint/(Mix) Yes Yes No 40 hrs (Yes) (Yes) No No No No No

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Mediation regulation and approach Country: Poland Prepared by Ewa Gmurzynska

PL

5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases 7. Mediation a. Mediation legislation since legislation b. Legislation updated since EU mediation directive (date update) (besides Directive) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator a. Freely contracted fee b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

d. Average mediator fee per hour in civil cases

9.2. Financing and Legal aid

e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal a. Is there a special relationship between judges and mediators/ context mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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Yes (No) (commercial)/Yes (family) No No No Yes Yes 2005 2011 Yes Yes No Yes Yes 1.000 zlotys per mediation (in court)/€ 50-100 (commercial) 1.000 zlotys per mediation (in court)/€ 20-50 (commercial) No No No Yes

Yes Yes Yes No (Yes) Yes (Yes) Yes (Yes) No

No = No (No) = No as a rule, but with (informal) exceptions

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22. PORTUGAL 1 Prepared by Ana Gonçalves2 – Thomas Gaultier3

1.

Attempt to mediate

a. Always voluntary Yes. Mediation is always of a voluntary nature. Mediation is suggested as a standard option in Small Claims Courts. b. Mandatory (in some cases) No. Never. c. Court referral or court-connected mediation possible Yes. In family law cases, the judge may refer parties to a mediator to try to settle one or more family-related disputes. There is no general court referral rule enabling a judge to refer parties to mediation. d. Court-ordered mediation possible No. The judge can advise parties to try mediation, but cannot order parties to go to mediation. Mediation in Portugal is still fully voluntary. e. Sanctions by the court if mediation is not tried (in good faith) No. As there is no court-ordered mediation, such sanctions are not applicable. f. Sanctions by law if mediation is not tried (in good faith) No. As there is no court-ordered mediation, such sanctions are not applicable. g. Incentives if mediation is tried voluntarily before going to court No. No incentives are provided by law if mediation is tried voluntarily prior to going to court. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No.

1 Last update of information: Janury 2014. 2 Ana Gonçalves has experience as a lawyer, teacher, mediator and organisational developer. She is a founder of Convirgente, the first appropriate dispute resolution consulting company in Portugal and part of the Neuroawareness team. Contact: [email protected]. 3 Thomas Gaulthier is a consultant at AAA Advogados in Lisbon. He is a graduate of the University of Paris X-Nanterre Law School. He has an LL.M in alternative dispute resolution from the University of Texas in Austin (2008/2009). Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. To date, there is no case law based on a judge declining to conduct a trial because parties did not go to mediation, even if it was provided for in a contract via a mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. The judge may take the fact that there is a valid mediation clause into account. However, there is no case law on the issue. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

PT

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Although there is a general Mediation Act, it does not regulate the procedure in itself, but rather provides for certain fundamental aspects of mediation. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The mediation procedure is solely governed by the contract between the parties and the mediator since the applicable Mediation Act does not regulate the procedure itself. c. Mediator can offer a non-binding opinion Yes. As there is no legal restriction in this regard, the parties may agree to it. d. Mediator can offer a binding opinion No. The Mediation Act expressly provides that the mediator cannot impose anything on the parties. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. This is common practice among Portuguese mediators. This is because the first training in mediation came to Portugal from Brazil where facilitative mediation is the standard. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. As the process is very new in Portugal, mediators start with the facilitative approach. Depending on the knowledge about the mediation process from the people involved in mediation, the mediator can suggest other forms, but it is very rare. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative In general, it is facilitative, however, a transformative-type mediation is sometimes used in family mediation.

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h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. In general, Mediators will use a facilitative approach. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Evaluative mediation is very rarely used in Portugal as mediator training does not generally cover such approach. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Mediation for commercial disputes is almost non-existent. The process most commonly used is mainly the one in which the mediator is trained, and often results in a mix of joint sessions with caucus. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint Sessions/Mix. There is no predominant mediation process. In small claims courts, mediators use mainly joint sessions. However, this can be explained by the fact that they have not been trained to conduct caucuses.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Although mediator certification in Portugal is still uncommon, a national certification has been created by the ICFML – Instituto de certificacao e formacao de mediadores lusofonos, which will lead to IMI (International Mediation Institute) certification. Otherwise, mediators are not certified, and can be called mediators if they take a mediation course approved by the Ministry of Justice. b. Set by market (private certifying bodies) Yes. Starting with the ICFML/IMI certification, which is seen as adding value with regard to the quality of mediation. c. Set by public regulation No. Presently not, although regulation on this aspect should be passed shortly. d. Number of hours for basic mediator training 190 hours. Initial standard mediation training of 40 hours, followed by either 150 hours of specialisation in family, labour or penal mediation. The course is only completed after 190 hours, but a mediator that has done the basic 40 hours can ask for the equivalent of these hours to go towards other specialisations. e. Mandatory Continuing Professional Development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. Each organisation of mediators has its own conditions concerning the accreditation of their mediators. The training course that is accredited by the Ministry of Justice and mediation organisations that provide the training accredits automatically all course participants. This allows for very different courses to be accredited, thus producing a heterogenic spectrum of conditions for accreditation of mediators.

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g. Accreditation through written exam Yes. Some training courses include a written exam or a research paper to complete the course, but most of them do not. h. Accreditation through performance-based assessment Yes. For instance, the ICFML has included a performance-based assessment as part of their accreditation procedure.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official arrangement to certify or accredit mediation advocates. j. Set by market (private certifying bodies) Yes. All initiatives are private, there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

PT

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. As mediation is voluntary, and mediators are generally selected by the parties, rules defining who acts as a mediator are set by the market. b. Set by public regulation Yes. This is limited to the small claims court mediators. They have to follow a course certified by the Minister of Justice, must be over 25 years of age and have a university degree. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone can be a mediator in the small claims courts if they fulfil the requirements. See 5b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Presently anyone can be a mediator once accredited by one of the organisations mentioned in 4.a and 4.b. In fact, anyone can call themselves a mediator as no regulation exists that protects the mediation profession. Cross-border mediation within the European Union is provided for by the EU Directive on Mediation mentioned in 1.b., which does not restrict mediation by lawyers or legal professionals. There is no regulation concerning cross-border mediation outside the European Union.

6.

EU Directive

a. EU Directive implemented for cross-border cases only Yes. b. EU Directive implemented for all national and cross-border commercial cases No.

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c. EU Directive implemented for all national and cross-border civil cases No.

7.

Mediation legislation besides Directive

a. Mediation legislation since 1992. b. Legislation updated since EU mediation directive (date update) 2013. Act 29/2013 of 19 April 2013 establishes the general principles applicable to mediation carried out in Portugal, as well as the legal regimes of civil and commercial mediation, of mediators, and of public mediation.4

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Most mediation providers are associations, partnerships or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. Fees are regulated by law for mediation provided by a mediator within the framework of the justices of the peace court systems. c. Average mediator fee per hour for commercial or cross-border cases € 150-350 (estimate). Although there is no standard in the market since mediation of commercial/cross-border cases is still rarely used, our experience shows that mediator fees are similar to lawyer fees, which range from € 150/hour to € 350/hour. d. Average mediator fee per hour in civil cases € 90-350 (estimate). Although there is no standard in the market since mediation of civil cases is still used rarely, our experience shows that mediator fees are similar to lawyer fees, which range from € 90/hour and € 250/hour.

9.2. Financing and legal aid e. Legal aid available for mediation services No. 4

The law is available at https://dre.pt/pdf1sdip/2013/04/07700/0227802284.pdf

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f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Actual judges were not trained in mediation and rarely know the process. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. With the enactment of Act 29/2013 of 19 April 2013, the general principles of mediation are now recognised formally as part of the legal system.

PT

c. Mediation procedure has impact on statute of limitations Yes. Pursuant to Section 13 of Act 29/2013 of 19 April 2013, the statute of limitations is suspended during the mediation process, from the date the agreement to mediate is signed to the date the one of the parties no longer wishes to take part in mediation.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement. b. Automatically enforceable No. The party seeking enforcement must file an enforcement procedure to have the mediated settlement enforced. In some cases, the mediated settlement is automatically enforceable in itself – provided it meets specific formal requirements. c. Enforceable under some circumstances which are up to the parties Yes. To the same extent as a contract. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. Pursuant to Section 5 of Act 29/2013 of 19 April 2013, mediation is confidential by nature. This rule is, however, subject to public policy considerations. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Pursuant to Section 5 of Act 29/2013 of 19 April 2013, save in situations when public policy interests are at stake, the content of mediation sessions has no value before court or arbitral proceedings.

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13. Education a. Mediation education is a common component of legal education curriculum No. Mediation is not taught at law schools. Some universities organise extra courses on the subject but they are not part of the standard curriculum. The Portuguese Bar Association is actually against mediation being taught in universities. b. Mediation advocacy education is a common component of legal education curriculum No. There are some initiatives of private companies that are followed by some law firms.

14. Most relevant literature or references, case law, articles, law –– The most relevant and recent legislative text is Act 29/2013 of 19 April 2013, available online at https://dre.pt/pdf1sdip/2013/04/07700/0227802284.pdf.

15. Mediation legislation texts a. Weblink to legislation in national language –– https://dre.pt/pdf1sdip/2013/04/07700/0227802284.pdf –– http://www.dgpj.mj.pt/sections/leis-da-justica/pdf-ult2/lei-n-7-2009-de-12-de/download File/file/Lei%207.2009.pdf?nocache=1234429631.38 –– http://www.dre.pt/pdf1s/2009/06/12300/0419204208.pdf –– http://www.dre.pt/pdf1s/2011/05/09800/0288302883.pdf –– http://dre.pt/pdf1sdip/2010/05/10100/0177201778.pdf –– http://w w w.dgpj.mj.pt/sections/leis-da-justica/pdf-leis2/l-21-2007/downloadFile/ file/L_21_2007.pdf?nocache=1183106552.39 –– http://www.dgpj.mj.pt/sections/leis-da-justica/pdf-ult/despacho-18778-2007/download File/file/Desp_18778_2007.pdf?nocache=1187771572.21 b. Weblink to English or other translation NA. c. Other references

16. Country specific remarks Mediation definition In Portuguese: Lei n.º 29/2013 de 19 de abril Artigo 2º – Definição Para efeitos do disposto na presente lei, entende-se por: a) “Mediação” a forma de resolução alternativa de litígios, realizada por entidades públicas ou privadas, através do qual duas ou mais partes em litígio procuram voluntariamente alcançar um acordo com assistência de um mediador de conflitos;

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b) “Mediador de conflitos” um terceiro, imparcial e independente, desprovido de poderes de imposição aos mediados, que os auxilia na tentativa de construção de um acordo final sobre o objeto do litígio. In English: Law n.º 29/2013 of 19 April Article 2º – Definition

PT

Under the terms of this law, it is considered that: a) “Mediation” is a means of alternative dispute resolution, carried out by public or private entities, through which two or more parties to a conflict voluntarily seek to reach an agreement with the assistance of a mediator; b) “Mediator” is a third party, impartial, independent, with no power to impose upon the parties, who assists in the attempt to construct a final agreement with regard to the object of the dispute.

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Mediation regulation and approach Country: Portugal Prepared by Ana Goncalves, Thomas Gaultier 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes No Yes No No No No Yes No Yes Yes No No Yes Yes No F F F/(T) F NA Mix Joint/Mix Yes Yes No 190 hrs No Yes Yes Yes

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Mediation regulation and approach Country: Portugal Prepared by Ana Goncalves, Thomas Gaultier 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive

PT

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

No Yes No Yes Yes No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

Yes Yes No

d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No 1992 2013

Yes Yes €150-350 (est.) €90-350 (est.) No No No No

Yes Yes Yes No Yes No Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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23. ROMANIA 1 Prepared by Sanda Elena Lungu2 – Constantin-Adi Gavrilă3

1.

Attempt to mediate

a. Always voluntary (Yes). Romanian law does not have any provisions for mandatory mediation as a condition that applies either pre-trial or during the trial. Section 2(1) of Act No. 192/2006 on mediation and organisation of the mediator profession changed by Act No. 115/2012 and by Government Emergency Ordinance No.90/2012 (in force from 1 October,2012, except Section 601 in force from 1 August,2013) states that, if the law does not provide otherwise, the parties, natural or legal entities, must participate in an informative session about mediation, including after a trial has been initiated before the competent court of first instance. This is done in order to solve through this method the conflicts in civil, family, penal and other types of cases, under the sanction of inadmissibility. After this change, mediation remained a voluntary procedure for the parties, but the attending information sessions is, in many cases, mandatory. From 1 August 2013, according to Section 601(1) of the Romanian Mediation Act, in litigation in which mediation or another alternative form of conflict resolution may apply, the parties concerned are bound to prove that they have participated in the information session concerning the advantages of mediation. This stipulation applies to cases involving consumers, families, neighbours, professional liability, labour issues, civil litigations worth less than 50,000 lei (approx. € 11,000) and penal cases (for which penal action has been brought by the plaintiff and the parties’ reconciliation will remove penal liability).4 b. Mandatory (in some cases) No. For some commercial cases, namely in trials and requests involving professionals and high sums of money and derived from contractual reports, before instituting legal proceedings, the plaintiff must try to settle the litigation either through mediation, or through direct negotiation with the other party. So, the parties are free to choose between mediation and negotiation, but it is compulsory to try one of these two methods of alternative dispute resolution before going to court (Section 7201 (1) of the Code of Civil Procedure). These provisions ceased to apply on 15 February 2013 when a new Code of Civil Procedure entered into force.

1 Last update of information: January 2014. 2 Sanda-Elena Lungu is a judge at Craiova Court of Appeal, Commercial Division. Contact: lungu_ [email protected]. 3 Constantin-Adi Gavrilă is a mediator and mediation trainer, co-founder and general manager of the Craiova Mediation Center Association, first president of the Romanian Mediation Centers Union and first vice-president of the Romanian Mediation Council. Contact: [email protected]. 4 According to Government Emergency Ordinance No. 4/2013 for the modification of Act No. 76/2012 regarding the Code of Civil Procedure, and for the modification and completion of some connected laws, the provisions about mandatory information sessions in some penal cases will enter into force when the new Romanian Code of Penal Procedure enters into force on 1 January 2014.

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RO

c. Court referral or court-connected mediation possible Yes. According to Section 227(2)(2) of the new Romanian Code of Civil Procedure, in litigations which, according to law, can be the object of the mediation procedure, the judge can invite the parties to participate in an information session about the advantages of using this procedure. If the court deems it necessary, taking into account the case circumstances, it may recommend that the parties undertake mediation with a view to settling litigation amicably in any phase of the trial It should be borne in mind, however, that mediation is not compulsory for the parties. According to the Section 6 of the Romanian Mediation Act, judicial and arbitral bodies, as well as other authorities with jurisdictional competences, must inform the parties about the possibilities and advantages of using mediation and advise them to use it to settle existing conflicts/disputes among themselves. So it is not only the courts who can advise parties to use mediation, but also arbitrators, prosecutors and all officials who are in charge of conflict resolution of various types. As a procedure, the Romanian Code of Civil Procedure states that if the judge recommends mediation, and the parties accept it, they will meet with the mediator in order to be informed about the advantages of mediation. The mediator cannot solicit payment of for providing the parties with this information. After having been informed, the parties decide whether or not to accept mediation as a way of settling the.5 If the parties decide to try mediation, they can choose any mediator from the list of authorised mediators in Romania and contact them directly by phone, email, letter or in person.6 d. Court-ordered mediation possible No. See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) No. There is no sanction in this case. f. Sanctions by law if mediation is not tried (in good faith) No. Regarding not trying mediation, see 1.a. and 1.b. Regarding information sessions about mediation, in order to protect the entire judicial process from abuse, the Code of Civil Procedure states in Section 187(1) that ‘unless otherwise provided, the court, according to the provisions of this section, will be able to impose the following sanctions concerning the trial: 1. a judicial fine from 100 lei (RON) to 1,000 lei (RON): f) if the party refuses to attend an information meeting about the advantages of mediation in a situation in which he/she accepted to do so before according to law.’ g. Incentives if mediation is tried voluntarily before going to court No. The last changes of the Mediation Law are providing that if mediation is tried voluntarily before going to court, the parties will pay the same fees as for a regular judicial action. h. Outside counsel presence/representation during mediation sessions allowed Yes. The parties have the right to be assisted by a lawyer or other persons, under mutually agreed conditions (Section 52(1) of the Mediation Act). In cases where the conflict subject to mediation presents difficult or controversial legal aspects or aspects related to any other

5 6

Section 227(3) of the New Romanian Code of Civil Procedure. See the official list of mediators authorised to practice in Romania, http://www.cmediere.ro/mediatori/

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specialised fields, the mediator may, based on the consent of the involved parties, ask for the opinion/advice of an external specialist in the respective field. When asking for the advice of an external specialist, the mediator must only present the controversial issues, without revealing the identity of the parties (Section 55 of the Mediation Act). Concerning criminal cases, mediation should be conducted in such a way as to guarantee the right to legal assistance for each party involved and, if necessary, the right to have an interpreter.7 i. Outside counsel presence mandatory No. Outside counsel presence is not mandatory.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Until now, there has not been a common rule regarding mediation clauses in contracts. If such a clause is included in a contract and the parties ignore it, the judge cannot refuse to hear the case for that reason. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. See 1.e. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. This rule is provided by law only for arbitration clauses, not for mediation.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The mediation procedure is described in the fifth chapter of the Romanian Mediation Act No. 192/2006. The law creates a procedural framework prior to mediation, the legal clauses that should be included in the mediation contract, and specific dispositions for court-related cases. The Act also describes the principled structure of the process according to which the principles of neutrality, impartiality, confidentiality and self-determination must be respected in the mediation. In addition to the principles, according to the law, mediators have the right to use their own model to organise the mediation procedure, by observing the dispositions and principles stated in this Law.8 b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. According to the Section 44 of the Romanian Mediation Act, mediation services can be provided only on a contractual basis. The mediation contract should be concluded between the mediator, on the one hand, and the parties, on the other hand. 7 Section 68(1) of the Romanian Mediation ActAct No. 192/2006 on mediation and organising the mediation profession. 8 Section 27(1) of the Romanian Mediation Act.

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c. Mediator can offer a non-binding opinion No. According to the Section 2.1.4 of the Code of Ethics and Professional Deontology for mediator in Romania, ‘the mediator shall not provide legal or specialised professional advice to the parties but can advise the parties that they can obtain independent legal or expert assistance’. The mediator cannot impose a solution related to the conflict on the parties subject to mediation (Section 50(3), Romanian Mediation Act). However, in mediation practice, mediation services can, on demand and as an exception, provide the parties with the mediator’s non-binding opinions without these opinions being considered as advice. This matter is addressed according to the client’s needs within the legal provisions.

RO

d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative/Transformative). The predominant mediation style for all kinds of disputes regarding process and solution is mainly facilitative. However, in practice, mediators can choose a personal style depending on the parties’ needs and whether they agree to have neutral services. Therefore, as an exception from the common facilitative practice, some evaluative and transformative approaches can occur. Also, according to Section 27(1) of the Romanian Mediation Act, ‘each mediator shall have the right to use his/her own model to organise the mediation procedure, by observing the dispositions and principles stated in this Law’. In addition, according to Section 55 of the Romanian Mediation Act, ‘If the conflict subject to mediation presents difficult or controversial legal aspects or aspects related to any other specialised fields, the mediator may, based on the consent of the involved parties, ask for the opinion/standpoint of an external specialist in the respective field. When asking for the standpoint of an external specialist, the mediator shall present only the controversial issues, without revealing the identity of the parties.’ f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/(Evaluative/Transformative). See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative/Transformative). See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/(Evaluative/Transformative). See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used on demand and at the final stages of the process as a technique to move things forward. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. The predominant mediation process for commercial disputes is a mix of joint and separate sessions. The joint sessions are be usually used for the exchange of information, developing the agenda and identifying the positions, while the separate sessions (caucus)

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can be used for to explore needs and for interest identification or as a tool to break impasses. However, the process is customised according to the mediator’s style and model of mediation, and also to each specific case and its parties. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. According to the Romanian Mediation Act, mediators are authorised in Romania by the Mediation Council. According to the Section 7 from the Romanian Mediation Act, a mediator can be any individual who meets the following requirements: a) has legal competence (is a major and has the ability to enter into legally binding contracts); b) has a university education; c) has at least 3 years of work experience; d) is medically able to perform this activity; e) enjoys a good reputation and has not been convicted for an offence that is likely to affect the prestige of the mediator profession; f) has passed a mediator training courses, as provided by the law, or a relevant master degree level post-university programme, accredited in accordance with the law and approved by the Mediation Council; g) has been authorised as a mediator, under the conditions stated in the law. Also, the individuals meeting all the requirements stated under Section 7 must be authorised by the Mediation Council, after payment of the authorisation fee (approx. € 200). The Mediation Council is not a public authority and its members are elected by and from among authorised mediators for four year mandates. The Mediation Council also accredits trainers and training providers according to the training standard approved by the first Mediation Council in 2007. The Mediation Council is not involved in the certification of mediators. b. Set by market (private certifying bodies) Yes. While mediation activity is expanding both quantitatively and qualitatively within an open market that is currently under development, there are some organisations interested and concerned about developing criteria for the certification of experienced mediators. c. Set by public regulation Yes. The Romanian Mediation Act (Act No. 192/2006, modified in 2009 and 2012, regarding mediation and the mediator profession) is complying with the Directive on Mediation 2008/52 and is setting the stage and the minimal quality standard for the profession at the national level. However, there are several service providers and mediator associations in Romania. According to Section 24 of the Romanian Mediation Act, all mediators must be a member of a professional association aiming to represent the professional interests of mediators and to protect their statute. The Mediation Council is responsible for updating the list of professional associations of mediators. d. Number of hours for basic mediator training 80 hours. The mediator training programmes proposed by training providers must last at least 80 hours and must cover the contents recommended in the Mediator Training Standard approved by the Mediation Council’s decision No.12 on taken on 7 September 2007 and published in the Romanian Official Journal No. 713 on 22 October 2007.

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There are several training providers that offer mediation training services and development support. They are competing above the standard approved by the council. e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. Twenty CPD hours are required for authorised mediators. The Mediation Council accredits CPD events. Any organisation can organise CPD events and can consider additional criteria like peer review, feedback review, publications or academic and research activities. f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) Yes. See 4.1.a. g. Accreditation through written exam Yes. All basic training programmes must include an assessment that includes a written exam and an interview according to the training standard. Each assessment must involve assessors that are independent from the training provider. h. Accreditation through performance-based assessment Yes. See 4.1.g. The interview part of the assessment is meant to assess the candidate’s abilities and competencies.

RO

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official system to certify or accredit mediation advocates. However, more universities and bar associations are showing interest in developing competencies systems in relation to assistance or representation in the mediation process. j. Set by market (private certifying bodies) Yes. All initiatives are private; there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. See 4.1.a. b. Set by public regulation Yes. See 4.1.a. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Although there is compatibility between lawyers and mediation activities, any person with a university degree can be authorised as a mediator, regardless of his/her specialisation. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

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321

EU Directive

a. EU Directive implemented for cross-border cases only No. The EU Directive dispositions that were implemented in Romanian law apply to both national and cross-border mediations, and civil and commercial cases. Act No. 192/2006 concerning mediation and the organisation of the mediator profession does not include reference to cross-border litigations. But, as litigations with an alien status in the field of law enactment are not exempt under Section 2(4), we appreciate that the lawmaker intended that the provisions included in this law should apply to all litigations, whether they are cross-border or not. In this regard, there are also noticeable provisions in Section 8 of the Act which stipulate the conditions under which citizens of the EU, the European Economic Area or the Swiss Confederation as well as the ones of third party states have access to the mediator profession in Romania, a fact that supports the idea of mediation being applicable for cross-border litigation. So, there is no difference in Romanian legislation between mediation in cross-border disputes and in national cases. b. EU Directive implemented for all national and cross-border commercial cases Yes. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.a.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2006. The Romanian Mediation Act, in its first version, was adopted in May 2006 as Act No. 192/2006 Regarding Mediation and the Mediator Profession. The source of Romanian legislation regarding mediation was the European Union legislation that was effective at that time. In the presentation of the arguments to enact the Mediation Act, the Romanian Ministry of Justice indicated as the single source of the proposal the European Union legislation, namely Recommendation Rec (2002)10 of the Committee of Ministers to Member States on mediation in civil matters; Recommendation R (98)1 of the Committee of Ministers to Member States on family mediation; Recommendation No. R (99) 19 of the Committee of Ministers to Member States concerning mediation in penal matters. Another source of the Romanian Mediation Act was the European Code of Conduct for Mediators and the project of the Directive 2008/52/CE of the European Parliament and of the Council regarding certain issues of mediation in civil and commercial matter. b. Legislation updated since EU mediation directive (date update) 2013. Act No.192/2006 on mediation and organisation of the mediator profession was amended by Act No. 370/2009, by Emergency Ordinance No. 13/29.01.2010 for changing and completing some normative documents in the legal field in order to transpose Directive 2006/123/CE of the European Parliament and the Committee on 12 December 2006 regarding the services within the domestic market, by Act No. 202/2010 regarding some measures to accelerate lawsuit settlement, by Act No. 115/2012 for the modification and completion of No.Act No. 192/2006 on mediation and the organisation of the mediator profession, by Government Emergency Ordinance No. 90/2012 for the modification and completion of Act No. 192/2006 on mediation and organisation of the mediator profession and for the

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modification of Section II from Act No. 115/2012 for the modification and completion of the Act No. 192/2006 on mediation and organisation of the mediator profession and by Government Emergency Ordinance No. 4/2013 for the modification of the Act No. 76/2012 regarding the Code of Civil Procedure and for the modification and completion of some related laws.

8.

Bodies providing mediation

RO

a. Mediation bodies may have various legal forms (Yes). According to the Section 22 of the Romanian Mediation Act, ‘(1) The mediators shall carry out their activity within a professional civil entity, within an office where two or more authorised mediators can work together as associates and ancillary staff as required, or within a non-governmental organisation, provided that all legal provisions are observed. (2) The mediator or the associated mediators, holders of an office, can hire translators, jurists or other specialised personnel, as well as administrative and auxiliary staff as needed for the mediation activity. (3) In performing their profession, the authorised mediators can be hired on individual labour contract basis but only under the forms stated under Section 22 paragraph (1).’ All the abovementioned forms are the only possible structures for service providers; they can be established by mediators and must be authorised by the Council that holds the list nationally. In performing its duties, if the Council applies suspension sanctions to mediators, their service providers will be also suspended. b. Individuals may be providers of mediation services (No). A mediator can work within a single mediator office. c. Mediation provider qualifications/requirements determined by public regulation Yes. See 8.a.

9.1. Mediator fees a. Freely contracted (Yes). Mediators have the right to receive a fee, decided by negotiation with the parties, as well as to receive reimbursement of the expenses incurred in the mediation process. The fee must be a reasonable amount and should consider the nature and the subject of the conflict/ dispute. a. Fixed in some cases by public regulation (No). b. Average mediator fee per hour for commercial or cross-border cases €100-1,000 per day (estimate). Hourly fees are not common practice in Romania. Most mediators will set an overall fee for the case or a fee for each day/½ day of mediation (€1001000). c. Average mediator fee per hour in civil cases €100-1,000 per day (estimate). See 9.1.c.

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9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid for mediation is regulated by OUG (Government Emergency Ordinance) No. 51/2008 on Legal Aid in Civil Matters. Mediator fees are subject to legal aid only if the interested party participated in a mediation procedure before filing the case with the court or if the mediation was initiated before the first hearing in the court. f. Mediator fees covered by legal insurance schemes No. There are no legal insurance schemes in place yet. g. Mediator fees subsidised in court-connected schemes No. See 1.c.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (Yes). In Romania, mediation is only available in private practice. Therefore, public authorities, including the courts, cannot offer mediation services. Therefore judges cannot act as mediators. Generally speaking, judges do not have the opportunity to communicate directly with mediators. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Modifications to the Mediation Act through Act No. 202/2010 regarding some measures to accelerate lawsuit settlement recognised mediation as an alternative dispute resolution method in the Romanian Code of Civil Procedure and also in the Romanian Code of Penal Procedure. c. Mediation procedure has impact on statute of limitations Yes. As a rule, according to Section 2532 point 6 of the Romanian Civil Code, the prescription period does not start when mediation is initiated and, if it has already started, it is suspended for the whole duration of negotiations for the purpose of settling the misunderstandings between the parties in an amicable way. However, the negotiations have to be finished at least 6 months before the expiration of the prescription period. It is an exception, regulated in point 7 of the same Section 2532, for cases in which the person entitled to act must or could, according to law or contract, use a certain prior procedure, the prescription period does not start and, if it has already started, it is suspended as long as this person did not know or could not have known the result of that procedure, but not for more than 3 months from the opening of the procedure, if another term is not established by law or contract.

11. Mediated settlement a. Contract Yes. The agreement has the power of a written document under private signature. So it is a non-binding document.

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b. Automatically enforceable No. See 11.a. c. Enforceable under some circumstances which are up to the parties Yes. From 1 October 2012, Act No. 115/2012 for the modification and completion of Act No. 192/2006 on mediation and the organisation of the mediator profession came into force. According to Section 59, the parties’ settlement agreement can be submitted for notarising by a notary or the parties can bring their agreement to the court even if they do not have a pending case, to be approved by the court, under the requirements provided for in the New Code of Civil Procedure (in force from 15 February 2013). This resolution makes mediation agreements enforceable. d. Enforceable under some circumstances defined by public regulation Yes. Notarising of the mediation agreement by a notary or going to a court of law is required in certain situations. If the mediated litigation aims at the transfer of private property rights regarding immovable goods or whenever the law requires under the nullity penalty (as in case of grants if the act of donating is not valid if it is not made by a notary) the fulfilment of substance and form requirements, parties are obliged to have the agreement drafted by the mediator, notarised by a notary or submit it to a court of law.

RO

12. Confidentiality a. Regulated by law Yes. The obligation to keep the confidentiality of information disclosed during mediation and with regard to documents drafted during mediation, even after the mediator is no longer involved with the case, is also provided for by Act No. 192/2006,9 as well as by the mediator Code of Ethics and Professional Deontology. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. All support provided during mediation to parties with a conflict/dispute has a confidential character and cannot be used as evidence for judicial and arbitral procedures, except if parties agree otherwise or the law states the contrary. As far as the possibility of hearing the mediator as a witness is concerned, the provisions of Act No. 192/2006 stipulate that a mediator cannot be heard as a witness in connection with the deeds or instruments disclosed during the mediation procedure. In criminal cases, the mediator may be heard as a witness only if he or she has the prior, express and written agreement of the parties and, if applicable, of the other interested parties. A witness’s capacity is primary compared to the one of a mediator with regard to the facts and circumstances that he or she knew before acting as a mediator in that particular case. An exception to the parties’ obligation to uphold confidentiality is provided for in Chapter VI ‘Special provisions regarding mediation of some litigations’, respectively in Section I ‘Special provisions regarding family cases’ where, in Section 66(2), whichstipulates that, if during mediation, the mediator becomes aware of facts that jeopardise the normal growth or development of a child or severely affect its best interests, the mediator is bound to notify the relevant authority.

9 Section 32 of the Romanian Mediation Act No. 192/2006 on mediation and organising the mediation profession.

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13. Education a. Mediation education is a common component of legal education curriculum (No). Mediation courses are offered at several universities, but it is not seen as a common component of the legal curriculum. b. Mediation advocacy education is a common component of legal education curriculum No. See 4.2.i.

14. Most relevant literature or references, case law, articles, law In 2011, a document was published in Romania on a selection of cases solved by mediation that included around 100 cases on a range of legal matters: civil, commercial, family, administrative and labour cases. The selection was made by the judges of GEMME-Romanian Section. In 2012, the second edition of this book was published.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://cmediere.ro/legislatie/7/ b. Weblink to English or other translation –– http://cmediere.ro/legislatie/7/ c. Other references –– http://www.mediere.ro/ –– http://www.gemme.eu/nation/romania

16. Country specific remarks According to the Sections 2 and 601 of Act No. 115/2012 for the modification and completion of Act No. 192/2006 on mediation and the organisation of the mediator profession, it is mandatory for the parties to go to a mediator for an information session of about mediation in cases involving consumer protection, family matters, problems between neighbours, labour cases, malpractice cases, civil cases with a value under RON 50,000 and some penal cases only if the victim agrees to it. This disposition will came into force on 1 August 2013, except for the disposition for penal cases, which entered into force when the New Romanian Code of Penal Procedure entered into force on 1 January 2014. An important point for the Romanian Mediation Act is related to the possibility of reimbursement of judicial fees. If the conflict/dispute is settled by mediation, the court will, at the request of the parties, issue a decision in accordance with the provisions of the Romanian Civil Procedure Code. At the same time as the decision is issued, the Court of First Instance will dispose, at the request of the interested party, a reimbursement of the judicial stamp charges paid to the court to deal with the case.10 This incentive is very important for the implementation of mediation activities within the Romanian judiciary. 10 Section 63 of the Romanian Mediation Act no192/2006 on mediation andorganising the mediation profession.

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The abovementioned Act No. 115/2012, in force from 1 October 2012, provides for an exception to this rule: stamp duty will not be reimbursed in cases involving the transfer of property rights that constitute another real right to immovable property, in partition cases and in succession cases. This rule was changed by Act No. 76/2012 (in force from 15 February 2013) as follows: stamp duty will not be reimbursed in cases involving the transfer of property rights and/or it constitutes another real right to immovable property. Mediation definition Section 1 of the Romanian Mediation Act No. 192/ 2006 regarding mediation and the organisation of the mediation profession defines mediation as follows:

RO

English: ‘Section 1 (1) Mediation represents an amicable settlement modality of conflicts/disputes, with the support of a third person specialised as a mediator, under neutrality, impartiality and confidentiality conditions and based on the free consent of the involved parties. (2) Mediation is based on the trust parties invest in the mediator as the person capable of facilitating negotiations among them and to support them for conflict resolution purposes, by mutually reaching a convenient, efficient and sustainable solution.’ Romanian: ‘Section 1 (1) Medierea reprezintă o modalitate de soluţionare a conflictelor pe cale amiabilă, cu ajutorul unei terţe persoane specialisate în calitate de mediator, în condiţii de neutralitate, imparţialitate, confidenţialitate şi având liberul consimţământ al părţilor. (2) Medierea se bazează pe încrederea pe care părţile o acordă mediatorului, ca persoană aptă să faciliteze negocierile dintre ele şi să le sprijine pentru soluţionarea conflictului, prin obţinerea unei soluţii reciproc convenabile, eficiente şi durabile.’

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Mediation regulation and approach Country: Romania Prepared by Sanda Elena Lungu, Constantin-Adi Gavrilla 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible

(Yes) No Yes

d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause

No No No No Yes

b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

No

No Yes

No (Yes) Yes No No F/(E/T) F/(E/T) F/(E/T) F/(E/T) All Mix Mix Yes Yes Yes 80 hrs Yes Yes Yes Yes

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Mediation regulation and approach Country: Romania Prepared by Sanda Elena Lungu, Constantin-Adi Gavrilla 4.2. Mediation advocacy accreditation 5. Who can be mediator?

RO

6. EU directive

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

7. Mediation legislation (besides Directive) 8. Bodies providing a. Mediation bodies may have various legal forms mediation b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No Yes No No No Yes Yes 2006 2013 (Yes) (No) Yes (Yes) (No) €100-1.000 a day (est.) €100-1.000 a day (est.) Yes No No (Yes)

Yes Yes Yes No Yes Yes Yes Yes (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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24. SLOVAKIA 1 Prepared by Martin Magál2 – Nora Šajbidor 3

1.

Attempt to mediate

a. Always voluntary Yes. Mediation is a voluntary dispute resolution process. The process can only begin if the parties and the mediator enter into a written agreement on mediation. b. Mandatory (in some cases) No. See 1.a. c. Court referral or court-connected mediation possible Yes. Under Section 99(1) of the Slovak Civil Procedure Code at any time during the court proceedings, the court may invite the parties to attempt settlement by means of mediation and may invite the parties to attend an informative meeting with a registered mediator. d. Court-ordered mediation possible No. The court may only advise the parties to mediate but cannot oblige them to do so. If the parties refuse to try mediation then the court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. The court cannot impose any sanctions if the parties refuse to try mediation. See 1.d. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. The parties and the mediator may decide on this in the agreement on mediation. See 1.a. i. Outside counsel presence mandatory No. See 1.h.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Under the Slovak Mediation Act, a mediation clause is not binding for the parties.

1 2 3

Last update of information: August 2013. Martin Magál is a partner in Allen & Overy Bratislava. Contact: [email protected]. Nora Šajbidor is a junior lawyer at Allen & Overy Bratislava. Contact: [email protected].

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b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). If there is a mediation clause, the court may be more inclined to request the parties to mediate. However, if the parties refuse mediation, the court proceedings will continue. At present there is no case law on enforcement of mediation clauses. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.b. and 2.a.

SK

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The commencement and termination of the mediation procedure are set out in Slovak Mediation Act No. 420/2004 Coll. As a first step, the parties and mediator enter into a written agreement on mediation which will set out the dispute to be resolved. The signatures of the parties on the mediation agreement must be notarised. Mediation begins when the agreement on mediation is filed with the Central Notary Register of Deeds. Mediation terminates: (i) if a mediated agreement is entered into by the parties; (ii) on the date of a written statement by the mediator that the mediation shall not continue; the statement is issued upon consultation with the parties; (iii) on the date when a written statement by a party to the mediation is received by the mediator informing the mediator that mediation is terminated; or (iv) on the date when a written statement by a party is received by the other party to the mediation and by the mediator informing them that mediation is terminated. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). The commencement and termination of mediation is prescribed by the Slovak Mediation Act. See 3.a. However, the way mediation is conducted is determined by agreement between the mediator and the parties. c. Mediator can offer a non-binding opinion Yes. The mediator can offer advice or an opinion on request of the parties. d. Mediator can offer a binding opinion (Yes). However, the mediator’s advice only becomes binding if the parties agree to include it in the mediated agreement. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) NA. In Slovakia mediation is not common in commercial disputes, therefore it is not possible to determine the predominant mediation style regarding substance. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. According to the Mediator Code of Conduct published by the Slovak Chamber of Mediators (the biggest association of mediators) the mediator only manages the process leading to a mediated agreement and does not make decisions. The mediator’s role is to create a positive atmosphere and a climate of mutual trust. The mediator should consider carefully any intervention in the mediation process.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. According to the Mediator Code of Conduct published by the Slovak Chamber of Mediators, the mediator is supposed to encourage the parties to take responsibility for the dispute’s resolution. If neither of the parties assumes the task of preparing a draft of the mediated agreement, the mediator may provide the draft. d. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Facilitative. According to the Mediator Code of Conduct published by the Slovak Chamber of Mediators, the mediator only manages the process which should lead to a mediated agreement and does not make decisions. The mediator’s role is to create a positive atmosphere and a climate of mutual trust. The mediator should consider carefully any intervention in the mediation process. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) NA. There is not enough practical experience to determine the predominant mediation process for commercial disputes. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. The mediator may meet jointly with both parties or with each party separately. When meeting separately with the parties, the mediator may communicate information received from a party only with the consent of this party.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Under the Slovak Mediation Act, a mediator must be registered with the Ministry of Justice of the Slovak Republic (hereinafter the Ministry). The Ministry will register a person as a mediator if he/she fulfils the requirements set by the Slovak Mediation Act, which includes the successful completion of a mediator training course. The training course covers the following areas: introduction to the Slovak legal system, interpersonal communication, conflict resolution (including psychological aspects) and rules of conduct. The training is completed with an exam at an accredited institution (a mediation educational institution) or with a verification of knowledge and skills at the Ministry. The Ministry keeps a register of mediation educational institutions. b. Set by market (private certifying bodies) No. See 4.1.a. c. Set by public regulation Yes. See 4.1.a. d. Number of hours for basic mediator training 100 hours. This number of hours is set by the Slovak Mediation Act. There is an exception for law graduates (bachelor degree is the minimal requirement) for whom the mediator training course must not be longer than 3 successive days and does not include training on Slovak law.

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e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. Under the Slovak Mediation Act, the Ministry organises, a mediation seminar every two years, in cooperation with a mediation educational institution. If a registered mediator does not attend at least two seminars in the period of 5 years, the Ministry may order that the mediator undergoes a verifications of skills and knowledge. The mediator will have two attempts to pass this verification. If the mediator fails both attempts the Ministry will remove the mediator from the mediators register. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. See 4.1.a. g. Accreditation through written exam Yes. See 4.1.a. h. Accreditation through performance-based assessment No. See 4.1.a.

4.2. Mediation advocacy accreditation

SK

i. Accreditation/certification or recognition of mediation advocates (No). There is no official scheme to accredit/certify or recognise mediation advocates. j. Set by market (private certifying bodies) No. k. Set by public regulation No. There is no regulation governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. See 5.b. b. Set by public regulation Yes. The Slovak Mediation Act sets out the following requirements for a mediator: (i) full legal capacity; (ii) university education (stage 2 degree/Master’s degree); (iii) no criminal record for wilful offences; and (iv) successful completion of a mediator training course. Only a candidate who fulfils all of the mentioned requirements will be registered in the mediators register kept by the Ministry. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Anyone who fulfils the conditions set out in 5.b. can become a domestic mediator. However, lawyers need less training than mediators with another background, see 4.1.d.

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d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Anyone who fulfils the conditions set out in 5.b. can become a mediator in cross-border disputes. However, lawyers need less training than mediators with another background, see 4.1.d.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The Slovak Mediation Act implementing the EU Directive regulates mediation both in national and cross-border cases. b. EU Directive implemented for all national and cross-border commercial cases Yes. The Slovak Mediation Act is applicable to all national and cross-border commercial cases. c. EU Directive implemented for all national and cross-border civil cases Yes. The Slovak Mediation Act is applicable to all national and cross-border civil cases.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2004. The Slovak Mediation Act, i.e., Act No. 420/2004 Coll. on mediation and amendment of certain Acts, entered into force on 1 September 2004. b. Legislation updated since EU mediation directive (date update) 2010. The Slovak Mediation Act was updated on account of the EU Directive implementation, the update being effective from 1 July 2010.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Mediation bodies, which are called ‘mediation centres’ under the Slovak Mediation Act, can have various legal forms. Most commonly mediation centres are limited liability companies or are established without legal personality. A few centres are founded as civil associations (e.g., Mediačno – konzultačné centrum SOVA). b. Individuals may be providers of mediation services Yes. Both legal and natural persons may provide mediation and both may establish a mediation centre. c. Mediation provider qualifications/requirements determined by public regulation No. The Slovak Mediation Act does not regulate the structure of mediation centres. Nevertheless, the Slovak Mediation Act obliges mediation centres to publish their statutes, which must also set out the structure of the mediation centre.

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9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. In case mediation is provided as legal aid to persons in material need the mediator fee is set by the Decree of the Ministry No. 337/2011 Coll.

SK

c. Average mediator fee per hour for commercial or cross-border cases € 67-134. The Slovak Chamber of Mediators recommends the following fees for its members in commercial cases: In disputes which do not concern assets the recommended fee per hour is (i) € 67 for natural persons and (ii) € 134 for legal persons. In asset disputes the fee is not set as an hourly fee but as a percentage of the value of the dispute as follows: (i) if the value of the dispute is in the range of € 3,320 to € 6,640 the fee is 10% of the a value; (ii) if the value of the dispute is in the range of € 6,641 to € 16,600 the fee is 7% of the value; (ii) if the value of the dispute is in the range of € 16,601 to € 33,200 the fee is 5% of the value; (iv) if the value of the dispute is in the range of € 33,201 to € 66,400 the fee is 2% of the value; (v) if the value of the dispute exceeds € 66,401 the fee is 1% of the value. d. Average mediator fee per hour in civil cases € 20-100. The Slovak Chamber of Mediators recommends the following fees for its members: In disputes which do not concern assets (e.g., family and neighbourhood disputes, marital disputes) the recommended fee per hour is € 20. In asset disputes the recommended hourly fee as follows: (i) € 67 if the value of the dispute does not exceed € 1 600 or the value is unknown; or (ii) € 100 if the value of the dispute exceeds € 1 601. If mediation is provided as legal aid to persons in material need the mediator fee is set by the Decree of the Ministry No. 337/2011 Coll. as follows: (i) € 20 if the parties and the mediator enter into an agreement on mediation; (ii) € 50 if the parties attend at least three meetings with the mediator; and (iii) € 100 if mediation ends in an agreement of the parties.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid for mediation is available under the same conditions as legal aid for other legal services and is regulated by Act No. 327/2005 Coll. on providing legal aid to persons in material need. f. Mediator fees covered by legal insurance schemes Yes. Insurance companies generally cover mediator fees in their insurance schemes. It should, however, be noted that insurance covering solely legal risk is rather limited in Slovakia and therefore it is usually subsumed in larger insurance schemes (such as travel insurance or car insurance) where legal services cover out-of-court dispute resolution in general.

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g. Mediator fees subsidised in court-connected schemes No. Nevertheless, if mediation takes place after court proceedings have commenced and the court fee has been paid, the court will reimburse part of the court fee: 90% of the court fee if mediation terminates with a court settlement before the first court hearing and 50% of the court fee if mediation terminates with a court settlement after the first court hearing.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from courtconnected referrals or court- mediation schemes? No. The judges may however, advise the parties to court proceeding to try mediation at any stage of the proceedings. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. The Slovak Mediation Act defines mediation as an out-of-court activity by which the concerned parties attempt to resolve a dispute which arose from their contractual relationship or other legal relationship with the assistance of a mediator. The Slovak Mediation Act also sets out the criteria for becoming a mediator and basic traits of mediation procedure. c. Mediation procedure has impact on statute of limitations Yes. The running of an applicable statute of limitations is suspended during the mediation procedure. The suspension commences on the date the agreement on mediation is filed with the central notary register of deeds and ends on the date the mediation is terminated. For information on mediation termination please see 3.a.

11. Mediated settlement a. Contract Yes. Under the Slovak Mediation Act a mediated settlement is qualified as a binding written agreement between the parties. b. Automatically enforceable No. The mediated agreement itself is not an enforceable title. c. Enforceable under some circumstances which are up to the parties Yes. Parties have a number of options to make the mediated agreement enforceable: (i) ask a notary to draft the mediated agreement in the form of a notarial deed; (ii) ask the court to approve the mediated agreement as a court settlement in court proceedings; or (iii) ask an arbitration body to approve the mediated agreement as an arbitration judgment in arbitration proceedings. However, the law sets conditions on the mediated agreement, which must be fulfilled in order for the court and arbitration body to approve the mediated agreement – see 11.d. d. Enforceable under some circumstances defined by public regulation Yes. Approval of the mediated agreement by the court or by an arbitration body as set out in 11.c. is not automatic. The court will refuse the mediated agreement if it is contrary to law.

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The arbitration body will refuse to issue an arbitration judgment if the mediated agreement is contrary to law or bonos mores or if performance under the judgment would be impossible.

12. Confidentiality a. Regulated by law Yes. Under the Slovak Mediation Act the mediator, parties to the mediation and all natural persons invited to the mediation by the mediator or by the participating parties are obliged to keep confidential all information which is made available to them in connection with the mediation, unless agreed otherwise. However, in cases involving actions for damages against the mediator, whether in the form of court proceedings, arbitration proceedings or other similar proceedings, the mediator is not bound by the confidentiality obligation to the extent that is necessary for the assessment of the mediator’s breach of obligations. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. Under the Slovak Mediation Act mediators do not have the right to refuse to give evidence in court proceedings or arbitration.

SK

13. Education a. Mediation education is a common component of legal education curriculum (No). Some universities offer mediation modules, however, they are not considered a common component of the legal curriculum. b. Mediation advocacy education is a common component of legal education curriculum (No). Mediation advocacy courses are offered at mediation educational institutions but do not constitute a common component of the legal education.

14. Most relevant literature or references, case law, articles, law –– Mgr. Lenka Marušicová and Mgr. Ing. Erika Klincková, A study on means of alternative dispute resolution (in Slovak), February 2012: http://www.nadsme.sk/files/Studia-Alternat__vne_ sposoby_riesenia_sporov-fin_0.pdf –– Slavka Michancova and Renata Dolanska, Collection of contributions from the conference ‘Present and future of probation and mediation’ (in Slovak), 2010: http://mediacnecentrum. com/wp-content/uploads/2012/05/Sucasnost_a_perspektivy_probacie_a_mediacie.pdf

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.zakonypreludi.sk/zz/2004-420/znenie-20120101#f6244673 b. Weblink to English or other translation No.

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c. Other references NA.

16. Country specific remarks In Slovakia, mediation has been regulated since 1 September 2004 by Act No. 420/2004 Coll. on mediation and amendment of certain Acts, as amended. The Ministry of Justice of the Slovak Republic keeps a register of mediators, mediation centres and mediation educational institutions. As of 20 November 2012 there were 672 mediators, 33 mediation centres and 20  mediation educational institutions registered in Slovakia. There is no official statutory body, however, the Slovak Chamber of Mediators (Slovenská komora mediátorov) as the biggest association of mediator groups, has 108 mediators. Mediation definition Section 2 of Act No. 420/2004 Coll. on Mediation and Amendment of Certain Acts, as amended . Slovak language ‘Mediácia je mimosúdna činnosť, pri ktorej osoby zúčastnené na mediácii pomocou mediátora riešia spor, ktorý vznikol z ich zmluvného vzťahu alebo iného právneho vzťahu. Na účely tohto zákona je osoba zúčastnená na mediácii, fyzická osoba alebo právnická osoba, ktorá je v spore týkajúcom sa zmluvného vzťahu alebo iného právneho vzťahu s inou fyzickou osobou alebo právnickou osobou.’ English translation: ‘Mediation is an out-of-court activity whereby parties participating in mediation attempt to resolve a dispute which arose from their contractual relationship or other legal relationship with the assistance of a mediator. For the purpose of this Act, a party participating in mediation is a natural or a legal person who is in a dispute relating to its contractual relationship or other legal relationship with another natural or legal person.’ Act No. 420/2004 Coll. on Mediation and Amendment of Certain Acts, as amended (the Slovak Mediation Act) does not provide a definition for ‘mediator’ like it does for ’mediation’. However, the  Slovak Mediation Act  sets out who can be a mediator under the Slovak Mediation Act as follows: ‘Any natural person registered in the register of mediators, upon whom the parties participating in mediation agree and with whom they enter into a written agreement on mediation can be a mediator under this Act.’ The Slovak Mediation Act also sets out the requirements which must be fulfilled for registration in the register of mediators. See 5.b.

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Mediation regulation and approach Country: Slovakia Prepared by Martin Magál, Nora Šajbidor 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion

Yes No Yes No No No No Yes

e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

NA

2. Mediation clause

SK

3. Mediation procedure

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No Yes (Yes) No (Yes) (Yes) Yes (Yes)

F F F NA NA Mix Yes No Yes 100 hrs Yes Yes Yes No (No) No No

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Mediation regulation and approach Country: Slovakia Prepared by Martin Magál, Nora Šajbidor 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No No Yes Yes 2004 2010 Yes Yes No Yes Yes €67-134 €20-100 Yes Yes No No

Yes Yes Yes No Yes Yes Yes No (No) (No)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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25. SLOVENIA 1 Prepared by Bojana Jovin Hrastnik 2

1.

Attempt to mediate

a. Always voluntary Yes. In general, mediation may start on the basis of an agreement between the parties (whether reached before or after a dispute has arisen), as well as on the basis of the law or a direction or recommendation by a court, arbitral tribunal or competent government entity (Section 1(3) of the Mediation in Civil and Commercial Matters Act (the Mediation Act)). In practice, mediation is always voluntary. So far, it has not been determined (by any legislative act) as a precondition for any type of court proceedings. Furthermore, the court may refer the parties to mediation, but the parties may reject it and mediation will not start in that case (see 1.d.).

SI

b. Mandatory (in some cases) No. See 1.a. and d. c. Court referral or court-connected mediation possible Yes. Under the Act on Alternative Dispute Resolution in Judicial Matters (The Act on ADR in Judicial Matters), all first instance courts and all courts of appeal have to offer mediation services to parties in civil, commercial, family and labour disputes. On the basis of this Act, the 59 courts of first instance had to adopt mediation programmes before 15 June 2010, and the 5 courts of second instance had to adopt such programmes before 15 June 2012. d. Court-ordered mediation possible (Yes). If it is suitable, given the circumstances of the case and on the basis of consultation with the parties who have participated in the information session on mediation, the court may decide to suspend the court proceedings for no longer than three months and refer the parties to mediation provided by the court. However, each party may submit an objection against the court’s decision on the referral. In such cases, the court quashes its decision on the referral and court proceedings continue (Section 19(1) to (4) of the Act on ADR in Judicial Matters). e. Sanctions by the court if mediation is not tried (in good faith) Yes. Regardless of the result of the judicial proceedings, the court may, at the request of the other party, order the party that has submitted a clearly unreasonable objection to the mediation referral to reimburse the other party for all or part of the expenses required for the judicial proceedings and that arose from the clearly unreasonable objection. In deciding whether the objection to the referral to mediation was clearly unreasonable, the circumstances of each case are taken into account, especially the following: the nature of the dispute, decisive factors in the dispute, whether or not the parties strived to settle the 1 Last update of information: April 2013. 2 Bojana Jovin Hrastnik has been a lawyer since 2012 working as a state attorney in the European Law Department of the State Attorney’s Office of the Republic of Slovenia. Contact: [email protected].

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dispute in a amicably through negotiations, the costs that would arise from mediation, the possibility that a three-month suspension of the procedure under mediation could affect the result of the trial, the probability of a successful dispute settlement through mediation (Section 19(5) to (6) of the Act on ADR in Judicial Matters). f. Sanctions by law if mediation is not tried (in good faith) Yes. See 1.e. g. Incentives if mediation is tried voluntarily before going to court No. However, there are certain incentives under the Act on ADR in Judicial Matters if mediation is tried during the court proceedings. Parties in court proceedings may attend an information session on mediation. In court-annexed mediation programmes, parties in family disputes concerning relations between parents and children, and parties in labour disputes concerning termination of an employment contract do not pay the mediator’s fee and travel expenses. In these cases, the fee and expenses are paid by the court. In other disputes, except commercial disputes, the court bears the mediator’s fee and the expenses relating to the first three hours of mediation. h. Outside counsel presence/representation during mediation sessions allowed Yes. The Act on ADR in Judicial Matters expressly allows the presence of the outside counsel during sessions in court-annexed mediation (Section 16((4) of the Act on ADR in Judicial Matters). This question is not dealt with by the law with respect to out-of-court mediation. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). If parties agree to mediation, they may also agree not to initiate arbitral or judicial proceedings with respect to an existing or future dispute until the expiry of a certain period of time or until a specified event has occurred. In such cases, the arbitral tribunal or the court must, if the defendant objects, dismiss the action, unless the plaintiff demonstrates that otherwise harmful and irreparable consequences will occur. The defendant must submit this objection in the defence plea at the latest. The court must also dismiss an action if obligatory mediation proceedings are prescribed by law (however, so far, mediation has not been determined (by any legislative act) as a precondition for any type of court proceedings – see 1.a.). Initiation of arbitral or judicial proceedings is not of itself regarded as a waiver of the agreement to mediate or as the termination of mediation proceedings (Section 16 of the Mediation Act). b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). See 2.a. If the defendant does not object to the initiation of arbitral or judicial proceedings, the case is admissible in court or before the arbitral tribunal despite the mediation clause.

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3.

The Variegated Landscape of Mediation

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). Described in law: yes – to a certain extent; rigid: No. The Mediation Act contains only basic principles and rules on mediation. All the rest is left to self-regulative mechanisms.

SI

b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). Parties may agree on the manner in which mediation is to be conducted. Failing such an agreement between the parties, the mediator conducts the proceedings as he or she sees fit. In so doing, he or she shall consider all the circumstances of the case, any wishes the parties may express, and the need for a speedy and permanent settlement of the dispute. In any case, in conducting the proceedings, the mediator must act independently and impartially and make every effort to treat the parties equally, taking into account all circumstances of the case (Section 8(1) to (3) of the Mediation Act). Except for application of the provisions on the interpretation of the Mediation Act, on the independence and the impartiality of the mediator and on the effect of mediation on limitation and prescription periods, parties may reach a different agreement about issues regulated by the Mediation Act or exclude the application of an individual provision of the Mediation Act (Section 5 of the Mediation Act). c. Mediator can offer a non-binding opinion Yes. The mediator may, at any stage of the mediation proceedings, make proposals for the settlement of the dispute. The settlement of the dispute as proposed by the mediator is not binding upon the parties (Section 8,(4) of the Mediation Act). d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) All. It depends on the parties, the mediator and the circumstances of the case.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) All. It depends on the parties, the mediator and the circumstances of the case.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). under the Mediation Act, a mediator is any third person who accepts a request to mediate, irrespective of the person’s title or profession, and irrespective of the manner in which the person has been appointed or approached (Section 3(1)(b) of the Mediation Act). For out-of-court mediation, the question of who can be a mediator is a matter for the free market. Contrary to that, court-annexed mediation may only be conducted by mediators who are registered on the court list. The Act on ADR in Judicial Matters determines the criteria for a mediator to be listed on the court lists. Any person who meets the following criteria may be listed: he/she has the capacity to enter into a contract; he/she has not been convicted by final judgement for a deliberate criminal offence in an ex officio prosecution; he/she has at least the first level of tertiary education and finally, he/she has undergone mediation training according to the programme determined by the Minister of Justice (Section 8(1) of the Act on ADR in Judicial Matters). Besides that, in the area of healthcare, the rules on mediation determine the conditions under which one may become mediator in mediation schemes under the Patients Rights Act. b. Set by market (private certifying bodies) (Yes). For out-of-court mediation. See 4.1.a. c. Set by public regulation (Yes). For court-annexed mediation. See 4.1.a. d. Number of hours for basic mediator training 40-150 hours. 40 hours of basic mediator training for mediators in court-annexed mediation programmes. For out-of-court mediation, the Association of Mediation Organisations – MEDIOS recommends 100 hours of basic training (and 50 hours of further training). e. Mandatory Continuing Professional Development for accredited/certified mediators (Yes). For court-annexed mediation, mediators have to attend at least 2 days of further training per year. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (Yes). See 4.1.a. g. Accreditation through written exam No procedural rules on the exams exist. h. Accreditation through performance-based assessment No procedural rules on the exams exist.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. No accreditation/certification system exists for mediation advocates.

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j. Set by market (private certifying bodies) No. See 4.1.i. k. Set by public regulation No. See 4.1.i.

5. Who can be a mediator? a. Set by market (private certifying bodies) (Yes) – see 4.1.a. and 4.1.b. b. Set by public regulation (Yes) – see 4.1.a. and 4.1.b. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 5. a. and b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5 a. and b.

SI

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. See 6.b. b. EU Directive implemented for all national and cross-border commercial cases Yes. The Mediation Act 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 the same provisions to all mediation processes, cross-border and internal (Section 2(1) of the Mediation Act). The provisions of the Mediation Act apply to civil and commercial matters. Labour and family disputes are expressly mentioned as disputes, which are included in the scope (Section 2(1) of the Mediation Act). Furthermore, the provisions of the Mediation Act may 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. c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.b.

7.

Mediation legislation besides Directive

a. Mediation legislation since 2008. There has been mediation legislation since 2008. Before 2008, no general regulatory framework for mediation existed. However, from 2001 onwards, mediation did exist in practice, mainly as court-annexed mediation. The main legislative acts are the following: – The Mediation in Civil and Commercial Matters Act (the Mediation Act) was adopted on 23 May 2008, and has entered into force on 21 June 2008. It contains basic principles and

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rules on mediation procedure and, at the same time, it also transposes Directive 2008/52/ EC to Slovenian law. The Mediation Act applies to all mediation processes, cross-border and internal; it applies to civil and commercial matters and under certain conditions also to mediation in other disputes. – The Act on Alternative Dispute Resolution in Judicial Matters (The Act on ADR in Judicial Matters) was adopted on 19 November 2009, and entered into force on 15 December 2009. It applies from 15 June 2010. It contains certain 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 to parties in civil, commercial, family and labour disputes. – The Patients Rights Act was adopted on 29 January 2008, and entered into force on 26  February 2008. It applies from 26 August 2008. It 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. In addition to that, rules on mediation in the area of healthcare have been issued. These rules regulate the procedure of mediation. They also determine the conditions under which one may become a mediator in the area of healthcare and the control mechanisms concerning the provision of mediation services in this area. – The proposal for the new Family Act included a chapter on mediation in family matters. The intention was that the new Family Act would determine several specific rules on mediation procedures in the area of family matters. The Act was adopted by the National Assembly in June 2011, but then subsequently rejected in the legislative referendum in March 2012. A new proposal for the Family Act has not been presented, yet. b. Legislation updated since EU mediation directive (date update) 2012. The Mediation Act and the Act on ADR in Judicial Matters were both adopted in 2008, after the adoption of Directive 2008/52/EC. In May 2012, minor changes to the Act on ADR in Judicial Matters were adopted.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. Under the Mediation Act, a mediator is entitled to an award and reimbursement of reasonable costs unless otherwise agreed upon with the parties, or otherwise stipulated by the rules of the institution where mediation is conducted. Unless otherwise agreed upon by the parties, each party bears its own costs, while the overall costs of mediation is borne equally by all parties (Section 18 of the Mediation Act). For out-of-court mediation, mediator fees are freely contracted. For court-annexed mediation, see 9.1.b.

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b. Fixed in some cases by public regulation Yes. Mediator fees for court-annexed mediation are regulated by the rules on awards and the reimbursement of mediator travel expenses. c. Average mediator fee per hour for commercial or cross-border cases In court-annexed mediation: € 34-42 (the fee depends on the complexity of the case). If mediation is successful, the mediator gets an additional award of between € 70 and € 150 (the sum depends on the type of case). Fees and awards increase by 20% in mediation proceedings before the court of appeal. For out-of-court mediation: see 9.1.a. d. Average mediator fee per hour in civil cases In court-annexed mediation: € 34-42 (the fee depends on the complexity of the case). If mediation is successful, the mediator gets an additional award of between € 70 and € 150 (the sum depends on the type of case). Fees and awards increase by 20% in mediation proceedings before the court of appeal. For out-of-court mediation: see 9.1.a.

SI

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. The Free Legal Aid Act applies to all cases, cross-border and internal, and determines the scope of legal aid and the conditions for granting legal aid. The Act refers to all judicial proceedings as well as to alternative dispute resolution proceedings in the Republic of Slovenia. Legal aid may be granted for legal counselling, legal representation and other legal services; it may also be granted in relation to the costs of proceedings (Section 7(1) of the Free Legal Aid Act). f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes Yes. In certain cases: parties in family disputes concerning relations between parents and children, and parties in labour disputes concerning termination of an employment contract do not pay mediator fees and travel expenses. In these cases, the fee and expenses are paid by the court. In other disputes, except the commercial disputes, the court bears the mediator’s fees and expenses relating to the first three hours of mediation.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). A judge may act as a mediator, provided he or she is not competent for any of the court proceedings which refer to the dispute concerned (Section 2(4) of the Mediation Act). b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation is seen as a part of the legal system. The courts’ functions include providing mediation services to parties in court proceedings (see 1.c.).

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c. Mediation procedure has impact on statute of limitations Yes. The limitation period for a claim subject to mediation stops running during mediation. If mediation is terminated without a dispute settlement agreement, the limitation period continues to run from the moment the mediation proceedings are terminated. If a deadline for bringing an action is set by a special regulation in respect of a claim subject to mediation, this deadline will not expire earlier than 15 days after the termination of mediation (Sec­ tion 17 of the Mediation Act).

11. Mediated settlement a. Contract Yes. A mediated settlement is a civil-law contract. b. Automatically enforceable No. A mediated settlement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Parties may agree that the agreement will take the form of a directly enforceable notarial deed, a court settlement or an arbitral award based on the settlement (Section 14(2) of the Mediation Act). a. A court settlement: the court must, at all times, look for the possibility of a court settlement. Parties can conclude a court settlement at any stage during the proceedings (Section 306 of the CPA). Parties who conclude an agreement in mediation during the judicial proceedings can have the agreement immediately written down in the form of a court settlement. Furthermore, parties may also conclude a court settlement if an action has not been brought yet. Namely, the CPA stipulates that a person who intends to bring an action may try concluding a court settlement in a local court (Section 309 of the CPA). In such cases, the court invites the other party and presents the offered terms of settlement to that party. b. A directly enforceable notarial deed: a notarial deed is enforceable if 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; Section 4 of the Notary Act). c. An arbitral award based on the settlement: if parties reach a settlement, the arbitral tribunal terminates proceedings. Parties may demand that the settlement be written in the form of an arbitral award. The arbitral award rendered on the basis of the settlement has the same effect as any other arbitral award (Section 34 of the Arbitration Act (Zarbit)). Arbitral awards have the effect of final judgements (Section 38 of Zarbit). They may be enforced once they are declared enforceable by court (Section 41 of Zarbit). d. Enforceable under some circumstances defined by public regulation (No). See 11.c.

12. Confidentiality a. Regulated by law Yes. The Mediation Act deals with different aspects of confidentiality. Information received from one party may be disclosed by the 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 (Section 10 of the Mediation Act). All information originating from mediation or

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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 (Section 11 of the Mediation Act). The question of admissibility of evidence in other proceedings is dealt with in detail (Section 12 of the Mediation Act; – see 12.b.).

SI

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. The parties, mediators or third persons who have participated in mediation may not in arbitral, judicial or other similar proceedings rely on, introduce as evidence or give testimony regarding any of the following: a) an invitation by a party to engage in mediation proceedings or the fact that a party was willing to participate in mediation proceedings; b) views expressed or suggestions made by a party in mediation in respect of a possible settlement of the dispute; c) statements or admissions made by parties in the course of mediation; d) proposals made by the mediator; e) the fact that a party had indicated its willingness to accept the mediator’s proposal for amicable dispute settlement; and f) documents drawn up solely for purposes of mediation proceedings. This information may only be disclosed 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 a dispute; otherwise such information is treated as an inadmissible fact or evidence. This rule applies whether or not the arbitral, judicial or similar proceedings relate to the dispute that was or is the subject of mediation proceedings (Section 12 of the Mediation Act).

13. Education a. Mediation education is a common component of legal education No. However, mediation may be selected as an elective component of pre- and postgraduate studies. b. Mediation advocacy education is a common component of legal education No. See 13.a.

14. Most relevant literature or references, case law, articles, law Books: –– Betetto, N. et al. Mediacija v teoriji in praksi: veliki priročnik o mediaciji. Ljubljana: Društvo mediatorjev Slovenije, 2011. ISBN 978-961-269-498-2. –– Betetto, N. et al. Predlog bele knjige o mediaciji (online). Društvo mediatorjev Slovenije, 2008. (last accessed 3. March 2013). Available at: http://www.slo-med.si/62334/index.html –– Šetinc Tekavc, M. Mediacija – sporazumno reševanje sporov v teoriji in praksi. Tržič: Učila International, 2002. ISBN 961-223-488-9. –– Zalar, A et al. Zakon o alternativnem reševanju sodnih sporov (ZARSS) s komentarjem, Zakon o mediaciji v civilnih in gospodarskih zadevah (ZMCGZ) s komentarjem, Zakon o arbitraži (Zarbit) s pojasnili. Ljubljana: GV založba, 2010. ISBN 978-961-247-144-6.

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Articles: –– Especially from the year 2000 on: many articles in: Pravna praksa: časopis za pravna v­ prašanja. Authors of the articles: Betetto, N.; Galič, A.; Končina Peternel, M.; Ristin, G. and many other authors. Weblinks –– The Ministry of Justice and Public Administration: http://www.mpju.gov.si/ –– The Courts: http://www.sodisce.si/ –– The Slovenian Association of Mediators: http://www.slo-med.si/ –– The Association of Mediation Organisations – MEDIOS: http://www.medios.si/

15. Mediation legislation texts a. Weblink to legislation in national language –– The Mediation Act: ‘Zakon o mediaciji v civilnih in gospodarskih zadevah, Official Journal of the Republic of Slovenia, No. 56/2008; available in Slovenian at: http://www.uradni-list.si/1/ objava.jsp?urlid=200856&stevilka=2339 –– The Act on ADR in Judicial Matters: ‘Zakon o alternativnem reševanju sodnih sporov’; –– Official Journal of the Republic of Slovenia, Nr. 97/2009; available (in Slovenian) at: –– http://www.uradni-list.si/1/objava.jsp?urlid=200997&stevilka=4248 –– Changes: Fiscal Balance Act, Art. 111 – 114: http://www.uradni-list.si/1/objava.jsp?urlid= 201240&stevilka=1700 b. Weblink to English or other translation No. c. Other references NA

16. Country specific remarks Mediation definition mediation The Mediation in Civil and Commercial Matters Act Section 3 3 (Definitions) (1) For the purposes of this Act: a) Mediation means proceedings by which the parties attempt to reach through a neutral third person (mediator) the amicable settlement of a dispute arising out of or relating to a contractual or other legal relationship, irrespective of whether for these proceedings the term mediation, conciliation, reconciliation, mediation of disputes or other similar term is used. b) Mediator means any third person who is approached to conduct mediation, irrespective of his or her title or profession and irrespective of the manner in which he or she has been appointed or approached to conduct mediation, and who accepts the request. A sole mediator or several mediators may participate in the proceedings.

3

Unofficial translation prepared by the author of this chapter.

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Mediation regulation and approach Country: Slovenia Prepared by Bojana Jovin Hrastnik

SI

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of procedure the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes No Yes (Yes) Yes Yes No Yes No (Yes) (Yes) (No) (Yes) (Yes) Yes No F F F F NA All All (Yes) (Yes) (Yes) 40-150 hrs (Yes) (Yes) No No No No No

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Mediation regulation and approach Country: Slovenia Prepared by Bojana Jovin Hrastnik 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

(Yes) (Yes) No No No Yes Yes 2008 2012 Yes Yes No Yes Yes €34-192 €34-192 Yes No Yes (No)

Yes Yes Yes No Yes (No) Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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26. SPAIN1 Prepared by Mercedes Tarrazón2 – Marian Gili Saldaña3

ES

1.

Attempt to mediate

a. Always voluntary Yes. According to Section 1 of Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters (Official State Bulletin No. 162, of 7 July 2012; hereinafter, Act 5/2012), which implemented 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 in the Spanish legal system, mediation is a ‘dispute resolution method, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator’. Mediation is a voluntary process and therefore there is no obligation to participate or reach an agreement (Sections 6.1 and 6.3, Act 5/2012). Moreover, according to (i) Section 129 of the Statute of Autonomy of Catalonia, which assigns exclusive power over civil-law matters to the Generalitat of Catalonia (Catalonian Government) with the exception of those assigned to the Spanish Government by Sec­ tion  149(1)8 of the Spanish Constitution, and (ii) Section 130 of the Statute of Autonomy of Catalonia, which empowers the Generalitat to issue specific rules of procedure that result from the particularities of Catalonian substantive law, the Catalonian legislator passed Act  15/2009, of 22  July 2009, regarding mediation in the sphere of private law (Official Catalonian Government Bulletin num. 5432, of 30 July 2009; hereinafter, Catalonian Act  15/2009), which has been recently developed by Decree 135/2012, of 23 October 2012 (Official Catalonian Government Bulletin num. 6240, of 25 October 2012; hereinafter, Catalonian Decree 135/2012); Order JUS 428/2012, of 18 December 2012, that regulates the essential content and the proceedings for the authorisation of specific mediation training in the sphere of private law (Official Catalonian Government Bulletin num. 6282, of 28  December 2012; hereinafter, Catalonian Order JUS 428/2012), as well as the Decision of the Department of Justice JUS 2896/2012, of 17 December 2012, that establishes mediator fees in mediation proceedings regulated by Act 15/2009 (Official Catalonian Government Bulletin num. 6283, of 31 December 2012; hereinafter, Catalonian Decision JUS 2896/2012). According to Section 1 of Catalonian Act 15/2009, mediation is a ‘voluntary and confidential non-jurisdictional process aimed at facilitating communication among individuals so that they themselves can negotiate a solution to the disputes in which they are involved, with the assistance of a mediator who acts in an impartial, neutral manner’. Mediation is based on the principle of voluntariness, by which parties are free to take part in the process and to

1 Last update of information: February 2014. 2 Mercedes Tarrazón Founding partner of Dispute Management SL, a Barcelona-based firm that specialises in international business advice and including dispute resolution and conflict management services. Contact: [email protected]. 3 Marian Gili Saldaña completed her Ph.D. at Universitat Pompeu Fabra (Barcelona) on the topic ‘Mergers and acquisitions: letters of intent and representations and warranties’. She is an Assistant Professor in Law at Universitat Pompeu Fabra (Barcelona) where she teaches and researches in different areas of Private Law. Contact: [email protected].

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discontinue mediation at any given moment. If in the course of the mediation proceedings, either party chooses to terminate the process, such termination shall have no consequences on any subsequent proceedings, nor shall parties’ negotiation offers, settlements revoked in an appropriate and timely manner, or any other circumstance disclosed in connection with the proceedings (Section 5, Catalonian Act 15/2009). b. Mandatory (in some cases) No. According to Section 6(2) of Act 5/2012, parties who have submitted their disputes to a mediation process in either a written clause or agreement will have to attempt to mediate in good faith before initiating court proceedings or using an alternative dispute resolution system. c. Court referral or court-connected mediation possible Yes. Act 5/2012 modified Act 1/2000, of 7 January 2000, on Civil Procedure (Official State Bulletin No. 7, of 8 January 2000; thereinafter, Act 1/2000) in order to introduce court referral rules enabling judges to refer parties to mediation in some stages of the judicial proceedings. In this sense, during the hearing, judges must inform parties about the possibility to initiate a mediation process to solve their disputes. Moreover, they can invite the parties to attend an informative session on mediation (Section 414, Act 1/2000). Finally, once the controversial facts have been established during the hearing, courts can suggest that the parties, their representatives and their lawyers try to reach a mediation agreement that terminates the court proceedings (Sections 415 and 428, Act 1/2000). Furthermore, according to Section 12.2 of Catalonian Act 15/2009 and Section 29 of Catalonian Decree 135/2012, mediation may be initiated at the request of the court in any stage of the judicial proceedings or on referral by a justice of the peace, who may propose mediation to the parties and contact the Centre for Mediation in Private Law of Catalonia in order to conduct an informative session. If parties do not cooperate and attend an informative session or they reject participation in mediation, the Centre for Mediation in Private Law of Catalonia will inform the court, within 5 working days, that it has been impossible to initiate the mediation. If parties submit to mediation, a mediator will be appointed who will have to notify the court, within five working days of the end of mediation, whether or not a settlement has been reached (Section 19(4), Catalonian Act 15/2009). Breach of this obligation to notify the court will be deemed (i) a minor infringement if it does not entail damage to the parties or (ii) a serious infringement if it entails minor damage to the parties. Sanctions for minor infringements will consist of a written warning that must be recorded in the registry. Sanctions for serious infringements will include the temporary suspension as mediator for a period of one month to one year (Sections 30 to 32, Catalonian Act 15/2009). d. Court-ordered mediation possible No. Judges can advise parties to try mediation, but they cannot order parties to go to mediation. If the parties refuse to mediate, the court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court Yes. According to the Second Additional Provision of Act 5/2012, public administrations will try to include mediation within the free advising and guidance foreseen by Section  6

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ES

of  Act  1/1996, of 10 January 1996, on Free Legal Aid (Official State Bulletin num. 11, of 12 January 1996) in order to reduce litigation and its costs. Section 27 of Catalonian Act 15/2009 and Section 40 of Catalonian Decree 215/2012 state that individuals who contact the Centre for Mediation in Private Law of Catalonia may enjoy the benefits of free services, provided that the conditions prescribed by the rules governing free legal assistance are met. Moreover, in the interest of the users and of increasing access to mediation, the administration has the option to organise programmes in which mediation is offered to users free of charge, either at the initiative of the department responsible for civil law or in co-operation with other public or private entities. h. Outside counsel presence/representation during mediation sessions allowed Yes. Since Section 23(2) of Act 5/2012 foresees that mediation agreements can be signed by the parties or their representatives, it is possible to conclude that decisions about the presence of representatives are up to the parties and the mediator. Catalonian Act 15/2009 foresees that, in mediation, the parties and the mediator shall attend meetings personally and shall not appoint representatives or intermediaries (Sec­ tion 8, Catalonian Act 15/2009). Nevertheless, mediators shall inform the parties that it is advisable for them to receive legal assistance during mediation and that it is necessary for an attorney of their choice to draw up the settlement or an alternative appropriate legal document, based on the outcome of the mediation. Where applicable, the attorney may be a court-appointed lawyer, at the request of the parties involved (Section 15.3, Catalonian Act  15/2009). Moreover, depending on the circumstances of the case, the mediator may advise the parties to pursue specific counselling outside the legal sphere (Sections 15.3, Catalonian Act 15/2009 and 32.3, Catalonian Decree 135/2012). i. Outside counsel presence mandatory No. Nevertheless, in both complex commercial and cross-border disputes the presence of lawyers is common practice.

2. Mediation clause a. Case admissible in court with a mediation clause No. According to Section 6.2 of Act 5/2012, mediation clauses are enforceable. Defendants may ask the court to decline its jurisdiction and to declare the action inadmissible if a mediation clause exists (Section 10.2, Act 5/2012 and Sections 39 and 63(1), Act 1/2000). See 1.b. b. Case admissible in court, however, the judge may take this into account and there is some case law No. See 1.b and 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. See 1.b and 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. A general procedural framework is described in Sections 16 to 27 of Act 5/2012, 10-19 of Catalonian Act 15/2009 and 32-38 of Catalonian Decree 315/2012, which regulate the

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different ways to initiate the meditation procedure, the information session, the initial meeting, the different ways to terminate mediation and the enforcement of mediation agreements. Sections 30 to 38 of Royal Decree 980/2013, of 13 December 2013, that develops some issues of Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters (Official State Bulletin num. 310, of 27 December 2013; hereinafter, Royal Decree 980/2013) have also foreseen basic rules for simplified mediation procedures which are conducted by means of electronic devices. Finally, Act 14/2013, of 27 September 2013, on support for entrepreneurs (Official State Bulletin num. 233, of 28 September 2013; hereinafter, Act 14/2013) has introduced a new Title X in Bankruptcy Act 22/2003, of 20 July 2003 (Official State Bulletin num. 164, of 10 July 2003; hereinafter, Bankruptcy Act) in order to regulate bankruptcy mediation. These rules must be complemented by those foreseen by Act 1/2000. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The aim of the Spanish and Catalonian legislators was to establish a simple and flexible mediation procedure in order to allow the parties to freely determine its essential stages. c. Mediator can offer a non-binding opinion Yes. Although this option is not foreseen by law, nothing prevents mediators from giving their opinion or advice at the request of the parties. d. Mediator can offer a binding opinion No. Although nothing prevents mediators from giving their opinion or advice at the request of the parties, such advice would in any case be non-binding. If the parties have agreed to be bound by the mediator’s advice, the dispute resolution process would no longer be considered a mediation. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The mediation style for commercial disputes is predominantly facilitative. According to Section 8 of Act 5/2012, mediators will act in such a way that allows parties to reach an agreement on their own. Moreover, Section 13 of Act 5/2012 states that mediators have to facilitate communication between the parties and be proactive in order to bring the parties closer together. Section 6.2 of Catalonian Act 15/2000 stipulates that mediators must help participants to reach agreements and decisions on their own, without imposing solutions or specific measures and without taking part in negotiations. Mediators carry out their role by encouraging appropriate communication among the parties (Section 13, Catalonian Act 15/2000), and therefore: (a) facilitate dialogue, promote understanding and help parties to find solutions to their disputes; (b) see that the parties take their own decisions and have sufficient information and advice so they may reach their agreements freely and conscientiously; and (c) help the parties to remain aware of the most important interests at stake. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. The mediation style for commercial disputes is predominantly facilitative. See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The mediation style for civil disputes is predominantly facilitative. See 3.e.

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h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. The mediation style for civil disputes is predominantly facilitative. See 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. According to Section 21 of Act 5/2012, communications between mediators and parties may be simultaneous or successive. Mediators have to inform the parties about holding separate meetings. Section 34(2) of Catalonian Decree 135/2012 also provides for holding individual or joint sessions, but at least one of the sessions must be a joint session. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation

ES

a. Accreditation/certification or recognition of mediators No. Spanish and Catalonian Acts do not provide for mediator accreditation or certification but it does provide for mediator training. b. Set by market (private certifying bodies) No. See 4.1.a. c. Set by public regulation No. See 4.1.a. d. Number of hours for basic mediator training Min. 100 (SP) / min. 170 (CA). According to Sections 5 and 6 of Royal Decree 980/2013, mediation training programs will have a minimum duration of 100 hours and they will include both theoretical and practical contents. Practical contents will take at least 35% of the mediation training programs. Regarding Catalonian regulation, Section 3 of Catalonian Order JUS 428/2012 states that mediation training programmes must be divided into two parts: (i) general mediation training must have a minimum duration of 110 hours including practices; (ii) specific mediation training for different areas in the sphere of private law must have a minimum duration of 60 hours including practices. e. Mandatory Continuing Professional Development for accredited/certified mediators No. Although Spanish and Catalonian Acts do not provide for mandatory continuing professional development for accredited/certified mediators, nothing prevents Spanish and Catalonian legislators from including mandatory continuing professional development when they regulate training criteria. See 4.1.a. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. See 4.1.a.

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g. Accreditation through written exam No. See 4.1.a. h. Accreditation through performance-based assessment No. See 4.1.a.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Mediation advocacy accreditation is not foreseen by Spanish and Catalonian Acts, and there is no information about mediation advocacy certification/accreditation being done through practice. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. Specific public regulation is available. See 5.b. b. Set by public regulation Yes. According to Section 11 of Act 5/2012, three requirements must be fulfilled by individuals in order to be able to act as a mediator: firstly, mediators must have the free exercise of their civil rights; secondly, they must have an official university degree or superior professional training as well as specific mediation training; finally, they must take out civil liability insurance or an equivalent guarantee. Legal entities that include mediation among their functions can also be mediators if they appoint individuals that fulfil the requirements foreseen by the Act. A Registry of Mediators and Mediation Institutions overseen by the Ministry of Justice has been created and regulated by Sections 8-25 of Royal Decree 980/2013. However, except for bankruptcy mediators, registration is voluntary. This Registry shall coexist with the Registry of Mediators of each Region. Bankruptcy mediators must be individuals or legal entities which fulfil the requirements foreseen by Section 11 of Act 5/2012 and are registered in the Registry of Mediators and Mediation Institutions (Section 233.1, Bankruptcy Act). Since bankruptcy mediators will become trustees in bankruptcy if debtors and creditors are not able to reach a mediation agreement, mediators must be – or must include if they are legal entities− lawyers, economists or auditors with at least 5 years of processional experience (Section 27, Bankruptcy Act). According to Section 3 of Catalonian Act 15/2009, any individual may act as a mediator if he or she has an official university degree and is able to provide proof of completion of specific mediation training and professional proficiency, duly updated to the standards established by regulation. Individuals must belong to an official professional mediators association, to a similar professional association accredited by the department responsible for civil-law matters, or to a mediation service provider for the public administration.

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c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 5.b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.b.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. See 6.b. b. EU Directive implemented for all national and cross-border commercial cases Yes. Act 5/2012 governs national and cross-border civil and commercial mediations (Sec­ tions 2, 3 and 27, Act 5/2012). c. EU Directive implemented for all national and cross-border civil cases Yes. See 6.c.

ES

7.

Mediation legislation besides Directive

a. Mediation legislation since 2001. Since 2001 several Acts on family mediation were passed by the Regions: – Act 1/2001 of Catalonia, of 15 March 2001, on Family Mediation (in force until 19 August 2009) – Act 7/2001 of Valencia Community, of 26 November 2001, on Family Mediation – Act 4/2001 of Galicia, 31 May 2001, on Family Mediation – Act 15/2003 of Canary Islands, of 8 April 2003, on Family Mediation, and Act 3/2005, of 23 June 2003, that modifies Act 15/2003 – Act 4/2005 of Castile-La Mancha, of 24 May 2005, regarding the Specialised Social ­Service on Family Mediation – Act 1/2006 of Castile and Leon, of 6 April 2006, on Family Mediation – Act 1/2007 of Community of Madrid, of 21 February 2007, on Family Mediation – Act 3/2007 of Principality of Asturias, of 23 March 2007, on Family Mediation – Act 1/2008 of Basque Country, of 8 February 2008, on Family Mediation Regarding commercial mediation, no specific regulation existed beyond institutional projects launched in 2000 by the Consolat de Mar, the Dispute Resolution Centre of the Barcelona Chamber of Commerce and in 2005 by the Bilbao Chamber of Commerce. b. Legislation updated since EU mediation directive (date update) 2009-2013. After 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, other Acts on family mediation were passed: – Act 1/2009 of Andalusia, of 27 February 2009, on Family Mediation – Act 14/2010 of Balearic Islands, of 9 December 2010, on Family Mediation – Act 9/2011 of Aragon, of 24 March 2011, on Family Mediation – Act 1/2011 of Cantabria, of 28 March 2011, on Family Mediation

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Moreover, Catalonia replaced Act 1/2001, of 15 March 2001, on Family Mediation, by Act 15/2009, of 22 July 2009, regarding mediation in the sphere of private law, which has been recently developed by Decree 135/2012, of 23 October 2012. See 1.a. The Spanish Ministry of Justice prepared the draft project on the Mediation in Civil and Commercial Affairs Act of 19 February 2010, which was passed as the Act on 29 April 2011. Moreover, Act 11/2011 of 20 May 2011, regarding the amendment of Act 60/2003, of 23 December 2003, regarding arbitration and the regulation of institutional arbitration in state administration, modified Section 955 of the Royal Decree of 3 February 1881 on the enactment of the Civil Procedure Act, which established the courts’ authority to deal with the recognition and enforcement of foreign mediation agreements. The Spanish government using the urgency process passed by the Royal Decree-Act 5/2012, of 5 March 2012, on civil and commercial mediation, which implemented Directive 2008/52/EC. This Royal Decree-Law 5/2012 was passed as an Act on 6 July 2012 (Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters). Act 5/2012 has been recently developed by Royal Decree 980/2013 (Royal Decree 980/2013, of 13 December 2013, that develops some issues of Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters). Finally, Act 14/2013 has introduced a new Title X in Bankruptcy Act in order to regulate bankruptcy mediation.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. According to Section 5 of Act 5/2012, mediation institutions whose aim consists of promoting mediation may be public or private, Spanish or foreign entities and corporations governed by public law. Moreover, according to Section 11 of Act 5/2012, mediators may be individuals or entities (professional corporations, etc.). According to Section 3 of Catalonian Act 15/2009, any individual may act as a mediator if he or she has an official university degree and is able to provide proof of completion of specific mediation training and professional proficiency, duly updated to the standards established by regulation. The individual must belong to an official professional mediators association, to a like professional association accredited by the department responsible for civil-law matters, or to mediation service provider for public administration. In this sense, the Centre for Mediation in Private Law of Catalonia is a body attached to the department responsible for civil-law matters in Catalonia whose goal is to promote and organise mediations and to provide access thereto. b. Individuals may be providers of mediation services Yes. See 8.a. c. Mediation provider qualifications/requirements determined by public regulation Yes. See 8.a.

9.1. Mediator fees a. Freely contracted (Yes). Moreover, mediators and mediation institutions can ask the parties for a provision of funds in order to deal with the mediation costs. If any of the parties do not fulfil this obligation, the mediator or mediation institution will be able to terminate the procedure. Nevertheless, if one of the parties has not fulfilled this obligation, the mediator or mediation institution

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will inform the other party of the possibility of contributing to the outstanding amount (Sec­ tion 15(2), Act 5/2012). Regarding Catalonian regulation, Section 27 of Catalonian Act 15/2009 and 39 of Catalonian Decree 135/2012 state that individuals taking part in mediation through the Centre for Mediation in Private Law of Catalonia who do not qualify for free services while the other party does enjoy such benefits must pay the mediator half of the fees prescribed by the department responsible for civil-law matters. In mediations among several parties handled by the Centre for Mediation in Private Law of Catalonia, remuneration is decided on the basis of the fees prescribed by the department responsible for civil-law matters and according to the number of parties and the complexity of the case. Mediations organised by professional associations, city and town councils and public entities must comply with the provisions set out by the respective organisation, paying special attention to social groups in circumstances of dependency or faced with difficult circumstances.

ES

b. Fixed in some cases by public regulation Yes. See Catalonian regulation 9.1.a. c. Average mediator fee per hour for commercial or cross-border cases € 30-120 (estimate. In general terms, mediator fees are lower than those of lawyers. Catalonian Decision JUS 2896/2012 states that fees applicable to proceedings regulated by Catalonian Act 15/2009 are as follows: (i) € 40 to be paid by each party and for each mediation session involving 2 parties; (ii) € 30 to be paid by each party and for each mediation session involving 3 to 5 parties; (iii) € 120 to be paid for joint mediation sessions involving more than 6 parties; (iv) € 40 to be paid for each individual session with any of the mediation participants. Regarding bankruptcy mediators, fees will be fixed according to the rules foreseen by Royal Decree 1860/2004, of 6 September 2004, that establishes the fees of trustees in bankruptcy (Official State Bulletin num. 216, of 7 September 2004). d. Average mediator fee per hour in civil cases € 30-120 (estimate). See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. According to the Second Additional Provision of Act 5/2012, public administrations will try to include mediation within the free advising and guidance foreseen by Section 6 of Act 1/1996, of 10 January 1996, on Free Legal Aid (Official State Bulletin num. 11, of 12 January 1996) in order to reduce litigation and its costs. Regarding Catalonian regulation, Section 27 of Catalonian Act 15/2009 and Section 40 of Catalonian Decree 215/2012 state that individuals who contact the Centre for Mediation in Private Law of Catalonia may enjoy the benefits of free services provided that the conditions prescribed by the rules governing free legal assistance are met. Moreover, in the interest of the users and of increasing access to mediation, the administration has the option to organise programmes in which mediation is offered to users free of charge, either at the initiative of the department responsible for civil law or in co-operation with other public or private entities. Mediators cannot ask parties who benefit from legal aid to pay any amount (Section 25(2), Catalonian Decree 135/2012). f. Mediator fees covered by legal insurance schemes No.

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g. Mediator fees subsidised in court-connected schemes (No). There is nothing in this sense in the legislation, but some chambers of commerce (e.g.,  Bilbao) have included within their budget the fees of mediators participating in court-annexed mediation.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. However, judges can refer cases to mediation at some stages of the court proceedings. See 1.c. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Since Act 5/2012 has defined the position of mediation within the Spanish legal system, such a relationship does exist. c. Mediation procedure has impact on statute of limitations Yes (Spain). According to Section 4 of  Act 5/2012, mediation requests suspend limitation periods from their reception by the mediator or their submission to a mediation institution. Limitation periods start to run again if the initial statement is not signed within 15 days from the receipt of the mediation request. The suspension of limitation periods goes on until (i) the signing of the final mediation agreement or, where applicable, the signing of the final statement, or (ii) until mediation proceedings finish due to any of the reasons foreseen by law. Yes (Catalonia). Catalonian Act 15/2000 does not foresee a specific provision regarding statute of limitations but Section 4 of Act 5/2012 applies.

11. Mediated settlement a. Contract Yes. Mediated settlements qualify as binding settlement agreements. According to Sec­ tion 23(3) of Act 5/2012, mediators must inform the parties that the settlement agreement is binding as well as the possibility of converting the agreement into a public deed in order for it to become enforceable. Regarding Catalonian regulation, Section 19(1) of Catalonian Act 15/2009 states that agreements regarding issues and individuals in need of special protection and concerning matters of public order determined by law are deemed proposals and must be endorsed by the court for them to become enforceable. According to Section 38 of Catalonian Decree 215/2012, the legal effects and the enforceability of mediation agreements depends on (i) the object of the mediation, (ii) the legal formalisation of the agreements and (iii) the requirements of procedural laws. In cases involving court referral, agreements have the effects foreseen by procedural legislation. b. Automatically enforceable No. Mediated settlement agreements are not automatically enforceable. If no judicial proceedings are pending, enforcement of mediation agreements is subject to their conversion into public deeds (Sections 23(3), Act 5/2012 and 517(2)(2), Act 1/2000). If judicial proceedings are pending, parties may to ask the court to make their settlement agreement enforceable (Sections 25(4), Act 5/2012 and 19(2), Act 1/2000).

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c. Enforceable under some circumstances which are up to the parties Yes. Parties can ask a civil-law notary or a judge make their settlement agreement enforceable. See 11.b. d. Enforceable under some circumstances defined by public regulation No. See, however, 11.b.

ES

12. Confidentiality a. Regulated by law Yes. Mediators, mediation institutions and parties cannot disclose information arising out of or in connection with a mediation procedure (Section 9(1), Act 5/2012). Furthermore, mediators are exempt from the obligation to give evidence either in civil and commercial judicial proceedings or in arbitration regarding information arising out of or in connection with a mediation procedure (Sections 9(2), Act 5/2012, 335(3) and 347, Act 1/2000). Nevertheless, the duty of confidentiality is not be applicable if parties exempt mediators from this duty expressly and in writing, and if information or documentation has been properly requested by criminal judges (Section 9(2), Act 5/2012). Regarding Catalonian regulation, Section 7 of Catalonian Act 15/2009 states that any mediator or other professional participating in mediation proceedings is obligated to refrain from disclosing information obtained through mediation. Mediators and specialists participating in such proceedings are bound by professional secrecy to preserve confidentiality. Parties to mediation proceedings must not, in judicial or administrative proceedings, request mediators to declare as experts or witnesses for either party, so as not to compromise their neutrality, subject to the provisions established by criminal and procedural law. All documents drawn up throughout the process of mediation are deemed confidential. Information obtained during the mediation process is not subject to confidentiality if: (i) it is not personalised and is used for the purposes of training or research; (ii) it entails a threat to the life or physical or mental integrity of an individual; (iii) it is obtained through community mediation, if public dialogues are used as a type of mediation intervention open to citizen participation. If the mediator receives information that reveals either the existence of a threat to the life or physical or mental integrity of a person, or the existence of criminal acts that a court, of its own motion, may deem indictable, he or she shall suspend the mediation proceedings and report the situation to the judicial authorities. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. See 12.a.

13. Education a. Mediation education is a common component of legal education No. b. Mediation advocacy education is a common component of legal education No.

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14. Most relevant literature or references, case law, articles, law –– Álvarez Moreno, Mª T. (2000), ‘La mediación empresarial’, Revista de Derecho Privado, núm. 84, pp. 957-986. –– Andrés Ciurana, B. (2005), ‘La mediación civil y mercantil: una asignatura pendiente en España (a propósito de la Propuesta de Directiva sobre ciertos aspectos de la mediación en asuntos civiles y mercantiles)’, Actualidad Jurídica Uría Menéndez, núm. 12, pp. 60-69. –– Casanovas, P./Magre, J./Lauroba, M.E. (Dirs.) (2010), Llibre Blanc de la Mediació a Catalunya, Justícia i Societat, Generalitat de Catalunya, Departament de Justícia, Centre d’Estudis Jurídics i Formació Especialitzada (http://www.llibreblancmediacio.com/phpfiles/public/ llibreBlancDownloadCounter.php). –– De la Oliva Santos, A. (2011), ‘Mediación y Justicia: síntomas patológicos’, Otrosí, núm. 8, pp. 7-14. –– Fajardo Martos, P. (2006), ‘Estrategia y mediación. Análisis de las ventajas estratégicas que para la solución de conflictos empresariales ofrecen los principios y garantías que regulan la mediación’, in Cano Linares, A./Castanedo Abay, A., Métodos alternativos de resolución de conflictos: perspectiva multidisciplinar, Madrid, Dykinson (available at vLex). –– Galeote, M. P. (2010), ‘Novedades en materia de mediación en asuntos civiles y mercantiles’. Diario La Ley, núm. 7456, Sección Tribuna. –– García Villaluenga, L. / Vázquez de Castro, E. (2013), “La mediación civil en España: luces y sombras de un marco normativo”, Política y sociedad, vol. 50, núm. 1, pp. 71-98. –– González-Cuéllar Serrano, N. (2011), ‘La limitada ejecutoriedad de la escritura pública: incoherencia del sistema’, El Notario del siglo XXI, No.No. 38. –– Hualde Manso, T. / Mestrot, M. (coord.) (2013), La mediación en asuntos civiles y mercantiles: la transposición de la Directiva 2008/52 en Francia y en España, La Ley, Madrid.  –– Huertas Bartolomé, T. (1991), Mediación mercantil en el ordenamiento laboral, Madrid, Tecnos. –– López Jara, M. (2012), ‘Incidencia del nuevo procedimiento de mediación en el proceso civil. A propósito del Real Decreto-Ley 5/2012, de 5 de marzo, de mediación en asuntos civiles y mercantiles’, Diario La Ley, núm. 7857. –– Lorca Navarrete, A. M. (2012), La mediación en asuntos civiles y mercantiles: Real Decreto-ley 5/2012, de 5 de marzo, Instituto Vasco de Derecho procesal, San Sebastián. –– Magro Servet, V. (2012), ‘La incorporación al derecho español de la Directiva 2008/52/CE por el Real Decreto-Ley 5/2012, de 5 de marzo, de mediación en asuntos civiles y mercantiles’, Diario La Ley, núm. 7852. –– Malaret, J. (2003), Manual de Negociación y Mediación, 3rd. ed., Madrid, Colex. –– Martín Pastor, J. (2012), ‘La reforma del proceso civil de ejecución por el Real Decreto-Ley 5/2012’, Diario La Ley, núm. 7862. –– Martín Pastor, J. (2012), ‘Vías de optimización de la mediación civil para el éxito de su implementación en España’, Diario La Ley, núm. 7951. –– Mesa Marrerom, C. (2013), “Incumplimiento y responsabilidad civil de los mediadores en la Ley 5/2012, de 6 de julio, de mediación en asuntos civiles y mercantiles”, Revista de derecho privado, año nº 97, mes 7-8, pp. 83-104. –– Navarro, M. (2012), ‘Real Decreto-Ley 5/2012, de 5 de marzo, de mediación en asuntos civiles y mercantiles: un nuevo horizonte para la solución pactada de controversias privadas’, Diario La Ley, núm. 7866. –– Sáez Valcarcel, R./Ortuño Muñoz, J. P. (2007), Alternativas a la judicialización de los conflictos: la mediación, Consejo General del Poder Judicial, Centro de Documentación Judicial, Madrid. –– Soleto Muñoz, H. (2012), ‘La nueva normativa estatal sobre mediación civil y mercantil y el proceso civil’, Diario La Ley, núm. 7834. –– Soleto Muñoz, H. (2011), Mediación y resolución de conflictos: técnicas y ámbitos, Tecnos, Madrid.

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–– Tarrazón, M. M. (2004), ‘Arbitraje y Mediación. Su utilidad para la empresa’, Memoria de la Corte de Arbitraje de la Cámara Oficial de Comercio, Industria y Navegación de Bilbao. –– Tarrazón, M. M. (2010), ‘La mediación y el rol del abogado en ella’, Otrosí, 5ª Época, núm. 3, pp. 34-38. –– Torrado Tarrío, C. / Castillejo Manzanares, R. (2013), La mediación: nuevas realidades, nuevos retos: análisis en los ámbitos civil y mercantil, penal y de menores, violencia de género, hipotecario y sanitario, La Ley, Grupo Wolters Kluwer, Madrid.

ES

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.boe.es/boe/dias/2012/07/07/pdfs/BOE-A-2012-9112.pdf –– https://www.boe.es/buscar/act.php?id=BOE-A-2003-13813 –– https://www.boe.es/diario_boe/txt.php?id=BOE-A-2004-15816 –– http://www.gencat.cat/diari/5432/09202029.htm –– http://www20.gencat.cat/portal/site/portaldogc/menuitem.c973d2fc58aa0083e4492 9 2 b 0 c 0 e1a 0 / ? v g n e x to i d = 4 8 5 94 6 a 6 e 5 d f e 210 Vg nV C M10 0 0 0 0 0 b 0 c1e 0 a R C R D & appInstanceName=default&action=fitxa&documentId=619128&language=ca_ES –– http://www20.gencat.cat/portal/site/portaldogc/menuitem.c973d2fc58aa0083e4492d92 b0c0e1a0/?vgnextoid=485946a6e5dfe210VgnVCM1000000b0c1e0aRCRD&appInstance Name=default&action=fitxa&documentId=624317&language=ca_ES –– http://www20.gencat.cat/portal/site/portaldogc/menuitem.c973d2fc58aa0083e4492d92 b0c0e1a0/?vgnextoid=485946a6e5dfe210VgnVCM1000000b0c1e0aRCRD&appInstance Name=default&action=fitxa&documentId=624418&language=ca_ES b. Weblink to English or other translation –– http://www.parlament.cat/departaments/docs/30051118370455.doc c. Other references NA.

16. Country specific remarks Several regulations on mediation in civil and commercial matters exist in Spain. General regulation is foreseen by Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters, which applies to the whole country except for Catalonia. Act 5/2012 has been recently developed by Royal Decree 980/2013, of 13 December 2013, that develops some issues of Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters. Moreover, Act 14/2013, of 27 September 2013, on support for entrepreneurs has introduced specific rules on bankruptcy mediation in Bankruptcy Act 22/2003, of 20 July 2003. Catalonia’s legal regime on mediation in civil and commercial matters is foreseen by Act 15/2009, of 22 July 2009, regarding mediation in the sphere of private law, which has been developed by Decree 135/2012, of 23 October 2012, by Order JUS 428/2012, of 18 December 2012, that regulates the essential content and the proceedings for the authorization of specific mediation training in the sphere of private law as well as by the Decision of the Department of Justice JUS 2896/2012, of 17 December 2012, that establishes the mediators’ fees in mediation proceedings regulated by Act 15/2009. No other Spanish Regions have passed regulations on this matter.

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Mediation definition Spain has in principle adopted the definition of the EU Directive.  The only difference is the omission of the words ‘structured process’ that the Directive mentions. Spanish Law Section 1 of Act 5/2012, of 6 July 2012, on mediation in civil and commercial matters Section 1. Definition Mediation is a dispute resolution method, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. Art. 1 de la Ley 5/2012, de 6 de julio, de mediación en asuntos civiles y mercantiles Artículo 1. Concepto. Se entiende por mediación aquel medio de solución de controversias, cualquiera que sea su denominación, en que dos o más partes intentan voluntariamente alcanzar por sí mismas un acuerdo con la intervención de un mediador. Catalonian Law Section 1.1 of Act 15/2009, of 22 July 2009, regarding mediation in the sphere of private law Section 1 Definition and objective of mediation 1. For the purpose of this Act, mediation means the voluntary and confidential non-jurisdictional process aimed at facilitating communication among individuals so that they themselves can negotiate a solution to the disputes in which they are involved, with the assistance of a mediator who acts in an impartial, neutral manner. Art. 1.1 de la Llei 15/2009, del 22 de julio, de mediació en l’àmbit del dret privat Article 1 Concepte i finalitat de la mediació 1. Als efectes d’aquesta llei, s’entén per mediació el procediment no jurisdiccional de caràcter voluntari i confidencial que s’adreça a facilitar la comunicació entre les persones, per tal que gestionin per elles mateixes una solució dels conflictes que els afecten, amb l’assistència d’una persona mediadora que actua d’una manera imparcial i neutral. Regarding the distinction between mediation and conciliation, conciliators may propose solutions to the parties’ disputes, which are binding if they are accepted by the parties.

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Mediation regulation and approach Country: Spain Prepared by Mercedes Tarrazón, Marian Gili Saldaña 1. Attempt to mediate

2. Mediation clause

ES

3. Mediation procedure

4.1. Mediator accreditation

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court connected mediation possible d. Court ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntary before going to court h. Outside Counsel presence/representation during mediation sessions allowed i. Outside Counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in a contract they have to mediate first before they can go to court a. Detailed traits of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable: how is evaluative mediation used (neutral, general advice, legal opinion, other) j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation or certification of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. General amount of hours for basic mediator training e. Mandatory Continuing Professional Development for accredited/ certified mediators f. Accreditation through set of rules (e.g. age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance based assessment

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Yes No Yes No No No Yes Yes No No No Yes Yes Yes Yes No F F F F NA Mix Mix No No No Min. 100 (SP) / min. 170 (CA) No No No No

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Mediation regulation and approach Country: Spain Prepared by Mercedes Tarrazón, Marian Gili Saldaña 4.2. Mediation Advocacy accreditation 5. Who can be mediator?

6. EU directive

7. Mediation legislation (Besides Directive) 8. Mediation providing bodies

i. Accreditation/certification or recognition of mediation advocates j. Set by Market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only lawyer/legal professional can be accredited/certified mediator (domestic) d. Only lawyer/legal professional can be accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

a. Mediation bodies can have various legal forms b. An individual can be a provider of mediation services c. Structure of mediation provider determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases: d. Average mediator fee per hour in civil cases: 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fee covered by legal insurance schemes g. Mediator fee subsidized in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court referrals or court connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statutes of limitation 11. Mediated a. Contract settlement b. Automatic enforceable title c. Enforceable title under some circumstances, which are up to the parties d. Enforceable title under some circumstances defined by public regulation 12. Confiden­tiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education common component at legal education curriculum b. Mediation advocacy education common component at legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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No No No No Yes No No No Yes Yes 2001 2009-2013 Yes Yes Yes (Yes) Yes € 30-120 (est.) € 30-120 (est.) Yes No (No) No

Yes Yes Yes No Yes No Yes Yes No No

No = No (No) = No as a rule, but with (informal) exceptions

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27. SWEDEN1 Prepared by Christer Holm2 – Simon Arvmyren3

1.

Attempt to mediate

a. Always voluntary Yes. No obligatory mediation exists and there is a broad understanding that mediation at all stages is based on the parties’ voluntary commitments.

SE

b. Mandatory (in some cases) (No). However, some mandatory elements exist in real estate law with respect to commercial lease agreements. If a landlord wishes to terminate the lease agreement, either in order to renegotiate the terms of the agreement or to end the business relationship altogether, and the tenant objects to the termination, the tenant has a two month respite to refer the dispute to mediation before the rent tribunal (Sw: hyresnämnden) which is a similar to a court. Until the mediation has ended, the landlord may not enforce new terms if such term are unfavourable to the tenant. c. Court referral or court-connected mediation possible Yes. Swedish courts have the option of using mediation as a tool in connection with their obligation to promote an amicable solution to a dispute, but only in a dispute that regards a matter on which the parties are at liberty to reach a settlement. If the parties agree to court-arranged mediation, the court can order the parties to appear before a mediator appointed by the court (Code of Judicial Procedure Chapter 42, Section 17(2) and Chapter 50, Section 11). Said provisions are partly the result of legislation implementing Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 (the Directive). This directive puts more pressure on the courts to endeavour to have disputes settled. d. Court-ordered mediation possible (No). See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) (Yes). See 1.c. However, if a party initially agrees to mediation but at a later stage changes its mind and in doing so causes a delay to the proceedings and/or unnecessary costs, that party may be ordered to reimburse the other party’s cost in relation to the mediation attempt (cf Code of Judicial Procedure Chapter 18, Section 6). f. Sanctions by law if mediation is not tried (in good faith) No.

1 Last update of information: July 2013. 2 Christer Holm concentrates on working as a mediator in business disputes in Advokatfirman KRILON AB. Contact: [email protected]. 3 Simon Arvmyren’s main field of work is arbitration, mediation, as well as other forms of dispute resolution within the area of commercial private law. Contact: [email protected]

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g. Incentives if mediation is tried voluntarily before going to court No. However, through the introduction of the Swedish Mediation Act (lag (SFS 2011:860) om medling i vissa privaträttsliga tvister) the parties can obtain an enforceable result without going to court. This might be an incentive for some parties to try mediation before starting a costly process. h. Outside counsel presence/representation during mediation sessions allowed Yes. As a rule of thumb, the best chances of meditation leading to a durable agreement seems to be when only the ultimately responsible person on either side together with no more than one more person, such as an experienced business lawyer or any other person with the full confidence of the person who takes the decisions, are present. It may be useful to have other people available over the phone or in an adjacent room. i. Outside counsel presence mandatory No. See 1.h.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. An agreement to mediate has no effect on the admissibility of the case, but might be an opening for the court to suggest court-arranged mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. However, judges have no special measures to adopt in relation to a party that refuses to enforce a mediation clause. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.a., 2.a. and 2.b.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The Mediation Act (lag (SFS 2011:860) om medling i vissa privaträttsliga tvister) is the primary source of law for commercial mediation outside of court proceedings. Mediation within court proceedings is governed by Chapter 42, Section 17 and Chapter 50, Section 11 of the Code of Judicial Procedure. Some legislation in relation to mediation also exists within criminal law, real estate law with respect to lease agreements, labour law and copyright law. By establishing three legal certainties for mediation outside of court proceedings, the Mediation Act provides the calmness and support for the mediation practice that the Directive aims at. They are: (i) mediators and their assistants are bound by a duty of confidentiality; (ii) limitation periods are put on hold; and (iii) the parties can have the settlement agreement declared immediately enforceable upon application to the court. The Mediation Act does not provide rules for the proceedings, other than that the proceedings must be structured and voluntary at all stages. The rest is left to the parties to decide upon on a contractual basis. In relation to international mediation outside of court proceedings (i.e., mediation with at least one party not being Swedish and mediation taking place outside of Sweden), the Mediation

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Act applies with the sole exception that it is not possible to get a court declaration of enforceability if the mediation agreement was entered into outside the EU, or in Denmark, which has negotiated an exception from all international private law issues within the EU. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. There are some exceptions. In Sweden it is generally understood that mediation is based on voluntary undertakings by the parties at all times. There is only one provision that seems to be mandatory in the sense that the parties cannot agree to disregard it: this provision concerns the rule that limitation periods are put on hold if the parties agree to initiate mediation. Given that the parties have agreed to mediation, however, the mediator has a mandatory duty of confidentiality. The duty of confidentiality means that the mediator is forbidden from disclosing what he or she has learned in connection with the mediation procedure. Having said that, it is of course possible for the parties to release the mediator from this duty should the parties be united in such a decision. This is a consequence of the duty being in the parties’ interest.

SE

c. Mediator can offer a non-binding opinion Yes. It is common practice that mediators do not offer advice unless the parties expressly request the mediator to do so. Mediators with less training may, however, still employ a method of giving advice without the parties’ consent, especially in court-arranged mediations that are conducted by retired judges. d. Mediator can offer a binding opinion Yes. See 3.c. If the parties request a binding advice from the mediator, the same effect will be attained as if the parties agreed on an expertise proceeding, which the parties are free to agree upon. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative (court-administered)/Facilitative (out-of-court). Mediation as it was conducted in the past was typically of the evaluative type, especially if court-administered. Now trained mediators from outside the court system almost exclusively use a facilitative method (the mediator structures the process to assist the parties in reaching a mutually agreeable resolution using predominantly joint session; giving no recommendations and no advice or opinion as to the outcome; focusing on the interests of the parties). f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive/Facilitative. To the same extent that mediators should not express their own views on the substance of mediation, it is the Swedish approach that the mediator has a duty to push the mediation forward. To achieve this, the mediator will not use procedural orders but rather test the parties’ positions on the procedure to find common ground. If a party is reluctant to actively contribute to the mediation proceedings, the mediator should ask the parties whether there is a common interest to continue the mediation. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive/Facilitative. See 3.f.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. Evaluative mediation is more commonly used in court-arranged mediations, whereby the mediator sometimes offers advice. See 3.c. and 3.e. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. A mixture of joint sessions and caucuses (private sessions) is the standard procedure. This means that ideally three rooms should be available, one for joint sessions and one for each of the parties. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. Same as in commercial cases. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. There is no system for certification of mediators in Sweden, for instance, an official register of mediators. Professionals (mostly attorneys) that are interested in mediation often seek certification at the Centre for Effective Dispute Resolution (CEDR) in London. CEDR certification has thus become increasingly important for Swedish mediators as well. In connection with court-arranged mediation each court has its own unofficial lists. The mediators used in court-arranged mediation are often retired judges. The Swedish National Courts Administration holds a list of professional that have expressed an interest in acting as mediators in court-arranged mediations, but does not exercises quality control. b. Set by market No. See 4.1.a. c. Set by public regulation No. See 4.1.a. d. Number of hours for basic mediator training 40 hours. There are no requirements of any kind. Recommended training is, however, provided by the Stockholm Chamber of Commerce (SCC), which holds a highly praised training programme every other year which includes 32 hours of training finalised by a moot court-style examination. It is generally considered an advantage to appoint a person who is accredited by an international institution. e. Mandatory CPD for accredited/certified mediators No. There is no requirement with respect to continued education, no mediation organisation in Sweden that requires continued education and no credit point system. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. See 4.1.a. g. Accreditation through written exam No. See 4.1.a.

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h. Accreditation through performance-based assessment No. See 4.1.a.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Mediation advocacy is generally an unknown concept in Sweden. j. Set by Market (Yes). However, see 4.2.i. k. Set by public regulation No. There is no law governing mediation advocacy.

SE

5.

Who can be a mediator?

a. Set by market Yes. The term ‘mediator’ is ordinarily not used as a professional title, but as a description of the role or function created by the step to initiate mediation. There are no specific criteria for mediators, but mediator assignment agreements are normally supplemented with the recognised practice that the mediator is impartial and independent. In commercial mediation it is usual that the mediator is a Swedish attorney-at-law (advokat). For both advokats and other professionals the IBA Guidelines on Conflict of Interest in International Arbitration would serve as a general standard. b. Set by public regulation No. There is no specific regulation that deals with criteria for mediators exists. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Mediators are often lawyers but there is no legal requirement. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. See 6.b. b. EU Directive implemented for all national and cross-border commercial cases (Yes). The Directive was implemented in Sweden in 2011 by the Mediation Act to be applicable to all commercial cases, i.e., regarding matters about which the parties are at liberty to reach a settlement. c. EU Directive implemented for all national and cross-border civil cases No. See 6.c.

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7.

373

Mediation legislation besides Directive

a. Mediation legislation since 2011. Before the Directive there was no overall legislation in relation to mediation in Sweden, but this changed through the implementation of the Directive by means of the Mediation Act in 2011. Since then, the Mediation Act is the primary source of law for commercial mediation, both national and international (see 3.a.) The Mediation Act does not provide rules for the proceedings, other than that the proceedings must be structured and voluntary at all stages. b. Legislation updated since EU mediation directive (date update) No. See 7.a.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. The most prominent mediation institution in Sweden is the Mediation Institute at the Stockholm Chamber of Commerce (the SCC), a sibling of the SCC Arbitration Institute. The SCC is a not a company, but there is no legislation prohibiting mediation service providers from having other legal forms, such as private companies etc. b. Individuals may be providers of mediation services Yes. See. 8.a. c. Mediation provider qualifications/requirements determined by public regulation No. See 5.a.

9.1. Mediator fees a. Freely contracted (Yes). However, if the mediator is a Swedish attorney-at-law (advokat) the fee must, within the conditions set by the market, be reasonable and cannot be based, for instance, on a so-called contingency fee. b. Fixed in some cases by public regulation No. In court-arranged mediation, too, the parties have to agree to pay the mediator directly, since mediation is not financed by the court. c. Average mediator fee per hour for commercial or cross-border cases SEK 1,500-5,000. It can vary considerably. d. Average mediator fee per hour in civil cases SEK 1,500-5,000. See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid in relation to mediation is available on the same grounds as legal aid in relation to court proceedings.

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f. Mediator fees covered by legal insurance schemes No. Mediator fees are covered by insurance except when mediation is court-arranged, since in that case the mediation cost is considered a part of the legal fees that a party can request the court to order the other party to reimburse. Legal fees are generally covered by insurance schemes. g. Mediator fees subsidised in court-connected schemes No. See 9.1.b.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. In court-arranged mediation the mediator has a separate assignment and works independently of the court.

SE

b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. See 7.a. c. Mediation procedure has impact on statute of limitations Yes. The Swedish Mediation Act lays down that a period of limitation cannot end before the mediation proceedings terminate plus one extra month. If the period of limitation would have expired during such time, the period is thus extended accordingly.

11. Mediated settlement a. Contract Yes. A mediated settlement has the same contractual status as any other contract under Swedish general contract law. b. Automatically enforceable No. See 11.a. c. Enforceable under some circumstances which are up to the parties Yes. Under Sections 7 to 12 of the Mediation Act, the parties can make the settlement agreement immediately enforceable. In order to do so, the parties must jointly apply to the court. d. Enforceable under some circumstances defined by public regulation No. See 11.c.

12. Confidentiality a. Regulated by law (Yes). The mediator is obligated to keep information gained in connection with mediation confidential under Section 5 of the Mediation Act. If, for some reason, a mediation proceeding is not subject to the rules of the Mediation Act, any duty of confidentially must be established on a contractual basis, but the content of such a duty would normally be the same as under

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the Mediation Act. Parties and their counsel are not bound by any duty of confidentiality under law and such a duty must thus be established on a contractual basis. That said, if no express term that deals with confidentiality is agreed it might be successfully argued that such a duty exists naturale negotii since it is widely understood that mediation is confidential. This issue is, however, yet to be clarified in case law. A breach of confidentiality is sanctioned by general tort law and contract law and a person that breaches confidentiality can thus be subject to damages. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. A mediator cannot formally refuse to give testimony but has the right to refuse to answer questions that would mean the mediator would breach the duty of confidentiality (Code of Judicial Procedure Chapter 36, Section 5(2)). The mediator is permitted to give confidential information to defend him or herself from a claim for damages or criminal prosecution.

13. Education a. Mediation education is a common component of legal education curriculum No. Mediation courses are offered at universities only as voluntary supplementary study. b. Mediation advocacy education is a common component of legal education curriculum No. Unfortunately mediation advocacy is more or less unknown as a separate field of study, although there are some practitioners that promote these techniques which are slowly gaining ground.

14. Most relevant literature or references, case law, articles, law –– Lag om medling I vissa privaträttsliga tvister – en kommentar, Dan Engström, Jure Förlag, 2012 –– MEDLING och andra former av konflikthantering, Jan Norman and Lina Öhman, Iustus ­Förlag, 2012 –– Handbok för medling i affärstvister, Eric M. Runesson, Jure Förlag, 2010

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references –– http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag2011860-om-medling-i-vi_sfs-2011-860/

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16. Country specific remarks Mediation under law in commercial cases is a new phenomenon in Sweden. It is not overly bold to assume that the support and security that mediation has recently been given by the legislator, as well as the increased demand from the market for a dispute resolution method that leads to an enforceable result without the parties having to put their disputes into the hands of others, will lead to a substantial increase in the number of mediations in Sweden; however, it remains to be seen how quickly this will happen.

SE

Mediation definition No statutory definition of mediation or mediator exists for Sweden except for the one already provided by the EC Directive.

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Mediation regulation and approach Country: Sweden Prepared by Christer Holm, Simon Arvmyren 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes (No) Yes (No) (Yes) No No Yes No Yes Yes No (Yes) Yes Yes Yes E (in court)/F (out-of-court) D/F F D/F GA Mix Mix No No No 40 hrs No No No No No (Yes) No

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Mediation regulation and approach Country: Sweden Prepared by Christer Holm, Simon Arvmyren 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation

SE

9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

Yes No No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

Yes Yes No

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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No No (Yes) No 2011 No

(Yes) No SEK1.500-5.000 (est.) SEK1.500-5.000 (est.) Yes No No No

Yes Yes Yes No Yes No (Yes) Yes No No

No = No (No) = No as a rule, but with (informal) exceptions

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28. UNITED KINGDOM: England and Wales1 Prepared by Andrew Colvin2 – Victoria Wilson3

1.

Attempt to mediate

a. Always voluntary (Yes). At any stage in proceedings there may be a suggestion by the judge that the case would be suitable for mediation, and in family cases there is an expectation that the parties will attend a mediation information and assessment meeting before issuing proceedings – see Section 1.e. below – but there is no obligation for a party to engage in any such process. Clients who wish to receive legal aid are required to consider the use of mediation if they wish to issue court proceedings, though they are not required to participate in the mediation itself. Once a civil case has started, the procedure before getting to trial includes completion of an allocation questionnaire to help in the management of the case. This requires legal representatives of the parties to confirm whether or not they have advised their clients on the various ADR options. b. Mandatory (in some cases) No. c. Court referral or court-connected mediation possible Yes. Court referral is possible at all levels, and may be delegated to court staff to suggest to the parties in small claims procedures. A particular scheme of note is the Court of Appeal Mediation Scheme. Started as a pilot scheme in 2003 and recently expanded, it is claimed that it has a success rate of 66% where the parties heed the recommendation of the Court of Appeal to try mediation. The scheme is administered by CEDR, a private body, and the mediator is normally chosen by the parties from a court-approved panel. It remains a voluntary decision to accept participation in mediation, subject only to the cost considerations in 1.e. below. Other court associated schemes, always voluntary, are: – the Small Claims Mediation Service (for disputes up to £5,000 in value); the mediation attempt will last about an hour and may be made by telephone. – Mayor’s and City of London County Court. – Technology and Construction Court: these last two use judges who are not engaged on the case.

1 Last update of information: July 2013. 2 Civil and commercial mediator, Andrew Colvin is an English barrister with practice in civil and commercial law, also qualified as avocat in France and has an Italian law degree from Siena. Contact: [email protected]; [email protected]. 3 Victoria Wilson is a family barrister and mediator at Goldsmith Chambers, Temple, London. Contact: [email protected], [email protected].

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GB

d. Court-ordered mediation possible No. A court may make an order staying proceedings or adjourning a hearing in order to allow an opportunity for negotiation or for mediation, and with an expectation that that will happen, but that is not the same as an order to mediate. Where staying proceedings in civil cases for mediation, the court may propose use of the National Mediation Helpline, or Civil Mediation Council, a service for advice and help in locating a mediator. e. Sanctions by the court if mediation is not tried (in good faith) (No). In family matters voluntariness is sacrosanct and there can be no sanction for failure to participate in mediation. Before commencing family law proceedings, there is an expectation that the parties will attend mediation information and assessment meeting, and in private child law cases there is a section on the application form which asks whether that has been done and if not, why not, but there is no obligation or sanction attached to attendance at such a meeting. In civil and commercial matters, a party who has refused mediation or behaved obstructively may find that the court will award costs in an unfavourable manner. Case law has developed on this. The successful but intransigent party may have legal costs disallowed, or even in rare cases be ordered to pay the costs of the losing party. Recently courts have confirmed that even an offer to settle on defined terms (known as a CPR – Civil Procedure Rules – Part 36 offer) is not a sufficient substitute for an attempt to mediate. The danger in this judicial supervision of the award of costs is that it may encourage expensive satellite litigation to examine appropriateness of mediation in the circumstances and the exact allocation of costs. Where a party has good reasons for refusing mediation, it should state those clearly. In employment disputes, refusal of a party to participate in a mediation process may affect the award of the tribunal. The Civil Mediation Council assists with information in this sector and there is a free conciliation service provided by ACAS (Advisory, Conciliation and Arbitration Service) for matters destined for the Employment Tribunals. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court (No). None generally, but for small claims the court hearing fee will be refunded where there is settlement prior to hearing. The courts have a duty under CPR 1.4 to encourage active case management including the encouragement of ADR to assist the parties in settling their disputes, and may use a stay in proceedings to encourage this. Some areas of litigation (e.g., personal injury and road traffic accidents) are covered by Pre-Action Protocol procedures. These are designed to ensure that litigation is truly a last resort, requiring parties to state their cases and exchange relevant documents clearly prior to commencement of proceedings, and respond whether or not they have considered the use of mediation. Further, during the early stages of proceedings, when the parties apply for directions for the conduct of the case, they will have to answer the same question. h. Outside counsel presence/representation during mediation sessions allowed Yes. The presence of counsel or assistants to the parties is essentially a matter for the parties to decide. However, a mediator has an ethical obligation to ensure that a party is properly able to express his or her position. In civil and commercial cases of any size, it is normal for the parties to be represented, but occasionally a mediator may suggest a meeting without lawyers in an endeavour to identify interest of the parties independently of the legal issues.

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In family law, the only people normally present during the mediation sessions will be the parties and the mediator, although it is made clear to the parties that they are entitled to seek independent legal advice whenever they choose to do so. The parties can ask the mediator to draft a Memorandum of Understanding to summarise the outcome of the mediation and to reflect their proposals. This memorandum can be converted into a draft consent order with a view to it being endorsed by the court, and therefore enforceable. i. Outside counsel presence mandatory No. Nor is it mandatory even for court proceedings.

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). Case law has established that a clause in a contract obliging the parties to mediate before commencing proceedings may justify the court in staying those proceedings for a period to attempt mediation. The clause though must be sufficiently clear to be enforceable, and it is advisable to use a standard clause directing the parties to a recognised mediation institution. The precision of the clause is particularly important where mediation is a step in an escalating dispute resolution procedure. A contractual mediation clause is unlikely in the context of family proceedings; agreement is either voluntary or part of a court order. b. Case admissible in court, however, the judge may take this into account and there is some case law (Yes). As above in civil and commercial proceedings, the grant of a stay is a discretionary remedy. Where the case proceeds, the judge may take this breach into account in the adjudication of legal costs. It is doubtful whether the breach could be a separate head of damages as it is impossible to determine what would have been the outcome of mediation if it had been attempted. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No./Yes. No, not in family law but, yes, for civil and commercial matters, provided its terms are sufficiently precise. However, although there may be a court order for stay of proceedings for a period to allow for mediation, there is no known case of an order for specific performance of a contractual mediation clause, and it is difficult to assess what the damages could be for a lost opportunity to mediate.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. There is no comprehensive national mediation law. The parties are free to adopt their own procedure, but will normally adopt the procedural rules of a mediation organisation, whether or not the mediation is conducted under the auspices of that institution. In family law, the major national family mediation organisations belong to an umbrella body called the Family Mediation Council, and Family Mediation Council members ensure that their mediators adhere to a Code of Practice.

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b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The emphasis is on flexibility with an ethical obligation on the mediator to ensure the fairness of the proceedings and that any power imbalances are redressed.

GB

c. Mediator can offer a non-binding opinion (Yes). The choice of a particular mediator on account of his or her specialist knowledge or experience may indicate a desire by the parties to have some advice whether on legal or technical aspects. However, the mediator should not offer that advice or an opinion on the relevant merits unless asked. Even if asked, the mediator should reserve the discretion whether to respond by considering first whether an opinion would actually help in securing a mediated settlement. In family law, one of the key principles is that the mediator acts impartially. The mediator must not offer legal advice, but a good mediator uses the technique of ‘reality testing’ with the parties, i.e., encouraging them to consider the real effect of the proposals they are making. d. Mediator can offer a binding opinion No. If advice is to be binding the process should no longer be considered as mediation, but an alternative ADR procedure such as expert determination. There is also the possibility, particularly under the auspices of the Commercial Court, for the parties to initiate a procedure known as Early Neutral Evaluation (ENE). This may be done by a judge or other lawyer third party who is not otherwise connected with the conduct of the case. The aim is to provide a preliminary indication of various weaknesses and strengths of the cases of the parties. This is based primarily on a view of the documents and pleadings at that particular stage. It is not to be considered a preliminary judgment, but a view expressed to allow the parties a period for reflection and possible negotiation. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) (Facilitative). Generally the mediation style will be facilitative, but it is open to the parties to agree a more dynamic mode for the mediator and the choice of a particular individual as mediator may indicate a preference of style. Parties who engage a more senior mediator are  more likely to look to that person for a legal or technical evaluation according to the specialist discipline of that mediator. However, the mediator is usually inclined to try an initial facilitative approach to assist the parties to find their own solution. This does not mean that the mediator will not want to probe the merits, and the reality testing questions posed by a mediator, whether in joint session or caucus, may lead a party towards the evaluation of its own position. However, the mediator should always be careful to let the party draw its own conclusions, even if it does not articulate them. f. Predominant approach in commercial disputes re process (facilitative, directive, other) (Facilitative). A mediator will remind the parties that it is their prerogative to determine how it should be conducted. The approach will generally be facilitative, but the rules of the various mediation organisations may differ in their approach. Most mediators would claim to be acting in a facilitative way, enabling the procedure to unfold as the parties would wish it, whilst respecting the fundamental rule that each side should have an adequate opportunity to unfold its case. The reality is that as wider experience of mediation develops, so its structure becomes more typecast, as well as the constraints of accepted institutional rules and the amount of the fees being charged. Expectations of a standard procedure will be stronger in the case of larger commercial mediations where more specialised counsel are likely to be involved and used to working to a format. The holding of reserved caucus proceedings is

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considered the norm for mediations in commercial and civil matters, but not at all in family matters. Time is a key element: in the case of some court-annexed small claim schemes, where there is dependence on pro bono work by mediators, it may amount to one short session of less than an hour in which the options are set before the parties. In commercial or civil mediation, the pace is usually intensive with an agreed time, maybe a day, set aside for the mediation. That induces a certain rhythm, with positions and exploration in the morning, and real negotiation only later in the day, sometimes concluding late at night. If there is no time set in advance, there will be a continuing pressure to resolve the dispute, or abandon the attempt, as it is usual for the mediator to be paid an hourly rate; if a party enters mediation with the avowed intention of resolving a dispute at a lower cost, then it will also be conscious of a cut-off point at which, in the absence of a clearly attainable agreement, it does not make sense to continue. Thus the dynamic of cost is a large factor in shaping the procedure. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) (Facilitative). Same comment as under 3.e. In family law the predominant mediation style is facilitative. The parties are in control of the decision-making. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) (Facilitative). Same comment as under 3.f. for general civil disputes. In family law the predominant mediation style is facilitative. It is common to meet in a series of shorter sessions, perhaps 90 minutes. Because of the voluntary nature of the process, either party or the mediator can call a halt to it at any time. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Technical/legal. If used, which is the exception, dependent on the qualification of the ­mediator, evaluation could be either technical or legal. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Commercial mediation normally takes place as a mixture of joint sessions and caucus. The private session with each party may be abandoned where it is clear that the parties are engaged in negotiation and do not appear to have significant communication problems. Even then, the parties, in particular companies, may look for the benefit of a sounding board for discussing the internal impact of a dispute resolution, for example, on their shareholders, employee relations and treasury. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. For civil disputes, again there will be a mixture of joint and private sessions. In family matters, a private caucus is not appropriate, but family mediation meetings are held in a series of joint sessions. If the parties want more continuing confidential advice, they could opt for ‘collaborative justice’ as another form of ADR.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Accreditation or certification of mediators is performed by private institutions, without government supervision. Most mediation providers require a certificate given by one of these bodies, certifying that a training course has been successfully completed. As referred to

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above, in family law, the major national family mediation organisations belong to an umbrella body called the Family Mediation Council, and the Family Mediation Council members ensure that their mediators adhere to a Code of Practice. .

b. Set by market (private certifying bodies) Yes. There is no legal requirement for a mediator to have any certificate or other qualification, although there is the ethical duty only to undertake mediations for which one is competent. Few parties to a dispute, however, will entrust their mediation to a neutral without seeing evidence of some recognised certificate or accreditation.

GB

c. Set by public regulation No. So far this process has been conducted by private institutions. However, for family mediation providers to be awarded a contract to conduct publicly-funded mediation, they must meet the requirements specified by the Legal Aid Agency, the body which provides civil and criminal legal aid and advice in England and Wales. d. Number of hours for basic mediator training Six days. As there is no barrier to the profession of mediator, nor can there be any legal minimum for training. Different organisations will have different training objectives. A course of basic training with a typical ADR provider could be spread over six days. In training for family mediation, the course is likely to have a section for undertaking written assignments to test the skill of candidates, including the requirement to produce a Memorandum of Understanding which could then be converted into a court consent order if the parties so wished. e. Mandatory Continuing Professional Development for accredited/certified mediators Yes. The Continuing Professional Development criteria will be set by individual mediation organisations. In family law, the national family mediation organisations are members of the Family Mediation Council and must work to agreed minimum professional and training standards. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) No. A mediator acting under the auspices of a mediation provider will be bound to accept the rules of that provider. g. Accreditation through written exam (Yes). See 4.1.d for family mediation. h. Accreditation through performance-based assessment (Yes). Performance-based assessment is another method for a mediation providing body to determine who should be included in, or excluded from, its accredited lists.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no commonly recognised scheme for endorsement of mediation advocates. j. Set by market (private certifying bodies) (Yes). Recognition of reputation by other professionals is the only form of market accreditation.

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k. Set by public regulation No. There is no such scheme.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. There is no formal barrier of qualification against holding oneself out to be a mediator. In practice one is unlikely to be asked to undertake mediation without either a reputation among professionals in the market or being on the list of a mediation providing body. b. Set by public regulation No. There is no public regulation of the profession of mediation. However, a family mediation provider will only be awarded a contract for publicly-funded work if they have complied with the requirements set out by the Legal Aid Agency. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. There is no restriction of the activity of mediator to lawyers. Many mediators belong to other professions. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There is no restriction of the activity of mediator to lawyers. Many mediators belong to other professions.

6.

EU Directive

a. EU Directive implemented for cross-border cases only Yes. EU Directive 2008/52 was only implemented in the United Kingdom for mediation of cross-border disputes, and required only minimal adjustment of court rules principally under the Civil Procedure (Amendment) Rules 2011 (S.I. 2011 No. 88). Where the parties (or one with the explicit consent of the other) apply to make a mediation settlement enforceable, the court may make such an order, normally without the need for a hearing. Any final limitation or prescription date will be suspended for the period of the mediation plus eight weeks. For disputes within the UK, if the parties cannot agree extension, one of the parties will need to file a protective claim to stop time running. b. EU Directive implemented for all national and cross-border commercial cases No. Implementation of EU Directive 2008/52 was not required to be extended to mediation of disputes between parties in the same country. c. EU Directive implemented for all national and cross-border civil cases No. Implementation of EU Directive 2008/52 was not required to be extended to mediation of disputes between parties in the same country.

7.

Mediation legislation besides Directive

a. Mediation legislation since (No). The government’s approach to mediation legislation has been minimalist. Its encouragement of mediation though has been strident, and the courts have been active in the

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promotion of mediation. The government, originally by a statement in Parliament, obliged all public administrations to adopt ADR techniques as a necessary preliminary to court proceedings. This is now known as the dispute resolution commitment. b. Legislation updated since EU mediation directive (date update) No.

8.

Bodies providing mediation

d. Mediation bodies may have various legal forms Yes. There is no restriction on the legal form adopted by a mediation body, nor any requirement to incorporate. e. Individuals may be providers of mediation services Yes. An individual can be a provider of mediation services, whether acting alone and independently or as part of a mediation body. f. Mediation provider qualifications/requirements determined by public regulation No. There are currently no public regulations on the structure of a bodies providing mediation.

GB

9.1. Mediator fees a. Freely contracted Yes. A mediator’s fee can be freely contracted, subject only to the ethical obligations that it should be clearly stated before acceptance of the appointment. b. Fixed in some cases by public regulation (Yes). Where schemes are publicly-funded, these are contracted out by the Legal Aid Agency to bodies providing mediation and set rates are paid to the contract holders. c. Average mediator fee per hour for commercial or cross-border cases £ 300 (estimate). There will be great variance according to the reputation of the mediator and size of the dispute. Generally the rates will be split equally between the parties. £ 300 per hour would be typical for an experienced commercial mediator. Rates could well be quoted on a per day basis. d. Average mediator fee per hour in civil cases £ 100 per party per hour (family) / £ 150 per hour, £ 750 per day per party (civil) (estimate). Again fees will vary greatly. Examples are quoted exclusive of VAT. A civil case mediator could expect £ 150 per hour. Typical rates cited are £ 750 per day per party, but will vary greatly according to reputation, expertise and the importance of the case. For family disputes the rate could be £ 100 per party per hour, with an additional fee for drafting a Memorandum of Understanding or, in financial cases, an open summary of financial information. Publicly funded mediations, including those under the Small Claims Mediation Service, will be paid at a set, and usually lower, rate. The Civil Mediation Council has a system of fixed fees for smaller cases, so for a three-hour mediation session in a case worth between £ 5,000 and £ 15,000, the fee will be £ 300. The Court of Appeal Mediation Scheme, operated by a court recommendation to mediate before the appeal is heard, charges a fee of £ 850 per party, to include administration, four

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hours of preparation and up to five hours of meetings.

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). Publicly-funded mediation is available for financially eligible clients. Legal aid is available in principle for disputes for which legal aid would be available for court proceedings. The categories of disputes and of persons eligible for legal aid is being cut by the Government ever more drastically, and it is advisable to seek advice on this at the time. f. Mediator fees covered by legal insurance schemes (Yes). Legal insurance schemes may contractually provide for an obligation on the part of the insured to participate in mediation at no cost to the insured party. Willingness of an insurer to cover this depends on the insurance contract coverage. g. Mediator fees subsidised in court-connected schemes (Yes). The contracting out of court-annexed schemes will provide for a relatively low fee, but this may be compensated by a more certain flow of work. Some schemes are administered by court staff whose costs are included in the general payroll.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. A mediator has no particular status in relation to a court or judge. b. Relationship between mediation and the legal system (is mediation seen as part of the legal system?) (No) The importance of mediation for the settlement of disputes is recognised in various provisions of the Civil Procedure Rules (CPR) and in the rules for family law procedure. There is provision for referral to mediation at any stage, including on appeal, but always subject to the principle of voluntariness. c. Mediation procedure has impact on statute of limitations Yes. Provision has been made for suspension of limitation periods on application to the court. The suspension covers the duration of the mediation and a period of six weeks thereafter. If an application is not possible, a protective writ should be filed.

11. Mediated settlement Contract (Yes). A mediated settlement is normally embodied in a contract between the parties, though it is possible to agree a non-binding understanding. The mediator will not be a party to that contract. This does not apply in family law where any summary of the outcome of the mediation is not binding, therefore not a contract. Automatically enforceable No. Where court or arbitration proceedings have commenced, it may be possible to embody the agreement in the form of a consent order, so that it would then become enforceable. Where

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there is pending litigation, this may take the form of a ‘Tomlin Order’, which effectively puts an end to the litigation. In other cases, a contract is not enforceable, but the nature of the contract, if properly drafted, may make it possible to obtain a summary judgment, thus providing for a relatively rapid remedy. Specific performance of an obligation could be enforced where damages would be an insufficient remedy, but this is a discretionary remedy sparingly granted. Enforceable under some circumstances which are up to the parties (Yes). There is provision within the CPR for application on behalf of both parties for a European Enforcement Order where there has been settlement of a cross-border dispute, and specifically a mediation settlement enforcement order under CPR 78. It is also possible for the application to be made where no contentious proceedings have been commenced. Enforceable under some circumstances defined by public regulation No.

GB

12. Confidentiality a. Regulated by law (No). Although there is an assumption of confidentiality, there is no general automatic legal duty of confidentiality by the mediator or the parties. This must therefore be covered by contract, both as to transactions during the mediation, documents introduced, and indeed the very existence of the mediation. The usually understood basis for negotiations and mediations is that all discussions are without prejudice, thus, whether or not confidentiality is maintained, information obtained during those discussions cannot be taken as an admission or indeed used as evidence. Where a relationship of confidentiality can be established, breach of that confidentiality may be actionable as a tort or in contract, where so incorporated. It is much easier to keep control of the question of confidentiality by having a clear contractual obligation. One of the core principles of family mediation is confidentiality, although there are three broad exceptions (i) if there is an issue of significant harm to an adult or child, (ii) if there is criminality and (iii) financial disclosure within mediation is not confidential. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). There has been debate over the desirability of establishing privilege for the mediator, to prevent the risk of a subpoena to give evidence. In cases on this question, whilst it has been accepted that by virtue of the contract for mediation a mediator could refuse to give evidence, the court could oblige the mediator nevertheless to do so where required for reasons of public policy. Such reasons could include the allegation that consent had been fraudulently obtained. For cross-border cases, by virtue of Statutory Instrument SI 2011 No.No. 88, CPR 78 now provides for applications for the disclosure or inspection of evidence in the control of a mediator or mediation administrator. An order for release of evidence must be justified either by consent of all parties, or that it is necessary for overriding considerations of public policy, or as necessary for the implementation or enforcement of the settlement agreement. There are further provisions for securing the attendance of a mediator as witness.

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13. Education a. Mediation education mandatory component at legal education (No). Previously mediation education was not part of the education syllabus for entry to the legal education. However, it is becoming an increasingly common component given that a greater emphasis is now being placed on mediation as an alternative to going to court. Those teaching civil procedure will refer to it during their courses. b. Mediation advocacy education is a common component of legal education No. Advocacy training has so far concentrated on courtroom techniques rather than mediation. It could be added that those techniques have, over the years, put more emphasis on the duty of the advocate to assist the court and co-operate with the opposing party in the resolution of the dispute.

14. Most relevant literature or references, case law, articles, law –– ADR Principles and Practice, 3rd edition, by Henry Brown & Arthur Marriott QC (Sweet & Maxwell/Thomson Reuters 2011), 868pp. –– Roberts, Simon and Palmer, Michael Dispute Processes: ADR and Primary Forms of Decision Making (2nd edition, Cambridge University Press, Cambridge, 2005). –– K Mackie, D Miles, W Marsh, T Allen, The ADR Practice Guide (2007). –– D Spencer and M Brogan, Mediation: Law and Practice (Cambridge UP, 2006).

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references –– http://www.familymediationcouncil.org.uk/ –– http://www.justice.gov.uk/legal-aid –– http://www.legislation.gov.uk/uksi/2011/88/made/data.pdf –– http://www.civilmediation.justice.gov.uk/

16. Country specific remarks This chapter covers England and Wales. Scotland is a separate jurisdiction with its own system of law. Mediation definition Just as there is no law on mediation in England and Wales, there is no official definition. Insofar as rules of court or statutory instruments define conditions for the implementation of provisions of Directive 2008/52, they implicitly adopt the definition of the EU Directive. In addition any body which administers mediation is likely to have a definition of mediation within its rules, but that has no significance outside the ambit of its own work.

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Mediation regulation and approach Country: United Kingdom, England and Wales Prepared by Andrew Colvin, Victoria Wilson 1. Attempt to mediate

2. Mediation clause

GB

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) No Yes No (No) No (No) Yes No (Yes) (Yes) No/Yes No Yes (Yes) No (F) (F) (F) (F) Tech./LO Mix Mix Yes Yes No 6 days Yes No (Yes) (Yes) No (Yes) No

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Mediation regulation and approach Country: United Kingdom, England and Wales Prepared by Andrew Colvin, Victoria Wilson 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

Yes No No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

Yes Yes No

e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No (No) No

Yes (Yes) £300 (est.) £100-150 (est.) (Yes) (Yes) (Yes) No

(No) Yes (Yes) No (Yes) No (No) (Yes) (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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29. UNITED KINGDOM: Scotland1 Prepared by John Sturrock 2 – Graham Boyack3

1.

Attempt to mediate

a. Always voluntary (Yes). Mediation is voluntary and there is no compulsion to mediate. See 1.c.

GB

b. Mandatory (in some cases) No. In civil justice cases a judge in Scotland may encourage mediation but it is not mandatory. For employment-related conflicts the Advice and Conciliation Service (ACAS) advises mediation as a first step in dispute resolution. c. Court referral or court-connected mediation possible Yes. In some cases, a judge makes an order which the judge thinks will result in the speedy resolution of the action (including the use of an alternative dispute resolution). In other cases, a judge may refer a case to an in-court mediation service. These are relatively rare. In other cases a Scottish judge may suggest mediation and encourage its use on a voluntary basis. Following a broad review of Scotland’s court system, these matters are currently under further consideration. d. Court-ordered mediation possible Yes. See 1.c., but this is very rare. e. Sanctions by the court if mediation is not tried (in good faith) No. As mediation is not specified no sanctions exist. f. Sanctions by law if mediation is not tried (in good faith) No. As mediation is not specified no sanctions exist. g. Incentives if mediation is tried voluntarily before going to court (No). No formal incentives apply if mediation is used. Efforts to expedite resolution generally (of which mediation may be an example) may be recognised in some costs awards. h. Outside counsel presence/representation during mediation sessions allowed Yes. It is common for parties to have external advisors present, particularly in commercial mediations. The decision is made by the parties and their advisors usually in consultation with the mediator.

1 Last update of information: January 2014. 2 John Sturrock is chief executive and senor mediator in Scotland’s leading commercial mediation service, Core Solutions Group. Contact: [email protected]. 3 Graham Boyack is director of the Scottish Mediation Network. Contact: graham.boyack@scottish mediation.org.uk.

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i. Outside counsel presence mandatory No. Mediation practice is not covered in law.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Mediation is generally voluntary and a mediation clause would not prevent admissibility unless the court decided that it excluded the court’s jurisdiction. The law is undeveloped in this area but would generally follow that of England. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 2.a. It would depend on the interpretation and enforceability of the clause.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. There is an exception in Family Law through the Civil Evidence (Family Mediation) (Scotland) Act, which provides that no evidence of what occurred in family mediation is admissible in court, with limited exceptions. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The mediation procedure is specified in the mediation agreement between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. However, it is unusual for a mediator to give an opinion. d. Mediator can offer a binding opinion (Yes). This would depend on the parties’ contractual arrangements with the mediator. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative is the predominant style for commercial disputes in Scotland. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.f. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Both caucus (private meeting, we would not use the word ‘caucus’) and joint session are used in Scotland. The degree to which they are used will very much depend on the nature of the case and the stage of the process. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. Both private meeting and joint session are used. In small claims cases, it is often the case that much of the private meeting work will be done prior to the parties meeting and that, as a result, the remainder of the mediation will be in joint meetings. In family cases, joint meeting is the predominant style.

GB

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are a number of bodies which provide training and accreditation or certification of mediators to varying standards. These are both commercial and public sector. In addition, the Scottish Mediation Network operates the voluntary Scottish Mediation Register in which many mediators participate. The register provides that a minimum standard of training and mediation practice is undertaken. There is a minimum of 40 hours training of which at least 20 hours must be on mediation role-play or practical exercise. Admission to the Scottish Mediation Register requires completion of initial training and 2 mediations in the past 12 months and/or not less than 6 hours of conducting mediations as a principle mediator in the past 12 months. Admission to the Scottish Mediation Register as an Advanced Mediator requires completion of initial training and 15 and/or not less than 60 hours of conducting mediations in the past 12 months as a principal mediator or co-mediator. For the register, mediators are required to plan, undertake and review a minimum of 12 hours of continuing development and support each year. This CPD and practice support may include training, supervision, monitoring, mentoring, shadowing and peer review. The purpose of this CPD and practice support is to offer a framework for mediators to reflect on their practice in a structured way with a view to learning and developing their skills. All Scottish mediation registered mediators are required to establish and maintain a portfolio which may be subject to random checks to ensure that register requirements are being met. The portfolio must contain the following: initial training certification, log of mediations/ mediation hours undertaken, log of CPD hours and CPD certificates, certificate of insurance and an annual training and development plan. The register also covers family mediators accredited by Relationships Scotland and community mediators accredited by the Scottish Community Mediation Network. b. Set by market (private certifying bodies) Yes. Only the Scottish Mediation Register seeks to cover all disciplines. c. Set by public regulation No. Although the register exists, mediators are under no obligation to meet these standards. An exception to this is in the area of additional support needs. All education authorities must have arrangements for independent mediation to resolve disputes regarding a child or young person who has additional support needs. These mediation services are available when

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there is a dispute between parents/carers and the school or local authority. The mediation is free for the parents/carers. The law that sets out these rules can be found in the Education (Additional Support for Learning) (Scotland) Act 2004/09. d. Number of hours for basic mediator training 40 hours. In order to join the register, 40 hours of training are required and nearly all ­training organisations provide for this amount as a minimum. See 4.1.a. Some organisations, s­ pecialising in commercial and civil mediation training, such as Core Solutions Group (www.core-solutions.com), expect over 50 hours in total. e. Mandatory Continuing Professional Development for accredited/certified mediators (No). For those on the voluntary register and some other organisations there is CPD, however, it is not mandatory. In order to maintain accreditation on the register a compulsory 12hours of CPD is required. This consists of a minimum of 12 hours of continuing development and support each year. This CPD and practice support may include training, supervision, monitoring, mentoring, shadowing and peer review. The purpose of this CPD and practice support is to offer a framework for mediators to reflect on their practice in a structured way with view to learning and developing their skills. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. See 4.1.a., b., c., d. and e. g. Accreditation through written exam (Yes). As part of the training assessment/accreditation, some training providers use a written assignment. This is not compulsory for all mediators however. h. Accreditation through performance-based assessment Yes. The assessment would normally include direct observation, by an assessor, of practice as a mediator in role-play.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no scheme to certify mediation advocates. j. Set by market (private certifying bodies) Yes. There is no legislation governing mediation advocacy. k. Set by public regulation No. See 4.2.a. and b.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) (Yes). Although there is a Scottish Mediation Register, anyone can offer services as a mediator. In family mediation Relationship Scotland maintains practice standards and a system of supervision that is compulsory for mediators working in affiliated services. In additional support needs (ASN) mediation services is available, free of charge, to parents or young people. Objectivity and impartiality are key principles for ASN mediation services. This

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means that mediators will remain independent and fair, allow all parties to speak and not take sides. There are standards that must be met by ASN mediators. These standards make sure that the mediator is appropriately trained and continues to develop their skills (CPD). Alongside these standards, ASN mediators are subject to checks through Disclosure Scotland. b. Set by public regulation No. The only area where public regulation is applied is through the funding arrangements for services, particularly in family and ASN mediation as described above. See also 16. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Anyone can train and qualify as a mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.a., b., c.

6.

EU Directive

GB

a. EU Directive implemented for cross-border cases only Yes. b. EU Directive implemented for all national and cross-border commercial cases No. c. EU Directive implemented for all national and cross-border civil cases No.

7.

Mediation legislation besides Directive

a. Mediation legislation since No. b. Legislation updated since EU mediation directive (date update) 2011. Cross-Border Mediation (Scotland), Regulation No. 2011/234 21 March 2011 (in force on 6 April 2011).

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. – There are a number of different forms for mediation bodies in Scotland. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

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9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. Mediator fees are regulated for legally-aided mediation. c. Average mediator fee per hour for commercial or cross-border cases £ 50 – £ 500 (estimate). d. Average mediator fee per hour in civil cases £ 50 – £ 500 (estimate).

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Must be obtained through a registered legal practice with the Scottish Legal Aid Board. f. Mediator fees covered by legal insurance schemes Yes. An increasing means of funding in Scotland. g. Mediator fees subsidised in court-connected schemes (No). There is one court-annexed scheme in Edinburgh Sheriff Court. In this scheme the mediators are volunteers.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Although many judges are aware of mediation and indeed supportive, there is no special relationship. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. Mediation may run parallel to legal processes. Although it is clearly linked to the legal system and many lawyers are qualified mediators, it is not seen as a formal part of the legal system. If parties in the legal process agree to use mediation, this generally takes place outside the court system (but see 1.c) and any results are not subject to court approval unless agreed by the parties, which is very rare. c. Mediation procedure has impact on statute of limitations No. Mediation does not at present interrupt any limitation periods.

11. Mediated settlement a. Contract Yes. Often a mutually agreed and signed written agreement is produced at the end of the mediation, which is treated in the same way as any other contract in Scotland.

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b. Automatically enforceable Yes. As with any other contractual documents, a written agreement is enforceable in Scotland, but not especially to do with mediation.

12. Confidentiality a. Regulated by law No. With an exception in family law and limited to the obligation to give evidence. Confidentiality within the mediation process is usually governed by contractual agreement of the parties. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. In family law cases through the Civil Evidence (Family Mediation) (Scotland) Act, no evidence of what occurred in family mediation is admissible in court, with limited exceptions. In other areas the agreement to mediate usually specifically provides that the mediator cannot be called as a witness in any related proceedings.

GB

13. Education a. Mediation education is a common component of legal education (Yes). Mediation is becoming a common component in legal education. At this stage, however, it is commonly taught on a non-compulsory basis and does not yet form a compulsory part of many undergraduate law degrees. b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, case law, articles, law –– –– –– –– –– –– ––

Getting to Yes, Fisher and Ury Mediating Dangerously, Cloke Mediation Principles etc, Nesic and Boulle Thinking Differently, Core Solutions The Power of a Positive No, Ury Kahnemann, Thinking Fast and Slow Nowak, Super Cooperators

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references NA.

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16. Country specific remarks Scotland is a mixed civil-law (Roman law origins) and common-law (as part of the United Kingdom) country. Mediation is increasingly used in civil and commercial matters, in the workplace, family, education and community and in restorative justice. There is much greater understanding than ten years ago. Much remains to be done to have mediation accepted into the mainstream. The Education (Additional Support for Learning) (Scotland) Act 2004 makes a provision for Mediation: ‘15 Mediation services (1) Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and – (a) parents of children belonging to the area of the authority, (b) young persons belonging to that area, or (c) in relation to any such young persons who lack capacity to express a view or make a decision for those purposes, their parents, concerning the exercise by the authority of their functions under this Act in relation to such children or young persons. (2) Mediation services are independent for the purposes of subsection (1) if the person providing the services has no involvement in the exercise by or on behalf of the authority of their functions under this Act (apart from this section). (3) Arrangements made in pursuance of subsection (1) – (a) must not require any parent or young person – (i) to refer any disagreement with the authority to the mediation services provided in accordance with the arrangements, or (ii) to pay any fee or charge for the provision of the mediation services, and (b) do not affect the entitlement of any parent or young person to refer any matter to a Tribunal. (4) In this section and section 16, references to the exercise by an education authority of any function include references to a failure to exercise the function.’ Mediation definition There is no statutory definition for mediation or mediator in Scotland.

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Mediation regulation and approach Country: United Kingdom Scotland Prepared by John Sturrock, Graham Boyack

GB

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediatorfully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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(Yes) No Yes Yes No No (No) Yes No Yes Yes No No Yes Yes (Yes) F F F F NA Mix Mix Yes Yes No 40 hrs (No) No (Yes) Yes No Yes No

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Mediation regulation and approach Country: United Kingdom Scotland Prepared by John Sturrock, Graham Boyack 5. Who can be mediator?

6. EU directive

7. Mediation legislation (besides Directive) 8. Bodies providing mediation 9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases a. Mediation legislation since b. Legislation updated since EU mediation directive (date update)

(Yes) No No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

Yes Yes No

d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No No 2011

Yes Yes £50-500 (est.) £50-500 (est.) Yes Yes (No) No

No No Yes Yes No No No Yes (Yes) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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II. Europe outside of European Union

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30. RUSSIA 1 Prepared by Professor Tsisiana Shamlikashvili2

1.

Attempt to mediate

RU

a. Always voluntary Yes. According to the Russian Mediation Act (see 3.a. and 7.a.), it is always a voluntary procedure which starts and ends as the parties desire. However, there were several attempts made by the Supreme Commercial Court of the Russian Federation and a draft of the bill was introduced to Parliament in 2012 which intended to implement mandatory reconciliation procedures in some cases (led by so-called court conciliators). The Government rejected this bill, so it is highly unlikely that it will go through Parliament. b. Mandatory (in some cases) No. On 22 December 2011, the Russian president Mr Medvedev announced the importance of using mediation and other alternative procedures in dispute resolution. He said this in a speech giving an official statement to the Russian State Duma and Council of Federation (Senate). After this statement, the president made an order to study the question of implementation of mandatory reconciliation procedures in resolution of some disputes. The question of information about mediation for ordinary citizens was also raised. One of the main goals declared by Mr Medvedev was to find the ways to develop a culture of peaceful and amicable dispute resolution in Russian society as a whole. This issue was deliberated and discussed among all stakeholders taking in consideration the main question: access to justice for the citizens. In principal, courts are supportive towards mediation. At the same time, there is a somewhat polarised attitude to the role of courts in integrating mediation in Russia. The General Jurisdiction Court (GJC) named several categories of cases which could be referred to mediation by the courts or could even be considered as subjects for mandatory pre-court mediation. So, GJC being quite supportive of mediation prefers to keep some distance. Arbitration (Commercial) Court (AC) supports conciliation procedures and furthermore has already made several attempts to make amendments in existing laws which would allow conciliation within the court by retired judges, assistants to judges and court clerks. This approach has not found support as the main idea was to use mediation as out-of-court procedure facilitating improvement of the court system, its independence and assisting citizens in getting a real alternative to the courts. Under the Arbitration Procedural Code of 2002, facilitation of conciliation and amicable dispute resolution is already one of the roles which judges have to play. Up until now this norm has hardly worked because of the huge backlog of cases and also under an absence of real skills which judges need to fulfil this role. Widespread mediation and existence of courts where adequately trained judges will help parties to find way to agreement could bring tremendous changes for the better in the 1 2

Last update of information: July 2013. Professor Tsisana Shamlikashvili – President of the National Organization of Mediators (NOM), founder of the Scientific and Methodological Center for Mediation and Law, Chair of the Subcommittee on ADR and Mediation in the Russian Association of Lawyers, editor-in-chief of the magazine ‘Mediation and Law’, Professor of the Moscow State University of Psychology and Education, holder of the chair ‘Mediation in Social Practices’. Contact: [email protected], [email protected].

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Russian legal system and in society as a whole. Currently, the conclusion is that, first of all, we need infrastructure to implement mediation. And if to some extent mandatory mediation is adopted we’ll have to provide citizens with opportunity for having at least short mediation sessions for free. One of the first steps should be organising mediation information sessions in the courts (sometimes even mandatory) and pilot projects with the participation of the courts where judges are more interested in mediation as a new institute, building an effective alternative to the courts, and trust in society towards Russian court system as an independent resort for justice. The courts could and should become one of the main sources of information for citizens since, for instance, in 2011 more than 25 million cases were filed in Russian courts of all kinds. c. Court referral or court-connected mediation possible Yes. The Russian courts are obliged to propose that parties mediate before continuing court proceedings. It is a rule for courts of general jurisdiction and commercial courts. The courts are also obliged to postpone court proceedings if parties agree to mediate. Within the framework of special experimental projects, such as those that were made in Yekaterinburg and some other regional courts, court-connected mediation is also possible, but there is still no common approach in this field. Court-connected (meaning referral to mediation by judges, informing parties about mediation but not to be confused with judicial mediation provided by judges) mediation programmes are starting to develop more widely across the country depending on the development of a professional mediator community and willingness of regional courts. One of the main targets is educating legal professionals and specifically judges about mediation, equipping them with skills to refer competently to mediation. Another important step will be mandatory information sessions for the parties. d. Court-ordered mediation possible No. It might be seen by some officials as an opportunity to lighten the workload of courts so bills to cater for this have been proposed (see 1.a.), but this is also seen as a tool that might hinder fair justice. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. There are some disputes in this field about ways to promote mediation, but such regulation does not exist. g. Incentives if mediation is tried voluntarily before going to court No. There are some discussions in this field on how to promote mediation. One proposal is to increase state court fees or reimburse them in part if mediation succeeds and mediation agreement is signed, but this has not been included in an official bill yet. h. Outside counsel presence/representation during mediation sessions allowed Yes. According to the Mediation Act, it is allowed and is even necessary, especially since mediators are restricted in their rights to even put forward proposals unless asked by the parties (see 3.c.) and mediators may not give any legal advice even if they have a legal background. i. Outside counsel presence mandatory No.

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2. Mediation clause a. Case admissible in court with a mediation clause (Yes). According to the Mediation Act, the courts and arbitration must acknowledge mediation clauses unless the conditions of this obligation are not executed, except when either of the parties, in their opinion, has to protect their rights. So the parties have the right to go to state courts anytime. This is not the case with arbitration, which does not start if the parties have a mediation clause and until they have tried mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. See 2.a. The judge may not take into account whether the parties fulfil their obligation to mediate according to a mediation clause. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. But there may be changes if mandatory mediation is implemented (see.1.b.) and there is a special requirement for arbitration (see.2.a.).

RU

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The Russian Mediation Act provides a definition of ‘mediation procedure’: a way of dispute resolution with the assistance of a mediator, on the basis of voluntary consent of the parties, for the purpose of achieving a mutually accepted resolution. The definition of ‘mediator’ according to the Act is ‘an independent individual, or independent individuals, engaged by the parties as intermediaries in dispute resolution with the objective of assisting them to reach a decision on the merits of the dispute by the parties’. The law prescribes that, before starting the procedure, the parties to the dispute should conclude an agreement on conducting the mediation procedure. The dispute matter, the mediator or mediation provider, procedural rules and the payment of expenses should be defined in such agreement. The main principles of mediation are also defined: ‘A mediation procedure may be undertaken according to mutual will of the parties, on the basis of voluntariness, confidentiality, cooperation and equal rights of the parties, impartiality and independence of the mediator’. Thus mediation is described by law, specifically in relation to the Act and the court procedure. The way mediation is conducted is not regulated and neither is the mediation approach (evaluative, facilitative, transformative, directive, etc., see 3.e., 3.f., 3.g., 3.h., 3.i). At the same time, the whole concept of the Mediation Act is oriented towards a more flexible facilitative approach. The procedure is quite flexible, allowing the parties to decide about how directive the mediator can be. At the same time some features of the Act itself point to a more facilitative process. Procedure is described in the internal documents of professional mediator organisations which can become self-regulated bodies. (National Organisation of Mediators has just recently adopted Procedure Rules, Code of Professional Ethics etc.)

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b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. The parties may work out their own mediation procedure design in accordance with the law. They can also use mediation rules of mediation providers or allow the mediator to decide on procedural questions. c. Mediator can offer a non-binding opinion Yes. It is strictly defined by the law, that ‘the mediator has no right to make proposals for dispute resolution unless the parties have agreed otherwise’. So, as a rule, a mediator does not offer advice, however, the mediator is allowed to do so, if the parties request this. Some mediation rules require a specific written request. d. Mediator can offer a binding opinion No. See.3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other). Facilitative. The Russian mediation style has its roots in a facilitative mode as it was introduced as a more appropriate for Russian conditions, both in commercial and civil disputes. This style helps to maintain flexibility and tailor the most effective process, which can have elements of different approaches (following the basic principles of mediation) to respond the expectations, interests and needs of the parties involved. One of the main goals was to empower parties and help them have real influence on the outcome. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/evaluative. If it is appropriate and according to the will of all the parties equally. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. Russian law tends to be understood to promote facilitative mediation style, but there is an opportunity for mediators to put forward non-binding proposal (see.3.c). h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral, general advice. Advice is only given when asked for by the parties, and it is still up to the mediator to decide whether to give an opinion. If mediator thinks that an opinion could harm the process, he or she may refrain from doing so. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. In civil mediation, especially in family and labour cases, joint sessions are common practice. But often mediators use caucus elements.

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4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). It is not called ‘accreditation’ or ‘certification’, but there is a requirement set by the Mediation Act that professional mediators need to be trained in accordance with the state education programme (see 4.1.d). The law states specific requirements for mediators and conditions for their activity in professional and non-professional circumstances. It is prescribed that professional mediators can unite in self-governing organisations. Those organisations must meet some criteria: control over the quality of its members’ work, establishing professional ethical standards (a code of conduct) etc. Only professional mediators are allowed to mediate court-referred cases or any cases filed in court. b. Set by market (private certifying bodies) (No). c. Set by public regulation (Yes). See. 4.1.a.

RU

d. Number of hours for basic mediator training 120 hours. The Mediation Training Programme was approved by the regulation of the Ministry of Education and Science, with the approval of the Ministry of Justice, and consists of 3 levels: basic level – 120 hours; peculiarities of mediation – 320 hours; and training for the trainer course – 144 hours. e. Mandatory Continuing Professional Development for accredited/certified mediators No. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) Yes. See.4.1.a. A non-professional mediator is someone who has already reached the age of eighteen years, possesses full capacity to act and has no previous convictions. To become a professional mediator a person must have reached the age of twenty-five years, have higher professional education and have passed a basic mediation training course. g. Accreditation through written exam Yes. It is a part of the final assessment. h. Accreditation through performance-based assessment Yes. It is a part of the final assessment.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are only private initiatives to teach introduction to mediation courses for students of law in some Russian universities, and courses held by the Centre for Mediation and Law for lawyers and advocates. j. Set by market (private certifying bodies) No.

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k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. A self-regulated organisation, the National Organisation for Mediators, has special acceptance rules and an accrediting system for educational organisations that teach mediators. b. Set by public regulation Yes. See. 4.1.a., d. and f. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See. 4.1.a., d. and f. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See. 4.1.a., d., and f.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation 2011. The Mediation Act came into force on the 1 January 2011. There are two laws, to be precise. One named ‘On Alternative Procedure of Dispute Settlement with the Participation of a Mediator (Mediation Procedure)’ passed together with a complementary bill ‘On Amending Certain Legislative Acts of the Russian Federation in View of Adopting a Federal Law On Alternative Procedure of Dispute Settlement with the Participation of a Mediator (Mediation Procedure)’. This law provides a number of amendments to Russian civil and arbitration (commercial) procedural legislation, as well as to law on arbitration courts and advertisement, which are crucial for facilitation of implementing mediation in Russia. The most important changes are related to the specialties of the legal status of mediators, regulation of mediation procedure within the frameworks of civil litigation and arbitration processes. According to the law, mediation is applicable in resolution of civil, commercial, labour (but not collective labour disputes) and family disputes. Mediation cannot take place if its results are against public interests or if they could infringe upon the rights of third parties not represented in the mediation procedure. Mediation activity is seen as a non-entrepreneurial activity. b. Legislation updated since EU mediation directive (date update) No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms

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Yes. Russian law allows any organisation to provide mediation services. There is only one condition: mediation activity should be indicated as one of main activities in the organisation’s corporate charter (articles of association). Most mediation providers are private companies in the form of non-commercial organisations or limited liability companies. At the same time, such organisations as RUIE и CCI have special departments for arbitration and now mediation as well. b. Individuals may be providers of mediation services Yes. This is directly defined by the Mediation Act. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No.

RU

c. Average mediator fee per hour for commercial or cross-border cases € 300-400. Average mediator fees seem to be the same as fees of lawyers. d. Average mediator fee per hour in civil cases € 50-150. Average mediator fees seem to be the same as fees of lawyers.

9.2. Financing and legal aid e. Legal aid available for mediation services No. The only legal aid that might be available does not directly concern mediation services. There are some opportunities for citizens to get free legal aid from advocate community, universities or NGOs. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court referrals or court-connected schemes No. All judges and courts can refer cases to mediation at every stage of the proceedings. They can make a mediated settlement enforceable if the case was already in trial. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?)

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Yes. There is a relationship if we are considering mediation as a tool for dispute resolution in legal cases. It is also seen as one of the possibilities to improve the legal system, help to build the rule of law and trust between citizens and the state. Mediation is seen as an alternative way of dispute resolution separate from the court system. Mediation is stated in a specific Act, which helps to legitimise use of mediation in Russia. с. Mediation procedure has impact on statute of limitations Yes. The mediation procedure suspends the statute of limitations for the period until mediation is finished.

11. Mediated settlement a. Contract Yes. According to the Russian Mediation Act, the mediated settlement (mediation agreement) is a contract. b. Automatically enforceable No. See 11.a. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. The parties may only make their mediated settlement enforceable if they request the court to do so. But this only applies if mediation started after filing the case to the court. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. It is stipulated in the Mediation Act, Section 5. Confidentiality concerns both the parties and the mediator. Section 5. Confidentiality of the information concerning the mediation procedure 1. During the process of a mediation procedure all information relating to the mediation procedure shall be considered confidential, save in cases provided by federal laws and if the parties have agreed otherwise. 2. The mediator has no right to disclose information concerning the mediation procedure and the information that became known to him or her during carrying out mediation, without the consent of the parties. 3. Neither parties, nor organisations providing mediation, nor the mediator, nor other persons present at the mediation procedure irrespective of whether litigation or arbitration are connected with the dispute which was a subject of mediation procedure, have any right to refer, unless the parties have agreed otherwise, during litigation or arbitration proceedings, to the information regarding: 1) a suggestion by one of the parties to use a mediation procedure, as well as about willingness of one of the parties to participate in the carrying out of the specified procedure; 2) opinions stated or offers made by one of the parties concerning possibilities of dispute resolution; 3) recognitions made by one of the parties during application of mediation procedure;

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4) willingness of one of the parties to accept the offer of a mediator or other party in relation to dispute resolution. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Mediators have a general right to refuse to give evidence in civil and commercial judicial proceedings regarding information arising out of or in connection with mediation.

13. Education a. Mediation education is a common component of legal education curriculum No. But also see 4.2.i. b. Mediation advocacy education is a common component of legal education curriculum No.

RU

14. Most relevant literature or references, case law, articles, law In English –– Tsisana Shamlikashvili. Mediation as a part of higher education in Russia. Martin Euwema, Fred Schonewille, eds. Mastering Mediation Education, Maklu, 2013, pp. 98-106. –– Tsisana Shamlikashvili. Mediation in the neighbouring countries: the case of Russia. Briefing Note. – Directorate General for Internal Policies, European Parliament, 2011, 26 p. –– In Russian –– Tsisana Shamlikashvili. Mediation as a Method of Out-of-Court Dispute Resolution – Moscow, Publishing House of LLP Interregional Center for Management and Politics, 2006, 86 pages. –– Lawrence Susskind, Tsisana Shamlikashvili, Arthur Demtchuk. Management of Difficult Decisions in XXI Century: Secrets of Building Consensus, or How to Make Everybody Happy. – Moscow, Publishing House of LLP Interregional Center for Management and Politics, 2009, 208 pages. –– Tsisana Shamlikashvili. Mediation as an Alternative Dispute Resolution Procedure. What a Judge Needs to Know to Refer Parties to Mediation Competently. – Moscow, Publishing House of LLP Interregional Center for Management and Politics, 2010, 160 pages. –– Tsisana Shamlikashvili. ABC of Mediation. – Moscow, Publishing House of LLP Interregional Center for Management and Politics, 2011, 64 pages.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.mediacia.com/files/Documents/zakon%201.pdf b. Weblink to English or other translation –– http://www.mediacia.com/files/Documents/Law_eng1.pdf c. Other references –– www.npnom.ru (National Organisation of Mediators) –– www.mediationandlaw.ru (Mediation and Law Magazine)

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16. Country specific remarks Mediation definition A voluntary procedure which parties following at their own free will and benefit from the professional assistance of a mediator, to search for their own solution to overcome differences in opinion and\or resolve the dispute. The solution should reflect equally all the parties’ interests and needs, be realistic for implementation, viable and mutually acceptable. The Russian Mediation Act provides a definition of ‘mediation procedure’: a way of resolving disputes with the assistance of a mediator, on the basis of the voluntary consent of the parties, for the purpose of achieving a mutually accepted resolution. The definition of ‘mediator’ is: an independent individual, or independent individuals, engaged by the parties as intermediaries in dispute resolution with the objective of assisting them to reach a decision on the merits of the dispute by the parties’.

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Mediation regulation and approach Country: Russia Prepared by Tsisiana Shamlikashvili

RU

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes No Yes No No No No Yes No (Yes) No No (Yes) Yes Yes No F F/E F F N/GA Mix Mix (Yes) (No) (Yes) 120 hrs No Yes Yes Yes No No No

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Mediation regulation and approach Country: Russia Prepared by Tsisiana Shamlikashvili 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since b. Legislation updated since EU mediation directive (date update) a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing e. Legal aid available for mediation services and Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No NA 2011 No Yes Yes No Yes No €300400 €50150 No No No No

Yes Yes Yes No Yes No Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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31. SERBIA 1 Prepared by Blazo Nedic2

1.

Attempt to mediate

a. Always voluntary Yes/(Yes) 2013 draft law. Under the 2005 Mediation Act, it is always voluntary. Section 3: ‘Mediation is always carried out on the basis of the explicit agreement between the parties.’ Under the new 2013 draft law, mediation is still voluntary, but the new draft law introduces an exception when ‘… another law explicitly requires mediation as a pre-condition for initiation of a court or other formal procedure.’

CS

b. Mandatory (in some cases) No. (See 1.a.) c. Court referral or court-connected mediation possible Yes. Section 11 of the Serbian Civil Procedure Code (Official Gazette RS 72/2011) states explicitly that the court may refer parties to mediation. Sections 229 – 246 of the Serbian Family Act prescribe the process of ‘mediation’, as a two-part procedure of ‘conciliation’ and ‘settlement’. d. Court-ordered mediation possible No. The judge can advise and refer parties to mediation, but cannot order it. If the parties refuse to mediate, court proceedings will continue. e. Sanctions by the court if mediation is not tried (in good faith) No. See 2.c. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No / (Yes). 2013 draft law. There are incentives under the current 2005 Mediation Act Act. However, under the 2013 draft law it is prescribed that if a settlement is reached during mediation after the case is filed in court, but prior to the first court hearing, parties is exempted from paying court taxes (filing fees) prescribed by the Court Fees Act.

1 Last update of information: July 2013. At the time of finalising contributions for this publication, the Government of Serbia Working Group drafting the new Mediation Act had still not finished its work, although it was evident that it will adopt some different solutions compared to the current 2005 Act. Therefore, this chapter will contain the provisions and solutions from the existing 2005 Mediation Act Act, and also the most likely solutions from the 2013 draft law (with all section citations in the 2013 draft law as tentative). 2 Blazo Nedic, director, Partners for Democratic Change Serbia. He is attorney-at-law, mediator, trainer, and official court English language interpreter for. He is a regional mediator for the World Bank Group and JAMS Fellow. Contact: [email protected], [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes, except in family conciliation procedure (See 3c) / (Yes) 2013 draft law. The new 2013 draft law, introduces a ‘condition’ that outside counsel ‘… can participate and provide advice, but cannot represent … parties in mediation’. The Bar Association of Serbia announced that it will formally object to this formulation. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. As mediation is of a voluntary nature, an oral or a written mediation clause is not binding for the parties. See 2.c. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). The case is admissible in court, but there is not any case law at the moment. c. If parties included a mediation clause in their contract, they have to mediate first before the can go to court No/(Yes) 2013 draft law. While there is no provision in the 2005 Mediation Act, in the 2013 draft law there is a provision that ‘… parties may stipulate in a contract that in case of a dispute they will attempt mediation before initiating court or other formal procedures, however, they can terminate the mediation procedure at any time’.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). The 2005 Mediation Act establishes the basis of the procedure. But the way mediation is conducted is left to the specific mediator and parties, it is not rigid. Mediation is not regulated by law, nor is the mediation approach/style. b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. If the parties do not reach agreement on conditions for the implementation of the mediation procedure, the mediator conducts the procedure under conditions he/she deems suitable, taking into account the circumstances of the disputed relation and the interests of the parties, and respecting the principle of urgency. (Mediation Act, 18/2005, Section 9(2)(). c. Mediator can offer a non-binding opinion Yes/No 2013 draft law. As a rule a mediator does not offer advice or opinions, however, the mediator is allowed to do so if the parties request this under the 2005 law. Under the / 2013 Draft Law, ‘The mediator may propose possible options for the settlement of the dispute, but shall not propose the final settlement solution’. (Mediation Act, 18/2005, Section 9((4)). But in 2013 draft law stipulates that ‘A mediator may not impose a solution on the parties, give any promises or legal advice or guarantee a particular outcome of the mediation proceedings.’

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d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative (Evaluative). The mediation style in Serbia has its roots in the facilitative model. It is possible that in commercial cases, and at the mutual request of the parties, mediators may give their evaluation of the parties’ positions. It is not common in Serbian practice that mediators make any proposals or offer possible terms for the settlement. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. The purely facilitative approach to the process is slowly being replaced by a directive approach. See also 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Transformative/Evaluative. In family, workplace and discrimination cases, a facilitative or sometimes transformative approach are being used by practitioners with a social/psychological background, whereas mediators in property cases mostly use a facilitative style.

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h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/ Directive. See 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral, general advice/Other. Evaluative approaches are used mainly in the form of assessing the strengths and weaknesses of the parties’ positions (See 3.e.). Mediators may offer general legal information, but rarely make a proposal. However, mediators use different techniques to move the process forward (explore options, reality testing, hypotheses (‘what-if’), ‘bracketing’, introducing doubt and uncertainty, etc.). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Joint session and caucus. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. Joint session and caucus.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No/Yes 2013 draft law. In the 2005 Mediation Act, there are no specific certification provisions. However, there are conditions that a person must fulfil to be eligible as a mediator. Mediators are required to pass a basic mediation training course, and to be entered on a court a list. See 4.1.f. In the 2013 draft law, although initially the provisional Chamber of Mediators had been authorised to perform these tasks, the latest version of the draft law (July 2013) stipulates that the Ministry of Justice will certify mediators. (‘The proceedings of licence issuance,

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renewal and withdrawal shall be conducted by the Ministry in charge of judiciary’). There is no mention of the ‘Chamber of Mediators’ in the new draft law (as of July 2013). b. Set by market (private certifying bodies) No/(No) 2013 draft law. In 2005 Law there are no private certifying bodies. See 4.1.a. In the 2013 draft law, general certification will be set by the Act, however, ‘... other bodies, institutions, organisations may establish their lists of mediators, who are already licensed, ... for provision of mediation services within their jurisdictions’. c. Set by public regulation No/Yes 2013 Draft Law. In the 2005 Mediation Act mediator accreditation is not regulated. For the 2013 draft law see 4.1.a. d. Number of hours for basic mediator training 5 days/40 hours. According to the Regulation on the Training for Mediators, Official Gazette RS, 18/2005. e. Mandatory Continuing Professional Development for accredited/certified mediators No/Yes 2013 draft law. In the 2005 Mediation Act this is not regulated, however, in the new 2013 draft law, 10 hours per year and 5 mediations are required for renewal of the licence. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (e.g., age, education, professional background, experience) Yes. In 2005 Mediation Act stipulates that the following conditions need to be fulfilled for a person to be eligible to be a mediator: ‘Section 20 Mediators must fulfil the following requirements: 1. have a university graduate; 2. have a minimum five years relevant work experience in dispute and conflict settlements; 3. have undergone a training programme for mediators; 4. be registered on the list; 5. must not be under investigation and have a clean criminal record; 6. must possess the integrity required for performing the mediation role. Exceptionally, a mediator may be also a person not fulfilling all the conditions under … items 1 – 4 above if he/she has special experience and knowledge in the field of mediation.’ The 2013 draft law contains similar requirements, with the exception of the ‘minimum 5 years of relevant work experience’ requirement, but also introduces as requirements – Serbian citizenship, and – full ‘business capacity’. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No. In the 2005 Mediation Act there is no performance-based assessment. In 2013 draft law, 5 mediations and 10 hours per year of mandatory training are, however, required for licence renewal.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. Mediation advocacy is slowly picking up as a separate field of mediation training, and being organised at the moment exclusively by Partners for Democratic Change Serbia. j. Set by market (private certifying bodies) No. At the moment, there are no market/private certifying bodies or schemes in Serbia. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No.

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b. Set by public regulation Yes. The 2005 Mediation Act and 2013 draft law prescribe conditions for eligible persons. See 4.1.f. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Anyone is entitled to become a mediator if they meet the prescribed conditions. See 4.1.f. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Anyone who is a licensed mediator in their own country can be a mediator in a cross-border mediation.

6.

EU Directive

NA. 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, is noted. However, since Serbia is not a member of the EU, the Directive does not have automatic effect.

7.

Mediation legislation

a. Mediation legislation since 2005. Governing Law on Mediation was adopted in 2005 (Official Gazette RS 18/2005). In 2011, the Ministry of Justice started to work on the new draft law on mediation. The text was finalised in December 2011, however, in 2013, the new Serbian Government formed another working group, and the draft text is still being debated by the Ministry of Justice. Generally, the new draft law aims to bring Serbian regulations in line with the 2008 Directive, and will introduce a certification procedure and mandatory continuous specialisation for mediators, accreditation of mediation training programmes, and a central role for the Ministry of Justice.

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Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Any organisation can provide mediation services. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. In the 2005 Mediation Act the requirements and qualifications for mediation providers qualifications/requirements are not regulated. The new 2013 draft law stipulates that licenced mediators need to be listed in the registry of the Ministry of Justice.

9.1. Mediator fees a. Freely contracted Yes. But see 9.1.b. b. Fixed in some cases by public regulation Yes. Both the 2005 Mediation Act and the 2013 draft law prescribe that there will be a tariff for fees determined by the Ministry of Justice. It has not yet been implemented at this point. c. Average mediator fee per hour for commercial or cross-border cases € 50-900 (per case as lawyer’s tariff fees) (estimate). At the moment there is no available data on average fees. See 9.1.d. d. Average mediator fee per hour in civil cases € 50-900 (per case as lawyer’s tariff fees) (estimate). At the moment, there is no available data on average fees. The 2013 draft law stipulates that there will be a tariff for fees determined by the Ministry of Justice. The new 2013 draft law also stipulates that there will be a separate list of mediators who provide mediation for free. At the moment, it is really difficult to estimate, it ranges from case to case. It is not even been determined HOW fees should be calculated (per hour, per day, per case value, etc.). It is left to the individual mediator to decide, in agreement with the parties. The 2005 Mediation Act refers to the ‘Lawyer’s tariff of fees’. The current range of lawyer fees is from € 50-900 (per court hearing), depending on the case value.

9.2. Financing and legal aid e. Legal aid available for mediation services No. At the moment there is no legal aid for mediation. That said, Serbia still does not have a comprehensive free legal aid law at all. However, new draft law on free legal aid will enable mediation in free legal aid cases. In the new Free Legal Aid Act it is proposed that mediators have the same status as lawyers. It is also proposed that in cases of a secondary free legal aid, there will be a requirement to first attempt mediation before financing representation before the court. However, it is uncertain whether this provision will survive. f. Mediator fees covered by legal insurance schemes No.

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g. Mediator fees subsidised in court-connected schemes No/(Yes) 2013 draft law. In the 2005 Mediation Act it is not regulated, however, it is in the 2013 draft law. In the new 2013 draft law, if a settlement is reached prior to the first court hearing, parties are exempted from paying court taxes (filing fees) prescribed by the Court Fees Act. See 1.g.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court referrals or court-connected mediation schemes? (No)/Yes 2013 draft law. In the 2005 Mediation Act, there is no such special relationship, with the obvious exception that trial judges cannot be mediators in their own cases. In the new 2013 draft law on mediation, if a case is referred to mediation by a court, the mediator must inform the judge of the outcome of the mediation (respecting the confidentiality principle). Also, judges can only be mediators outside their regular working hours, and they are not allowed to charge for their services.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). Courts can refer cases to mediation, but the system is still undeveloped, and cases are rarely referred to mediation. c. Mediation procedure has impact on statute of limitations No/Yes 2013 draft law. In the 2005 Mediation Act, there is a provision that mediation proceedings must not exceed 30 days, but that does not affect the statute of limitations. In the new 2013 draft law, it is proposed that there should be a stay of judicial proceedings (and limitation statute of limitations accordingly) for up to 90 days.

11. Mediated settlement a. Contract Yes. A mediated agreement is regarded as an out-of-court settlement (contract). b. Automatically enforceable No. A mediated agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Parties can request a civil-law judge make their settlement agreement enforceable. In the new 2013 draft law on mediation, parties will be able to request a court, civil notary or other administrative official to make their mediated agreement enforceable. Essentially, the new 2013 draft law adopts the same formulation as the 2008 EU Directive. d. Enforceable under some circumstances defined by public regulation No. See, however, 11c.

12. Confidentiality a. Regulated by law Yes. All information, proposals and statements presented during mediation is confidential.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Such evidence is inadmissible in court.

13. Education a. Mediation education is a common component of legal education curriculum (No). Mediation courses are offered at the Faculty of Political Science, and as an optional course at the Union University Faculty of Law, which also runs a mediation clinic, chosen as a topic by students on a voluntary base. Some law schools organise ad hoc mediation seminars. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, case law, articles, law Law –– Law on Mediation (2005)http://www.paragraf.rs/propisi/zakon_o_posredovanju_medijaciji. html –– New draft law on mediation (2013) –– Prevention of Harassment at Workplace Act (2010) http://paragraf.rs/propisi/zakon_o_ sprecavanju_zlostavljanja_na_radu.html –– Peaceful Resolution of Labour Disputes Act (2009) http://www.paragraf.rs/propisi/zakon_o_ mirnom_resavanju_radnih_sporova.html References and articles –– Rulebook on Training Programme for Mediators (2005) –– Mediation in Serbia: Achievements and Challenges (2013), Partners for Democratic Change Serbia, Authors: Blazo Nedic and Ana Toskic –– http://www.partners-serbia.org/images/stories/pdf_ovi/primena%20medijacije%20u%20 srbiji%20-%20srb%20za%20sajt%20final.pdf –– Recommendations for Development and Use of Mediation in Serbia (2012), Partners for Democratic Change Serbia, Authors: Blazo Nedic and Jelena Arsic –– http://www.partners-serbia.org/images/stories/pdf_ovi/preporuke_za_primenu_medijacije_u_srbiji.pdf.pdf Books –– Peer Mediation (2006), Zorica Trikic, Dragana Koruga, Jelena Vranjesevic, Vesna Dejanovic, Stanislava VIdovic –– Mediation: Way of Reaching a Settlement (2008), Leposava Karamarkovic –– Resolving Disputes – Theory, Practice, and Law (2005), Jay Folberg, Dwight Golann, Thomas J. Stipanowich, Lisa A Kloppenberg –– Getting to Yes (1981) Roger Fisher, William Ury –– The Promise of Mediation (1994), Robert A. Baruch Bush, Joseph P. Folger –– Mediation Advocacy (1996), John W. Cooley, NITA Practical Series Guide

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15. Mediation legislation texts a. Weblink to mediation legislation in national language –– Law on Mediation (2005) http://www.paragraf.rs/propisi/zakon_o_posredovanju_ medijaciji.html –– New Draft Law on Mediation (2013) b. Weblink to English or other translation NA. c. Other references NA.

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16. Country specific remarks Since 2000, alternative dispute resolution techniques and mediation in particular have received considerable attention in Serbia. The first mediation programmes were initiated in 2000 in several concurrently developing areas: the courts (court-annexed mediation), local community (community mediation), and in schools (peer mediation). Initial mediation activities were embedded in conflict resolution projects supported by international organisations that provided technical support, and provided training to mediators in different fields. Local community mediation programmes were implemented as early as the 1990s by the Nansen Dialogue Centre Serbia, with the support of the Norwegian government. The programmes were designed to incorporate peace education and inter-ethnic dialogue with the aim of encouraging people living in conflict areas to contribute towards a peaceful conflict resolution. With the reform of the juvenile judiciary system and through promotion of the restorative justice concept, Serbia sought to provide conditions for active involvement of youth offenders in its restorative programmes. In 2002, with the support of UNICEF and the Swedish International Development Agency (SIDA), in cooperation with relevant ministries, the juvenile justice system saw the development of mediation services between victims and offenders. Thus, in 2005, the mediation programme became part of the regular procedures in the juvenile correctional facility in Kruševac. In the same period, the non-violent approach to disputes, through a project of the German Government Agency for Technical Cooperation (GTZ CTYE), found its place in the educational system; school-mediation (or peer mediation) programmes became an integral part in several dozen primary and secondary schools throughout Serbia. In 2002 mediation was recognised as a technique that can help reduce the number of cases in courts and increase efficiency. Judge Leposava Karamarković, the former President of the Supreme Court of Serbia, launched a ‘Court Settlement Week’, while the Second Municipality Court in Belgrade, led by Judge Gordana Mihailovic, was the first pilot court to integrate mediation services with the support of the International Finance Corporation (WB IFC). Similarly, the mediation project in the First Municipal Court in Belgrade, presided by Judge Vojkan Simic, was established, with support from the European Agency for Reconstruction (EAR), as several other courts in Serbia soon developed related programmes (The Third Municipal Court in Belgrade, Fifth Municipal Court in Belgrade, Commercial Court in Belgrade, courts in Subotica, Niš, Kraljevo, Zrenjanin, Novi Sad, etc.). Special support to implement mediation in the judicial system was provided by the American Bar Association (ABA/CEELI) programme, which, in cooperation with courts and bar associations throughout Serbia, organised a series of informative and advanced seminars for judges, attorneys and other participants in court proceedings, with the aim of creating a better understanding of mediation and their own roles in this process.

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With the positive reactions from the professional and general public, and the success of the pilot projects, Serbia developed a legal framework for mediation. In 2005, the Mediation Act was passed, enabling mediation in all disputes unless the law stipulates the exclusive authority of the court or other relevant body, where mediation may be initiated both before and after the initiation of the court proceedings, or independently in any formal proceedings, supporting mediation both in court-annexed and private settings. This encouraged the growth of mediation in all areas of society. In 2006, the Republic Mediation Centre was established, with its seat located in Belgrade. The founders of the Centre were the Ministry of Justice of the Republic of Serbia, the National Bank of Serbia, the Bar Association of Belgrade and the Centre for Children’s Rights. The centre has primarily been founded with the purpose of promoting mediation, providing mediation services, organising training courses and expert gatherings, and taking care of publishing activities. Despite the existence of the legal framework for mediation in Serbia and the support of international organisations in developing mediation centres, training future mediators and bringing international experiences and best practices, the number of mediation cases, at a national level, is decreasing and court-annexed mediation programmes created with the aim of providing better access to justice throughout Serbia are having difficulties in finding citizens interested in using mediation services. Initial efforts to develop and implement mediation as an integral dispute resolution method in Serbia were short lived. In many countries, mediation was successfully integrated into society as a dispute resolution technique which ‘makes friends from foes’, a skill that brings people together, improves relations in a society and serves both the citizens and the state. This raises the question of how Serbia, after initial good results, lost the opportunity to successfully implement mediation into society as an effective dispute resolution tool. It has been speculated that this unfortunate situation derives from shortcomings in the current Mediation Act that, in light of numerous socio-economic changes, mediation development was not a priority for the government, the public has not grasped the concept of mediation, and there has been a lack of cooperation between different stakeholders in the field of mediation. Recognising the above problems, in 2010 the Ministry of Justice formed a working group for changes and amendments to the Mediation Act, with the aim of harmonising the relevant legal framework with international standards in this area, thus contributing to easier implementation of the reform process and EU accession. In December 2011, the working group submitted to the Ministry of Justice the proposal of the new draft law, which has been repeatedly revised. However, in April 2013, the new Ministry of Justice created yet another working group. At the time of finalising contributions for this publication, the working group drafting the new ­Mediation Act had still not finished its work, although it was evident that it will adopt different s­ olutions compared to the current 2005 Act. Therefore, the chapter on Serbia in this book will ­contain the provisions and solutions from the existing, 2005 Mediation Act, and also the most l­ ikely solutions from the 2013 draft law.­

Although by adopting the new law the State of Serbia has taken an important step, it cannot be expected that only rules contained in legislation will be a sufficient guarantee for a successful development of mediation. For a successful implementation and development of the alternative dispute resolution system in Serbia, it is necessary to adopt a comprehensive approach, and ensure participation and cooperation of all relevant actors and stakeholders. It is necessary to include in the mediation strategy all areas suitable for this technique (local community, education, work relations, public administration, business community, court system, civil

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society sector, human rights, international relations, etc.), as well as all relevant participants within each of these areas (citizens, commercial parties, educational and other institutions, state agencies and local self-governance bodies, professional associations, judges, attorneys, media), that could be either interested parties or direct or indirect participants in the alternative dispute resolution process. It is important to use the existing capacities in this process, and possibilities for a regular and continuous development of mediation services, such as: good practice of certain actors in the mediation system (for instance, the Commissioner for the Protection of Equality, Chamber of Commerce of Serbia, social work centres, etc.); availability of trained mediators; a referral network of centres that provide mediation services and support; a list of institutions and individuals/organisation showing interest in participating in mediation programmes, or readiness of certain institutions to be part of a mediation case referral network, as well as the interest of potential users of mediation services. Finally, the State plays a crucial role in promoting and supporting the development of the mediation and alternative dispute resolution system; it has a significant influence on the future of alternative dispute resolution processes in Serbia.3 Mediation definition

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Current Law on Mediation (Official Gazette of the Republic of Serbia 18/2005) Section 2 (English) Mediation is any procedure, notwithstanding its name, whereby the parties wish to settle their dispute through one or more mediators assisting the parties to reach an agreement. Mediators shall not be authorised to impose a binding agreement on the parties. Član 2. (Serbian) Posredovanje je svaki postupak, bez obzira na njegov naziv u kojem strane žele da sporni odnos reše mirnim putem uz pomoć jednog ili više posrednika – medijatora koji stranama pomažu da postignu sporazum. Section 18 (English) A mediator is a third-party neutral person who mediates between two parties for the purpose of settling their dispute in compliance with the mediation principles. Judges, lawyers and other prominent experts from different fields of expertise may act as mediators depending on the type of disputes in which they mediate. Član 18. (Serbian) Posrednik je treća neutralna osoba koja posreduje između dve strane u cilju rešavanja njihovog spornog odnosa, a u skladu sa načelima posredovanja. Posredovanje mogu obavljati sudije, advokati i drugi istaknuti stručnjaci iz različitih oblasti, u zavisnosti od vrste spornog odnosa u kome posreduju.

3 Excerpt taken and adapted from ‘Mediation in Serbia – Achievements and Challenges’, Partners for Democratic Change Serbia, December 2012. http://www.partners-serbia.org/en/wp-content/uploads/ 2013/06/primena-medijacije-u-srbiji-eng-za-sajt-final.pdf

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New draft law on mediation (2013) Section 2 (English) Mediation is any procedure, irrespective of its name, in which the parties attempt to settle the dispute by negotiation with the assistance of one or more mediators assisting the parties to reach an agreement. Члан 2. (Serbian) Медијација је сваки поступак, без обзира на назив, у којем стране настоје да спорни однос реше путем преговарања, уз помоћ једног или више медијатора, који странама помажу да постигну споразум. Section 23 A mediator is a natural person mediating between the parties to a dispute in an independent, neutral and impartial manner, in accordance with mediation principles. Члан 23. Медијатор је физичко лице које на независан, неутралан и непристрасан начин посредује између страна у спорном односу, у складу са начелима медијације. N.B. Comparing Serbian texts from 2005 and 2013, the definition of ‘mediation’ is essentially identical, with one notable terminological difference: 2005 – Serbian text uses the term ‘posrednik’ and ‘posredovanje’ which literally means ‘intermediary’ in a wider sense. However, in the law it does mean a ‘mediator’ and ‘mediation’. Even the title of the 2005 Act is officially ‘Zakon o posredovanju – medijaciji’ (Intermediation Act – Mediation’) which is somewhat understandable in Serbian, but a bit confusing when translated into English. That is why in the English translation of the 2005 Act we only use the term ‘mediation’. 2013 – The Serbian draft text uses the terms ‘medijacija’ (mediation) and ‘medijator’ (mediator). This is probably because Serbian legislators in 2005 did not want to accept a foreign word (mediator) and were looking to use a more domesticated term, whereas in 2012 the term ‘mediator’ was sufficiently recognised to be used in its original meaning.

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Mediation regulation and approach Country: Serbia Prepared by Blazo Nedic 1. Attempt to mediate

2. Mediation clause

CS

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary

Yes/(Yes) 2013 draft law b. Mandatory (in some cases) No c. Court referral or court-connected mediation possible Yes d. Court-ordered mediation possible No e. Sanctions by the court if mediation is not tried (in good faith) No f. Sanctions by law if mediation is not tried (in good faith) No g. Incentives if mediation is tried voluntarily before going to No/(Yes) 2013 draft law court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes/(Yes) 2013 draft law No Yes (Yes) No/(Yes) 2013 draft law (Yes) Yes (Yes)/No 2013 draft law No F/(E) F/D F/T/E F/D N/GA/O Mix Mix No/Yes 2013 draft law No/(No) 2013 draft law No/Yes 2013 draft law 5 days/40 hrs No/Yes 2013 draft law Yes No No

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Mediation regulation and approach Country: Serbia Prepared by Blazo Nedic 4.2. Mediation advocacy accreditation 5. Who can be mediator?

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/ certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/ certified mediator (cross-border)

6. EU directive 7. Mediation legislation

a. Mediation legislation since b. Legislation updated since EU mediation directive (date update) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or crossborder cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context

a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No Yes No No NA 2005 NA Yes Yes No Yes Yes €50-900/case (est.) €50-900/case (est.) No No No/(Yes) 2013 draft law (No)/Yes 2013 draft law (No) No/Yes 2013 draft law Yes No Yes No Yes Yes (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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32. SWITZERLAND1 Prepared by Jeremy Lack 2 – Alexis Lafranchi3

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1.

Attempt to mediate

a. Always voluntary Yes. Parties may initiate mediation proceedings at any time: before, during or after court hearings or conciliation (considered under the Swiss Code of Civil Procedure (‘CPC’) to be a separate and often compulsory process – see Section 16 below), or independently of court or conciliation proceedings. If conciliation proceedings are already pending, the conciliation proceedings must be replaced by mediation if all the parties so request (Section 213(1) CPC). The request for mediation instead of conciliation must be made in the application for conciliation or at the conciliation hearing (Section 213(2) CPC). The court may also recommend mediation at any time (Section 214(1) CPC) and the parties may also make a joint request for mediation at any time (Section 214(2) CPC). If court or conciliation proceedings are already pending, the request for mediation will automatically trigger certain provisions relating to confidentiality (Section 216 CPC) and the suspension of the conciliation or court proceedings (Section 213(3) CPC and Section 214(3) CPC). There is no automatic confidentiality or suspension of any statute of limitations if the mediation proceedings are initiated independently of any court or conciliation proceedings. It is up to the parties to organise the mediation proceedings themselves (Section 215 CPC) and to pay for this process privately, save in certain cases involving the custody of children, where state financing may be available or in other circumstances governed by local cantonal laws (Section 218 CPC). b. Mandatory (in some cases) (No). A judge may ‘advise’ the parties to initiate mediation proceedings at any time in any civil or commercial proceedings (Section 214(1) CPC). Although mediation is never compulsory, in family law matters the judge may go further and ‘exhort’ the parties to initiate mediation proceedings outside of the courtroom (Section 297(2) CPC).4 The Canton of Geneva has just voted in a new constitution which provides that the state should encourage the use of mediation whenever possible, including in all labour union disputes and administrative law disputes (Sections 36(4), 115 and 120) of the Geneva Constitution of 14 October 2012. This may gradually lead to a more mandatory approach to mediation, but it depends on future cantonal legislation as well as how cantonal judicial authorities decide to interpret these new provisions.

1 Last update of information: January 2013. 2 Jeremy Lack is a common-law and civil-law lawyer and ADR Neutral with offices in Geneva, London and New York, who specialises in the prevention and resolution of international commercial disputes and related processes. Contact: [email protected]. 3 Alexis Lafranchi is a partner with the law firm S&L Attorneys-at-Law in Switzerland, specialising in commercial and civil-law proceedings and dispute resolution processes. Contact: [email protected]. 4 Although the English translation of Section 297(2) CPC only states ‘The court may ask the parents to attempt mediation’, the official texts suggest a higher level of persuasion, which is meant to be more persuasive than a mere recommendation. The translation should read ‘The court may exhort the parents to attempt mediation’.

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c. Court referral or court-connected mediation possible (No). There are no formal court-annexed mediation centres or court-certified mediator lists, although a court may ‘recommend’ or ‘exhort’ mediation at any time (Section 214(1) CPC and Section 297(2) CPC). Many Swiss cantons have lists of certified mediators having recognised expertise, whose names are published either in a cantonal register (e.g., in Fribourg, Geneva, Vaud and Basel city) or in a private register (e.g., weblinks to independent mediation associations). Although mediations in Switzerland are not judicial or court-annexed proceedings, settlement agreements reached through mediation can be brought to the attention of the court at any time and can be ratified by the court, giving them the same enforceability as a legally binding decision (Sections 214(2) and 217 CPC). There is an unofficial presumption that settlement agreements reached using a certified cantonal mediator or a mediator who is also a lawyer in good standing may be ratified more easily by the court, although this is not set out anywhere in the law. In addition, the commencement of mediation proceedings will have an impact on any ongoing judicial proceedings: the court proceedings are automatically suspended until the mediation is terminated (Section 214(3) CPC), and the mediation proceedings are confidential and separate, such that any statements made by the parties during the mediation may not be used in court proceedings (Section 216 CPC). d. Court-ordered mediation possible No. The Swiss courts can never impose mediation (as opposed to conciliation; see Section 16 below) on any party even if it can ‘recommend’ or ‘exhort’ the parties to try mediation (see 1.b. and c.). Whenever court proceedings have been initiated, once a settlement agreement is reached pursuant to mediation proceedings, the court can endorse the settlement agreement, thus converting it into an enforceable judgment (Section 217 CPC). The result of this process (sometimes referred to as ‘ratification’, ‘approval’ or ‘homologation’) renders the settlement agreement a binding decision subject to Part 2, Title 10, Chapter 1 of the CPC (Sections 335-46 CPC), which makes breach of the settlement agreement to be contempt of court as opposed to a simple breach of contract (see Section 343 CPC, whereby a criminal penalty and disciplinary fine may be imposed for such a breach). Ratification converting a settlement agreement into a binding judicial decision can only happen, however, where it is jointly requested by all of the parties (Section 217 CPC), and the court may review the contents of a settlement agreement (especially in family law matters, such as in cases of divorce settlement agreements under Sections 279-80 CPC), which is why it may be preferable at times to use a certified cantonal mediator or a mediator who is a qualified lawyer. If no court proceedings are pending or the parties do not obtain a ratification of their settlement agreement from a judicial authority, a settlement agreement reached by mediation may still be legally enforceable as an Official Record (in French a ‘Titre authentique’ and in German an ‘Öffentliche Urkunden’) under Part. 2, Title 10, Chapter 2 of the CPC (Sections 347-52), if it has been notarised by a public notary. Such Official Records are subject to judicial review (Section 352 CPC). e. Sanctions by the court if mediation is not tried (in good faith) No. There is no jurisprudence on this point, although some lawyers have raised the question of whether a tribunal may exercise its discretion when allocating procedural costs under Section 107 CPC and withhold the granting of costs to penalise a winning party for having unreasonably refused to try mediation. Section 107 CPC provides that a court may choose to allocate costs differently if: (a) the amount was difficult to quantify (Section 107(1) lit. a CPC); (b) a (losing) party was caused to litigate in good faith (Section 107(1) lit. b CPC; e.g., the winning party was overly aggressive in pressing its claim thus unnecessarily compelling a party into litigation proceedings); or (c) ‘if there are other extraordinary circumstances that would result in an allocation according to the outcome of the case being inequitable’ (Section 107(1) lit. f CPC).

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f. Sanctions by law if mediation is not tried (in good faith) No. No sanctions are provided for anywhere in the CPC or in any other civil/commercial laws. This is consistent with the Swiss approach that mediation (as opposed to conciliation) should always be voluntary. g. Incentives if mediation is tried voluntarily before going to court No. There is no jurisprudence or known doctrine suggesting the use of such initiatives. h. Outside counsel presence/representation during mediation sessions allowed Yes. Mediation being a fully voluntary process that is organised by the parties themselves (Section 215 CPC), the parties are free to decide who may attend or represent them during any mediation. i. Outside counsel presence mandatory No. This is recommended, however, in highly technical cases or where a settlement agreement is being drafted, especially if there are notions of imperative law that may limit what the parties may be able to agree to contractually.5 It is also useful to have legal advisors present if the parties intend to have the settlement agreement ratified as a court decision by a court or as an Official Record by a notary (see answer 1.d.).

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2. Mediation clause a. Case admissible in court with a mediation clause (Yes). There is no clear legislation or jurisprudence on this point. Section 197 CPC provides that ‘Litigation shall be preceded by an attempt at conciliation before a conciliation authority’ in all civil and commercial disputes save for those listed in Section 198 CPC. Unlike conciliation, which is a compulsory process governed by Part 2, Title 1 (Sections 197-212 CPC), mediation is viewed as an alternative, extra-judicial process and is governed by Part 2, Title 2 (Sections 213-18 CPC). The task of the Conciliation Authority in conciliation proceedings is to ‘attempt to reconcile the parties in an informal manner’, and to ‘help to resolve the dispute’ in such a way that the ‘settlement may also include contentious matters that are not part of the proceedings’ (Section 201(1) CPC). Although this may seem quite broad and to overlap greatly with mediation proceedings, the role of the Conciliation Authority is primarily to apply legal norms and to be evaluative in helping parties to reach a settlement. It is even required to provide legal advice in disputes relating to leases and rents or in gender discrimination cases (Section 201(2) CPC, which refers to Section 200 CPC). In certain cases, the Conciliation Authority may provide a proposed judgement (Section 210 CPC), and in financial disputes with a value in dispute not exceeding 2,000 Swiss Francs, the Conciliation Authority may even issue a binding decision if so requested by the plaintiff (Section 212 CPC). Mediation may occur instead of conciliation only if all the parties so request in an application for conciliation or in a conciliation hearing (Section 213 CPC). It is therefore unlikely that a Swiss court would refuse to hear a case, even if there was a pre-existing requirement to mediate before initiating legal proceedings, as the new CPC automatically provides for conciliation (but not mediation) as a prior step to litigation. It is possible, however, that a court may put pressure on the parties to initiate mediation proceedings to implement the parties’ 5 Imperative provisions (whereby local law imposes certain provisions that are inalienable and nonwaivable) rarely occur in Swiss law, as they are exceptions to the principle of privity of contract whereby parties should be free to enter in any contractual obligations they may wish. They can arise, however, in certain labour law, family law, administrative law, or criminal law matters.

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written intention, but should a party still refuse, the only remedy against it would likely be for breach of contract for its unwillingness to comply with such a mediation step. The sanction would likely be damages for breach of contract or a possible sanction on costs under Section 107(1) CPC, however, such damages may be difficult to quantify. Given that the CPC recognises mediation as an alternative to conciliation (Section 213 CPC), a court could theoretically decide to suspend conciliation and send the parties directly to mediation (Section 214(1) and (3) CPC), unless one of the parties objects. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). A judge may take the existence of a mediation clause into account, but there is no clear case law on this. The only jurisprudence on this issue to date relates to a decision by the Federal Court regarding whether an arbitral tribunal erred by proceeding with arbitral proceedings despite the existence of a prior mediation requirement (TF 4A_18/2007, June 6 2007). Although the court decided that there was a prior obligation to mediate in that case, the facts of that case were quite specific and the failure to mediate or conciliate was raised only at a late stage in the arbitration proceedings. There is dictum suggesting that a clause requiring mediation before arbitration will not necessarily be subject to specific performance, however, this case predates the new Swiss CPC and mediation was not recognised as a form of extra-judicial proceedings equivalent to conciliation at that time. The effects of such a clause may therefore vary according to the judge’s discretion in procedural matters. Should a mediation clause exist and be raised before a Conciliation Authority in conciliation proceedings, it is possible that the magistrate handling the conciliation proceedings may recommend that the parties try this process as well, explaining that it is different from conciliation in being more interest-based and that it takes into account subjective considerations. Endorsing mediation may be considered as part of a conciliator’s general responsibility to try and help the parties to reach an agreement under Section 201(1) CPC, although some conciliators may not be aware of these differences and may be unfamiliar with mediation in general. The breach of the mediation clause can also provide the basis for a counterclaim for breach of contract by the defendant(s). Ultimately, if the case does not settle in conciliation and proceeds to trial, the court may consider whether a party was unreasonable in failing to observe the prior mediation clause, and may find damages due to the defendant(s) for this breach and/or may apply cost sanctions for what it deems to be an unreasonable refusal to implement the mediation clause in view of its existence (Section 107(1) CPC). This is pure speculation for the moment, however, as there is no indication of how the courts are likely to treat such cases. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). Unlike conciliation which is a mandatory first step in all cases, save for the exceptions listed in Section 198 CPC, mediation is not mandatory and is deemed to be an extra-judicial process.6 If the parties have a clause agreeing to use mediation instead of conciliation and the parties so request, the conciliation proceedings is replaced by mediation proceedings (Section 213(1) CPC). It is not enough, however, that there be a mediation clause in existence prior to a plaintiff initiating litigation proceedings. There must also be a request for mediation that is made to the court either with the application for conciliation that is part of normal litigation proceedings or at a conciliation hearing (Section 213(2) CPC). If one of the

6 Even in cases where conciliation is compulsory, the parties may waive this step pursuant to Sec­ tion 199 CPC.

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parties refuses to request mediation instead of conciliation and the case proceeds to trial by the court, the court may still take such a mediation clause into account and consider it as a breach of contract claim in the event of a counterclaim or when applying its discretionary authority in allocating procedural costs (Section 107(1) CPC). Once again, this is pure speculation for the moment and there is no indication at present of how courts are likely to treat such cases.

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Mediation procedure

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a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (No). The Swiss CPC provides that the conduct of mediation proceedings and its organisation are determined privately by the parties (Section 215 CPC), meaning that there are no restrictions limiting or directing how mediation proceedings should occur. The Swiss Mediation Rules used by the chambers of commerce are quite flexible and are not binding as a matter of law.7 The Swiss Chamber of Commercial Mediation recognises many different types of mediation and mediation training.8 In certain cantons, additional legislation may exist. For example, there is local legislation in Fribourg regulating how mediations should be conducted in certain civil and criminal cases, and in juvenile cases (Fribourg ordinance No. RSF 134.11 dated 6 December 2010), which provides for preliminary meetings, active solution-seeking through meetings with the parties, etc. (Sections 23-29 of Fribourg ordinance No. RSF 134.11). b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. The parties are responsible for organising and conducting the mediation and they and the mediator are free to determine themselves the manner in which the mediation will be conducted (Section 215 CPC). It can be ad hoc or institutional (e.g., using the Swiss Mediation Rules, WIPO, ICC, ICDR, JAMS International, CMAP, etc.). The parties are free to appoint whomever they wish as their mediator, and it is possible for the parties to appoint a person without any mediation or legal training unless there are additional local cantonal laws regulating who may act as a mediator. c. Mediator can offer non-binding opinion (Yes). A mediator may use an evaluative or non-evaluative approach, depending on the process chosen. This is normally discussed in advance with the parties and their counsel. Although many arbitrators and lawyers in private practice are used to providing non-binding advice or proposals, acting as conciliators, there is a general preference (within the Swiss professional mediator community) only to give advice or non-binding evaluations where the 7 Regarding the process itself, the Swiss Mediation Rules provide as follows: ‘The Swiss Rules of Commercial Mediation are based on the voluntary participation of the parties and their desire to resolve their dispute. They do not impose procedural rules on the parties. The parties are free to define proceedings as they see fit, and they can deviate from the rules if they so wish. The parties are free to select their mediator as well. Therefore there are no lists of mediators, and there are no specific requirements for mediators. The Chambers propose and nominate a mediator only if the parties do not themselves select a mediator or fail to agree on a mediator. Mediators must be neutral, impartial and independent of the parties. The Chambers insure that the mediator satisfies these conditions. The mediator also must undertake to respect the confidentiality of the proceedings at all times and to adhere to the European Code of Conduct for mediators.’ 8 See http:/www.skwm.ch/index-fr.php?page=323&frameset=13.

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parties have jointly requested this and all other routes have first been exhausted. The Swiss Mediation Rules thus state that ‘unlike an expert the mediator does not offer his or her own views nor make proposals like a conciliator, and unlike an arbitrator he or she does not render an award’. It is still possible, however, for a mediator to do some reality testing (usually in caucus), and a mediator may suggest to the parties that they bring in an external person (e.g., an expert, a lawyer, or any other evaluative neutral to act as a conciliator who can make proposals) rather than provide their own opinion on any matter. Co-mediation is also used in Switzerland, and it is possible for one neutral to act as a conciliator or to use a more evaluative approach, and for the other neutral to use only a non-evaluative approach as a facilitative and/or transformative co-mediator. d. Mediator can offer a binding opinion (Yes). This is really a matter of arbitration, which is regulated by Part 3 (Sections 353-99) CPC. It is possible for a mediator, however, to combine processes and to ‘swap hats’ in certain situations, provided that particular attention is paid to due process issues, that the parties are suitably informed, and that the parties clearly waive in writing any objections to a mediator swapping hats to act as an arbitrator. The Swiss Mediation Rules provide expressly that a mediator may act as an arbitrator or judge, only with the written consent of the parties, in which case the mediator may take into account information received in the course of the mediation (i.e., in caucuses), although best practices require that this information should be revealed so that the parties not having heard that information have the opportunity to rebut it (Sections 18 and 22 of the Swiss Mediation Rules). It is also possible for a mediator to terminate mediation proceedings and to refer the parties to either: a) an expert determination of one or more particular issues of the dispute; b) the submission of last offers (i.e., MEDALOA); or c) arbitration (Section 15.5 of the Swiss Mediation Rules).9 e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) All. All types of mediation are possible and are practised in Switzerland. As explained above, mediation is viewed as distinct from conciliation and arbitration, which are well-established processes in Switzerland. As a result, the typical style for a mediator in Switzerland is likely to be non-evaluative and facilitative, but there are many styles and influences in Switzerland resulting from the fact that many Swiss mediators go abroad for training or seek additional inspiration from other countries (e.g., in France, Italy, Austria, Germany, the United Kingdom, the Netherlands, Canada, Australia, and the US). This variation in styles is also due to the fact that many Swiss mediators are also used to acting as conciliators and/or arbitrators. It is also common in certain Swiss arbitration proceedings for the tribunal to act as a conciliator and to issue its views of the case at two moments in arbitration proceedings: (i) in an early settlement conference, where the tribunal indicates what it thinks may be key dispositive issues that the parties need to address during the course of the arbitration should they not settle; and/or (ii) after pleadings and oral hearings have been completed, by issuing a draft award or giving an informal view of its final decision orally before issuing its final award in writing, in the hopes that the parties may still wish to settle the matter amongst themselves based upon such feedback. The tribunal needs to be careful at all times, however, to ensure it is still acting neutrally, impartially and independently, and that any award it issues is enforceable and unimpeachable.

9 For further discussion on this, see J. Lack ‘The New Swiss Rules of Commercial Mediation of The Swiss Chambers of Commerce and Industry: Possible Links to Arbitration’ available on the internet at the following URL: http:/www.mediationworld.net/switzerland/Sections/full/250.html.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) All. All types of mediation are possible and are practised in Switzerland. A wide range of procedural styles is recognised (e.g., facilitative, elicitative, directive, transformative, etc.) and it may be combined with other processes (e.g., co-mediation, MED-ARB, ARB-MED, MEDALOA, etc.), based on the varied training individual mediators have received, and their familiarity with arbitration, conciliation or other forms of ADR.10 There are at least two schools of thought on the issue of process: (i) a mediator should control and direct the process itself even if he or she uses a non-evaluative approach on substantive issues; as opposed to (ii) a mediator should only offer procedural choices and let the parties control and decide for themselves procedural issues as well as substantive issues. This is also something most experienced Swiss mediators discuss with the parties and their counsel at the beginning of each mediation, to assess what constraints (e.g., time, cost or other, if any) may exist and to what extent they would like the mediator to be directive or facilitative, and tailor the process accordingly.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) All. All types of mediation are possible and are practised in Switzerland. Once again, the general view of the Swiss professional mediator community is that mediators should not use an evaluative approach or make proposals since the parties would have chosen conciliation proceedings and not mediation proceedings if that is the sort of process they wanted. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) All. All types of mediation are possible and are practised in Switzerland. As discussed above, there is a broad range of views on this point within the Swiss professional mediator community, and the degree to which a mediator is directive on procedural matters depends on a prior discussion with the parties and their counsel. See 3.f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral. The only rules regarding non-binding evaluative ADR in Switzerland relate to conciliation, where a magistrate or tribunal acts as a Conciliation Authority during judicial proceedings pursuant to Sections 197-212 CPC. When a mediator is acting in a purely private capacity, and the parties have chosen him/her to act as an evaluative mediator (as opposed to a conciliator), these rules do not apply and the mediator is only bound by any professional codes of conduct to which he or she is bound. An evaluative mediator will normally assess with the clients when and to what extent the parties may wish for him/her to ever make proposals or provide their views of the case. It is possible for an evaluative mediator to also be neutral and assist the parties in understanding the dispositive issues in a case, and to help the parties and their counsel to discuss in joint session the respective elements that would need to be proven to meet their respective burden of proof issues before a court or arbitral tribunal. Even if a mediator has been chosen for their ability to be evaluative, it is unlikely that he or she will provide any opinions or make any proposals early on in the proceedings if he or she is a professional mediator, and the mediator may wish to first make sure they have

10 For further examples of how mediation can be combined with other proceedings, see J. Lack, ‘Appropriate Dispute Resolution (ADR): The Spectrum of Hybrid Techniques Available to the Parties’, Chapter  17 to ADR in Business, Practice and Issues Across Countries And Cultures (Kluwer Law International, edited by A. Ingen-Housz, 2011), pp. 339-79, available online at http:/www.imimediation. org/index.php?cID=278&cType=document.

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the express permission of all the parties before providing any proposal, their non-binding views of the case or any opinion on any matter. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. There are no predominant mediation procedural styles for commercial mediation in Switzerland. The use of caucuses or joint sessions varies according to the individual training of each mediator, the requests of the parties, and the particular instances of each case. According to one school of training, caucuses are mainly used as a preferred mode of mediation when no future relationship is envisaged between the parties, and joint sessions are mainly used as a preferred mode of mediation when there is likely to be an ongoing future relationship between the parties. Other schools advocate the Understanding-Based Model of Mediation of G. Friedman and J. Himmelstein, which does not use caucuses at all (or rarely). Others will be more willing to use primarily caucuses, if their training has included US- or UK-based courses, which typically teach caucus-style mediation and view it as an essential tool for a mediator to build the confidence of each of the parties separately, and to probe interests and/or do reality testing. Caucuses may also be used for coaching purposes, for example, to check on cross-cultural issues or to help the parties formulate an interest or make a proposal in joint session. The extent to which each mediator and the parties may wish to use caucuses or joint sessions often depends on prior discussions with the parties and their counsel any may vary widely from case to case or mediator to mediator. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j. The use of caucuses and/or joint sessions varies widely from case to case and depends on the mediator, the parties, their counsel and the type of dispute.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). There is no national legislation requiring the accreditation or certification of mediators. The parties are free to hire as their mediator a person who has had no training in mediation, conciliation or arbitration, and who is not a lawyer. That being said, there are four main mediation certification bodies in Switzerland that do have accreditation or certification requirements, to which most professional mediators belong, and whose registered mediators are recognised by most cantonal authorities or the Swiss Chambers of Commerce as being qualified mediators. These four leading bodies are: (i) the Swiss Chamber of Commercial Mediation (CSMC/SKWM/SCCM); (ii) the Swiss Federation of Mediation Associations (FSM/ SDM); (iii) the Swiss Association for Mediation (SVM/ASM); and (iv) the Swiss Bar Association (SAV/FSA), which certifies lawyers who are also trained as mediators. Each of these bodies has developed its own set of accreditation rules and continuing professional development requirements, which have set different best practices and their own standards and codes of conduct in Switzerland. The Swiss chambers of commerce that administer the Swiss Mediation Rules provide that the parties are free to select anyone they wish as a mediator, provided that they: (a) are neutral, impartial and independent of the parties; (b) undertake to respect the confidentiality of the proceedings at all times; and (c) adhere to the European Code of Conduct for mediators. If the parties do not come up with their own mediator, the chambers will refer the parties to the website of the CSMC/SKWM/SCCM and will suggest at least three mediators from that list. Some cantons (e.g., Fribourg Geneva and Vaud) have also provided additional requirements in order for a person to be certified and added to a local cantonal registry, which may involve having to take an oath (e.g., Title IX of the

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Geneva law of 26 September 2010 on the organisation of the judiciary (the ‘Geneva LOJ’; Sections 66-75 LOJ)). b. Set by market (private certifying bodies) Yes. Although there are several mediation certification bodies and some cantonal rules in Switzerland regarding the certification of mediators, none of these rules are compulsory and there are no sanctions or disincentives for parties wishing to appoint a mediator who has not been trained, assessed or certified by any organisation at all. There are also many training courses and certifications offered throughout Switzerland promoting different forms and types of mediation (e.g., community mediation, family mediation, commercial mediation, social mediation, intercultural mediation, systemic theory, non-violent communication, NLP-based mediation, etc.). None of these courses or certifications are regulated and anyone may offer mediation training. Any individual may also act as a mediator, so long as they have been jointly appointed by the parties and agree to act in a neutral, impartial and independent manner. There may arguably be incentives in certain types of cases for parties to use a certified cantonal mediator or a mediator who is also a lawyer and knows the relevant area of the law. These are cases in which the parties may seek ratification by the court (Section 217 CPC or under Section 279 CPC for divorce proceedings) or execution of an Official Record that has been notarised before a notary that will be subjected to judicial review (Section 352 CPC). The use of a certified cantonal mediator who has demonstrated a basic level of professional competency and/or a lawyer certified as a mediator who knows the relevant areas of law may give the parties or their counsel more confidence in hiring a mediator for the first time or for a sensitive legal matter, and the courts may scrutinise the case less when homologating settlement agreements reached using a certified cantonal mediator or a mediator who is also qualified as a lawyer. There are, however, no formal or explicit rules on this. The general philosophy in Switzerland, therefore, is that the market will ultimately decide which mediator(s), institution(s) or style(s) of mediation are better, and which mediators or mediation styles are more suited to certain types of cases as opposed to others. c. Set by public regulation (No). Although the profession of mediation is unregulated in Switzerland (unlike, for example, law or medicine), the existence of several specialised mediation organisations, certification bodies and cantonal laws do create an informal regulatory framework of best practices and codes of conduct that neutrals wishing to act as professional mediators will feel the need to adhere to. Thus, although there are no de jure public regulations, the reality is that most professional mediators in Switzerland will associate themselves with one type of certification system or another, usually one of the four bodies referred to in 4.1.a., as well as international mediation organisations. For example, the website of the Geneva Chamber of Commerce, Industry and Services (CCIG) (one of the Swiss chambers administering the Swiss Mediation Rules) has a section entitled ‘Find a mediator’ that refers users to the websites of the CSMC/ SKWM/SCCM in Switzerland, the International Mediation Institute, an international NGO based in the Netherlands, and Core Solutions in Scotland. d. Number of hours for basic mediator training 12-200 hours. The basic number of hours for mediation training will vary. The World Intellectual Property Organisation (WIPO) offers a two-day mediation training course every year (12 hours). Other courses recognised in Switzerland range from 40 hours (for certain UK- or US-based courses, e.g., CEDR, CPR, CIArb, Core Solutions) to a minimum of 120 hours for the Swiss Chamber of Commercial Mediation (CSMC/SKWM/SCCM), 128  hours for the

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Swiss Bar Association (FSA/SAV) and 200 hours for the Swiss Association for Mediation (SVM/ASM) and the Swiss Federation of Mediation Associations (FSM/SDM). e. Mandatory continuing professional development for accredited/certified mediators 0-60 hours/3 years. Given that there are no mandatory requirements for being, a mediator there are no mandatory rules for continuing professional development. Some mediation organisations (e.g., WIPO) do not have any CPD requirements at all. The four leading Swiss mediation accreditation bodies (CSMC/SKWM/SCCM, FSA/SAV, SVM/ASM and FSM/SDM) have varying requirements for maintaining certification once a mediator has been approved, ranging from 16 hours every three years (FSA/SAV), to 36 hours every three years (CSMC/ SKWM/SCCM), to 60 hours every three years for the SVM/ASM and the FSM/SDM. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (Yes). Once again, there are no certification or accreditation requirements in Switzerland. That being said, each of the four leading Swiss mediation accreditation bodies to which the majority of Swiss professional mediators belong (i.e., CSMC/SKWM/SCCM, FSA/SAV, SVM/ ASM and FSM/SDM) have their own rules. All of them require minimum hours for theory, practice and supervision, as well as independent research or CPD hours. Other training may be accredited as counting towards these courses, and each organisation provides lists of approved trainers or courses, whose hours will count towards accreditation. The Swiss Mediation Rules provide that any person that the parties have chosen can act as a mediator (Section 8.1 of the Swiss Mediation Rules). If the parties cannot agree, the Chambers may provide recommendations and make a final appointment (Sections 8.2-3 of the Swiss Mediation Rules). The appointment of the mediator must be confirmed by the Chambers (Section 9 of the Swiss Mediation Rules) and the mediator must undertake in writing to comply with the European Code of Conduct for Mediators (Section 13 of the Swiss Mediation Rules). That being said, the Chambers are unlikely to recommend a mediator who has not met the requirements of at least one of the main Swiss accreditation bodies, and the Swiss Chambers of Commerce have an agreed practice of referring the parties to the website of the Swiss Chamber of Commercial Mediation (CSMC/SKWM/SCCM), should they seek assistance in looking for a mediator. g. Accreditation through written exam (No). None of the Swiss mediation accreditation bodies requires that candidates pass a final written exam. On the other hand, most of them require some form of written testing or that the candidate submit a thesis based on independent research or a logbook reflecting personal mediation experience. The FSA/SAV reserves the right, in certain circumstances, to ask candidates to pass a final written and/or oral exam in order to be accredited, although it has not always done so. For mediators to be confirmed under Section 9 of the Swiss Mediation Rules, it suffices for them to provide: (i) an agreement to serve; (ii) a curriculum vitae; (iii) a statement of independence duly dated and signed; and (iv) their adherence to the European Code of Conduct for Mediators (Section 13 of the Swiss Mediation Rules). h. Accreditation through performance-based assessment No. None of the Swiss accreditation bodies has a formal performance-based assessment. The basic training programme of some of the leading national courses that are on offer will, however, often contain self-assessments or video-recordings of how students perform in role plays. This also seems to be a best practice in mediation training circles in general, as experience-based learning tends to provide mediation students with better basic skills that they are more likely to retain when starting their own practices. Rather than assess

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students’ competencies using such videos or role-plays, however, the purpose of these roleplays and videos is primarily to allow students to do self-assessments and reflect on their own behaviour during mock mediations, rather than act as a basis for their accreditation, and these videos are seldom used for pass/fail assessments by examiners.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no requirement that clients be represented in mediations or that their lawyers or any advisors or representatives in mediation proceedings should obtain any mediation advocacy training. The Swiss Bar Association (FSA/SAV), which is one of the four leading mediation accreditation bodies in Switzerland, trains lawyers to act as mediators, but does not offer advocacy training to teach lawyers how to act as counsel in mediation. That being said, the Canton of Geneva has recently set up a new vocational training course (the Ecole d’Avocature or ‘ECAV’) that does contain a compulsory module on mediation advocacy, which all trainee lawyers need to pass in order to obtain their local bar qualification in that canton. The module entails approximately 6 hours of lectures and 4 hours of group practice using role-plays, followed by an oral exam. This, however, is the only programme of its sort for the moment in Switzerland and few Swiss universities offer training on mediation or mediation advocacy as part of any LLB programmes, with the notable exceptions of Fribourg, Lausanne and Neuchâtel. The Swiss Chambers of Commerce occasionally set up courses and there are some universities offering one day seminars on mediation within broader arbitration programmes, but these have tended to be rare, one-off events or training courses. There is no accreditation, certification or formal recognition of mediation advocacy skills as distinct from training to become a mediator anywhere in Switzerland. j. Set by market (private certifying bodies) Yes. Given that there is no accredited vocational training at all for the moment for mediation advocacy (save for in the canton of Geneva with its ECAV program), the selection of counsel or legal representation in mediation is purely market-driven. See also the answer to 4.1.b. k. Set by public regulation (No). The only exception for the moment is the canton of Geneva, which by adding a mediation advocacy module to its Ecole d’Avocature (ECAV) has made a theoretical understanding of mediation a compulsory requirement for admission to the local cantonal bar. This training, however, only takes approximately 10 hours and is unique within Switzerland. It is possible for lawyers from other cantons to waive into the Geneva Bar or to appear before the Geneva courts without ever having received any mediation advocacy training.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. As explained above, many cantons have lists of approved mediators and the Chambers of Commerce that administer the Swiss Mediation Rules will tend to refer parties to accredited mediators, but it is not necessary to use a certified or recognised mediator for any mediation in Switzerland. Anyone can call themselves a mediator, and it is the market that determines who will succeed professionally and who will not. See also 4.1.b. b. Set by public regulation (No). There are no provisions describing who may act as a mediator in the Swiss CPC. Although there is no legal requirement to be certified as a mediator in Switzerland, some

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cantons do keep registries of approved mediators, refer to the four leading mediation accreditation bodies (i.e., CSMC/SKWM/SCCM, FSA/SAV, SVM/ASM and FSM/SWM), and also set minimal criteria regarding who may be a certified cantonal mediator. For example, the canton of Geneva requires (in addition to training) that a mediator be at least thirty years old, hold a university degree (or similar academic qualification), have professional experience, and have no criminal record (Section 67 Geneva LOJ). c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Although one of the four leading accreditation bodies for lawyers in Switzerland is the Swiss Bar Association (FSA/SAV), and accreditation as a mediator by the FSA/SAV is only accessible to lawyers who are members of the national Swiss Bar Association, it is not necessary to be a lawyer or to have received any legal training at all to be a mediator in Switzerland. Furthermore, FSA/SAV certification is not available to all lawyers, even if they meet the FSA/SAV’s requirements. Foreign lawyers cannot be FSA/SAV-certified as mediators unless they are members of the Swiss national Bar Association (which does not recognise foreign lawyers as members unless they have full voting rights in a recognised cantonal bar association – which no Swiss canton currently allows for). Although there is no requirement that mediators be lawyers, there may be an unofficial preference by judges or counsel in some circumstances or for certain types of matters (e.g., in family law or divorce matters where there are judicial reviews of any settlement agreements) that the mediator be a certified cantonal mediator and/or also be a lawyer, as this may facilitate the ratification of any settlement agreements under Section 217 CPC, or Section 279(2) CPC, or judicial review of an Official Record (Section 352 CPC), and prevent the settlement agreement from contravening any principles of imperative law (which are rare in Swiss law as a whole). d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c. No distinction is made in Switzerland between domestic and international mediation.

6.

EU Directive

NA. Switzerland is not a Member State of the European Union. The EU Mediation Directive has no effect in Switzerland and is not applicable, although the European Code of Conduct for Mediators has been broadly adopted (e.g., by the Swiss chambers of commerce that administer the Swiss Mediation Rules).

7.

Mediation legislation

a. Mediation legislation since 2011. The Swiss CPC came into effect on 1 January 2011. Until that date, mediation was not formally recognised by Swiss national law as a form of dispute resolution, save in certain cantons. In addition to the Swiss CPC, mediation is recognised by the new Swiss Code of Penal Procedure for Minors (‘PPMin’). Each canton is free to pass supplementary local legislation regarding mediation, which has happened in the cantons of Fribourg, Zurich, Valais, Vaud, Neuchatel, Jura, Argovie, Tessin, St. Gallen, Glaris and Geneva, relating to both civil and criminal mediation. The canton of Geneva was one of the first cantons to adopt a local law on civil mediation (Act No. 8931 of 28 October 2004 modifying the law on Civil procedure (E 3 05) (‘Civil Mediation’), but that law has been replaced by the Swiss CPC and the Geneva LOJ of 26 September 2010.

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b. Legislation updated since EU mediation directive (date update) (Yes). On October 14 2012 the canton of Geneva adopted a new cantonal constitution by popular referendum. Although this is only a cantonal law and not a federal law, it may be a sign of things to come in other cantons as well. The new Geneva Constitution contains three provisions promoting greater use of mediation: (a) Section 36(4) of the new Geneva Constitution provides that the primary means for resolving labour union disputes in the future will be negotiation and mediation; (b) Section 115 of the new Geneva Constitution provides that a new independent mediation body will be appointed to handle all administrative disputes; and (c) Section 120 of the new Geneva Constitution provides that the judiciary and the state will both encourage the use of mediation and other modes of dispute resolution. It is possible that other cantons may have recently adopted similar provisions.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. There are no restrictions on how entities wishing to offer mediation services have to be set up. All legal forms are possible.

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b. Individuals may be providers of mediation services Yes. The lists of several cantons (e.g., in Fribourg, Geneva, Vaud and Basel city) only refer to individuals who have taken an oath or some similar undertaking of professional responsibility. c. Mediation provider qualifications/requirements determined by public regulation No. Certain cantons (e.g., Geneva) have passed some rules regarding basic requirements for persons to be able to act as mediators, but once again, these do not regulate any service provider but the basic education of a mediator as an individual. See 5.b.

9.1. Mediator fees a. Freely contracted Yes. Section 218 CPC states that the costs of mediation are borne by the parties. That being said, mediation can be paid for by the state in certain family matters, in which case the fees of the mediator are established by the state. In Geneva, for example, a cantonal regulation on legal aid dated 28 July 2010 (the ‘Geneva RAJ’) provides that legal aid is available for certain state court proceedings, which may include access to a certified cantonal mediator who is regulated by Sections 66 etc. of the Geneva LOJ (Section 2 Geneva RAJ). There are no similar provisions as yet in Vaud or Neuchâtel. In Fribourg, the local cantonal regulation on justice dated 30 November 30 (the ‘Fribourg RJ’) provides that mediator fees in cantonal court proceedings are set by the competent local authority on the basis of a rate of CHF 150/ hour (Section 52 Fribourg RJ). For legal aid or non-financial matters relating to children and family law, mediator fees are set at CHF 130/hour (Sections 53-54 Fribourg RJ). b. Fixed in some cases by public regulation (Yes). This is rare, however. In general mediator fees are determined directly by the mediator and the parties. In the canton of Fribourg, for example, the Fribourg RJ of 30 November 2010 provides for mediator fees of CHF 150/hour in qualifying cantonal court proceedings that will be paid for by the cantonal authority (Section 52 Fribourg RJ), and mediator fees of CHF 130/hour for child and family law matters (Sections 53-54 Fribourg RJ).

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c. Average mediator fee per hour for commercial or cross-border cases (CHF 200-700, estimate): Appendix B of the Swiss Mediation Rules does suggest a range of mediator fees in Section 2, which range from an hourly rate of CHF 200-500/hour to CHF 1,500-2,500/day, of which 10% is paid by the mediator to the chambers administering the case under those rules. The Schedule of Fees and Costs under the WIPO mediation rules (which are administered out of Geneva) provide for a range of US$300-600 per hour or US$1,500-3,500 per day. The parties and the mediator may agree on other rates, however, and frequently do. (Mediator fees are normally split equally by all of the parties). It is common for lawyer mediators to charge in the range of CHF 400-700/hour in commercial or cross-border disputes, commensurate with hourly arbitrator fees. It is difficult to speak of any one average rate, however, as this may also vary with the institution and/or the size and/ or complexity of the dispute. See 9.1.a. d. Average mediator fee per hour in civil cases (CHF 150-500, estimate). There are no recommendations for hourly rates in such c­ ases. Once again, using the hourly rates of lawyers or arbitrators as a comparison and Section 52 Fribourg RJ as a reference point, it is possible to speak of a range of CHF 150-500/hour in domestic civil cases, depending on the size and/or complexity of the dispute.

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). Section 218(2) CPC provides that in non-financial matters of child law, the parties are entitled to cost-free mediation if: (a) they do not have the necessary financial resources; and (b) the court recommends mediation. Section 218(3) CPC also provides that each canton may provide further exemptions from costs as it deems appropriate. Furthermore, the Swiss Civil Code (CC) was modified on 19 December 2008 to contain a new Section 314(2) CC that came into effect on 1 January 2013, which provides that in cases involving children the authority protecting the rights of the child may exhort the parents to refer to mediation whenever it believes this would be in the interests of the child. The canton of Geneva has passed new legislation for such cases (a new Section 17 of the Geneva Application of the Civil Code Act and other civil legislation of 28 November 2010 (‘LaCC’) that also came into effect on 1 January 2013), which provides for three mediation sessions automatically paid by the state whenever this recommendation is made by the Geneva state authority responsible for the rights of children. The fees for legal aid mediation services range from CHF 130/ hour to CHF 350/hour, depending on the type of case, the canton involved and the parties’ personal circumstances. The only canton known to the authors to have provided clear legal aid fees is Fribourg, which provides a base rate of CHF 130/hour for child and family cases (Section 52 Fribourg RJ) and of CHF 150/hour for other qualifying cantonal court matters (Sections 53-54 Fribourg RJ). Section 2 Geneva RAJ provides more broadly that legal aid may be available for mediation whenever the mediator is a certified cantonal mediator who is regulated by Sections 66 etc. of the Geneva LOJ (Section 2 Geneva RAJ). In such cases, it is anticipated that the rates for legal aid in the Canton of Geneva will range from CHF 65/ hour for trainees to CHF 200/hour for lawyers on the basis that this is the rate for legal aid in criminal matters at Section 16 Geneva RAJ. f. Mediator fees covered by legal insurance schemes NA (CHF 300-350/hour). There were no legal insurance schemes in effect in Switzerland until recently. It seems that some new legal insurances ((e.g., Protekta, CAP, Protection juridique, Assista, etc.) are now covering the costs of a mediator, at a rate of approximately CHF 300/hour. In the past, the Administrative Tribunal of Geneva that was responsible for

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medical insurance claims paid mediators a fee of CHF 350/hour in certain cases. That rate was not official, however, and has not been formally set in any state regulations or legislation. g. Mediator fees subsidised in court-connected schemes NA (CHF 350/hour). See 9.2.f.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Given the distinction that exists in Switzerland between compulsory conciliation (which is a court-annexed judicial process governed by Sections 197-212 CPC) and voluntary mediation (which is an extra-judicial process that the parties can opt for instead of conciliation, and which is governed by Sections 213-18 CPC and Section 297(2) CPC), there is hardly a relationship if any at all between mediators and judges or mediators and court-annexed conciliators in Switzerland. With the exception of the canton of Neuchâtel (where the local chapter of the Swiss Academy of Magistrates offers a three-day training course for a certificate of advanced studies (‘CAS’) on alternative dispute resolution to all Swiss judges), very few judges or conciliators have any mediation training, and there are no incentives at all to refer the parties to mediation, even in cases where judges or conciliators believe that both parties’ interests are unlikely to be well served by proceeding to litigation (e.g., where a defendant party is likely to go into bankruptcy and the plaintiff may only gain a pyrrhic victory). There has been unfortunately little or no training about the use of mediation for judicial officials since the Swiss CPC came into effect in January 2011. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). Officially, because conciliation is part of the legal system, and mediation is only a possible alternative to conciliation under the relevant provisions of the CPC, mediation remains an extra-judicial process (albeit one that is recognised by the Swiss legal system). Also, given that settlement agreements reached in mediation may be approved by a tribunal at any time (Section 217 CPC) or become enforceable if notarised as an Official Record (Section 347 CPC) that is subject to judicial review (Section 352 CPC), it is also possible to state that mediation is becoming increasingly recognised by the Swiss legal system. Section 216 CPC, which is entitled ‘Relationship with court proceedings’, deals with issues of confidentiality and non-admissibility of mediation statements in subsequent court proceedings. In reality, however, mediation is hermetically and conceptually cut off from the legal system, as explained in 10.a. There is little relationship de facto between mediation and the legal system. With the exception of the new CAS certificate offered in Neuchâtel, few judges are trained in the differences between mediation and conciliation, and the majority seem to believe that mediation is an evaluative process that is no different from conciliation. Mediation still has a long way to go in Switzerland in this respect. c. Mediation procedure has impact on statute of limitations (No). Mediation proceedings do not have a direct or automatic impact on any statute of limitation periods, unless the mediation proceedings are initiated during court or conciliation proceedings (see 1.a.). The general provisions on statutes of limitations can be found in Title Three, Sections 114-142 of the Swiss Code of Obligations (‘CO’). Section 135(2) CO

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provides that a statute of limitations period is interrupted ‘by debt enforcement proceedings, an application for conciliation, submission of a statement of claim or defence to a court or arbitral tribunal, or a petition for bankruptcy’. This provision was not amended by the Swiss CPC and does not mention mediation. On the other hand, Section 138(1) CO was amended by the Swiss CPC to read as follows: ‘Where the limitation period has been interrupted by an application for conciliation, or the submission of a statement of claim or defence, a new limitation period commences when the dispute is settled before the relevant court.’ The effect of this is that if mediation proceedings are initiated instead of conciliation proceedings pursuant to Section 213 CPC or during court proceedings pursuant to Section 214 CPC, the statute of limitations period is suspended by virtue of the conciliation or court proceedings that the mediation proceedings replace. Where mediation replaces conciliation proceedings, the conciliation authority only grants authorisation to proceed to a court hearing if it is notified by one of the parties that the mediation has failed (Section 213(3) CPC). Where mediation replaces court proceedings, the court proceedings remain suspended until the request for mediation is withdrawn by one of the parties or until the court is notified of the end of the mediation (Section 214(3) CPC). That said, if mediation proceedings are initiated independently of conciliation or court proceedings, no statute of limitations periods are interrupted or suspended by virtue of the mediation proceedings themselves, although the parties can still agree to waive in writing any statute of limitations rights they may have as these rights can be waived under Swiss law.

11. Mediated settlement a. Contract Yes. Unless a settlement agreement is: (i) ratified under Section 217 CPC; or (ii) ratified as a divorce settlement agreement pursuant to Sections 279 and/or 280 CPC; or is (iii) notarised as an Official Record that is capable of being enforced under Sections 347-52 CPC, a settlement agreement reached through mediation is only deemed to be a private contract between the parties. b. Automatically enforceable (No). Although a settlement agreement in mediation is not generally viewed as being automatically enforceable, it can become automatically enforceable and capable of specific performance having the executable character of a judgement if the mediation replaces a conciliation pursuant to Section 213 CPC or is started later on in the proceedings by a joint request to the tribunal pursuant to Section 214 CPC, and the settlement agreement is subsequently ratified by the tribunal in accordance with Section 217 CPC. It can also be ratified in divorce proceedings pursuant to Sections 279 and/or 280 CPC. Furthermore, a settlement agreement can also be enforceable outside of court proceedings if it has been notarised as an Official Record, rendering it enforceable but subject to judicial review under Sec­ tions 347-52 CPC. c. Enforceable under some circumstances which are up to the parties Yes. Same answer as for 1.d. and 11.a. and b. A mediated settlement agreement can become an enforceable title once it has been ratified by a tribunal under Section 217 CPC (in general civil or commercial matters) or Sections 279 and/or 280 CPC (in divorces), or if it has been notarised as an Official Record before a notary public (Sections 347-52 CPC) and is not covered by any exceptions.

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d. Enforceable under some circumstances defined by public regulation Yes. All court decisions and authentic titles having executable character are enforceable as a matter of law, unless a tribunal has determined otherwise. See Part 2, Title 10 (Sec­ tions 335-52) CPC.

12. Confidentiality

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a. Regulated by law Yes. Section 216 CPC entitled ‘Relationship with court proceedings’ provides that mediation is confidential and kept separate from the Conciliation Authority and the court (Section 216(1) CPC), and that statements made by the parties cannot be taken into account in court proceedings (Section 216(2) CPC). b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). Although the Swiss CPC does not contain any explicit provisions enabling a mediator to refuse to give evidence in court proceedings or in arbitration, the language of confidentiality under Section 216(1) CPC makes it clear that what happens in mediation is confidential and that these proceedings are independent of any conciliation or judicial proceedings. Any statements made by a party in mediation cannot be used in court proceedings (Section 216(2) CPC). It is possible to infer from this that a mediator may refuse to give evidence on that basis. On the other hand, the Swiss Criminal Code (‘CP’) provides for specific categories of professional secrecy in Section 321(1) CP that preclude them from giving evidence and this gives a form of professional privilege (e.g., members of the clergy, lawyers, defence lawyers, notaries, patent attorneys, certain categories of auditors, doctors, dentists, pharmacists and midwives). It would have been possible to insert a similar professional secrecy provision in the CPC or to amend Section 321(1) CP to include mediators, but this was not done. The obligations of the mediator with regard to professional privilege may also vary by canton. For example, Section 71 of the Geneva LOJ reads as follows, providing more direct obligations of confidentiality on a mediator than the CPC does: ‘Section 71 ‘Secrecy of Mediation’. 1 The mediator is bound to protect the secrecy of the facts he obtained knowledge of during the course of the mediation and on the operations he conducted, participated in or assisted. This obligation remains even if he no longer exercises the function of mediator. 2 The mediator who breaches his duty of secrecy is punishable by the sanctions provided for in Section 72. 3 Regardless of the outcome of mediation, no party may avail itself, in the event of a trial, of what was said in front of the mediator. 4 The support of the mediator’s file in an administrative or judicial procedure is excluded.’ In view of this disparity, the Swiss Mediation Rules provide as follows at Section 18 (Confidentiality): ’1. Mediation is confidential at all times. Any observation, statement or proposition made before the mediator or by him/ herself cannot be used later, even in case of litigation or arbitration, unless there is a written agreement of all the parties. 2. The sessions are private. The parties may, with the consent of the mediator, agree that other persons attend the sessions.’ It is common for mediation agreements to further clarify that a mediator may refuse to give any evidence in court proceedings, even if jointly requested to do so by the parties. That being said, like all contractual agreements, if a court is faced with a separate case or a new dispute regarding the interpretation of a mediation settlement agreement where what happened in mediation may be relevant, and the court has personal jurisdiction over the parties, a mediator does not benefit from professional secrecy under Section 321(1) CP (unless he

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or she was also acting as a lawyer, member of the clergy, doctor etc. advising the parties at that time) and may be summoned to give evidence, depending on the additional cantonal provisions that may apply (such as Section 71 Geneva LOJ). There is no Swiss jurisprudence on a mediator evoking the provisions of Section 216 CPC to claim immunity from having to provide evidence, and it should be remembered that these issues are fairly new under Swiss law, given that the CPC only entered into effect on January 1, 2011.

13. Education a. Mediation education is a common component of legal education (No). With the exception of the Canton of Geneva’s new School of Advocacy (ECAV) which contains some basic modules on negotiation, mediation and mediation advocacy, there are no mandatory provisions requiring mediation education in any legal education courses, and few universities in Switzerland are currently offering any training on mediation as part of a law degree, save for Lausanne, Fribourg and Neuchatel. See 4.2.i. b. Mediation advocacy education is a common component of legal education (No). See 4.2.i. With the exception of the Geneva ECAV programme that began in 2011, which has a short, compulsory 10-hour module on mediation and mediation advocacy, the threeday training offered by the Neuchâtel Chapter of the Swiss Academy of Magistrates, and the courses given at the University of Lausanne’s Faculty of Law as well as in Fribourg, this topic does not appear in the educational curriculum of most law schools, bar associations or vocational training programmes for judges or conciliators anywhere in Switzerland. This is another area where Switzerland still has a lot of room for improvement.

14. Most relevant literature or references, jurisprudence, articles, law Most relevant law: Part 2, Title 2 (Sections 213-18 CPC) and Section 297(2) CPC of the Swiss Code of Civil Procedure. Most relevant literature and articles: – F. Bohnet/J. Haldy/N. Jeandin/P. Schweiser/D. Tappy, Code de procédure civile commenté, Ad Arts. 213-218, Ed. Helbing Lichtenhahn, 2011 – S. Monbaron, La médiation, in Procédure civile suisse – Les grands thèmes pour les practiciens, Ed. Schulthess, 2010 – G. Canivet/C. Imhoos/C. Levy/G. Malinverni/J. Mirimanoff/A. Overney/F. Pastore/M. WeilGuthmann, La médiation dans l'ordre juridique suisse – une justice durable à l'écoute du troisième millénaire, Ed. Helbing Lichtenhahn, 2011; – D. Tappy/M. Novier, La procédure de conciliation et la médiation dans le Code de procédure civile suisse (art. 197-218 CPC), in: Il Codice di diritto processuale civile svizzero. Ed. CFPG, pp. 81-146, 2011; – F. Pastore/B. Sambeth Glasner, Réflexions sur la médiabilité, in Revue de l’avocat : publications de la Fédération suisse des avocats, 2010/412: – F. Pastore/B. Sambeth Glasner, La médiation en matière pénale pour les adultes à l’ère du code de procédure pénale unifié, in : Pratique juridique actuelle, 6/2010; – T. Fiutak, Le médiat€ dans l’arène. Réflexion sur l’art de la médiation, Ed. Eres, 2009; – G. Friedmann/J. Himmelstein/T. Roosen, Défier le conflit : la médiation par la compréhension, Ed. Larcier, 2010; – L. Boltanski/L. Thevenot, De la justification. Les économies de la grand€, Ed. Gallimard, 1991;

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– R. Fisher/W. Ury/B. Patton, Comment réussir une négociation, Ed. Seuil, 2006; – T. Fiutak/G. Planès/Y. Colin, Le médiateur dans l’arène, Réflexion sur l’art de la médiation, ­Trajets, Ed. Erès, 2009. – M. A. Schonewille, Toolkit Generating Outcomes: Making & Saving Deals Mediation Negotiation, Ed. SDU Uitgevers, 2009; – E. Waldman, Mediation Ethics, Publ. Jossey-Bass, 2011; – H.I. Abramson Mediation Representation – Advocating as a Problem-Solver in any Country or Culture (Second Edition), Oxford University Press 2011. 1) Swiss Mediation Organisation Websites: i. CSMC/SKWM/SCCM: www.skwm.ch ii. FSA/SAV: www.mediation.sav-fsa.ch iii. SVM/ASM: http://www.mediation-svm.ch/ iv. FSM/SDM: http://www.infomediation.ch/cms/ 2) Swiss Commercial Mediation Rules: https://www.swissarbitration.org/sm/en/index.php 3) The Geneva LOJ: http://www.ge.ch/legislation/rsg/f/rsg_e2_05.html and in particular ‘Titre IX Médiation’. 4) The Geneva RAJ: http://www.ge.ch/legislation/rsg/f/s/rsg_e2_05p04.html 5) For Geneva’s cantonal dispositions in general, see http://ge.ch/justice/mediation. 6) The Fribourg ordinance of December 6, 2010: http://bdlf.fr.ch/frontend/versions/209? locale=fr 7) The Fribourg RJ: http://bdlf.fr.ch/frontend/versions/205?locale=fr 8) F. Pastore et al -- Way to settle a conflict amicably: mediation in Geneva (2012): http:// www.altenburger.ch/uploads/tx_altenburger/bgs_cp_2012_Way_to_settle_a_conflict_ amicably_mediation_in_Geneva.pdf 9) J. Lack & B. Sambeth Glasner –– Legal Update on ADR in Switzerland (2012): http://www. mediationworld.net/switzerland/articles/full/1680.html 10) B. Sambeth Glasner –– Confidentialité en médiation: mythe ou réalité (2010): http://www. altenburger.ch/uploads/tx_altenburger/bsg_2010_confidentialite_en_mediation_mythe_ ou_realite.pdf 11) F. Pastore –– La médiation civile dans le Code de procédure civile unifié (2010): http:// www.altenburger.ch/uploads/tx_altenburger/bsg_fp_2010_La_m%C3%A9diation_civile_ dans_le_Code_de_proc%C3%A9dure.pdf. 12) Jean A. Mirimanoff – Feasibility of Mediation Systems in Switzerland (2009): http://www. gemme.ch/rep_fichier/gemme_feasibility_of_mediation_systems.pdf 13) J. Lack –– The New Swiss Rules of Commercial Mediation of the Swiss Chambers of Commerce and Industry: Possible Links to Arbitration (2008): http://www.mediate.com/ mediator/attachments/28823/jl_2008_Swiss_Rules_Commercial_Mediation.pdf 14) The Geneva Constitution: http://www.ge.ch/constituante/doc/Projet_de_constitution_ version_finale_190612_A4.pdf 15) The Geneva Ordinance of November 28, 2010 (Application of the Civil Code and other civil legislation in the Canton of Geneva) (LaCC): http://www.geneve.ch/LEGISLATION/rsg/f/ rsg_e1_05.html. In addition, a recent compilation of all relevant literature and articles on mediation in Switzerland as of June 2010 was written by Judge Jean Mirimanoff, an outspoken supporter of mediation in Switzerland. This compilation can be found on the website of the Swiss chapter of the Group of European Magistrates for Mediation (‘GEMME’) at http://www.gemme.ch/ rep_fichier/adr_rad_interieur.pdf

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15. Mediation legislation texts b. Weblink to legislation in national language The Swiss CPC can be found online in three official national languages (French, German and Italian) at http://www.admin.ch/ch/f/rs/272/index.html. (Click on ‘Deutsch’ or ‘Italian’ to find the corresponding official texts in those languages). See especially Part 2, Title 2, Arts. 213-18 CPC and Art. 297 al. 2 CPC that relate to mediation). c. Weblink to English or other translation Although English is not an official language of the Swiss Confederation, the Swiss government has provided an official translation of the Swiss CPC into English, which is provided for information purposes only and has no legal force. It can be consulted article by article in HTML format at http://www.admin.ch/ch/e/rs/272/index.html or may be downloaded as a single .pdf file at http://www.admin.ch/ch/e/rs/2/272.en.pdf. d. Other references

16. Country specific remarks The answers to this questionnaire relate only to mediation in civil and commercial matters, which is covered by Part 2, Title 2 (Sections 213-18 CPC) of the Swiss Code of Civil Procedure (‘CPC’) and Section 297(2) CPC.11 Readers should note that Switzerland makes a distinction between mediation and conciliation, which are both governed by Part 2 of the CPC (Sections 197-352 CPC) as opposed to arbitration, which is governed by Part 3 of the CPC (Sections 35399 CPC). Conciliation is covered by sixteen Sections at Title 1 of Part 2 CPC (Sections 197-212 CPC) and is more broadly used in Swiss legal proceedings, whereas mediation is covered by only six Sections at Title 2 of Part 2 CPC (Sections 213-18 CPC). Although the Swiss CPC does not provide a clear definition of mediation or conciliation, or the differences between them, conciliation is a judicial process, whereas mediation is an extra-judicial process. Both are nonbinding processes by which a neutral attempts to reconcile the parties to reach a settlement. Conciliation is based on the existence of a Conciliation Authority (magistrates or persons with similar authority) which provides the parties with an early assessment of the case or its key dispositive features before they can proceed with litigation. Unlike mediation, conciliation is a compulsory step in almost all civil and commercial litigation proceedings before a hearing can be had before a judge (Section 197 CPC).12 Conciliation is an evaluative process based on legal norms, where the Conciliation Authority may provide legal advice to the parties and may make a settlement proposal or a proposed judgment in certain cases (Section 201 CPC and Section 210 CPC), whereas mediation is a less evaluative or non-evaluative process, which may take into account subjective interests, but a mediator may not provide legal advice and does not make a proposed judgment.13 The Swiss Rules of Commercial Mediation of the Swiss

11 An English translation of the CPC can be found at http:/www.admin.ch/ch/e/rs/272/index.html. The official text in German, French and Italian can also be accessed from this page. 12 The exceptions where conciliation is not required prior to litigation are listed in Sections 198-9 CPC and include civil status, divorce, dissolution of a registered partnership, certain debt-related matters and summary proceedings. Besides, the parties may mutually agree to waive any attempt at conciliation in financial disputes with a value in dispute of at least CHF 100,000. Finally, the plaintiff may unilateraly waive conciliation if the defendant’s registered office or domicile is abroad. 13 In financial disputes where the value of the dispute does not exceeding 2,000 Swiss Francs, the Conciliation Authority may even render a binding decision on the merits if the plaintiff so requests, pursuant to Sectoin 212 CPC.

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Chambers of Commerce and Industry (the ‘Swiss Mediation Rules’), which have been set up by the leading chambers of commerce and industry in Switzerland to create links to the Swiss Rules of International Arbitration (that are also administered by these chambers), to distinguish mediation from expert opinions, conciliation and arbitration as follows: ‘Mediation is an alternative method of dispute resolution whereby two or more parties ask a neutral third party, the mediator, to assist them in settling a dispute or in avoiding future conflicts. The mediator facilitates the exchange of opinions between the parties and encourages them to explore solutions that are acceptable to all the participants. Unlike an expert the mediator does not offer his or her own views nor make proposals like a conciliator, and unlike an arbitrator he or she does not render an award.’ (Emphasis added).14

CH

Mediation definition There is no legal definition of mediation in Switzerland. That being said, the Federal Council, when publishing the draft of the Swiss Code of Civil Procedure (‘CPC’) that is currently in effect, made a statement seeking to distinguish mediation, conciliation and arbitration. It defined mediation in its official communication dated June 28, 2006 (which is not part of the law) when launching the draft CPC as follows: ‘Mediation is an extrajudicial process. It is essentially characterised by the intervention of a neutral and independent third person. In this way, it resembles classical conciliation. However, whereas an attempt at conciliation is based on an informal negotiation, mediation follows a more formal structure. Unlike the authority of conciliation, the parties find themselves in a horizontal relationship with the mediator. Thus, this person does not have any decision-making powers, which also distinguishes mediation from arbitration.’ (See http://www.admin.ch/opc/fr/federal-gazette/2006/6841.pdf, Section5.14 on page 6943.) (In the French text: ‘La médiation est une procédure extrajudiciaire. Elle se caractérise essentiellement par l’intervention d’un tiers neutre et indépendant. Dans cette mesure, elle s’apparente à la conciliation classique. Mais, alors que la tentative de conciliation repose sur une négociation informelle, la médiation obéit à une structure plus formelle. A la différence de l’autorité de conciliation, les parties se trouvent dans un rapport horizontal avec le médiateur. Celui-ci ne dispose donc d’aucun pouvoir de décision, ce qui distingue également la médiation de l’arbitrage.’) This definition has to be understood in light of the fact that conciliators are normally courtappointed judges (who will not be sitting in the tribunal that will pass judgment in the same matter being conciliated), who have the authority as members of the judiciary to provide nonbinding opinions, make proposals, and even make certain binding decisions in low-value cases. In order to distinguish mediation more clearly from conciliation, the Swiss chambers of commerce have defined mediation more recently as follows in the Swiss Rules of Commercial Mediation (reprinted 2013): ‘Mediation is an alternative method of dispute resolution whereby two or more parties ask a neutral third party, the mediator, to assist them in settling a dispute or in avoiding future conflicts. The mediator facilitates the exchange of opinions between the parties and encourages them to explore solutions that are acceptable to all the participants. Unlike an expert the mediator does not offer his or her own views nor make proposals like a conciliator, and unlike an arbitrator he or she does not render an award.’ (See: https://www.swissarbitration.org/sm/download/swiss_mediation_rules.pdf.) 14 The Swiss Mediation Rules may be found at https:/www.swissarbitration.org/sm/en/rules.php.

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Mediation regulation and approach Country: Switzerland Prepared by Jeremy Lack, Alexis Lafranchi 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

Yes (No) (No) No No No No Yes No (Yes) (Yes) (No) (No) Yes (Yes) (Yes) All All All All N Mix Mix (Yes) Yes (No) 12-200 hrs 0-60 hrs/3 yrs (Yes) (No) No

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Mediation regulation and approach Country: Switzerland Prepared by Jeremy Lack, Alexis Lafranchi 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

CH

9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since b. Legislation updated since EU mediation directive (date update) a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

10. Legal context

No Yes (No) Yes (No) No No NA 2011 (Yes) Yes Yes No Yes (Yes) CHF200-700/hr (est.) CHF150-500/hr (est.) (Yes) NA (CHF300-350/ hour) NA (CHF350/hr) No

(No) (No) Yes (No) Yes Yes Yes (Yes) (No) (No)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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33. TURKEY1 Prepared by Seçkin Arikan2

1.

Attempt to mediate

a. Always voluntary Yes. Parties are free to attempt to mediate any time they wish before the litigation and during litigation process until the court decision rendered by the judge. b. Mandatory (in some cases) No. There is no mandatory mediation according Turkish legal regulations. c. Court referral or court-connected mediation possible Yes. Court referral or court-connected mediation is possible but court has no power to require parties to mediation and may only suggest mediation. Upon court’s suggestion parties may go to mediation if they both agree on mediation. d. Court-ordered mediation possible No. Court-ordered mediation is not possible. The judge only has the power and duty to suggest that parties to go to mediation but there is no power to order mediation. e. Sanctions by the court if mediation is not tried (in good faith) No. There are no sanctions that the court may exercise at the court’s discretion. See 1.d. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions that the court may exercise according to civil procedure and civil Mediation Acts. See 1.d. g. Incentives if mediation is tried voluntarily before going to court No. There are no incentives to promote mediation before going to litigation. h. Outside counsel presence/representation during mediation sessions allowed (Yes). Outside counsel presence is allowed during mediation session only if the counsel is a licensed attorney. i. Outside counsel presence mandatory No. Outside counsel presence during mediation sessions is not mandatory.

1 Last update of information: June 2013. 2 Seçkin Arikan has been the President of the ADR Center of the Union of Turkish Bar Association since 2012. He is the founder and managing partner of Arikan & Arikan Law Office in Ankara, Turkey. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause (Yes). If there is a written mediation clause agreed on by the parties they will have to go to mediation first according to general rules of procedure. However, if a party goes directly to litigation despite a mediation clause the judge will have discretion on taking the case admissible and we do not have any precedent as the Mediation Act on civil disputes has not yet come into force. The judge has the general duty of informing the parties on mediation and promoting mediation if he/she deems it necessary according the Mediation Act. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (No). As the mediation practice is too new and Act 6325 on civil mediation has just been passed by Parliament and only came into force on July 2013, there are no precedents yet. Also, see 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). See 2.a.

TR

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. The Mediation in Civil-Law Disputes Act (herein after referred to as the ‘Act’) No. 6325 dated 07.06.2012, was approved by the president and published in the Official Gazette on 22.06.2012. The Act will come into force one year after publication and describes the mediation process in detail. The process is strictly regulated by the Act i.e., in terms of the mediator’s use of ‘mediator’ as a title, fees and expenses that the mediator is entitled to, communication with the parties, duty to inform parties about the process, duty of care and impartiality of the mediator, advertising ban, position, duties, steps of the procedure, effects of the process to statute of limitations, end of process, confidentiality requirements, recognition of a mediation agreement by a court and enforcement. b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. Mediation may always take place according general rules of civil procedure if parties agree on not using the benefits or requirements of the Act. c. Mediator can offer a non-binding opinion Yes. The Act defines the role of mediators as providing a suitable environment for the parties to discuss their differences and bring different solutions to their attention. The mediator can therefore only offer parties a non-binding opinion and putting pressure on one of the parties to reach to an agreement would require the mediator to be dismissed from the case. d. Mediator can offer a binding advice No. See 3.c.

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e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative/Other. There are no common predominant mediation styles in Turkey. However, as parties are free to agree on any mediation proceeding they may very well decide on one of those styles. It then should be noted that these styles are not regulated by the Mediation in Civil-Law Disputes Act No. 6325 and therefore agreements coming out of these proceedings may not enjoy some advantages of enforcement facilities brought by the law. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Directive. As explained under 3.e., it is within the parties’ discretion to use predominant approaches and it is not regulated by Act 6325. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative/Other. See 3.e and f. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Directive. See 3.e. and f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Evaluative mediation is not used and therefore it is not possible to state the uses. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint sessions/caucus/mix. It is possible upon joint decision of the parties although it is not regulated by Act 6325. See 3.e. and f. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions/caucus/mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. To become a registered mediator an individual has to meet the requirements set by Act 6325 (a Turkish citizen who has graduated from law school and has at least 5 years professional experience, fully qualified for civil law, no criminal records for wilfully committed crimes, has completed the required training and passed the written and practical exam). b. Set by market (No). Under Act 6325, it is not possible if the mediator is not registered as described under 4.1.a. However, parties may always choose to mediate through any ‘mediator’ who is not certified and registered according Act 6325, choosing not to apply the Act’s regulations or requirements. c. Set by public regulation Yes. See 4.1.a.

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d. Number of hours for basic mediator training 48 hours. The training requirement is set by Act 6325 but the number of hours is set by regulations. According to regulations published by the Ministry of Justice, a mediator must complete a training of 48 hours prior to the exam. The training is consists 36 hours of theory and 12 hours of practical training. Theoretical training contains six hours of basic legal knowledge on mediation and the remaining subjects are communication skills, negotiation and conflict resolution techniques and skills, psychology, temper management, development psychology, body language, conflict resolution using social psychology, rules of ethics, personality, and behavioural disorders. e. Mandatory CPD for accredited/certified mediators No. Act 6325 has not brought any requirement. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. Accreditation (registration) is only possible by passing the exam containing written and practical parts. g. Accreditation through written exam Yes. See 4.1.a and f.

TR

h. Accreditation through performance-based assessment Yes. See 4.1.a and f.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Mediation advocacy is not accredited or certified nor recognised by any authority or institution. A licensed attorney/lawyer is entitled for mediation advocacy as long as powered by a party to mediation. j. Set by Market (private certifying bodies) (Yes). As mediation in practice is very new in Turkey, there are no mediation advocates specialised in mediation yet. However, since the new Civil-Law Mediation Act has not set requirements for being mediation advocates, it is assumed that mediation advocacy requirements will be set by the market as the practice of mediation expands. k. Set by public regulation No. There are no requirements brought by any law or accreditation of mediation advocates.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) (No). Unless parties choose to be subject to Civil-Law Mediation Act No. 6325, they are free to choose anyone as a mediator. b. Set by public regulation Yes. Requirements to become a mediator are stipulated in the Civil-Law Mediation Act. To be registered as a mediator, an individual must be a Turkish citizen, have graduated from law school, have at least 5 years professional experience, be fully qualified for civil law, have

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no criminal records for wilfully committed crimes, have completed the required training, passed the written and practical exam. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) (Yes). According the Civil-Law Mediation Act, only lawyers/legal professionals with 5 years’ experience can be mediators if they have completed mediation training required by law and passed the exam to have the licence. See 5.b. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Requirements to be mediator for cross-border disputes are not set by a law. Therefore, there are no specific requirements for mediators if one of the parties is not a domestic entity and if the dispute is not of a nature which requires mandatory settlement by national laws.

6.

EU Directive

a. EU Directive implemented for cross-border cases only No. The EU Directive is implemented by Act 6325 as it is provided that the law is applicable to all disputes that parties, including foreign parties, are free to decide on (not subject to public policy or other legal restrictions). b. EU Directive implemented for all national and cross-border commercial cases No. Act 6325 states the criteria as ‘disputes that parties are free to decide on’. See 6.a. c. EU Directive implemented for all national and cross-border civil cases Yes. Act 6325 states the criteria as ‘disputes that parties are free to decide on’. See 6.a.

7.

Mediation legislation

a. Mediation legislation since 2012. The Civil-Law Mediation Act was passed by Parliament and come into force on 22 June 2012. However, some of the articles, such as regulating actual mediation proceedings, will came into force in one year later on 22 June 2013. b. Legislation updated since EU mediation directive (date update) No. There are no updates according EU mediation directive.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Bodies providing mediation are not regulated by Act 6325. It can be interpreted therefore that any body may provide mediation as long as mediators providing the services are registered according the law. Regarding mediation provided and mediated by individuals who are not registered according Act 6325, the mediation agreements would not be able to enjoy enforcement advantages brought by the law. b. Individuals may be providers of mediation services Yes. There is no restriction to prevent individuals from providing mediation according Act 6325.

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c. Mediation provider qualifications/requirements determined by public regulation No. See 8.a and b.

9.1. Mediator fees a. Freely contracted (Yes). Mediator fees can be freely decided by the parties. If there is no fee agreement, the mediator is entitled to the fee decided by the Mediation Governing body tariff on minimal mediation fees. The Mediation Governing body is set by Act 6325 and consists of representatives from the Ministry of Justice (5 representatives), judges (2), the Union of Turkish Bar Associations (3), the Union of Notaries (1), the Justice Academy (1), the Union of Chambers and Commodities (1), the Union of Craftsmen and Tradesmen (1), and the Higher Education Board (1). b. Fixed in some cases by public regulation (No). There are no specific regulations on fixing mediator fees. See 9.1.a. However, if parties decide to proceed according the procedure and rules of mediation set by Act 6325 and they do not agree on mediator fees, the tariff is applied.

TR

c. Average mediator fee per hour for commercial or cross-border cases According the tariff decided by the Mediation Governing Body and published by the Ministry of Justice; Before applying to a court: If the subject matter is not money; –– Mediator’s fee is 160 TL/hour for the first three hour per party and 120 TL/hour from the fourth hour. –– If both parties are corporate bodies the fees would be respectively 190 TL/hour and 140 TL/hour. If the subject matter is money; –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one mediator –– for following 35.000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60.000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200.000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500.000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680.000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1.250.000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2.750.000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one mediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator If Parties have applied to the court and that the case is referred to a mediator;

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If the subject matter is not money; –– The mediator’s fee is 200 TL/hour for the first three hour per party and 150 TL/hour from the fourth hour. –– If both parties are corporate bodies the fees would be respectively 240 TL/hour and 180 TL/hour. If the subject matter is money; –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator –– for following 35.000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60.000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200.000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500.000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680.000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1.250.000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2.750.000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator Intellectual Property Cases Before applying to a court: If the subject matter is not money; –– The mediator’s fee is 160 TL/hour for the first three hour per party and 120 TL/hour from the fourth hour. –– If both parties are corporate bodies the fees would be respectively 190 TL/hour and 140 TL/hour. If the subject matter is money; for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator –– for following 35.000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60.000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200.000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500.000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680.000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1.250.000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2.750.000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator

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TR

Intellectual Property Cases If Parties have applied to the court and that the case is referred to a mediator; If the subject matter is not money; –– The mediator’s fee is 200 TL/hour for the first three hour per party and 150 TL/hour from the fourth hour. –– If both parties are corporate bodies the fees would be respectively 240 TL/hour and 180 TL/hour. If the subject matter is money; –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator –– for following 35.000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60.000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200.000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500.000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680.000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1.250.000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2.750.000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator –– for the first 25.000 TL the fee is 6% for single mediator, 9% total for more than one m ­ ediator d. Average mediator fee per hour in civil cases According the tariff decided by the Mediation Governing Body and published by the Ministry of Justice; For family cases and labour law cases before applying to a court, if the subject matter is not money: The mediator fee is 80 TL/hour for the first three hour per party and 60 TL/hour from the fourth hour. If the subject matter is money: –– for the first 25,000 TL the fee is 6% for single mediator, 9% total for more than one ­mediator –– for following 35,000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60,000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200,000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500,000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680,000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1,250,000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2,750,000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator

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–– for the first 25,000 TL the fee is 6% for single mediator, 9% total for more than one ­mediator –– for the first 25,000 TL the fee is 6% for single mediator, 9% total for more than one ­mediator If Parties have applied to the court and that the case is referred to a mediator, if the subject matter is not money: –– The mediator fee is 100 TL/hour for the first three hour per party and 75 TL/hour from the fourth hour. If the subject matter is money: –– for the first 25,000 TL the fee is 6% for single mediator, 9% total for more than one ­mediator –– for following 35,000 TL the fee is 5% for single mediator, 7.5% total for more than one mediator –– for following 60,000 TL the fee is 4% for single mediator, 6% total for more than one ­mediator –– for following 200,000 TL the fee is 3% for single mediator, 4.5% total for more than one mediator –– for following 500,000 TL the fee is 2% for single mediator, 3% total for more than one mediator –– for following 680,000 TL the fee is 1.5% for single mediator, 2.5% total for more than one mediator –– for following 1,250,000 TL the fee is 1% for single mediator, 1.5% total for more than one mediator –– for amount above 2,750,000 TL the fee is 0.1% for single mediator, 0.2% total for more than one mediator –– for the first 25,000 TL the fee is 6% for single mediator, 9% total for more than one ­mediator

9.2. Financing and legal aid e. Legal aid available for mediation services No. Legal aid is not available under current legal aid regulation. f. Mediator fees covered by legal insurance schemes No. As mediation practice is quite premature mediator fees are not yet covered by legal insurance schemes. g. Mediator fees subsidised in court-connected schemes No. Court-annexed schemes are subject to Mediation Act 6325 and, according to the Act, fees are to be decided by the parties and, if they are not decided by the parties, a minimum fee tariff is provided. See 9.1.a.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). Mediators are independent individuals with a legal education. However, judges and other government personnel are not entitled to be mediators as the general policy on government employees precludes this. It is not possible to provide further details on the relationship between judges and mediators because the practice of mediation is still not fully developed as described above. It is to be expected that lawyer mediators would have mediator-judge relations similar to lawyer-judge relations. Generally, a lawyer can always

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visit a judge and in most cases express their thoughts about the case but in the end it is up to the judge to give or not to give this opportunity. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). Currently, as we are at the very beginning of mediation practice, a debate is ongoing among lawyers about whether mediation is and should be a part of the legal system. Generally speaking, it would be logical assume that the majority do not see mediation as a part of legal system. c. Mediation procedure has impact on statute of limitations Yes. In Turkey the statute of limitations is out on hold during the mediation procedure if proceeded within the rules provided by the Act. The procedure according the Act can take a maximum of 6 months, initially 3 months, and at the request if the parties it can be extended by three months.

11. Mediated settlement

TR

a. Contract (Yes). If parties choose to proceed based on an agreement they have reached on their own, and not to follow procedures under Act 6325, the mediation settlement constitutes a contract between the parties in form and effect. b. Automatically enforceable No. Automatic enforcement is not possible in all cases. Only, mediation settlement agreements that meet the requirements stipulated in Act 6325 and are approved by a judge according the law would be enforceable. c. Enforceable under some circumstances which are up to the parties No. Circumstances decided by the parties would never make the enforceability of a settlement agreement different from any other civil contract. d. Enforceable under some circumstances defined by public regulation Yes. Civil-Law Mediation Act No. 6325 provides that a mediation settlement agreement may be brought before a civil court by one of the parties and upon the court’s approval it becomes enforceable through government agencies and enforcement offices. The power the mediation settlement agreement then gains would be similar to a court decision. The court’s assessment of the settlement agreement is limited to checking the nature of the dispute and agreement to see whether it is legally possible to mediate that kind of dispute and enforce the settlement agreement.

12. Confidentiality a. Regulated by law Yes. Mediation negotiations are confidential according Act 6325. Parties, their lawyers and the mediator have an obligation to keep confidential all the negotiations, opinions and settlement offers, acceptance by the parties of the other party’s offers or proposals, and documents prepared within the mediation period. None of this information is to be used

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during litigation or arbitration procedures after mediation. Breaches of confidentiality are punishable by the imprisonment of the infringing party of up to 6 months. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). Parties may consent to the use of the information described under 12.a. Also, exemption from the confidentiality requirement applies to cases ordered by law or required for the enforcement of the settlement agreement.

13. Education a. Mediation education is a common component of legal education curriculum No. Mediation has only recently become a subject of elective courses in the legal education curricula of several law schools, but these courses are not common or effective yet. b. Mediation advocacy education is a common component of legal education curriculum No. Mediation advocacy is hardly known as a subject of legal education and there are no courses for mediation advocacy yet.

14. Most relevant literature or references, jurisprudence, articles, law –– ADR in Business (Practices and Issues Across Counties and Cultures), Volume II, Arnold Ingen-Housz (Editor), Wolters Kluwer 2011 (ADR In Turkey by Seçkin Arikan) –– Arbitration and Mediation in the Southern Mediterranean Countries, Giuseppe De Palo and Mary B. Trevor (Editors), Wolters Kluwer 2007 –– International Law and Trade-Bridging the East-West Divide, Sylvia Mercado-Kierkegaard (Editor), Ankara Bar Association publications, 2007 –– Getting to Yes, –– Mediation Advocacy, Andrew Goodman, XPL 2010

15. Text Mediation Act a. Weblink to legislation in national language –– http://www.resmigazete.gov.tr/eskiler/2012/06/20120622-1.htm (Turkish) –– http://w w w.kgm.adalet.gov.tr/DUYURUL AR/6325%20SAYILI%20HUKUK%20UYU% C5%9EMAZLIKLARINDA%20ARABULUCULUK%20KANUNU.pdf –– http://www.resmigazete.gov.tr/eskiler/2013/01/20130126-20.htm b. Weblink to English or other translation –– http://www.arikan-arikan.av.tr c. Other references NA.

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16. Country specific remarks The Turkish Mediation in Civil-Law Disputes Act was drafted by a committee established by the Ministry of Justice consisting of law school scholars from several law schools. They prepared the draft 5 years ago and the draft has been opened to the public for opinions. Many lawyers, institutions, local bars, the Union of Turkish Bars Association, the Union of Notaries, universities, politicians commented on the draft for years. One basic concern mentioned is that the law was bringing an alternative legal system to current secular legal system. Also, many lawyers and bars declared their concerns about the legal profession loosing position within the legal system. After years of discussions and many amendments to the draft as a result of these, the draft was passed by Parliament and approved by the President on 22 June 2012 and became Act 6325. The Act brings many strict requirements for becoming a mediator, offering mediation training, audit of mediators and training institution, disciplinary rules, and enforcement of settlement agreements. These are mostly to allay the public concerns briefly mentioned above.

TR

On the other hand, as it is in most countries, there is no ban on mediating disputes and reaching settlement agreements as long as the parties consent to this. If they consent, there is no need to follow any requirements set by the Act or use the facilities under the Act. Above we explain these facilities and when they are needed. Finally, it has not been possible to provide information for past practices, precedents of mediation and documents or literature in English in Turkey because mediation practice is quite new and as the Act is not yet in force. As a consequence, we do not have enough and reliable records on the subject of mediation practice. Mediation definition Mediation is defined in the ‘Mediation in Civil-Law Disputes Act 6325, which was passed and came into force on 22 June 2012 in Turkey. Section 2 ‘Definitions’ states the official definition of mediation according to Sub-section b as below. Turkish b) Arabuluculuk: Sistematik teknikler uygulayarak, görüşmek ve müzakerelerde bulunmak amacıyla tarafları bir araya getiren, onların birbirlerini anlamalarını ve bu suretle çözümlerini kendilerinin üretmesini sağlamak için aralarında iletişim sürecinin kurulmasını gerçekleştiren, uzmanlık eğitimi almış olan tarafsız ve bağımsız bir üçüncü kişinin katılımıyla ve ihtiyarî olarak yürütülen uyuşmazlık çözüm yöntemi English b) Mediation: is a voluntary alternative dispute resolution method that brings parties together in the presence of an independent, unbiased and trained third party to discuss and negotiate, and therefore it establishes a communication between parties which makes parties understand each other and create their own solutions.

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Mediation regulation and approach Country: Turkey Prepared by Seckin Arikan 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

Yes No Yes No No No No (Yes) No (Yes) (No) (No) Yes Yes Yes No F/E/O F/D F/E/O F/D NA Joint/caucus/ mix Joint/caucus/ mix Yes (No) Yes 48 hrs No Yes Yes Yes No (Yes) No

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Mediation regulation and approach Country: Turkey Prepared by Seckin Arikan

TR

5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive a. EU Directive implemented for cross-border cases only b. EU Directive implemented for all national and cross-border commercial cases c. EU Directive implemented for all national and cross-border civil cases 7. Mediation a. Mediation legislation since legislation b. Legislation updated since EU mediation directive (date update) 8. Bodies providing a. Mediation bodies may have various legal forms mediation b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

(No) Yes (Yes) No No No Yes 2012 No Yes Yes No (Yes) (No) 120TL-190/ hr or 0.1-9.0% amount 120TL-190/ hr or 0.1-9.0% amount No No No (No)

(No) Yes (Yes) No No Yes Yes (Yes) No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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34. UKRAINE1 Prepared by Galyna Yeromenko2 – Tatiana Kyselova3

1.

Attempt to mediate

a. Always voluntary Yes. b. Mandatory (in some cases) No. c. Court referral or court-connected mediation possible Yes. Although the law is silent on this matter, it does not prohibit the court from referring cases to mediation. For example, the court may refer parties in divorce cases to a mediator to settle one or more issues related to their divorce (e.g., to draw up a parenting plan). d. Court-ordered mediation possible No. The judge can advise parties to try mediation but cannot mandate parties to mediate. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. Although the law does not regulate this specific matter under general principles this decision is up to the parties and the mediator. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. The law is unclear on this point as it is not directly regulated. The Decision of the Constitutional Court No 1-2/2002 of 9 July 9 2002 confirms that contracts containing dispute 1 Last update of information: August 2013. 2 Galyna Yeromenko is the director of Ukrainian Mediation Center at Kyiv-Mohyla Business School. Contact: [email protected]. 3 Tatiana Kyselova, LLM (LSE), DPhil (Oxon) is associate professor at Kyiv-Mohyla Academy Law School. Contact: [email protected].

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resolution clauses do not restrict court jurisdiction and the right to a fair trial. Given that mediation clauses are very rare in Ukrainian practice, there are only a few indications that courts admit cases with mediation clauses (see also 2.b.). b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. There are a few cases of this kind. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

UA

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. The draft law on mediation was considered by the Ukrainian parliament in the autumn of 2011 and was rejected. Two new drafts were registered in Parliament in June and July 2013. The drafts are similar with regards to general principles of mediation, rights and duties of mediator and the parties to mediation. Mediation is a voluntary process based on decisions taken by the parties, mediator independence and neutrality. Most aspects of mediation procedure are to be decided by the mediator. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. c. Mediator can offer a non-binding opinion (Yes). Based on practical experience of Ukrainian mediators, mediators as a rule do not offer advice but it can sometimes happen as mediation is not regulated by law. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. The draft laws on mediation as well as most existing NGO certification programmes support and promote facilitative style of mediation. However, given that the law is not in force mediation practice is likely to rely on mixed styles in commercial disputes. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/Evaluative. The draft laws, as well as curriculum for mediation certification programmes, allow mediators to be directive in process matters. The practice is likely to be mix of facilitative and directive in these matters. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. A facilitative or sometimes a transformative approach is being used by practitioners with a social/psychological background, especially in family cases.

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h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Evaluative. The draft laws, as well as curriculum of mediation certification programmes, allow mediators to be directive in process matters. The practice is likely to be mix of facilitative and directive in these matters. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral/General. Mediation certification programmes advise mediators not to offer any type of advice independently, but rather to encourage parties to seek advice from the experts such as lawyers. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Mediators are taught to rely on both caucus and joint sessions, and to adjust these techniques to suit the needs of the parties. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Ukrainian Mediation Centre certifies mediators based on 48 hour practical training that includes supervised mock mediations. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. d. Number of hours for basic mediator training 2x24/40 hours. Ukrainian Mediation Centre offers a 24-hour basic mediation skills module, and a 24-hour advanced mediation skills module. The draft law requires at least 40 hours of training. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. The draft law provides for two requirements – minimum age (21 years) and 40-hours of professional training in mediation. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by Market (private certifying bodies) Yes. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No. The draft law provides for two requirements – minimum age (21 years) and 40 hours of professional training in mediation.

UA

c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since (No). Currently there is no any legal act in Ukraine that directly regulates mediation. Mediation is mentioned in two legal acts. The Legal Aid Act of 2 June 2011 contains provision that legal aid may be offered to provide access to mediation. The Decree of the President ‘On National Service of Mediation and Conciliation’ of 17 October 1998 establishes the state agency entrusted with the resolution of collective bargaining disputes. Despite its name, the service does not offer mediation services but rather various schemes for binding arbitration. Their mediators have a duty to promote candour between the parties and assist arbitration commissions in making their decisions. A few other legal institutions that bear some similarity with mediation exist within civil and commercial procedure. For example, the Civil Procedural Code of Ukraine (18.03.2004) and the Commercial Procedural Code (6.11.1991) contain legal provisions on amicable settlement. Litigants have a right to settle at any stage of court proceedings, including enforcement of judgment. Amicable settlement agreements are confirmed by the courts and enforced as judgments through the State Enforcement Service. At the same time, the Codes do not mention any procedure, whether mediation, negotiation or other, which parties may use to achieve the settlement.

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b. Legislation updated since EU mediation directive (date update) 2012. The Criminal Procedural Code of Ukraine was amended on 5th of April 2012 (amendments came into force in November 2012) to include the option to sign an agreement on conciliation between the victim and offender for minor and moderate criminal offences. Apart from this right, the Code does not regulate the settlement procedure in any way.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases € 90-250. d. Average mediator fee per hour in civil cases € 20-250. However, many mediation procedures are conducted by mediators for free on a pro bono basis. There is also a practice of a daily rate for mediation. There is no uniform practice.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. c. Mediation procedure has impact on statute of limitations No. Mediation procedures currently have no any impact on statute of limitations in Ukraine. Some drafts of the new mediation law include this provision but it is currently unclear what the final text will look like.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable No.

UA

c. Enforceable under some circumstances which are up to the parties No. d. Enforceable under some circumstances defined by public regulation (No). Mediated settlements can only be automatically enforced through bailiffs if they are signed as amicable settlement agreements in court, pursuant to the civil and commercial procedural codes.

12. Confidentiality a. Regulated by law No. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

13. Education a. Mediation education is a common component of legal education curriculum No. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, jurisprudence, articles, law –– International Finance Corporation ‘Ukraine Commercial Dispute Resolution Study: Research­ing Commercial Disputes among Ukrainian Companies’. PricewaterhouseCoopers,

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2007. Available from: https://www.wbginvestmentclimate.org/uploads/Ukraine%20Com mercial%20Dispute%20Resolution%20Study.pdf (in English) –– Kyselova T. ‘Legal Regulation of Mediation Services: Comparative Analysis’, Law of Ukraine, vol. 11/12, pp. 225-236, 2011 (in Ukrainian) –– Eromenko G. (ed.) ‘Mediation: How to Solve a Conflict without Courts’. Kiev: Nika-Centre, 2010 (in Russian) –– Kheda S. ‘Mediation in Ukraine: Lawyers vs. Clients’, Corporate Disputes, January-March, 2013, available from http://www.corporatedisputesmagazine.com/ (in English)

15. Mediation legislation texts a. Weblink to legislation in national language –– Draft law on mediation No 2425a at the website of Verkhovna Rada (Parliament) –– http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=47637 (Ukrainian) –– Draft law on mediation No 2425a-1 at the website of Verkhovna Rada (Parliament) –– http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=47710 b. Weblink to English or other translation NA c. Other references –– Ukrainian Mediation Centre http://ukrmediation.com.ua (English) –– Family Mediation Centre ‘Metida’ http://metida.kiev.ua/en/ –– Ukrainian Center for Common Ground http://uccg.org.ua/ http://www.sfcg.org/­programmes/ ukraine/programmes_ukraine.html

16. Country specific remarks Mediation is very new to Ukraine; the practice of mediation is scarce and it has not been researched yet. The answers provided in this questionnaire derive from the personal experience of the authors. Most of the mediation initiatives were supported by international donor organisations or private investors. Main areas of mediation practice include commercial and civil mediation (Ukrainian Mediation Centre, Odessa Regional Mediation Group); restorative justice and victim-offender mediation (Ukrainian Centre for Common Ground); family mediation (Family Mediation Centre ‘Metida’). Several mediation courses have been introduced at Ukrainian universities (Kyiv-Mohyla Academy, Lviv Polytechnic National University, Academy of Advocacy of Ukraine, Lugansk State Didorenko University). In September 2013, Ukrainian mediators organised themselves into National Association of Ukrainian Mediators to be officially registered in 2014. By July 2013 two draft laws were submitted to Parliament for consideration. The drafts are very similar in recognising the main principles of mediation, such as party empowerment, voluntariness, neutrality and independence of mediator, flexibility and confidentiality of mediation procedure. The main controversy between the drafts concerns court mediation and whether court mediation should only be performed by court mediators who are trained and accredited by the designated accreditation body. One of the drafts (by S. Kivalov) has been approved by the parliamentary committee and will be considered by Parliament in 2014.

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Mediation definition Both new draft laws contain different definitions of mediation Draft law ‘On mediation’ No 2425a

Draft law ‘On mediation’ No 2425a-1

Медіація (примирення) – процедура альтернативного, добровільного врегулювання спорів, вирішення конфліктів шляхом ведення переговорів між сторонами конфлікту (спору) за допомогою одного або декількох медіаторів (посередників) з метою досягнення сторонами взаємоприйнятного рішення про врегулювання конфлікту (спору) або усунення спричиненої конфліктом (спором) шкоди

Медіація – позасудова процедура врегулювання конфлікту шляхом переговорів за допомогою одного або декількох посередників (медіаторів)

In English

UA

Draft law on mediation No 2425a

Draft law on mediation’No 2425a-1

Mediation (conciliation) – procedure of alternaMediation – procedure of out-of-court conflict tive, voluntary settlement of conflicts (disputes) settlement through negotiations with assistance through negotiations between the parties with of one or several mediators. assistance of one or several mediators in order to reach a mutually acceptable decision on conflict (dispute) settlement or elimination of damages caused by the conflict (dispute).

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Mediation regulation and approach Country: Ukraine Prepared by Galyna Yeromenko, Tatiana Kyselova 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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Yes No Yes No No No No Yes No Yes Yes No No Yes (Yes) No F/E F/E F/E F/E N/G Mix Mix Yes Yes No 2x24/40 hrs No No No No

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Mediation regulation and approach

UA

Country: Ukraine Prepared by Galyna Yeromenko, Tatiana Kyselova 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation b. Legislation updated since EU mediation directive (date update) 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No Yes No No No NA (No) 2012 Yes Yes No Yes No € 90-250 € 20-250 No No No No

No No Yes No No (No) No No No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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III. Rest of world outside of Europe

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35. ARGENTINA: Buenos Aires1 Prepared by Dr Miguel Bernardo O’Farrell2

1.

Attempt to mediate

a. Always voluntary (No). The Argentinean Mediation Act No. 26.589, which governs the mediation proceedings in the City of Buenos Aires, provides for mandatory mediation proceedings prior to the bringing of a court action, with certain exceptions, namely criminal cases; bankruptcy proceedings; family matters such as divorces, adoptions; actions against the State, provinces, municipalities, public institutions such as the Patent and Trademark Office. Etc.

AR

b. Mandatory (in some cases) Yes. See 1.a. c. Court referral or court-connected mediation possible Yes. Act 25.589 provides that the courts may, only once and in certain cases, during the course of the litigation ask the parties to mediate their dispute. However, if the parties refuse to do so, court proceedings continue. d. Court-ordered mediation possible No. See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) Yes. Act 26.589 provides that if the respondent does not appear at the first mediation hearing, the respondent must pay a fine to the Ministry of Justice equivalent to 5% of the basic salary of a judge (i.e.: € 225). g. Incentives if mediation is tried voluntarily before going to court No. See 1.a. h. Outside counsel presence/representation during mediation sessions allowed Yes. Each of the parties has to appear in the mediation proceedings with a lawyer (regardless of whether the lawyer is an inside or outside counsel). i. Outside counsel presence mandatory Yes. See 1.h. 1 Last update of information: February 2013. 2 Dr Miguel B. O’Farrell is a lawyer who graduated from the Buenos Aires University. His area of specialisation is focused on Intellectual Property law and as consultant with Marval, O’Farrell & Mairal he advises clients in intellectual property related matters and business law in general. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. See 1.a. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. See 1.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. Mediation proceedings are ruled by Act 26.589. b. Mediation procedure, style and approach of the mediator fully flexible/contractual No. Mediation is governed by Act 26.589. c. Mediator can offer a non-binding opinion No. Normally mediators do not offer advice to the parties. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Act 26.589 provides that mediators have to be lawyers, with at least three years of practice as lawyers; to have had 100 hours training as mediators, passed an exam and register with the Ministry of Justice. b. Set by market (private certifying bodies) Yes. There are certain organisations which provide unofficial mediation services which are governed by their own by laws, such as the Centro Empresarial de Mediación y Arbitraje (CEMA). c. Set by public regulation Yes.

AR

d. Number of hours for basic mediator training 100 hours. See 4.1.a. e. Mandatory continuing professional development for accredited/certified mediators Yes. Decree 1467/11 (which regulates Act 26.589) require 20 hours of continuing training per year. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. See 4.1.a. g. Accreditation through written exam Yes. See 4.1.a. h. Accreditation through performance-based assessment Yes. See 4.1.a.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates Yes. See 4.1.a. j. Set by market (private certifying bodies) No. See 4.1.a and 4.1.b. k. Set by public regulation Yes.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. Only unofficial mediators.

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b. Set by public regulation Yes. See 4.1.a excepting unofficial mediators. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) Yes. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) Yes.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 1995/2009 (The Province of Buenos Aires).

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms No. Mediation in the City of Buenos Aires can only be provided under Act 26.589 by mediators registered with the Ministry of Justice. However, unofficial bodies (such as CEMA) can have different legal forms. b. Individuals may be providers of mediation services (Yes). Only individuals may be mediators. c. Mediation provider qualifications/requirements determined by public regulation Yes.

9.1. Mediator fees a. Freely contracted (No). The fee can be contracted freely between the mediator and the parties, but the amount has to respect the minimum rates fixed by Decree 1467/11, as follows: Agreement up to $3,000 Agreement between $3001 y $6,000 Agreement between $6001 y $15,000 Agreement between $15,001 y $30,000  Agreement between $30,001y $60,000  Agreement between $60,001 y $100,000 Agreement more than $100,001 Undetermined amount Basic rate in family mediations

Rate $300 (€ 55) Rate $600 (€110) Rate $900 (€165) Rate $1,200 (€ 220) Rate $1,600 (€ 290) Rate $2,000 (€ 365) 2% of amount of agreement up to $12,000 (€ 2,200) $1,400 (€ 255) $900 (€ 165)

The abovementioned amounts in $ are in Argentine dollars and per mediation.

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b. Fixed in some cases by public regulation (Yes). Mediator minimum fees are fixed by Decree 1467/11. See 9.1.a. c. Average mediator fee per hour for commercial or cross-border cases Minimum of arg.$ 300-2.000 per mediation. Fees are not normally fixed on an hourly basis. See 9.1.a. d. Average mediator fee per hour in civil cases Minimum of arg.$ 300-2.000 per mediation. Mediator fees are normally not fixed on an hourly basis. See 9.1.a.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No.

AR

g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. c. Mediation procedure has impact on statute of limitations Yes. The statute of limitation terms is suspended until 20 days following the closing of the pre-trial mandatory mediation proceedings.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable Yes. c. Enforceable under some circumstances which are up to the parties No. Formal mediation settlements are always an enforceable title. d. Enforceable under some circumstances defined by public regulation No.

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12. Confidentiality a. Regulated by law Yes. Act 26.589 provides that the mediation proceedings are confidential. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Mediators are exempt from giving evidence in court proceedings or arbitration, excepting in cases involving crimes, child abuse and domestic violence.

13. Education a. Mediation education is a common component of legal education curriculum (No). There are certain academies and universities that provide mediation education. b. Mediation advocacy education is a common component of legal education curriculum No. Mediation advocacy is gradually developing into a separate field of study.

14. Most relevant literature or references, jurisprudence, articles, law –– Acland, Andrew Floyer: ‘Cómo utilizar la mediación para resolver conflictos en las organizaciones’ (1990), Editorial Paidós Empresa Nº 15, Barcelona. –– Alvarez, G.S., Highton E.I.: ‘Mediación para resolver conflictos’, 1995, Editorial Ad-Hoc, ­Buenos Aires. –– Díez, F. y Tapia, G.: ‘Herramientas para trabajar en mediación’, 1999, Ed. Paidós Mediación, Número 4, Buenos Aires. –– Folberg, J. y Alison Taylor ‘Mediación, Resolución de conflictos sin litigio’, Editorial Limusa (1992), México D.F. –– Pejkovich, Maximiliano ‘Temas de Mediación Familiar’, 2003, Ed. Fundación Editora Notarial, Colegio de Escribanos de la Provincia de Buenos Aires.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.jus.gob.ar/areas-tematicas/mediacion-y-resolucion-de-conflictos/mediacion –– http://www.buenosaires.gov.ar/areas/seguridad_justicia/justicia_trabajo/mediacion/ b. Weblink to English or other translation –– http://www.adrservices.org/offices/san-francisco.php c. Other references –– http://www.aaba.org.ar/

16. Country specific remarks The first Argentine Mediation Act 24.573 was sanctioned in 1995. This law was not interventionist, and the parties and the mediator generally had the freedom to develop their own process.

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Act 26.589 (passed in 2010) is more interventionist, to the extent that it provides a system of sanctions, fines, fees and the requirement to certify the signature of the intervening ­mediator by the Ministry of Justice prior to bringing court action. (The latter has as yet not been implemented.) There is no National mediation law. The Province of Buenos Aires has Mediation Act number 13.951 published in the ‘Boletín Oficial’ (Official Gazette) in February 10, 2009.

AR

Mediation definition: There is no statutory definition of mediation in any national Argentine laws.

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485

Mediation regulation and approach Country: Argentina Prepared by Miguel Bernardo O’Farrell 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(No) Yes Yes No No Yes No Yes Yes Yes No No Yes No No No F F F F N Mix Mix Yes Yes Yes 100 hrs Yes Yes Yes Yes

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Mediation regulation and approach Country: Argentina Prepared by Miguel Bernardo O’Farrell 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

AR

9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/ certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/ certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

Yes No Yes No Yes Yes Yes NA 1995/2009 No (Yes) Yes (No) (Yes) min. arg.$ 300-2.000 per mediation

min. arg.$ 300-2.000 per mediation 9.2. Financing and e. Legal aid available for mediation services No Legal aid f. Mediator fees covered by legal insurance schemes No g. Mediator fees subsidised in court connected schemes No 10. Legal context a. Is there a special relationship between judges and mediators/ No mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen Yes as part of the legal system?) c. Mediation procedure has impact on statute of limitations Yes 11. Mediated a. Contract Yes settlement b. Automatically enforceable Yes c. Enforceable under some circumstances, which are up to the No parties d. Enforceable under some circumstances defined by public No regulation 12. Confidentiality a. Regulated by law Yes b. Exemption from obligation to give evidence in court Yes proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal (No) education curriculum b. Mediation advocacy education is a common component of No legal education curriculum Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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36. AUSTRALIA 1 Prepared by Lorraine Lopich2

1.

Attempt to mediate

a. Always voluntary No. Australia is a Federation of six states and two territories. The State Courts have legal jurisdiction except in areas of specific powers ceded to the Commonwealth (1). The Federal Court has jurisdiction in matters relating to those Commonwealth powers. The rules of the Federal Court and the Supreme Court of each state and territory in Australia give the courts the power to order parties to participate in mediation against their will (2). The exercise of this power is wholly within the court’s discretion. Mandatory mediation is less common in the State District and lower Courts. The Local Court in New South Wales does not have the power to order parties to participate in Mediation. Notwithstanding this, parties may not always voluntarily attempt mediation; what they disclose during the mediation and the outcome of the mediation is always voluntary. b. Mandatory (in some cases) Yes. See 1.a. Mediation is also a mandatory pre-action procedure in numerous legislative schemes and jurisdictions, for example the Family Court of Australia. Western Australia adopted its own Family Law Act, which mirrors the Commonwealth Family Law Act, 1975 (FLA). The Family Court of Australia and the Family Court of Western Australia are specialist courts, although the Federal Magistrates Court also hears certain family law cases, as do the local courts in each of the States. The FLA makes Mediation (referred to as Family Dispute Resolution at Section 10F of the FLA) a mandatory pre-condition to filing an application (3) in parenting matters in all of the courts that such cases are heard, except in certain exceptional circumstances (FLA S60I(9)(4)). New South Wales (NSW) has mandatory pre-action mediation procedures in numerous areas including: – under the Farm Debt Mediation Act 1994 a farmer has a right to request mediation before a creditor can take possession of the farm or other enforcement action under a farm mortgage; – Section 68 of the NSW Retail Leases Act 1994 provides that proceedings relating to a retail tenancy dispute may not be brought before any court or tribunal unless the Registrar of Retail Tenancy Disputes has certified that mediation under the Act has failed to resolve the dispute, or the court or tribunal is satisfied that mediation is unlikely to resolve the dispute; – Section 125 of the Strata Schemes Management Act 1996 provides that some strata scheme disputes cannot proceed unless mediation under the Act has been ­attempted but 1 Last update of information: July 2013. 2 Lorraine Lopich is a director of Mediate Today Pty Ltd and Collaborative Lawyers Pty Ltd (an incorporated legal practice operating as ‘Lopich Lawyers’). She is a member of the Law Society of NSW and holds a current practising certificate. Contact: [email protected].

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was unsuccessful, or the Registrar considers that mediation is unnecessary or inappropriate in the circumstances; – Section 318A of the Workplace Injury Management and Workers Compensation Act 1998 requires mediation before court proceedings for common-law work injury damages can be brought. A defendant can only decline to participate in mediation if the defendant ­wholly disputes liability. – Mandatory mediation provision was inserted by the Succession Amendment (Family Provision) Act 2008 which commenced on 1 March 2009. The Federal jurisdictions and other states also have legislative schemes imposing pre-litigation dispute resolution.

AU

c. Court referral or court-connected mediation possible Yes. Since 2000, courts in New South Wales have had the power to refer civil proceedings to mediation, with or without the consent of the parties (5). All Australian jurisdictions now have similar power (6). In the Federal Court, judges actively manage cases so that they are quickly and efficiently resolved. Parties are expected to assist in bringing about this result. Parties to a dispute should expect that, in the early stages of their case, the judge would consider whether alternative dispute resolution, including mediation, is likely to assist. Court-annexed mediation is common throughout Australia. d. Court-ordered mediation possible Yes. As stated in 1.a., the Federal Court and the Supreme Court of each state and territory in Australia have the power to order parties to participate in mediation against their will (7). e. Sanctions by the court if mediation is not tried (in good faith) Yes. The Family Courts do not hear applications if the parties have not attended mediation, with certain exceptions referred to at Section 60I(9) (8) of the FLA. Registered family dispute resolution practitioners must issue certificates pursuant to Section 60I(8)(9) of the FLA that parties have attempted to resolve their parenting disputes through mediation before an application can be made for intervention by the Family Court, Federal Magistrates Court or local state courts exercising jurisdiction under the Family Law Act. The Family Courts have the discretion to award costs if a party has not made a ‘genuine effort’ or has refused to attend mediation. The Family Court, however, rarely awards costs in parenting matters. The sanction is more likely to involve the court investigating why mediation did not take place, or a genuine effort was not made, after which the parties may be ordered to attend mediation, including court-annexed mediation, which is not confidential. f. Sanctions by law if mediation is not tried (in good faith) (Yes). The FLA provides that when an applicant files a Section 60I(8) certificate under Subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring the parties to mediation, or family dispute resolution (see Sec­ tion 13C) and when determining whether to award costs against a party (see Section 117). The object of the Civil Dispute Resolution Act 2011 (Cth) (CDRA), is ‘to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted’. Section 6 of the CDRA requires applicants instituting civil proceedings to file a ‘genuine steps statement’ with their application (10). This statement must outline either the attempts that have been taken to resolve the dispute or the reasons why no attempts have been taken (11).

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Australia

489

Failure to file a genuine steps statement does not invalidate an application to commence proceedings, a response to that application or impede the proceedings themselves. The court may however, take into account whether a person filed a genuine steps statement when they were required to do so and whether that person did in fact take genuine steps to resolve the dispute in awarding costs and, more generally, ‘in performing functions or exercising powers in relation to civil proceedings’. The court may also have regard to a lawyer’s failure to inform a client of a requirement to file a genuine steps statement and may also make an order that the lawyer bear the costs personally (12). The Human Rights Commission Act 2005 (ACT) Sections 47(2) 51(1), 55; provides that it is an offence if a person who is required to attend conciliation fails to attend without reasonable excuse. g. Incentives if mediation is tried voluntarily before going to court Yes. A pilot is currently in progress in Australia in family law property disputes involving the court referring cases to mediation-style conferencing. The mediator must be an experienced family lawyer as well as a qualified mediator. If the parties do not negotiate an agreement, the parties’ respective lawyers and the mediators must prepare a statement for the court defining the issues in dispute. The case is then listed for hearing more promptly than cases in which the parties have refused to attend mediation. Other jurisdictions have also considered such an incentive, but mostly incentives are the usual benefit to the parties of mediating a resolution. h. Outside counsel presence/representation during mediation sessions allowed Yes. Apart from free or highly subsided family dispute resolution services provided by family relationship centres, and community-based organisations the parties, mediators are often encouraged to have legal representation attend for support during mediation. In commercial disputes, complex civil disputes and complex family law matters the parties are usually represented, although the parties are encouraged to speak for themselves. i. Outside counsel presence mandatory No. However, the parties in more complex cases usually have their lawyers, including barristers, present at mediation. Lawyers are excluded from being present at mediation family relationship centres and some community-based organisations. Lawyers are rarely present at mediation conducted by mediators from community justice centres.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. However, the court is likely to order the parties to mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. It differs in various jurisdictions; however, a party to the contract may seek to have the court enforce the clause.

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490

3.

The Variegated Landscape of Mediation

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. A wide variety of mediation is practiced in Australia, which is why the 2006 reforms to the FLA use the term ‘family dispute resolution’. The National Alternative Dispute Resolution Advisory Counsel (NADRAC) also recognises that a broad range of alternate dispute resolution models are used in Australia. NADRAC, however, defines mediation as: ‘a process in which the disputants, with the assistance of a mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its mediation.’

AU

Most mediation service providers, associations and organisations in Australia agree with the substance of the NADRAC definition. The National Mediation Accreditation Scheme was developed by NADRAC based on their definition. The system is provided for by two main documents known collectively as the ‘Australian National Mediator Standards’. The first is ‘Approval Standards for Mediators Seeking Approval under the National Mediator Accreditation System’ (September 2007). The second is ‘Practice Standards For Mediators Operating under the National Mediator Accreditation System’. It is not, however, compulsory for mediators to be accredited. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The mediator and the parties decide on the model that the parties wish to use. There are mediators and organisations that only provide particular models which the parties can decide to use or not. For example, mediation services provided by community-based organisations, often subsidised by government, may only provide facilitative or transformative mediation. c. Mediator can offer a non-binding opinion Yes. Provided that the mediator has the qualification to provide such advice. For example, legal advice can be provided by a lawyer, however, this is another area that will be covered when the parties are making a decision about the mediation process they wish to use. d. Mediator can offer a binding opinion Yes. For example if the parties contract for med-arb,3 the mediator can provide binding advice, however, this is again an area for negotiation when the parties are developing the terms of the agreement to mediate. e. Predominant mediation style for commercial disputes re substance Facilitative (Evaluative, Directive). Facilitative is the most predominant mediation style, however, evaluative and/or directive mediation styles are frequently used for commercial disputes. Hybrids are also frequently used.

3

Mediation followed by arbitration if the mediation does not lead to resolution.

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491

f. Predominant approach in commercial disputes re process Facilitative, Evaluative, Directive. Hybrid approaches in commercial disputes are frequently used, although elements of the facilitative style of mediation underlie most approaches. g. Predominant mediation style for civil disputes re substance Facilitative (Transformative, Evaluative). Facilitative is the most predominant mediation style used for civil disputes although there is an increasing use of hybrids. Transformativeand narrative-style mediation are used by mediators with qualifications in the social sciences. Evaluative, directive and med-arb are more likely to be used by mediators with a background in law. In Australia many retired judges and senior counsel are becoming mediators. They are frequently engaged for evaluative- and directive-style mediation. h. Predominant mediation approach for civil disputes re process Facilitative. Facilitative mediation dominates the approach to mediation, although the other approaches are increasingly infiltrating the approach depending on the professional background of the mediator and the resources of the parties to the dispute. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral, General Advice, (Legal) Opinion. As indicated at 3.g., many highly experiences lawyers who have retired as judges or senior counsel are now providing mediation. The extent to which general advice or legal opinion is part of the mediation is negotiated between the parties and the mediator, and incorporated in the agreement to mediate before the mediation commences. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix (Joint sessions). Mediation is usually by joint session with caucuses used at appropriate intervals. For example, if the parties need to break from the joint session or want a private session with the mediator, or the mediator decides a private session may assist the process and want to use a private session to reality test options that have starting emerging during joint sessions. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix (Joint sessions).

4.1. Mediator accreditation a. Accreditation or certification of mediator Yes. Mediators are not required to be accredited other than family dispute resolution practitioners. In 2008, a voluntary system known as the National Mediator Accreditation System (NMAS) commenced operation. The standards deal with various matters, including the creation of recognised mediation accreditation bodies (RMABs) to handle the process of accreditation, as well as the establishment of approval requirements and continuing accreditation requirements for mediators. b. Set by market (private certifying bodies) Yes. Although there are no mandatory requirements for mediator accreditation, many of the panels require mediators to be nationally accredited and frequently require them to be lawyers. For example the NSW Law Society requires this. Courts also refer mediation to panel

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members of Law Societies and courts as well as government bodies and agencies require mediators to be nationally accredited. c. Set by public regulation Yes/No. d. Number of hours for basic mediator training 38+ hours. A mediator seeking accreditation under the NMAS must: – complete a 38-hour workshop, including at least nine simulated mediation sessions and a written skills assessment; – pass a ‘good character’ test; – have a relationship with an appropriate organisation that meets certain ethics requirements, has in place complaints and disciplinary processes and offers ongoing professional support; and – provide evidence of competence by reference to a combination of experience, training and education.

AU

e. Mandatory continuing professional development for accredited/certified mediators Yes. National mediation re-accreditation occurs every two years. To be re-accredited, a mediator must provide details of their conduct of at least 25 hours of mediation and attendance at 20 hours of continuing professional development during the previous two years. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. See 4.1.d. g. Accreditation through written exam No. See 4.1.d. The training requirement does include a written exam to meet the requirement for national mediation accreditation. A written exam is a compulsory component of the training, but the Accreditation process itself does not include a written exam. h. Accreditation through performance-based assessment No. See 4.1.d.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Although collaborative lawyers are trained in mediation advocacy. j. Set by market (private certifying bodies) Yes. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.1.b.

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b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since Commonwealth of Australia –– Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 25,25(3),42(11) –– Administrative Appeals Tribunal Act 1975 (Cth) ss 34A,34C,34B(2)-(3) –– Agricultural and Veterinary Chemicals Code Act 1994 (Cth) ss 63(1),63(2), 64(1) –– Antarctic Marine Living Resources Act 1981 (Cth) Schedule 1, Section XXV(1) –– Australian Federal Police Act 1979 (Cth) ss 40TH(2),40TH(4) –– Australian Human Rights Commission Act 1986 (Cth) ss. 11(1)(f)(i), 31(b)(i),46PF(2),46PH(1) (i), 46PS(2) –– Copyright Act 1968 (Cth) ss. 195AZA(3), 195AZGC(3) –– Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 169.25(1)(b) –– Corporations Act 2001 (Cth) s 241(1)(b) –– Fair Work Act 2009 (Cth) ss. 365, 368(1), 372, 374(1), 773, 776(1); Note: Section 595(2) gives FWA power to deal with disputes as it considers appropriate, not only with conferences, sss 368(2), 374(2), 776(2),595(2) –– Family Law Act 1975 ss 10F,13C, 60I –– Federal Court of Australia Act 1976 (Cth) s 53A –– Federal Magistrates Act 1999 (Cth) ss 21,22, 23,24, 25,26, 34,27(1),34(4) –– Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth) s 17 –– Migration Act 1958 (Cth) s 318 –– Native Title Act 1993 (Cth) ss 86A,108(1B)(a),86B,86B(2),86BA, 86C(1),86C(2),86D(1) –– Privacy Act 1988 (Cth) s 27(1), 28A –– Private Health Insurance Act 2007 ss 241.20,247.1,247.1(3), 247.5(1),247.15,247.20 –– Superannuation (Resolution of Complaints) Act 1993 (Cth) ss. 11, 12,28(2),29,30 –– Trade Practices Act 1974 (Cth) ss 152BBA,152CLA(1),152CT –– Water Act 2007 (Cth) s 73(2); step-in power refers to the power of the Minister to request the Murray-Darling Basin Authority to prepare a water resource plan for a water resource plan area in a Basin State. Sections 73(3),73(4) New South Wales –– Aboriginal Land Rights Act 1983 (NSW) ss 239(1), 239(2) –– Administrative Decisions Tribunal Act 1997 (NSW) ss 99,102(1)(a-b),103,104 –– Agricultural Tenancies Act 1990 (NSW) ss 26B(1)(a-c),26C(1)-(2),26D –– Architects Act 2003 (NSW) s 40(3)

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–– Co-operatives Act 1992 (NSW) s 105E(1)(b) –– Commercial Arbitration Act 1984 (NSW) s 27(1)(a) –– Community Justice Centres Act (NSW) ss 3,11(1),11(2),20(2),20(3),22(1),20A(1),20A(2), 21(1), 21(2), 23(1)-(4),28 –– Community Land Management Act 1989 (NSW) ss 66(1),66(2),64(1)(a)-(b),69, 70, 70A –– Consumer, Tenancy and Trade Tribunal Act 2001 (NSW) s 54,59(1),59(3),60(1) –– Criminal Procedure Act 1986 (NSW) s 203 –– Dust Diseases Tribunal Act 1989 (NSW) s 32H –– Farm Debt Mediation Act 1994 (NSW) ss 3,8,12A,14(1),14(2) –– Legal Profession Act 2004 (NSW) s 336 –– National Parks and Wildlife Act 1974 s 71K(1)-(3) –– Real Property Act 1900 (NSW) s 135(1)-(2) –– Residential Parks Act 1988 (NSW) ss 91(1),91(2)(b)-(e),91(3),91(6)(a)-(b) –– Rural Lands Protection Act 1998 (NSW) s 234 –– Veterinary Practice Act 2003 (NSW) s 43(3) –– Water Act 1912 (NSW) ss 170B(1),170B(3)-(4),170B(7) –– Water Management Act 2000 (NSW) ss 62(5),62(6),62(7) –– Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 318A(1),31 8A(2),18A(4),318A(3),318C,318D(1),318D(2),318G(1) Australian Capital Territory –– ACT Civil and Administrative Tribunal Act 2008 (ACT) s 35 –– Civil Law (Wrongs) Act (ACT) ss 195,193,196,197 –– Commercial Arbitration Act (ACT) s27(1a) –– Cooperatives Act 2002 (ACT) s 99(1)(b) –– Domestic Relationships Act 1994 (ACT) ss 6,8(1) –– Domestic Violence and Protection Orders Act 2008 (ACT) ss 25, 89 –– Human Rights Commission Act 2005 (ACT) ss 47(2) 51(1), 55, 59, 56, 57, 58, 57(3), 61, 65, 67 –– Leases (Commercial and Retail) Act 2001 (ACT) ss 49(2),52(2),52(3),52(4), 148 –– Legal Aid Act 1977 (ACT) ss. 35A,35B, 35D,35E, 35F –– Legal Profession Act 2006 (ACT) ss 401, 402, 403,404, 405 –– Mediation Act 1997 (ACT) ss 9,10,12 –– Residential Tenancies Act 1997 (ACT)ss 57,71E –– Road Transport (Third-Party Insurance)Act 2008 (ACT) ss 130,133, 138,138(2) –– Workers’ Compensation Act 1951 (ACT) s 195 Northern Territory –– Adoption of Children Act (NT) s 86(1) –– Commercial Arbitration Act (NT) ss 27(1)(a), 27(1)(b) –– Co-operatives Act (NT) s 99(1)(b), –– Cullen Bay Marina Act (NT) s 12E(2)(a) –– Health Practitioners Act 2004 (NT) ss59(1),Section 59(2) –– Information Act (NT) ss 111(1),111(2)(a)-(b) –– Land Acquisition Act (NT) s 37(4)-(4A) –– Lands, Planning and Mining Tribunal Act (NT) ss 36(1),36(5)(a)-(e) –– Local Court Act (NT) s 21(2)(j) –– Mining Act (NT) s 140G(4) –– Personal Injuries (Civil Claims)Act 2003 (NT) s 14(1)(i) –– Unit Titles Act (NT) s 106(4)(a) Queensland

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–– –– –– –– –– –– –– –– –– –– –– –– ––

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Aboriginal Cultural Heritage Act 2003 (QLD) ss 106,106(2)-(4) Body Corporate and Community Management Act 1997 (QLD) ss 253, 252 Chicken Meat Industry Committee Act 1976 (QLD) ss 23(1), 23(2)(a)-(b), 23(3)-(4) Commercial Arbitration Act 1990 (QLD) ss27(1), 27(2) Cooperatives Act 1997 (QLD) s 98(1)(b) Dispute Resolution Centres Act 1990 (QLD) ss 22,19(1)-(2), 29(2),29(3)-(5),32,31(1)-(3) District Court of Queensland Act 1967 (QLD) ss 89(1),96(3),96(2),98(1)-(2),107,108,217(1) Gas Supply Act 2003 (QLD) ss 267,268(1) Industrial Relations Act 1999 (QLD) ss 231,127 Justices Act 1886 (QLD) s 53A Supreme Court of Queensland Act 1991 (QLD) ss 95(1),96,102(3) Torres Strait Islander Cultural Heritage Act 2003 (QLD) s 106(1)-(3) Workers Compensation and Rehabilitation Act 2003 (QLD) s 290(1)

South Australia –– Chicken Meat Industry Act 2003 (SA) ss 21(1),21(4),21(5),21(6),21(7) –– District Court Act 1991 (SA) ss 32(1),32(2), 32(2b),32(3) –– Electricity Act 1996 (SA) s 55F(8)(f) –– Environment, Resources and Development Court Act 1993 (SA) ss 28B(1),28B(2),28B(3)(4),28B(6), 28B(9),28B(7) –– Guardianship and Administration Act 1993 (SA) ss 15A(1),15A(2),15A(4),15A(3),15A(6) –– Local Government Act 1999 (SA) ss 271(1),271(3),271(6),271(8),271(7) –– Magistrates Court Act 1991 (SA) ss 27(1),27(2),27(2a),27(3),27(2b) –– Rail Safety Act 1996 (SA) ss 20(1),20(2) –– Residential Tenancies Act 1995 (SA) s 34(1),34(2),34(3) –– Supreme Court Act 1935 (SA) ss65(1),65(2),65(3),65(6) Tasmania –– Alternative Dispute Resolution Act 1999 (TAS) ss 5(1),5(3),6,7(1),7(2) –– Commercial Arbitration Act 1986 (TAS) ss 27(1),27(3) –– Cooperatives Act 1999 (TAS) s 97(1)(b) –– Electricity Supply Industry Act 1995 (TAS) ss 98(1),98(2) –– Gas Act 2000 (SA) s 49(1),49(2),49(3) –– Land Use Planning and Approvals Act 1993 (SA) s 57A(2),57A(3),57A(4) –– Magistrates Court Act 1987 (TAS) s 15AE(2)(c) –– Resource Management and Planning Appeal Tribunal Act 1993 (TAS) ss 16A(1), 16A(2), 16A(3), 17(1)-(2), 17(3) Victoria –– Aboriginal Heritage Act 2006 (VIC) ss 112,113Architects Act 1991 (VIC) ss 18A, 18E, 18F, 18G,18I,18 J Cooperatives Act 1996 (VIC) s 104(1(b) –– Commercial Arbitration Act 1984 (VIC) s 27(1) –– County Court Act 1958 (VIC) ss 47A,47B,78(1)(hca) –– Fair Trading Act 1999 (VIC) s 104(1) –– Grain Handling and Storage Act 1995 (VIC) ss 24B(1)(e),24(3) –– Information Privacy Act 2000 (VIC) s 43(1)(a)(iv) –– Legal Profession Act 2004 (VIC) s 2.8.6(1)(d),4.3.5(2)(b),4.3.9,4.3.10(2),4.3.11(1),­4.3.13(2)­, 4.3.14 –– Local Government Act 1989 (VIC) ss 81J(1)(c),81J(3) –– Magistrates Court Act 1989 (VIC) ss 108(1),108(2) –– Owner Drivers and Forestry Contractors Act 2005 (VIC) s 35(1), (3),54(2),54(3)

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–– Owners Corporations Act 2006 (VIC) s 161(1); excludes disputes under s 103(4) of the Fair Trading Act 1999 (VIC),161(4),161(3) –– Port Services Act 1995 (VIC) s 63AB(1)(e) –– Professional Standards Act 2003 (VIC) s 46(1)(d)(vi) –– Retail Leases Act 2003 (VIC) ss 84(1)(a),84(2),84(3),85,86(1), (2A),86(4),86(5),92(2),86(6),8 7(1),88 –– Supreme Court Act 1986 (VIC) ss 24A,25(1)(ea) –– Victoria Civil and Administrative Tribunal Act 1998 (VIC) ss 88(1), (2), 88(3)-(5),89,90, 91,92,93(1) Western Australia –– Adoption Act 1994 (WA) s 47; Adoption plans covered by this section are those negotiated between birth parents and prospective or adoptive parents under s.s. 46(1) and 46(3) (b), or adoptions by step-parents or carers under s. 55. ss79(1)(d),72(2)(a)(i),76(2),105108,127,131(2), 8 –– Agricultural Practices (Disputes) Act 1995 (WA) s 4(1)(c)(ii),4(1)(e)(ii), Sch. 1 s 4(1)-(4), Sch. 1, Section 4(5), Sch. 1 Section 7,Sch. 1 Section 8 –– Builders’ Registration Act 1939 (WA) s 34B(1),34C(1)-(2),34C(4) –– Commercial Arbitration Act 1985 (WA) ss 27(1),27(2), 27(3)

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8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. There is court-annexed mediation in most jurisdictions, Government funded Family Relationship Centre and community based organisations. In New South Wales there is the State Government funded Community Justice Centres that provide free mediation. There are also professional not for profit associations, private organisations, industry associations, and numerous government funded mediation services at Tribunal as well as ombudsman offices. There are large numbers of panels of mediators attached to organisations such as Legal Aid Commissions in the Federal and States jurisdictions. b. Individuals may be providers of mediation services Yes. There is no restriction on individuals who wish to offer mediation. c. Mediation provider qualifications/requirements determined by public regulation No. See 4.1.d. The training requirement does include a written exam to meet the requirement for national mediation accreditation. Generally, Australia has no mandatory accreditation for mediators. Family dispute resolution practitioners, however, must have tertiary qualifications in one of the pre-requisite areas in addition to having completed a postgraduate course through a registered training organisation that complies with the requirements of the Commonwealth Department of the Attorney General. Family dispute resolution practitioners must be registered with the Department of the Attorney General to issue Section 60I Certificates.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation

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No. Except for hourly rates for mediation determined by a number of government departments and instrumentalities in the vicinity of $350 per hour. Legal Aid Commissions in the various jurisdictions will also provide an amount per session of up to 4 hours. For example the mediation in Commonwealth matters through the New South Wales Legal Aid Commission are remunerated at a fixed rate of $450, whereas mediation in New South Wales matters, also provided by the New South Wales Legal Aid Commission, are remunerated at a fixed rate of $350. c. Average mediator fee per hour for commercial or cross-border cases $250- $500 (estimate). The range is so broad as to have little value. It ranges between $250 and $500 per hour and for daily rates it ranges between $2,000,00 and $10,000 (possibly higher) for retired judges and senior counsel. d. Average mediator fee per hour in civil cases $250- $500 (estimate). See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. If one of the clients qualifies for a grant of legal aid the mediation service will be provided free of charge however, the party who does not qualify for a grant of legal aid will pay for their legal representation. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes Yes. Mediation services provided by Community Justice Centres and in some Courts is free.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system, is mediation seen as part of the legal system? Yes. Other than services provided by Community Based Organisations and Family Relationship Centres, it is increasingly seen as part of the legal system. c. Mediation procedure has impact on statute of limitations? No.

11. Mediated settlement a. Contract Yes. An agreement that complies with the Law of Contract has the same standing as any o ­ ther Contract. That depends of the legislation – For example, family law property settlement. A considerable amount of work needs to be done to detail the various legislative requirements.

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b. Automatically enforceable Yes. If it is a legal contract it is enforceable. c. Enforceable under some circumstances which are up to the parties Yes. It is up to the parties to decide what form their agreement will take. If it is in the form of a legal contract it is enforceable. d. Enforceable under some circumstances defined by public regulation Yes. See 11.c.

12. Confidentiality a. Regulated by law Yes. Legislation expressly prohibits parties from adducing evidence of a communication made, or a document prepared in connection with an attempt to negotiate a settlement (13). Also, agreements signed prior to mediation are protected by the law of contract.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. By law and agreements to mediate have a clause exempting the mediator from being required to give evidence in court proceedings or arbitration. The Courts have always upheld such exemption.

13. Education a. Mediation education is a common component of legal education Regulated by law Yes. It is an elective component at most law schools. b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, jurisprudence, articles, law –– –– –– ––

–– ––

–– ––

Astor H and Chinkin C, Dispute Resolution in Australia 2nd edn LexisNexis Butterworths 2002 Boulle L Alexander J, Mediation: Skills and Techniques 2nd edn LexisNexis Butterworths 2012 Boulle L, Mediation: Principles, Process, Practice Butterworths 1996 Boulle L, Mediation: Principles, Process, Practice 2nd edn LexisNexis Butterworths 2005 R Bush and J Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994) Sourdin T, Alternative Dispute Resolution 2nd edn LawBook 2005 Alexander, Nadja (2011) ‘The Mediation Meta-Model – the realities of mediation practice,’ ADR Bulletin: Vol. 12: No. 6, Article 5.Available at: http://epublications.bond.edu.au/adr/ vol12/iss6/5 N Antaki, ‘Cultural Diversity and ADR Practices in the World’, in JC Goldsmith, A IngenHousz and GHPointon (eds) Boulle L, ‘Extending the courts’ shadow over ADR’ (2001) 3(1) ADR Bulletin 117

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–– Hanger I, ‘Has mediation made the courts irrelevant?’ (2002) 5(6) ADR Bulletin 101 –– N Alexander, ‘The Mediation Meta- Model: Understanding Practice’ 26(1) Conflict Resolution Quarterly 2008, 97-123. –– C Currie, ‘Mediating off the Grid’ (2004) 59(2) Dispute Resolution Journal 11. –– E McDermott and R Obar, ‘What’s Going On in Mediation: An Empirical Analysis of the Influence of a Mediator’s Style on Party Satisfaction and Monetary Benefit’ (2004) 9 HarvNegot LJ 75. –– G Winslade, S Monk and A Cotter, ‘A Narrative Approach to the Practice of Mediation’ (1998) 14(1) Negotiation Journal at 38-39. –– H Zillessen, ‘The Transformative Effect of Mediation in the Public Arena’ (2004) 7(5) Alternative Dispute Resolution Bulletin at 82. –– NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (September 2009). –– Purnell D, ‘A practitioner’s reflections on developments in mediation’ (2005) 7(10) ADR ­Bulletin183 –– Charlton R, ‘Why parties settle: or do not’ (2007) 45(11) Law Society Journal 42 –– Gibson G, ‘Is mediation getting on the nose? Are the judges killing mediation?’ (2005) 7(6) ADR Bulletin 106 –– Charlton R, ‘Power balancing is full of surprises’ (2009) 46(11) Law Society Journal 50 –– ‘Better management needed for ADR’, Lawyers Weekly LexisNexis 15 February 2010 –– John Peysner and Mary Seneviratne, The management of civil cases: the courts and the post Woolf landscape. DCA Research series 9/05 November 2005 –– Manon Schonewille and key contributors to the international edition Prof Laurence Boulle and Prof Jacqueline Nolan-Haley, Toolkit Generating Outcomes. Making & Saving Deals: Mediation – Negotiation. The Hague: Sdu Uitgevers, 2009. –– Tania Sourdin, Alternative Dispute Resolution (3rd ed 2008) 170. –– Tania Sourdin, Mediation in the Supreme and County Courts of Victoria (2009) at [3.62]. Available at –– http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb892e 07b6f4491/Mediationin.pdf –– Michael Legg, Mediation of complex commercial disputes prior to litigation: The Delaware Court of Chancery approach (2010) 21 Australasian Dispute Resolution Journal 44, 50.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.comlaw.gov.au –– http://www.austlii.edu.au b. Weblink to English or other translation See 15.a. c. Other references –– NADRAC, Legislating for ADR: A Guide for Government Policy-makers and Legal Drafters 2006 –– NADRAC, What is ADR: Mediation 2007www.nadrac.gov.au/www/nadrac/nadrac.nsf/ Page/What_is_ADRMediation –– NSW Attorney-General’s Department, ADR Blueprint – Discussion Paper (April 2009) pp 12-13, 14-17, available at http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_corpo rate.nsf/vwFiles/ADR_Blueprint.doc/$file/ADR_Blueprint.doc

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–– NSW Attorney-General’s Department, ADR Blueprint – Discussion Paper (April 2009) pp 12-13, 14-17, available at http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_corpo rate.nsf/vwFiles/ADR_Blueprint.doc/$file/ADR_Blueprint.doc –– In the Federal Civil Justice System (September 2009) 104 (―The term 'pre‑action protocol’ has been used to describe a wide range of processes, from mandatory pre‑action mediation through to targeted or expansive information and evidentiary exchange. Consequently, introduction of pre-action protocols will need to be specific as to what is and is not envisaged―), available at http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/ (4CA02151F94FFB778ADAEC2E6EA8653D)~A+Strategic+Framework+for+Access+to+ Justice+in+the+Federal+Civil+Justice+System+-+Report+of+the+Access+to+Justice+Tas kforce.pdf/$file/A+Strategic+Framework+for+Access+to+Justice+in+the+Federal+Civil+ Justice+System+-+Report+of+the+Access+to+Justice+Taskforce. –– Victorian Law Reform Commission, Civil Justice Review – Report 14 (March 2008) 129, Submission CP 55 (Magistrates’ Court of Victoria) –– Transport Accident Commission, No Fault Dispute Resolution Protocols (2005, amended as from August 2007) [15] http://www.tac.vic.gov.au/upload/Dispute%20Resolution%20 Protocols.pdf –– Victorian Law Reform Commission, Civil Justice Review – Report 14 (March 2008) 130. –– Access to Justice Taskforce, Federal Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (September 2009) 104 –– Chief Justice PA Keane, Access to Justice and other Shibboleths, Judicial Conference of Australia Colloquium, Melbourne, 10 October 2009, 26-28, available at http://www.jca. asn.au/attachments/2009AccesstoJustice.pdf –– Justice Peter Young, Recent Developments (2010) 84 Australian Law Journal 207, 208 –– Justice P. Bergin, ―Mediation In Hong Kong: The Way Forward Perspectives From Australia―, Hong Kong International Arbitration Centre, Hong Kong, 30 November 2007 at [51] available at http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwFiles/ Bergin301107.pdf/$file/Bergin301107.pdf

16. Country specific remarks Australia has a long history of using conciliation and arbitration to settle disputes, and its industrial courts were frequently named in conciliation and arbitration commissions commencing with the Commonwealth Conciliation and Arbitration Act 1904 for the prevention and settlement of industrial (workplace) disputes extending beyond the limits of any one state. In 1974, Sir Laurence Street, at age 47, became the state’s second-youngest Chief Justice of the Supreme Court of New South Wales. He is largely credited for introducing mediation to Australia during the 1980s. He retired from the bench in 1988. Since 1989 he has worked as a commercial mediator and an alternative dispute resolution consultant. He has conducted in excess of 1,500 domestic and international mediations, mainly involving major commercial disputes. The influence of the combined history of conciliation and arbitration in Australia, and the role of Sir Laurence on the developing alternate dispute resolution culture in Australia, must not be underestimated. Courts have largely encouraged the development of the use of mediation, and many judges have subsequently followed Sir Laurence into the area after retirement. In Australia, lawyers have arguable become the de facto gatekeepers of mediation, except in the growing area of mediation in family law disputes and neighbourhood disputes. The ‘market’ favours lawyer mediators as experts in the law of disputes. Characteristics of conciliation and evaluative mediation infiltrate the models of mediation practised in Australia. Mediators are

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often required to provide a legal opinion on the facts of the dispute, including mediation provided by legal aid commissions. Conciliation is distinguished from mediation in that the facilitator usually has expertise in the area of the dispute and has input into the discussion about settlement options. Legal aid commissions require mediators to write a report on the mediation (without breaching confidentiality) and include an evaluation of the merit of the funded party’s position if the matter proceeds to litigation. The parties are aware that the report will be considered if they make application for a further grant of legal aid. Mediation in Australia must address the complexities of the development of different approaches to mediation without restricting a wide range of developing hybrids capable of ensuring that the process by which outcomes are achieved, including the opportunities parties have to develop or restore a relationship. Mediation definition Mediation is a process in which the participants to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. (14) FDR (family dispute resolution) Family dispute resolution is a process conducted by an independent practitioner to assist people affected, or likely to be affected, by separation or divorce, to manage and to resolve some or all of the issues arising between them without going to court. A legal definition can be found in the Family Law Act 1975. The term ‘family dispute resolution’ is an umbrella term that covers many different sorts of ADR processes. Mediation and conciliation can both be types of family dispute resolution. (15) Conciliation is a process in which the participants, with the assistance of the dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. A conciliator will provide advice on the matters in dispute and/or options for resolution, but will not make a determination. A conciliator may have professional expertise in the subject matter in dispute. The conciliator is responsible for managing the conciliation process. Note: the term `conciliation’, may be used broadly to refer to other processes used to resolve complaints and disputes including: – informal discussions held between the participants and an external agency in an endeavour to avoid, resolve or manage a dispute; – combined processes in which, for example, an impartial practitioner facilitates discussion between the participants, provides advice on the substance of the dispute, makes proposals for settlement or actively contributes to the terms of any agreement’. (16) Endnotes Australia chapter: (1) Commonwealth of Australia Constitution Act, Section 51. (2) For the federal jurisdiction, see Section 53A of the Federal Court of Australia Act 1976. For Victoria, see Section 48(2)(c) of the Civil Procedure Act 2010 (Vic) and O 50.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). For Western Australia, see Section 167(1)(q)(i) of the Supreme Court Act 1935 (WA) and 0 8 of the Rules of the Supreme Court 1971 (WA). For Queensland, see ss102-103 of the Supreme Court of Queensland Act 1991 (Qld). For South Australia, see Section 65(1) of the Supreme

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Court Act 1935 (SA). For Tasmania, see Section 5(1) of the Alternative Dispute Resolution Act 2001 (Tas). For the Australian Capital Territory, see reg 1179 of the court Procedures Rules 2006 (ACT) and Section 195 of the Civil Law (Wrongs) Act 2002 (ACT). For the Northern Territory, see Sec­ tion 16 of the Local Court Act 1989 (NT) and r 32.07 of the Local Court Rules (NT). (3) (7)  Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. (4) (9)  Subsection (7) does not apply to an application for a Part VII order in relation to a child if: (a) the applicant is applying for the order: (i) to be made with the consent of all the parties to the proceedings; or (ii) in response to an application that another party to the proceedings has made for a Part VII order; or (b) the court is satisfied that there are reasonable grounds to believe that: (i) there has been abuse of the child by one of the parties to the proceedings; or (ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or (iii) there has been family violence by one of the parties to the proceedings; or (iv) there is a risk of family violence by one of the parties to the proceedings; or (c) all the following conditions are satisfied: (i) the application is made in relation to a particular issue; (ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made; (iii) the application is made in relation to a contravention of the order by a person; (iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or (d) the application is made in circumstances of urgency; or (e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or (f) other circumstances specified in the regulations are satisfied. Referral to family dispute resolution when exception applies (5) Section 26 of the Civil Procedure Act 2005 (NSW). (6) Op. cit. (1) (7) bid. (8) Op. cit. (4) (9) FLA Section 60I(8) A family dispute resolution practitioner may give one of these kinds of certificates to a person: (a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend; (a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution; (b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues; (c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order

AU



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Australia

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would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues; (d) a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution. Note: When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117). (10) CDRA, s3 (11) CDRA, Section 6(1) (12) See Section 53A of the Federal Court of Australia Act 1976, Section 26 of the Civil Procedure Act 2005 (NSW), Section 48(2)(c) of the Civil Procedure Act 2010 (Vic) and O 50.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Section 167(1)(q)(i) of the Supreme Court Act 1935 (WA) and 0 8 of the Rules of the Supreme Court 1971 (WA), Sections 102-103 of the Supreme Court of Queensland Act 1991 (Qld), Section 65(1) of the Supreme Court Act 1935 (SA), Section 5(1) of the Alternative Dispute Resolution Act 2001 (Tas), reg 1179 of the court Procedures Rules 2006 (ACT) and Section 195 of the Civil Law (Wrongs) Act 2002 (ACT), Section 16 of the Local Court Act 1989 (NT) and r 32.07 of the Local Court Rules (NT). (13) Section 31 Civil Procedures Act (NSW) 2005 & Section 131 Evidence Act 1995 (NSW) (14) See http:/www.nadrac.gov.au/what_is_adr/GlossaryOfADRTerms/Pages/default.aspx (15) Ibid (16) Ibid

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Country: Australia Prepared by Lorraine Lopich 1. Attempt to mediate

2. Mediation clause

AU

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

Mediation regulation and approach

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

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No Yes Yes Yes Yes (Yes) Yes Yes No Yes Yes No No Yes Yes Yes F/(E/D) F/E/D F/(T/E) F N/GA/(L)O Mix (Joint) Mix (Joint) Yes Yes Yes/No >38 hrs Yes Yes No No No Yes No

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Australia

Country: Australia Prepared by Lorraine Lopich 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

505

Mediation regulation and approach

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No No No NA 1974 Yes Yes No Yes No $250-500/hr (est.) $250-500/hr (est.) Yes No Yes No

Yes No Yes Yes Yes Yes Yes Yes Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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37. The BAHAMAS1 Prepared by Koschina L. Marshall2

1.

Attempt to mediate

a. Always voluntary. Yes. Since January 2010, Civil and Commercial Mediations in The Bahamas have been voluntary.

BS

b. Mandatory (in some cases) No. See 1.a. c. Court referral or court-connected mediation possible Yes. On the 1 July 2004, an amendment to the Supreme Court Rules of The Bahamas, (Order 31 A) took effect. This amendment allowed parties to participate in dispute resolution conferences, (mediation). Later, in 2006, a Practice Direction came into effect. This Practice Direction was provided to complement the existing amendment. Essentially, between July 2004 and January 2010, immediately after the close of pleadings, civil and commercial matters were referred to mediation. Mediations were mandatory during the mentioned time. Additionally, during this period, the rules provided that only a judge or registrar could facilitate the process. In January 2010, the Chief Justice of The Bahamas revoked Part II of Order 31A (see the address by the Chief Justice, Sir Michael Barnett, at the opening of the legal year on Wednesday, 13th January 2010. www.bahamassupremecourt.gov.bs). d. Court-ordered mediation possible No. See 1.c. A judge can suggest mediation to disputing parties. Sanctions will be imposed if a party unreasonably refuses to engage in settlement talks (see address by the Chief Justice, Sir Michael Barnett, at the opening of the legal year on Wednesday, 13th January 2010, www. bahamassupremecourt.gov.bs). A judge cannot mandate parties to go to mediation. If a party refuses to mediate then the court proceeding will continue. e. Sanctions by the court if mediation is not tried (in good faith) Yes. See 1.d. ‘Settlement talks’ is the term that is used. f. Sanctions by law if mediation is not tried (in good faith) No. New civil procedures rules are currently being drafted. It is anticipated that there will be a dispute resolution component. g. Incentives if mediation is tried voluntarily before going to court Yes. A reduction in costs may be considered by the court.

1 2

Last update of information: August 2013. Koschina L. Marshall is currently a prosecutor in the Attorney-General’s Office, Nassau, The Bahamas and an adjunct associate lecturer at the University of the West Indies/College of The Bahamas Law school, teaching alternative dispute resolution. Contact: [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. However, if parties pursue private mediations they could require the presence of outside legal representation.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. If there is a mediation clause then it is expected that parties will engage in mediation as a first option before the parties engage in a trial. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law. No. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.a., 1.b.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. In The Bahamas, mediation is not regulated by law. b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. Mediations are solely governed by a contractual agreement between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. Generally a mediator does not offer advice, however, the mediator can offer a non-binding opinion at the request of the parties. d. Mediator can offer a binding opinion No. See 3.c. A judge has to impose a binding solution. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative, Evaluative, Directive. Between 2004 and January 2010, the predominant style for mediations were mixed. Specifically, mediators used facilitative, directive and evaluative styles when mediations were conducted in the Supreme Court. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative, Evaluative, Directive. Between 2004 and January 2010, facilitative, evaluative and directive styles were used when mediations were conducted in the Supreme Court.

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508

The Variegated Landscape of Mediation

g. Predominant mediation style for civil disputes re Substance (facilitative, evaluative, transformative, other) Facilitative, Evaluative, Directive. Between 2004 and January 2010, facilitative, evaluative and directive styles were used when mediations were conducted in the Supreme Court. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative, Evaluative, Directive. Mediators with a social/psychological background generally adopt a Facilitative approach when conducting mediations. However, a Judge usually adopts a Directive and Evaluative approach. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Between 2004 and 2008 predominantly joint session; between 2008 and 2010, joint sessions with caucus. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix, see 3.j.

BS

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). At present this is not a requirement in The Bahamas. However, several persons have participated in basic mediation training. In particular, Stitt Feld Handy four-day mediation training and London School of Mediation has offered a 40-hour mediation training course over a period of five days. b. Set by market No. Currently, mediation is not organised in The Bahamas. There are no rules or law governing mediation in The Bahamas. c. Set by public regulation No. See 4.1.b. d. Number of hours for basic mediator training 40 hours. There are no set rules in The Bahamas; however, in some instances, persons have engaged in 40 hours of basic mediation training. e. Mandatory CPD for accredited/certified mediators No. See 4.1.b. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. See 4.1.b. g. Accreditation through written exam No. See 4.1.b.

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37 The Bahamas

509

h. Accreditation through performance-based assessment No. See 4.1.b.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official accreditation/certification scheme. See 4.1.b. j. Set by market. Yes. All initiatives are private, there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market No. There is no set standard. See 4.1.b. b. Set by public regulation No. There is no set public regulation. See 4.1.b. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. At present, anyone can be a mediator. There is no set standard in The Bahamas. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No. To date, there is no indication that separate legislation will be created.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Although currently there are no mediation bodies which provide mediation services in The Bahamas. b. Individuals may be providers of mediation services Yes. Currently there are no rules prohibiting an individual from providing mediation services in The Bahamas. However, parties who choose to participate in mediation usually contract a senior lawyer or a retired judge to facilitate the process.

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510

The Variegated Landscape of Mediation

c. Mediation provider qualifications/requirements determined by public regulation NA.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. There is no formal structure in place. c. Average mediator fee per hour for commercial or cross-border cases $500 – $800. This is determined on a case-by-case basis. Currently the fees are not regulated. d. Average mediator fee per hour in civil cases $500-800. See 9.1.c.

9.2. Financing and legal aid

BS

e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. See 1.c.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. See 1.c. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Somewhat, see 1.c. c. Mediation procedure has impact on statute of limitations No. There is no statute of limitation.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement. b. Automatically enforceable

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37 The Bahamas

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Yes. Once parties agree to mediate and a settlement agreement is effected, this agreement will be an enforceable contractual agreement. c. Enforceable under some circumstances which are up to the parties No. There is no statutory provision which addresses this. d. Enforceable under some circumstances defined by public regulation No. See 11.c.

12. Confidentiality a. Regulated by law No. There is no law in place which regulates confidentiality. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Mediators are exempt from giving evidence in civil and commercial matters.

13. Education a. Mediation education is a common component of legal education. Yes. An alternative dispute resolution course is offered as an elective in the Bachelor of Laws degree programme which is offered at the College of the Bahamas in association with the University of the West Indies. This is offered in the third year of the LL.B programme. Additionally, the Eugene Dupuch Law School offers a negotiation and mediation clinic. This school is located in Nassau, The Bahamas, and it is where students obtain their professional certification to practise as a counsel and attorney-at-law in the Commonwealth of The Bahamas. b. Mediation advocacy education is a common component of legal education. No.

14. Most relevant literature or references, jurisprudence, articles, law. –– –– –– –– –– –– –– –– –– –– –– –– –– ––

A.K. Fiadjoe, ‘ADR: A developing World Prospective, 2004 Fisher & Ury, ‘Getting to Yes’ (2nd Ed.) Goldberg, Sander & Rogers,’ Dispute Resolution’ (2nd Ed) J. McFarlane, ‘Rethinking Disputes’ M. Noone, ‘Mediation’ M. Ury, ‘Getting to Peace’ Boulle & Nesic, ‘Mediation: Principles, Process, Practice’ Brown & Marriott, ‘ADR Principles & Practice’, (2nd Ed) Lang & Taylor, ‘The Making of a Mediator’ Lord Woolf, ‘Report of the Civil Justice’, 1995, section (IV) Lord McKay, ‘The Administration of the Justice’ A.K. Fiadjoe, ‘Caribbean Public Law’, 2nd Ed. Moore, Christopher, ‘The Mediation Process’, 3rd Ed. Carrie Menkel-Meadoww, ‘Pursuing settlement in an Adversary Culture: A tale of Innovation Co opted or the Law of ADR’, (1991) 19 Florida Law Review

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–– J.W. Stempel, ‘Reflections on Judicial ADR and the Multi-Door court house at Twenty: A Fiat Accompli, Failed Overture or Fledgling Adulthood’, (1996) 11 Ohio State J. Dispute Resolution 297 –– J. Resnik, ‘Many Doors? Alternative Dispute Resolution and Adjudication’, (1995) 10 Ohio State J. Dispute Resolution 211 –– Murray, Rua & Sherman, ‘Process of Dispute Resolution’ –– Stephen Singh, ‘Alternative Dispute Resolution – A Perspective from Trinidad and Tobago’ –– P. Britton, ‘Alternative Dispute Resolution’, 1999, The Guyana Law Review, vol. 1, No. 1 –– Chp 9, The Revised Treaty of Chaguaramas Establishing the Caribbean Community, www. caricom.org –– Penal System Reform Act of Barbados, 1998 –– Caricom Protocol 9 – Dispute Settlement (among Caricom States) –– Mark Umbreit, ‘What is Restorative Justice’, 1999 –– Mark Umbreit, ‘Restorative Justice in the 21st century: A Social Movement Pitfalls and Opportunities’

15. Mediation legislation texts

BS

a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references –– www.bahamassupremecourt.gov.bs

16. Country specific remarks Please note that this is an unofficial report. Mediation definition There is no statutory definition of mediation.

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37 The Bahamas

513

Mediation regulation and approach Country: The Bahamas Prepared by Koschina L. Marshall 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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Yes No Yes No Yes No Yes Yes No Yes No No No Yes Yes No F/E/D F/E/D F/E/D F/E/D NA Mix Mix (Yes) No No 40 hrs No No No No

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514

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Mediation regulation and approach

BS

Country: The Bahamas Prepared by Koschina L. Marshall 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No No No No No NA No Yes Yes NA Yes No $500-800 $500-800 No No No No

(Yes) No Yes Yes No No No Yes Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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38. BAHRAIN1 Prepared by Yasmin Sebah2

1.

Attempt to mediate

a. Always voluntary (Yes). This is the position for all disputes except for labour disputes. A new labour law which became enforceable in 2012 has now introduced a system whereby a Labour Case Administration Office (the Labour Office) has been created. All labour-related claims must first be filed with the Labour Office and are heard before a labour administration judge. The judge is a mediator for the parties and will only offer advice on what he or she perceives to be the fairest and most amicable solution after hearing both sides. This advice is not binding on the parties. In the event that the parties do not reach an amicable settlement, the labour case administration judge shall refer the matter to the High Civil Court (Bahraini Labour Law 2012 Section XIII). b. Mandatory (in some cases) (No). See 1.a. c. Court referral or court-connected mediation possible (No). This is only possible in labour cases as a result of a new law implemented in 2012. d. Court-ordered mediation possible No. e. Sanctions by the court if mediation is not tried (in good faith) No. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. i. Outside counsel presence mandatory No.

1 2

Last update of information: July 2013. Yasmin Sebah has immense experience as a legal advisor and a consultant on international commercial law for foreign companies. She is a certified mediator and a member of the research committee at the International Mediation Institute (IMI). Contact: [email protected].

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The Variegated Landscape of Mediation

2. Mediation clause a. Case admissible in court with a mediation clause No. Parties must seek mediation first if stipulated in their agreement. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No.

BH

b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. It is up to the parties to agree on the type of mediation process. c. Mediator can offer a non-binding opinion Yes. d. Mediator can offer a binding opinion Yes. Only if the parties have agreed beforehand to an evaluative mediation process. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. It is fairly flexible. The mediator could provide their opinion if the evaluative mediation method is used and if the mediator is an expert on the matter being disputed. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix.

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38 Bahrain

517

k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. The mediator must be accredited. The Bahrain Chamber for Dispute Resolution (BCDR) is one of the main centres for accrediting mediators in Bahrain. Whilst this is not regulated by law, all centres require mediators to be accredited. b. Set by market (private certifying bodies) Yes. This is set by the centre. See 4.1.a. c. Set by public regulation No. d. Number of hours for basic mediator training 20-100 hours. The mediator must attend certain training courses and have relevant experience in their field before they can qualify as a mediator. There are different training programmes offered with each a different number of hours duration and no general number of training hours have been established. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. These rules set by the centre. g. Accreditation through written exam No. It is generally through training and assimilations. h. Accreditation through performance-based assessment Yes.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

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518

5.

The Variegated Landscape of Mediation

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Anyone who has the relevant experience can undergo the training provided by the centre. For example, the Bahrain Chamber for Dispute Resolution has a roaster panel that decides on the suitability of members to qualify as mediators. This can be a rigorous process. b. Set by public regulation No. Regulations agreed by the centre. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

BH

7.

Mediation legislation

a. Mediation legislation since No. There is, however, a draft law being discussed at the moment of writing this information to introduce laws that would formalise the mediation process.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. However, most mediation bodies tend to follow international standards such as the IMI, American Bar Association and the AAA. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1.Mediator fees a. Freely contracted Yes. However, set fees are paid if the services of the BCDR are sued, such as $250 per party paid to the BCDR plus the cost for renting the room. The fees of the mediator are divided equally between the parties. b. Fixed in some cases by public regulation No.

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c. Average mediator fee per hour for commercial or cross-border cases $200-400. On average it would be $200-$400 per hour. It also depends on the experience of the mediator and the complexity of the dispute. d. Average mediator fee per hour in civil cases $200-400. See 9.1.b.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. c. Mediation procedure has impact on statute of limitations No.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable Yes. Some providers, such as the BCDR, will have the agreement notarised by the relevant ministry to ensure its applicability further. The agreement will constitute an ordinary contract and will be enforced, as are all contracts under the Civil Code 2001. c. Enforceable under some circumstances which are up to the parties Yes. If agreed under the contract. d. Enforceable under some circumstances defined by public regulation No.

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12. Confidentiality a. Regulated by law No. However, the mediation agreement agreed by the parties will provide for confidentiality. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. Again this might be contained in the agreement between the parties when agreeing to mediate.

13. Education a. Mediation education is a common component of legal education curriculum No. At present, there are no courses at all regarding mediation or ADR provided by academic institutions in Bahrain. For the very first time, the Bahrain Polytechnic is designing new courses to commence in 2013 aimed exclusively at ADR and mediation in particular. b. Mediation advocacy education is a common component of legal education curriculum No.

BH

14. Most relevant literature or references, jurisprudence, articles, law –– The Dispute Resolution Review (Law Business Research). –– International Mediation: The Art of Business Diplomacy, Eleen Carroll (2nd edition) –– Getting to yes: Negotiating agreements without giving in, Roger Fisher. (recommended by the BCDR)

15. Mediation legislation texts a. Weblink to legislation in national language No. b. Weblink to English or other translation No. c. Other references No.

16. Country specific remarks Mediation is essentially engraved in the culture of Bahrain and is therefore not a new concept for Bahrain. However, there have never in the past been any official institutions to regulate and raise the awareness of mediation. More recently, mediation is gaining more ground and support in Bahrain, with training for professionals in different fields being provided by the centres such as the BCDR. There is a noticeable willingness by lawyers to accept mediation and to advise their clients to pursue this method rather than litigation.

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At the academic level, however, there is much more to be done unfortunately. There are new courses being developed for students at undergraduate level and a diploma on mediation for postgraduate students. This only is the starting point but Bahrain has already proved to be very accepting of the mediating process with laws being discussed by Parliament to formalise the mediation process and in some cases (such as the labour sector) to make mediation a mandatory requirement before seeking arbitration or litigation. Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Bahrain Prepared by Yasmin Sebah

BH

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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(Yes) (No) (No) No No No No Yes No No No Yes No Yes Yes Yes F F F F All Mix Mix Yes Yes No 20-100 hrs No Yes No Yes

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Mediation regulation and approach Country: Bahrain Prepared by Yasmin Sebah 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes No No No NA No Yes Yes No Yes No $200-400 $200-400 No No No No

No No Yes Yes Yes No No No No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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39. BARBADOS1 Prepared by Kumar Hathiramani2

1.

Attempt to mediate

a. Always voluntary Yes. In Barbados there is no legislation for mediation. Therefore mediation is always voluntary. To initiate mediation the parties must sign an ‘Agreement to Mediate’ document. b. Mandatory (in some cases) (No). There is no act that makes mediation mandatory. At the Fair Trading Commission, there are attempts to mediate first before proceeding to a formal hearing.

BB

c. Court referral or court-connected mediation possible Yes. In progress. The court is in the process of implementing court-annexed mediation; it is unclear when this process will be completed. The court can send a case for mediation under a Practice Direction, however, there is no law on mediation yet. d. Court-ordered mediation possible No. In progress. The court is in the process of implementing court-annexed mediation. See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) No. In progress. The court is in the process of implementing court-annexed mediation. See 1.c. f. Sanctions by law if mediation is not tried (in good faith) No. In progress. The court is in the process of implementing court-annexed mediation. See 1.c. g. Incentives if mediation is tried voluntarily before going to court No. In progress. The court is in the process of implementing court-annexed mediation. It is expected that the court would approve of the agreement reached by the parties in mediation provided of course the agreements made are within the law. See 1.c. h. Outside counsel presence/representation during mediation sessions allowed Yes. Outside counsel presence/representation in non-court referrals is optional. i. Outside Council presence mandatory No. 1 Last update of information: June 2013. 2 Kvmar Haithiramani is one of the founding members and president of the ADR Association of Barbados Inc. Kvmar Haithiramani is a business administrator by profession, with a diverse business background, in trade, commerce, industry and property management; he is also a certified mediator and a paralegal. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. Mediation clauses in contracts are gradually becoming popular. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. Most judges encourage mediation even though there is no legislation. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (No). Mediation is encouraged by the judiciary.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Barbados is awaiting Mediation Acts. Public is being sensitised to mediation. b. Mediation procedure, style and approach of the mediator is fully flexible/contractual Yes. c. Mediator can offer a non-binding opinion No. The standard practice in Barbados is that the mediator facilitates the process but cannot offer advice, however, this aspect is not regulated by law. d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Currently, certification is offered by foreign institutions such as Kennesaw State University in collaboration with the ADR Association of Barbados Inc.; the University of Windsor and the Dispute Resolution Foundation of Jamaica. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. Mediation legislation is being drafted. See 16. d. Number of hours for basic mediator training 40-80 hours. Certification and Accreditation is being offered by foreign institutions.

BB

e. Mandatory CPD for accredited/certified mediators No. Mediation legislation is being drafted. See 16. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment Yes.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no accreditation, certification or recognition for mediation advocates specifically. j. Set by market (private certifying bodies) No. See 4.2.j. k. Set by public regulation No. See 4.2.j.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Anyone can be trained to be a mediator as long as they complete the necessary training as set by the ADR Association of Barbados Inc. In the absence of mediation/ADR legislation,

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The ADR Association of Barbados Inc. has set a Code of Ethics for mediators, and standards of practice for mediation and the mediation process which are enshrined in its byelaws. The title of mediator is not protected so anybody can call themselves ‘mediator’. However, the ADR Association of Barbados has a roster of certified mediators. In the foreseeable future the court will be setting up its own roster as well. b. Set by public regulation No. See 5.a. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.a.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No. Mediation legislation is being drafted.

8.

Bodies providing mediation

Mediation bodies may have various legal forms Yes. The ADR Association of Barbados Inc. is the major provider of mediation services. However, there are individual providers who practice mediation outside the ambit of the ADR Association. Individuals may be providers of mediation services Yes. Mediation provider qualifications/requirements determined by public regulation No. Not yet.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases US$500-US$1000 per 3-hour session. The ADR Association of Barbados Inc. sets its fee of a 3-hour mediation session with an hourly rate thereafter. d. Average mediator fee per hour in civil cases

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US$500-US$1000 per 3-hour session. The ADR Association of Barbados Inc. sets its fee of a 3-hour mediation session with an hourly rate thereafter.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. There are no legal standards for fees. The ADR Association of Barbados Inc. sets its fee of a 3-hour mediation session with an hourly rate thereafter. It is expected that in Courtannexed mediation, legal aid would be available. There is no mediators’ fee covered by legal insurance schemes, to the best of my knowledge.

10. Legal context

BB

a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). At this time the judiciary is collaborating with the ADR Association of Barbados Inc.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable Yes. c. Enforceable under some circumstances which are up to the parties Yes d. Enforceable under some circumstances defined by public regulation No. Currently, a mediation settlement agreement signed by the parties to the dispute becomes a contractual agreement between the parties, enforceable in court.

12. Confidentiality a. Regulated by law No. A confidentiality clause is adopted in the Agreement to Mediate’ contract signed by the parties prior to mediation. The draft law foresees confidentiality.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. See 12.a.

13. Education a. Mediation education is a common component of legal education Yes. The University of the West Indies Law School has Mediation incorporated in its Law curriculum. At Cave Hill Campus in Barbados it is a voluntary subject, and at Hugh Wooding Law School in Trinidad it is compulsory. b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, jurisprudence, articles, law –– –– –– ––

Mostly lecturer’s notes are used. Getting to Yes’, Fisher & Ury. The Mediation Process’ Christopher Moore. ‘Pocket Toolkit Mediation for the Mediator’ Manon Schonewille.

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks Barbados is an independent sovereign island which gained its independence from Britain on 29 November 1966. Situated in the western sector of the North Atlantic Ocean, Barbados is 34 km in length, 23 km in width being 431 sq. km. The capital city is Bridgetown. The island has a population of approx. 280,000 persons, about 95% being of African ethnicity and Christian by religion. English is the formal language; however, a local variant of English, Bajan is the dialect informally spoken. English common law is the foundation of Barbadian Law. The ADR Association of Barbados Inc., a non-profit, non-governmental organisation was incorporated on 29 November 2004. The mission of the association is to provide national leadership and education in the development and promotion of dispute resolution services in Barbados and the wider Caribbean region.

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Barbados being a small island community focuses on the preservation of relationships in dispute resolution as a priority and is cautious in adopting institutionalised mediation models from formal Western cultures and their values of individualism and capitalism. One of the objectives of the ADR Association of Barbados Inc. is to sensitise the public in general, the schools and other educational institutions and social organisation including corporate Barbados on the benefits of mediation. At present, the Supreme Court is seeking to implement a court-annexed mediation programme which is yet in its embryonic stage. Mediation legislation has been drafted since 2009. There are no updates on the state of legislation at the time of compiling this information. The Court will be issuing a practice direction to commence a ‘pilot project’ this year.

BB

Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Barbados Prepared by Kumar Hathiramani 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific procedure duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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Yes (No) Yes No No No No Yes No Yes Yes (No) No Yes No No F F F F NA Mix Mix Yes Yes No 40-80 hrs No No No Yes

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Mediation regulation and approach

BB

Country: Barbados Prepared by Kumar Hathiramani 4.2. Mediation i. Accreditation/certification or recognition of mediation advocacy advocates accreditation j. Set by market (private certifying bodies) k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

No

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No

No No Yes No No No NA No Yes Yes No Yes No $500-1.000 per 3 hrs $500-1.000 per 3 hrs

(No) … Yes Yes Yes No No Yes Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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40. BRAZIL 1 Prepared by Gabriela Asmar2 – Humberto Dalla Bernadina de Pinho3 – Michele Paumgartten4

1.

Attempt to mediate

a. Always voluntary Yes. Currently in Brazil, mediation practice is regulated by the Resolution 125 of the National Council of Justice (NCJ) in force since 2010. Some general aspects about the mediation proceeding connected to court have been provided in a draft Code of Civil Procedure. Brazil still does not have a specific law to regulate mediation. b. Mandatory (in some cases) No. In 2000, Act No. 9958 promoted some changes to the Brazilian Labour Code (DecreeLaw 5452/43, inserting the Sections 625 to 625-H), establishing mandatory conciliation prior to any labour suit. A conciliation meeting ought to be performed prior to the conflict being submitted to the judiciary. This out-of-court meeting had to include the presence of an employee’s and also employer’s union representative aiming to resolve the conflict. The employee had no option, thus employees were forced to participate in this prior conciliation attempt. However, based on the argument that this law represented an obstacle to access to justice that is guaranteed constitutionally, the Federal Supreme Court ruled in 2009 that it was unconstitutional (ADI 2139 and 2160). This influenced the design of the new Brazilian code of civil procedure, which opts for voluntary mediation. c. Court referral or court-connected mediation possible Yes. After the lawsuit is presented to the courts, the case can be referred to a mediation process at the request of the parties or their lawyers. The parties also can be routed to mediation sessions by the judge, ex officio, when checking whether the conflict submitted to the court is more suited to being dealt with in mediation proceedings. As a result of the referral of the case to a mediation centre, the lawsuit will be suspended initially for 40 days, which may be extended by the court, at the request of the parties, if it considers that there is positive evidence for the conclusion of an agreement through mediation. The parties are responsible for scheduling and participation in mediation sessions, since these are not mandatory and no other form of coercive convocation may occur in the process. Even if the case is already in a court of appeal, it may be referred to mediation, since, similarly at a request, the court may come to the conclusion that the case is suitable for mediation.

1 2

Last update of information: July 2013. Gabriela Asmar started her career as a transaction lawyer. Since 2007 she has been working full time with mediation. She specialised in mediation in New York, during an LL.M at New York University and work in a New York law firm, 1999/2000. Contact: [email protected]. 3 Humberto Dalla is a public prosecutor in Rio de Janeiro. He is also professor of law at Rio de Janeiro State University and Estacio de Sá University. Contact: [email protected]. 4 Michele Paumgartten has a master’s degree in law, is professor of law at Estacio de Sa University and counsel in Rio de Janeiro. Contact: [email protected].

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d. Court-ordered mediation possible No. The court may guide the parties about the option and the advantages of participating in mediation sessions, but it cannot compel attendance of such sessions. e. Sanctions by the court if mediation is not tried (in good faith) No. There is no application of sanctions by the court if the parties do not wish to try mediation. f. Sanctions by law if mediation is not tried (in good faith) No. There is no application of sanctions by the court if the parties do not wish to try mediation. g. Incentives if mediation is tried voluntarily before going to court No. Although it is likely such incentives will be dealt with in the Mediation Act, the Bill (PLS 517/11) is under evaluation in the Senate’s Commission of Justice and unfortunately there is no time frame for approval.

BR

h. Outside counsel presence/representation during mediation sessions allowed Yes. The decision is at the discretion of the parties and the mediator. i. Outside counsel presence mandatory No. The participation of lawyers, for example, is recommended prior to a mediation session, to guide the clients on the rules and implications of the mediation agreement, or after conclusion of the mediation to support the client with the implementation of the mediation settlement agreement.

2. Mediation clause a. Case admissible in court with a mediation clause (No). There is no jurisprudence on this matter yet, but considering the application of contract law, a mediation clause is mandatory if the text provides sanctions if parties do not comply with the mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some case law (No). No jurisprudence yet. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). No jurisprudence yet. See 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation procedure is not regulated by law. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes.

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c. Mediator can offer a non-binding opinion Yes. Although most mediators are facilitative, some adopt a ‘conciliation style’ (especially in court mediation) and do offer advice. d. Mediator can offer a binding opinion No. To be binding it would require a law, which does not yet exist in Brazil. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Commercial disputes are still rarely the subject of mediation. Most commercial mediators have a facilitative style. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. Despite the fact that commercial disputes are still rarely the subject of mediation, most commercial mediators have a facilitative style. In court mediation some mediators adopt a more directive style. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. See 3.f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. Based on the mediator’s background and perception of parties interests. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. It varies a lot from mediator to mediator. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. It varies a lot from mediator to mediator.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). There are two private associations of mediators and mediation institutions that suggest standards for mediation training: CONIMA – the National Council of Mediation and Arbitration Institutions and FONAME. Resolution 125 of the National Council of Justice (which is an internal regulation of the courts, not a law enacted by the legislative powers) also foresees that each State Court may set standards for their court mediators’ training. b. Set by market (private certifying bodies) Yes. Since there is no law, we can say that it is set by the market. See 4.1.a. c. Set by public regulation No. Except in relation to Court mediators. See 4.1.a.

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d. Number of hours for basic mediator training 110 hours. 60 hours of theory and role-playing and 50 hours of practice. e. Mandatory continuing professional development for accredited/certified mediators No/Yes (court mediators). The courts are now requiring CPD for court mediators. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No.

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j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Who can be mediator is set by the market, except for court mediators, see 5.b. b. Set by public regulation No/Yes (court mediators). If the mediator wants to participate in a mediation centre connected to the courts, after his enable, he must undergo for a training course provided by own Court in response to Resolution n. 125 of the NCJ. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Professionals of other fields (psychologists, for example) can be certified as mediators. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Professionals of other fields can be certified as mediators. See 5.c.

6.

EU Directive

NA.

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a. Mediation legislation since No. There is no legislation yet; see 16.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most providers are called ‘Mediation and Arbitration Chambers’, usually connected to Commercial Chambers of Commerce and not-for-profit. There are a few private for profit providers and most mediators are sole practitioners. b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. In-court mediation is free and mediators are volunteers. In out-of-court mediation settings, the fee is freely contracted. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases R$900,00 (Brazilian Reais) = US$450,00. See 9.1.a. d. Average mediator fee per hour in civil cases R$450,00 (Brazilian Reais) = US$225,00. See 9.1.a.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes Yes. In Court mediations are free and mediators are volunteers.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes?

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No. Despite the possibility of referring the parties to mediation by the judge of the case, as provided in the Code of Civil Procedure draft, in the PLS 517/11 and in the Resolution n. 125 of the NCJ, the information as to whether or not in agreement and the consequent approval of an agreement or resuming the prosecution will be given by the parties involved in the conflict. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Resolution No. 125 of the NCJ, in force since 2010, aimed at compliance with a set of strategic objectives of the judiciary, such as operational efficiency and better access to justice, withdrew mediation and conciliation from the setting of alternative methods of conflict resolution, giving them the status of consensual dispute resolution methods in partnership with judicial resolution of conflicts. However, it is expected that the PLS 517/11, which aims to propose a legal definition for mediation in the Brazilian legal system, will be implemented in the near future. c. Mediation procedure has impact on statute of limitations (No). Since there is no statute regulating mediation in Brazil yet, there is no related impact on the statute of limitations. If, however, mediation occurs inside the judicial system, ordered or suggested by a judge where court action has already been initiated, this procedure may have its terms interrupted by mediation.

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11. Mediated settlement a. Contract Yes/No (court mediation). In extrajudicial/private mediation, the mediated settlement is a contract. In court, mediation agreements are certified by the judge and become legally enforceable sentence. b. Automatically enforceable (No)/Yes (court mediation). In court mediation, the agreements become legal enforceable when confirmed by the judge. In private mediation it depends on the specific case: the contract generated by the agreements may or may not have the requirements to be enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Even in private mediation, parties may request court confirmation of the settlement, which will make it automatically enforceable. However, it does not make sense to go through court after a private settlement. d. Enforceable under some circumstances defined by public regulation (No)/Yes (court mediation). Court mediation is enforceable.

12. Confidentiality a. Regulated by law No. Not yet. See 16. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Regulated by contract.

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13. Education a. Mediation education is a common component of legal education curriculum No. There are courses for training private mediators and courses offered by the Courts of Justice, but it is not a compulsory subject in most university curricula. b. Mediation advocacy education is a common component of legal education curriculum No. Gradually alternative methods of conflict resolution have been presented to lawyers by the Bar Association and by the courts. Some courses are especially promoted by the Bar, but it is all still too much in its infancy. In universities, some ADR courses have been inserted in the curriculum, but mainly it is offered to students as an optional subject.

14. Most relevant literature or references, jurisprudence, Sections, law –– –– –– –– –– ––

WARAT, Luiz Alberto. O ofício do mediador. Florianópolis: Habitus, 2001. SIX, Jean François. Dinâmica da mediação. São Paulo: Del Rey, 2001. TARTUCE, Fernanda. Mediação nos conflitos civis. São Paulo: Método, 2008. Resolution n. 125 NCJ PLS 517/11 PL 8040/10

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.cnj.jus.br/atos-administrativos/atos-da-presidencia/323-resolucoes/12243resolucao-no-125-de-29-de-novembro-de-2010 (Resolution n. 125 NCJ) –– http://www.senado.gov.br/atividade/materia/detalhes.asp?p_cod_mate=101791 (PLS 517/11) –– http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=490267. b. Weblink to English or other translation NA. See 16 for a translation of of the current version of PLS 517/11. I. c. Other references NA.

16. Country specific remarks Currently in Brazil, mediation practice is regulated by Resolution 125 of the National Council of Justice (NCJ), in force since 2010, which is meant to comply with a set of strategic objectives of the judiciary, such as operational efficiency and better access to justice, to develop a national judicial policy for an appropriate treatment of conflicts of interest. This resolution withdrew mediation and conciliation from the setting of alternative methods of conflict resolution, giving them status of consensual dispute resolution methods in partnership with judicial resolution of conflicts. Brazil still does not have a specific law to regulate mediation. The Bill (PLS 517), presented in 2011, is still under evaluation in the Senate’s Commission of Justice and there is no timeframe for its approval. Some general aspects about the mediation proceedings connected to court have been provided in the draft Code of Civil Procedure. The concern of the project of the new Code of Civil Procedure (PL 8046/10) is about judicial mediation, however, prior extrajudicial

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mediation is not forbidden, neither will it be mandatory. The project chooses not to regulate extrajudicial mediation, leaving those concerned in to search for professionals available in the market. If a conflict has not yet been forwarded to the judiciary, besides the availability of private professionals to promote mediation, those interested will be able to schedule sessions at a mediation centre available at the courts and, if parties reach an agreement, they can apply for a court approval. Mediation centres are areas where conflicting parties can try to find a consensual solution to their disputes and are located in each court.

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Translation of 5 AMENDMENT No. – CCJ (SUBSTITUTE) SENATE LEGISLATIVE BILL No. 517, OF 2011 –– Addresses mediation between private parties as an alternative resolution of controversies and the settlement of disputes within the realm of the Public Administration. –– The NATIONAL CONGRESS decrees: –– Art. 1. This Law addresses mediation as an alternative means for resolution of controversies between private parties and the settlement of disputes within the realm of the Public Administration. –– 1st Paragraph – Mediation is considered to be the technical activity exercised by an impartial third party, with no decision-making power, who, chosen or accepted by the parties, assists them and stimulates them to identify or develop consensual resolutions for the controversy. –– 2nd Paragraph – Mediation is applied for the consensual resolution of disputes involving natural persons or private-law legal entities, as set forth in Chapter I of this Law. –– 3rd Paragraph – Settlement of a conflict in which at least one party is a public-law legal entity will follow the regulations established in Chapter II of this Law. Chapter I – Mediation Section I – General Provisions Art. 2. Mediation will be oriented by the following principles: I – impartiality of the mediator; II – isonomy between the parties; III – oral expression; IV – informality; V – autonomy of will of the parties; VI – search for consensus; VII – confidentiality. Sole Paragraph – No-one shall be obliged to be submitted to a mediation procedure. Art. 3. Only conflicts addressing an issue that admits a settlement may be the subject of mediation. 1st Paragraph – The mediation may address the whole conflict or part thereof. 2nd Paragraph – Agreements involving inalienable and non-negotiable rights must be ratified in court, requiring a consultation to the Public Prosecutor’s Office when the interests of parties without legal capacity are involved. 3rd Paragraph – Disputes will not be submitted to mediation if they deal with: I – filiation, adoption, paternal power, and/or annulment of matrimony; II – restraint; III – judicial recovery and bankruptcy; Section II – The Mediators

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Translation made by made by Humberto Dalla Bernardina de Pinho.

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Subsection I – Common Provisions Art. 4. The mediator will be chosen by the parties or, if he//she is appointed, shall be accepted by them. 1st Paragraph – The mediator will conduct the process of communication between the parties, seeking understanding and consensus and easing resolution of the conflict by agreement. 2nd Paragraph – In the performance of his/her function, the mediator will proceed with impartiality, independence and discretion. Art. 5. The same legal hypotheses of impediment and partiality of judges apply to the mediator. Art. 6. The mediator will be prevented from advising, representing or acting for any party that was submitted to mediation conducted by him/her within the two preceding years. Art. 7. Unless agreed upon otherwise, the mediator may not act as an arbitrator, nor function as a witness in arbitral or judicial proceedings pertinent to a conflict in which he/she acted as mediator. Art. 8. The mediator and all those who advise him/her in the mediation procedure, when exercising their functions or by virtue of them, are held equivalent to a public servant, for purposes of criminal legislation. Subsection II – Out-of-Court Mediators Art. 9. Any capable person, enjoying the trust of the parties and who considers him/herself qualified to perform mediation may function as a mediator, without regard to membership in any type of council or association or being registered therein. Subsection III – Judicial Mediators Art. 10. A capable person, graduated more than two years ago from a course of higher education at an institution recognized by the Ministry of Education and who has achieved qualification at a school or entity for training mediators, recognized by the National Council of Justice or the National School of Mediation and Conciliation at the Ministry of Justice, may act as a judicial mediator. 1st Paragraph – The courts will maintain updated registries of mediators qualified and authorized to act in judicial mediation. 2nd Paragraph – Registry in the register of judicial mediators will be requested by the interested party from the court with jurisdiction over the area in which he/she intends to exercise mediation. 3rd Paragraph – A mediator will be compulsorily excluded from the register if he/she: I – violates the principles set forth in this Law; II – acts in a mediation procedure, in the event of impediment or partiality; III – is definitively convicted as a result of a criminal proceeding or one of administrative malfeasance. 4th Paragraph – In the cases of sub-items I and II or the 3rd paragraph, the disciplinary procedure for exclusion from the register of mediators will be conducted and judged before the court under whose jurisdiction the infringement occurred, with the right of access to the adversarial system assured. 5th Paragraph – The court shall inform the name of mediators who are excluded from its register to the National Council of Justice, which will forward such information to the other courts, for them to effect immediate exclusion, with no need for a disciplinary procedure. 6th Paragraph – A mediator who is compulsorily excluded from the register of mediators of a court will no longer be admitted in any other. Art. 11. The remuneration due to judicial mediators will be set by the courts and will be borne by the parties. Sole Paragraph – A waiver of costs in relation to a party who alleges poverty in court will require acceptance from the mediator. Section III – The Mediation Procedure Subsection I – Common Provisions Art. 12. A person appointed to function as mediator shall communicate to the parties any fact or circumstance that may raise a doubt in relation to his/her impartiality to mediate the conflict, at which time he/she may be refused by either of them. Art. 13. At the start of the first mediation meeting, and whenever he/she deems it necessary, the mediator shall advise the parties of the rules of confidentiality applicable to the procedure.

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Art. 14. At the request of the parties or the mediator, with their consent, other mediators may be admitted to function in the same procedure, when this is advisable by virtue of the nature and complexity of the dispute. Art. 15. Even if there is a judicial or arbitral proceeding in progress, the parties may submit themselves to mediation, in which case they will ask the judge or arbitrator to suspend the proceeding for a period sufficient for a consensual solution to the dispute. 1st Paragraph – The decision to suspend the proceeding in the terms requested by mutual agreement of the parties allows for no appeal. 2nd Paragraph – Suspension of the proceeding does not prevent the granting of urgent measures by the judge or arbitrator. Art. 16. The parties may be assisted by counsel. Sole Paragraph – If just one of the parties is assisted by a legal professional, the others may request the appointment of an ad hoc defender. Art. 17. Mediation is deemed instituted on the date on which its initial terms are signed. 1st Paragraph – The initial terms of mediation shall contain: I – the qualification of the parties, and their attorneys, if any; II – the name, profession and domicile of the mediator or mediators, and also, as the case may be, identification of the entity to which the parties delegated the appointment of mediators; III – the description of the dispute submitted to mediation; IV – a statement of responsibility for the payment of expenses with the mediation and the fees of the mediator, irrespective of whether a consensus is reached; V – place, date, and signature of the mediator, the parties and their attorneys, if any. 2nd Paragraph – The parties may include in the initial terms of mediation other matters they may deem pertinent, including the limits of the duty of confidentiality applicable to all those involved in the procedure, and signatories of the initial terms of mediation. 3rd Paragraph – While the mediation procedure is in progress, the statute of limitations will be suspended as from signature of the initial terms. Art. 18. Once mediation is instituted, subsequent meetings attended by the parties may only be scheduled with their consent. Art. 19. In the performance of his/her function, the mediator may meet with the parties, together or separately, hear third parties and ask the parties for information deemed necessary to clarify the facts and facilitate understanding between the parties. Art. 20. The mediation procedure will be closed, drawing up its final terms, when an agreement is reached or when new efforts to obtain a consensus are not justified, either by a statement from the mediator in this regard or through a statement from either of the parties. 1st Paragraph – The final terms of mediation shall contain: I – the qualification of the parties and their attorneys and representatives, if any; II – a summary of the dispute; III – the description of the agreement, with the rights and obligations of each party, or a statement or declaration that it is no longer possible to obtain a consensual resolution; IV – place, date, signature of the mediator and, if an agreement has been reached, the signatures of the parties and their attorneys, if any. 2nd Paragraph – The final terms of mediation constitute an out-of-court title to execution and, when ratified in court, a judicial title to execution. Subsection II – Out-of-Court Mediation Art. 21. The invitation to start the procedure of out-of-court mediation may be made by any means of communication. Sole Paragraph – The invitation made by one party to another will be deemed rejected if not replied to in the timeframe stipulated in their contract if any, or in its absence, within thirty days from the date of its receipt.

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Art. 22. If there is no stipulation addressing the procedure, the mediator shall establish one, taking into account the circumstances of the case, the interests expressed by the parties and the need for a speedy resolution to the dispute. Art. 23. If, in the initial terms of mediation, the parties undertake not to begin an arbitration proceeding or lawsuit for a certain period or until implementation of a certain condition, the arbitrator or the judge will suspend the course of the arbitration or lawsuit for the period previously agreed upon or until implementation of that condition. Sole Paragraph – The provisions of the main section of this article do not apply to urgent measures in which access to the Judiciary Branch is necessary to avoid the extinction of a right. Subsection III – Judicial Mediation Art. 24. In judicial mediation, the mediators will be appointed by distribution and submitted to the acceptance of the parties. Art. 25. If the judge, on receipt of the initial petition, should verify that the controversy is suited to a resolution by means of mediation, he/she will forward the case to the judicial mediator, appointed by distribution, unless the petition is accompanied by a statement in which the plaintiff states his refusal to participate in the procedure. 1st Paragraph – On receiving the case file, the mediator will request the parties, by any means of communication, to make a statement within fifteen days on their willingness to submit to the procedure and their acceptance of the mediator appointed. 2nd Paragraph – If there is no answer from either of the parties, the mediation procedure will be deemed rejected, and the mediator shall forthwith return the case file to the judge, for him to proceed with the case. 3rd Paragraph – If the parties decide to submit themselves to mediation and the mediator is accepted, he/she will schedule the initial session of mediation, on a day and time previously agreed on, respecting the timeframe of thirty days. 4th Paragraph – If the procedure is accepted, but the mediator rejected, the latter shall communicate forthwith to the registry office or court secretariat, which will redistribute the case records to another mediator. Art. 26. The judicial mediation procedure shall be concluded within sixty days, counting from the first session, unless the parties, by mutual agreement, request its extension. 1st Paragraph – If the mediation is concluded without an agreement being reached, the initial and final terms of mediation will be forwarded to the judge, who will proceed with the case. 2nd Paragraph – If there is an agreement, the records will be forwarded to the judge, who will order closure of the initial petition and, provided this is requested by the parties, will ratify, through a nonappealable ruling, the final terms of the mediation. Art. 27. If the dispute is resolved by mediation before the defendant is cited, final court costs will not be due. Section IV – Confidentiality and its Exceptions Art. 28. All and any information concerning the mediation procedure shall be confidential in relation to third parties, and may not be revealed, even in an arbitral or court proceeding, unless the parties expressly decide otherwise or when its disclosure is required by law or necessary for implementation of the agreement obtained by mediation. 1st Paragraph – The duty of confidentiality applies to the mediator, the parties, their representatives, counsel, technical advisors and other persons in their trust who directly or indirectly took part in the mediation procedure, encompassing: I – a statement, opinion, suggestion, promise or proposal made by one party to the other in the search for understanding in the conflict; II – recognition of a fact by either of the parties in the course of the mediation procedure; III – a statement of acceptance of a proposal for agreement presented by the mediator; IV – a document prepared solely for purposes of the mediation procedure.

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2nd Paragraph – Evidence submitted which is non-compliant with this article will not be admitted in a judicial or arbitral proceeding. 3rd Paragraph – The rule of confidentiality will not cover information concerning the occurrence of a criminal action. Art. 29. Information furnished by a party in a private session will be confidential, and the mediator may not reveal it to the others, unless expressly authorized. Chapter II The Settlement of Disputes to which a Public-law Legal Entity is Party Section I – Common Provisions Art. 30. The Federal Union, States, the Federal District and Municipalities may create chambers for the administrative prevention and resolution of disputes, with competency to: I – settle conflicts between entities and bodies of the public administration; II – appraise the admissibility of requests for resolution of disputes, by means of settlement, in the case of controversy between a private party and a public-law legal entity. III – promote, when fitting, execution of an undertaking of adjustment of conduct. 1st Paragraph – The mode of settlement and functioning of the chambers addressed in the main section will be established in regulations by each entity of the federation. 2nd Paragraph – Submission of a conflict to the chambers addressed in the main section is optional and will be fitting only in the cases addressed in the regulations of the respective entity of the federation. 3rd Paragraph – If there is a consensus between the parties, an agreement will be drawn up, and except in the case of sub-item I, will constitute an out-of-court title to execution. 4th Paragraph – Not included in the competency of the bodies mentioned in the main section of this article are controversies that can only be resolved by acts or concession of rights subject to authorization from the Legislative Branch or which may entail excessive burdens for the Public Administration. 5th Paragraph – The provisions of sub-items II and III of the main section do not apply to legal controversies in taxation matters. Art. 31. Opening an administrative proceeding for the consensual resolution of a conflict within the realm of the Public Administration suspends the statute of limitations. 1st Paragraph – The procedure is deemed opened when the public entity or body issues a positive judgment of admissibility, with suspension of the statute of limitations retroactive to the date of formalizing the request for consensual resolution of the conflict. 2nd Paragraph – In cases of taxation matters, suspension of the statute of limitations shall observe the provisions of Law No. 5,172, of October 25 1966 – National Taxation Code. Section II – Conflicts Involving the Direct Federal Public Administration, its Autarkies and Foundations Art. 32. The solution of legal controversies that involve the direct Federal Public Administration, its autarkies and foundations, may be addressed in settlement by adhesion, based upon: I – authorization from the Federal Attorney-General, based on unanimous case law at the higher courts or the Federal Supreme Court; or II – an opinion from the Federal Attorney-General, approved by the President of the Republic. 1st Paragraph – The requirements and conditions of settlement by adhesion will be defined in a specific administrative resolution. 2nd Paragraph – When making the request for adhesion, the interested party shall attach proof of meeting the requirements and conditions established in an administrative resolution. 3rd Paragraph – The administrative resolution will have general effects and will be applied to identical cases, timely qualified by a request for adhesion, albeit to resolve only part of the controversy. 4th Paragraph – Adhesion will imply the interested party’s waiving the right that underpins any lawsuit or appeal that may be pending, either administrative or judicial, with regard to the points encompassed by the subject of the administrative resolution.

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5th Paragraph – If the interested party is party to a lawsuit opened through a class action, waiver of the right that underpins the lawsuit shall be express, by means of a petition addressed to the judge of the case. 6th Paragraph – Formalization of an administrative resolution destined to settlement by adhesion does not entail tacit waiver of the statute of limitations, nor its interruption or suspension. Art. 33. In the case of disputes that involve a legal controversy between public-law entities or bodies that make up the Federal Public Administration, the Federal Attorney-General’s Department shall effect the out-of-court settlement of the conflict, observing the procedures laid down in an act of the Federal Attorney-General. 1st Paragraph – In the hypothesis addressed in the main section, if there is no agreement on the legal controversy, it will fall to the Federal Attorney-General to settle it, based on the legislation. 2nd Paragraph – In cases in which resolution of the controversy implies recognition of the existence of credits of the Federal Union, its autarkies or foundations, against federal public-law legal entities, the Federal Attorney-General’s Department will ask the Ministry of Planning, Budget and Management for a budget adaptation to settle the debts recognized as legitimate. 3rd Paragraph – Out-of-court settlement of the conflict does not rule out identifying responsibility of the public agent who gave rise to the debt, whenever it is found that his/her action or omission constitutes, in theory, a disciplinary infringement. 4th Paragraph – In cases in which the matter addressed in the dispute is being discussed in an action of administrative malfeasance, or on which there is a decision from the Federal Court of Accounts, the conciliation addressed in the main section will depend on the express consent of the judge of the case or the reporting Justice. Art. 34. The States, Federal District and Municipalities, their public foundations and autarkies, along with federal public companies and mixed-capital corporations, may submit their disputes with entities or bodies of the Federal Public Administration to the Federal Attorney-General’s Department, for purposes of settling the conflict out of court. Art. 35. In cases in which the legal controversy is related to taxes administrated by the Federal Revenue Secretariat of Brazil or to credits entered as Federal debts subject to execution: I – the provisions of sub-items II and III of the main section of art. 30 do not apply; II – public companies, mixed-capital corporations and their subsidiaries that exploit an economic activity of production or commercialization of goods or the provision of services, may not exercise the option addressed in art. 34; III – when the parties referred to in the main section of art. 33 are parties: a) submission of the conflict to out-of-court settlement by the Federal Attorney-General’s Department implies waiving the right to appeal to the Administrative Council of Taxation Appeals; b) reduction or cancellation of the credit will depend on a joint statement from the Federal AttorneyGeneral and the Minister of State for Finance. Art. 36. Filing a lawsuit in which appear as plaintiffs or defendants Federal public-law entities or bodies, shall be authorized in advance by the Federal Attorney-General. Sole Paragraph – The competency addressed in the main section may be delegated. Art. 37. Public servants and employees who participate in the process of out-of-court settlement of the dispute may only be liable in the civil, administrative or criminal spheres when, through malice or fraud, they receive any undue financial advantage, allow or ease its reception by a third party, or contribute to this end. Chapter III Final Provisions Art. 38. The entities and bodies of the Public Administration may create chambers for the resolution of conflicts between private parties, which involve activities regulated or supervised by them. Art. 39. Arts. 1 and 2 of Law No. 9,469, of July 10 1997, shall henceforth be in effect with the following wording: “Art. 1. The Federal Attorney-General, directly or through delegation, and the highest-level directors of federal public companies, jointly with the statutory director of the area affected by the matter, may

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authorize reaching agreements in settlements to prevent or terminate a dispute, including judicial disputes. 1st Paragraph – Specialized chambers may be created, made up of public servants or effective public employees, with the aim of analyzing and formulating proposals for agreements or settlements. 2nd Paragraph – Regulations will address the form of composition of the chambers addressed in the 1st paragraph, which shall have as a member at least one full member of the Federal AttorneyGeneral’s Department, or, in the case of public companies, a legal assistant or occupant of an equivalent function. 3rd Paragraph – When the dispute involves amounts above those set in the regulations, the agreement or settlement, on pain of nullity, will require prior and express authorization from the Federal Attorney-General or the Minister of State or head of the Secretariat of the Presidency of the Republic and whose area of competency is pertinent to the matter, or also the Speaker of the House of Representatives, the Federal Senate, the President of the Federal Court of Accounts, of a Court or Council, or the Federal Chief Prosecutor, in the case of interests of the Legislative and Judiciary Branches, or of the Federal Public Prosecutor’s Department, excluding non-dependent public companies, which will require only the prior and express authorization of the directors referred to in the main section. 4th Paragraph – In a settlement or agreement reached directly by the party or through the mediation of an attorney to extinguish or close a legal proceeding, or also in cases of administrative extension of payments pursued in court, the parties may define the responsibility of each one of them for the payment of the fees of their respective counsel.” [New Wording]. “Art. 2. The Federal Attorney General, the Federal Chief Prosecutor, the Attorney-General of the Central Bank of Brazil and the directors of the federal public companies mentioned in the main section of art. 1 may authorize, directly or through delegation, reaching agreements to prevent or terminate, in or out of court, a dispute that involves amounts below those set in the regulations. 1st Paragraph – In the case of federal public companies, delegation is restricted to a formallyconstituted joint board, consisting of at least one statutory officer. 2nd Paragraph – The agreements addressed in the main section may consist of payment of the debit in monthly and successive instalments, up to a maximum of 60 (sixty). 3rd Paragraph – The amount of each monthly instalment, at the time of payment, will undergo the addition of interest equivalent to the reference rate of the Special System of Clearing and Custody – SELIC for federal securities, accumulated monthly, calculated from the month following that of consolidation until the month preceding that of payment, and of 1% (one per cent) relative to the month in which the payment is being made. 4th Paragraph – In the event of default on any instalment, after thirty days, an execution proceeding will be opened or continued, for the balance.” [New Wording] Art. 40. Decree No. 70,235, dated March 06 1972, shall henceforth be in effect with addition of the following provision: “Art. 14-A. In the event of determination and requirement of Federal Union tax credits whose debtor is a public-law entity or body of the Federal Public Administration, submission of the dispute to outof-court settlement by the Federal Attorney-General’s Department is considered a claim for the purposes of the provision of art. 151, III, of Law No. 5,172, of October 25 1966 – National Taxation Code.” Art. 41. This Law applies, insofar as fitting, to other consensual forms of conflict resolution, such as community, school, criminal and labor mediations, and also those put into effect at out-of-court offices. Art. 42. Mediation may be done on the internet or by any other means of communication that allows remote transmission, provided that the parties are in agreement. Sole Paragraph – A party domiciled abroad may participate in mediation according to the rules established in this Law. Art. 43. This Law comes into effect one hundred and eighty days after its publication.

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Art. 44. The 2nd paragraph of art. 6 of Law No. 9,469, of July 10 1997, is revoked. Commission Office Chairman Reporter Mediation definition Resolution number 125 of the National Council of Justice does not contain a definition of mediation.  The  two drafts of new legislation being approved at this stage in Brazil regulate mediation and conciliation; however, this legislation still needs to be approved: a) The new Civil Procedure Code (PL 8046/10) does not provide a definition, but there is a distinction between the activities of mediators and the conciliators during a judicial process. Mediators cannot interfere in the conflict and are prevented from suggesting alternatives. Basically, mediators have a passive attitude. Conciliator have an active attitude and can present suggestions and propose values in a monetary dispute. b) Parliamentary draft law number 517/11, pending in the Brazilian Senate, offers the following definition of mediation in Section 2: ‘mediação é um processo decisório conduzido por terceiro imparcial, com o objetivo de auxiliar as partes a identificar ou desenvolver soluções consensuais’ (mediation is a deliberative process conducted by an impartial third party, with the purpose of helping the parties to identify or develop consensual solutions).

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Mediation regulation and approach Country: Brazil Prepared by Gabriela Asmar, Humberto Dalla Bernadina de Pinho, Michele Paumgarten

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1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of procedure the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes No Yes No No No No Yes No (No) (No) (Yes) No Yes Yes No F F F F GA Mix Mix (Yes) Yes No 110 hrs No/Yes (court mediators) No No No No No No

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Mediation regulation and approach Country: Brazil Prepared by Gabriela Asmar, Humberto Dalla Bernadina de Pinho, Michele Paumgarten 5. Who can be mediator?

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border)

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

a. Mediation legislation since

Yes No/Yes (court mediators) No No NA No

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable

Yes Yes No

12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes

Yes No US$450/hr US$225/hr No No Yes No

(Yes)

(No) Yes/No (court mediation) (No)/Yes (court mediation) c. Enforceable under some circumstances, which are up to the parties Yes d. Enforceable under some circumstances defined by public (No)/Yes (court mediation) regulation

No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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41. CAMBODIA 1 Prepared by Savath Meas2

1.

Attempt to mediate

a. Always voluntary No. The mediation process is principally seen as a voluntary approach in Cambodia but in actual practice most of the traditional and local mediators act and operate as conciliators to make decisions for disputants.

KH

b. Mandatory (in some cases) (No). Mediation is not mandatory in Cambodia. However, the family and marriage law and civil and procedure code of Cambodia require local commune councils to conduct a mediation session for divorce cases during the period of 15 days following its receipt of the petition before forwarding the complaint to the court immediately if a law suit has been filed (Family and Marriage Act, Section 42-52). Even if one of the parties is strongly demanding divorce, the court may recommend and attempt to persuade the parties to reach a compromise by through mediation (Civil Code, Section 984). c. Court referral or court-connected mediation possible Yes. Court referral takes place in the arbitration council for labour disputes: the National Centre for Arbitration for commercial disputes and courts of first instance where the referral system is legally set up. d. Court-ordered mediation possible No. The law requires only that divorce cases set up mediation sessions before forwarding the case to the courts if a lawsuit has been filed, but it is not a mandatory for parties. See 1.b. e. Sanctions by the court if mediation is not tried (in good faith) No. Sanctions from the court are not possible, as the mediation procedure is not legally institutionalised. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions for failing to try mediation, as the mediation procedure is not legally institutionalised.

1 Last update of information: August 2013. 2 Savath Meas, Cambodian, founder and president of the Cambodian Centre for Mediation (CCM). He has worked for over 10 years in peace building and alternative dispute resolution (ADR). He holds two master’s degrees in law from the Royal University of Law and Economic Science and Applied for Conflict Transformation Studies (ACTS) from Pannasastra University of Cambodia; and BA in education from the Royal University of Phnom Penh. He recently received a fellowship through the Judicial Arbitration Mediation Services (JAMS) Institute to study ADR and mediation programmes for eight months in Washington DC., USA. Contact: sav [email protected].

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g. Incentives if mediation is tried voluntarily before going to court No. Mediation service is not highly valued by the courts in Cambodia but the government encourages the public to use mediation mechanisms before going to courts. However, the government does not offer incentives to try mediation before going to court. h. Outside counsel presence/representation during mediation sessions allowed Yes. Any parties involved in a conflict are free to make any decision regarding their case, including if they want to be represented by outside counsel. i. Outside counsel presence mandatory No. See 1.h.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. It based on mediation structures, regulations and frameworks of institutions. c. Mediator can offer a non-binding opinion Yes. It is commonly applied in practice, although the principle point of view is that a mediator should not offer any opinions or advice. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Commercial disputes at the Cambodian Centre for Mediation (CCM), Maison de la Justice (district centre for justice) and Commune Dispute Resolution Committees (CDRCs) are mediated based on a facilitative model. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. See also 1.a. It is also applicable for those cases where the mediator is more acting as a conciliator and these mediators also offer legal opinions. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

KH

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). Only the Cambodian Centre for Mediation in Cambodia has its own accreditation system but it is not officially recognised by the public yet. See 4.1.g. b. Set by market (private certifying bodies) Yes. See 4.1.a. c. Set by public regulation No. There is no national system or law to regulate the accreditation, the quality or standards of mediators in Cambodia. d. Number of hours for basic mediator training 40 hours. The CCM is the first national NGO in Cambodia which has a basic mediation training standard. The accreditation to practice as a mediator is 40 hours. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. The CCM’s accreditation procedure consists of a number of observations of mediation practices, co-mediation in specific mediation sessions, and assessment/evaluation to be accepted as accredited mediators. h. Accreditation through performance-based assessment Yes. See 3.g.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Any person can be a mediator after being accredited by the relevant bodies. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There are no regulations on cross-border mediations in Cambodia.

6.

EU Directive

NA.

7.

Mediation legislation

c. Mediation legislation since No. There is no legislation for mediation per se in Cambodia.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are local authorities at commune and district level. There are a few local NGOs who provide mediation services related to cases of human rights abuse and disputes over land. b. Individuals may be providers of mediation services Yes. There are numbers of community and civil society people who act as voluntary mediators in different communities. There are no rules prohibiting individuals from being mediation providers.

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d. Mediation provider qualifications/requirements determined by public regulation No. The mediation industry is not regulated in Cambodia.

9.1. Mediator fee a. Freely contracted Yes. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases US$ 500 - 1.000 (estimate). Estimated fees for a commercial case is around US$ 500 US$ 1.000 (limited 4-5 hours). d. Average mediator fee per hour in civil cases US$ 100 -200 (estimate). Estimated fees for a civil case is around US$ 100 - US$ 200 (2 hours).

9.2. Financing and legal aid

KH

e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from courtconnected referrals or court-connected mediation schemes? No. In general there is no any official relationship between judges and mediators in Cambodia, but there are some cases where the mediators are district officials who work for Maison de la Justice. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation from the Maison de la Justice and Courts of First Instance is made part of the legal system through the District Centre for Justice and courts in Cambodia.

11. Mediated settlement a. Contract Yes. The enforcement of mediated a settlement is not binding and this agreement is not legally recognised by courts or the judicial system in Cambodia.

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b. Automatically enforceable No. See 11.a. c. Enforceable under some circumstances which are up to the parties No. See 11.a. d. Enforceable under some circumstances defined by public regulation No. See 11.a.

12. Confidentiality a. Regulated by law No. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. See 11.a.

13. Education a. Mediation education is a common component of legal education curriculum No. Mediation is offered by the CCM and the Ministry of Justice but it is not seen as a common component of the legal curriculum at universities or by the Bar Association. b. Mediation advocacy education is a common component of legal education curriculum No. The mediation advocacy education is a new concept in Cambodia and the CCM hopes to disseminate and promote mediation advocacy to the public and government.

14. Most relevant literature or references, jurisprudence, articles, law –– Hughes, C., (2001). An Investigation of Conflict Management in Cambodian Villages. C ­ ambodia Development Resource Institute. Phnom Penh, Cambodia –– Luco, F. (2002). Between a tiger and a crocodile – Management of local conflicts in C ­ ambodia. UNESCO. Phnom Penh. –– Loper Vasquer, C. M. (1996). Pre-Trial Dispute Resolution Processes. The Cambodian Court Project, Phnom Penh. –– Raquel, Z.Y., Kong, R. & Phan, S.(2005). Pathways to Justice. Phnom Penh: UNDP, Cambodia. –– Family and Marriage Law of Cambodia, 1989 –– Civil Code of Cambodia, 2008

15. Mediation legislation texts a. Weblink to legislation in national language No. b. Weblink to English or other translation No.

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The Variegated Landscape of Mediation

c. Other references No.

16. Country specific remarks As mentioned above, mediation is not mandatory or regulated by law on dispute resolution in Cambodia. The traditional mediation practice has been inherently rooted and embedded for a long time in history in Cambodian society, however, modern mediation practice is seen as new form of dispute resolution. These deep roots of mediation concept and practice in society are a foundation and offer potential for mediation mechanisms, which can lead to being actively and effectively applied for dispute resolution in Cambodia. Mediation practice is gradually being developed, mediation services are being increasingly demanded so that in the future this new development can be widely applied in Cambodia.

KH

Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Cambodia Prepared by Savath Meas 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

No (No) Yes No No No No Yes No Yes Yes No No Yes Yes No F F F F GA Mix Mix (No) Yes No 40 hrs No No No Yes No No No

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Mediation regulation and approach Country: Cambodia Prepared by Savath Meas 5. Who can be mediator?

KH

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No No No NA No Yes Yes No Yes No US$ 500-1.000 US$ 100-200 No No No No

Yes No Yes No No No No No No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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42. CAMEROON1 Prepared by Enga Kameni2 – Mfor Divine Afuba3

1.

Attempt to mediate

a. Always voluntary Yes. See 1.b. b. Mandatory (in some cases) No. Mediation is not mandatory in Cameroon. However, under the Labour Code and the OHADA Uniform Act on Simplified Procedure for Debt Recovery (http:/www.jurisint.org/ohada/text/text.05.en.html), mediation/conciliation is encouraged before a court action. c. Court referral or court-connected mediation possible No. d. Court-ordered mediation possible No. e. Sanctions by the court if mediation is not tried (in good faith) Yes. The court reserves the right to take into account unsatisfactory reasons for not attempting mediation or unreasonable termination of mediation when making cost orders. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court Yes. Mediation by the Labour Inspector is free and can lead to time and cost savings for the employer and the employees. h. Outside counsel presence/representation during mediation sessions allowed Yes. The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process. i. Outside counsel presence mandatory No. However, it is encouraged by the courts.

1 Last update of information: May 2013. 2 Enga Kameni is a manager and attorney-at-law, Tax & Legal Services, Ernst & Young, Douala Cameroon. He holds an LL.M. in corporate law and governance from Harvard Law School, MA, USA, where he was a Robert Clark Scholar, Frank S. Lally Scholar and a Harman Fellow. He is a member of the New York Bar. Contact: [email protected]. 3 Mfor Divine Afuba is a legal advisor with Cabinet Marie Andrée Ngwe, Douala, Cameroon. He holds an LL.M. in international business law from London School of Economics. Contact: [email protected].

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). It is not obligatory to include a mediation clause. Courts only address it if the parties had included mediation as a means of dispute resolution. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

CM

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. There is no legislation in Cameroon prescribing or describing the procedure for mediation. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The mediation procedure differs according to the body administering the mediation. c. Mediator can offer a non-binding opinion Yes. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Commercial disputes at the Groupement Inter-Patronal du Cameroun (GICAM). f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. We were not able to find a commercial case on mediation. However, the consensus is that it would be facilitative at the GICAM. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/directive. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA.

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j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. However, the mediation and arbitration centre at the GICAM has a list from which mediators are selected. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. There is no national system or law to regulate the accreditation, the quality or standards of mediators in Cameroon. d. Number of hours for basic mediator training About 40 hours, especially for foreign trained mediators. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment (No).

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. In Cameroon, there is no accreditation/certification or special recognition of mediation advocates. Generally, the role of the mediation advocate is performed by the parties’ respective legal counsels. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

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5.

The Variegated Landscape of Mediation

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Any person can be a mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There are no regulations on cross-border mediations in Cameroon.

6.

EU Directive

NA.

CM

7.

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. The mediation industry is not regulated in Cameroon.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases €100-300 (estimate). d. Average mediator fee per hour in civil cases €100-300 (estimate).

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563

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from courtconnected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. c. Mediation procedure has impact on statute of limitations No. Since Cameroon does not have a formalised mediation system, there is no impact from any mediation procedure (selected by the parties) on the statute of limitations.

11. Mediated settlement a. Contract Yes. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties No. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law No. However, the parties might use privacy laws to protect the confidentiality and other private information regarding the mediation. This is not automatic and will always depend on what the parties decided. Increasingly, we have seen contractual parties adding arbitration and mediation as a means of dispute resolution. However, it is not obligatory.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

13. Education a. Mediation education is a common component of legal education curriculum (No). Mediation is sometimes taught in the introductory parts of courses on arbitration. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, jurisprudence, articles, law

CM

–– Mélanie GERMAIN, Présentation des principales étapes de la médiation contractuelle. –– Me Brigitte ADA NNENGUE, L´avocat et la médiation : Savoir jouer le rôle de conseil pour tirer le meilleur parti du marché de la médiation. –– Sadjo Ousmanou, Management des contrats usuels – Pratique de l´arbitrage et de la médiation, Rapport Général Colloque ArbiMed Africa, Douala, Novembre 2012.

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references –– http://www.jurisint.org/ohada/text/text.05.en.html –– http://www.ilo.org/dyn/natlex/docs/WEBTEXT/31629/64867/E92CMR01.htm

16. Country specific remarks As mentioned above, mediation is not strictu sensu provided for by the laws of Cameroon. Instead, conciliation is the term used especially under the Labour Code, under the OHADA Uniform Act Organising Simplified Recovery Procedures and Measures of Execution and under the Insurance Code (CIMA). The Labour Code provides for conciliation to be reached between the employer and the employee in cases of disputes (Sections 138 – 140) under the auspices of the Labour Inspector. It is when conciliation fails that the case is taken to court. OHADA Uniform Act on Simplified Recovery Procedures encourages parties in a dispute to use conciliation during the initial stages of disputes (Section 12). Most often, parties might include a mediation clause in their contract. This appears mostly in contracts and agreements entered into by Cameroonian nationals/entities and non-nationals/entities. The predominant reason for this is because most foreign entities or nationals might not be comfortable or, better still, might not trust the Cameroon justice system. As such, arbitration or mediation is inserted as a dispute resolution mechanism in the contract. In addition, certain Cameroon entities entering into a contract may

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provide for mediation as the means of dispute resolution. There is a renowned arbitration and mediation centre in Cameroon, organised and operated by the Groupement Inter-Patronal du Cameroun (GICAM) which is an association of corporate entities. Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Cameroon Prepared by Enga Kamein, Mfor Divine Afuba 1. Attempt to mediate

2. Mediation clause

CM

3. Mediation procedure

4.1. Mediator accreditation

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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Yes No No No Yes No Yes Yes No Yes (Yes) No No Yes Yes No F F F F/D NA Mix Mix No Yes No 40 hrs No No No (No)

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Mediation regulation and approach Country: Cameroon Prepared by Enga Kamein, Mfor Divine Afuba 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes No No No NA No Yes Yes No Yes No €100-300 hr €100-300 hr Yes No No No

Yes No Yes No No No No No (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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43. CANADA, 1 Ontario2 Prepared by Clifford M. Hendler3 – Alicia K. Kuin4

1.

Attempt to mediate

CA

a. Always voluntary (Yes). In Canada, mediation is considered to be a voluntary process in which parties appoint a neutral third party to assist them in reaching a voluntary settlement to a dispute. However, in some jurisdictions, such as Ontario, most civil actions are subject to mandatory mediation. See 1.b. b. Mandatory (in some cases) Yes. In 1999, the Ontario Mandatory Mediation Programme (OMMP) was introduced in Toronto and subsequently in Ottawa and Windsor in 2002. Under the OMMP, certain civil actions under rules 24.1 and certain contested estates, trusts, and substitute decision matters under 75.1 of the Rules of Civil Procedure, are referred to a mediation session to explore settlement options in the hopes of avoiding the pre-trial and trial process. The purpose of rules 24.1 and 75.1 is to ‘reduce cost and delay in litigation and facilitate the early and fair resolution of disputes’ (O. Reg. 453/98, s. 1; O. Reg. 198/05, s. 2; O. Reg. 438/08, s. 15). Mandatory mediation applies to many forms of civil proceedings, although there are some exceptions. c. Court referral or court-connected mediation possible Yes. d. Court-ordered mediation possible Yes. See 1.b.

1 Last update of information: June 2013. 2 Over the course of the last twenty-five years, mediation has evolved into a leading component of conflict resolution across Canada. While its success and rise in popularity has helped to transform our judicial systems and processes, there is no national Canadian law concerning mediation. ADR Canada, a national non-profit professional organisation, along with its provincial counterparts, have standardised rules of practice that are non-regulatory or enforceable under any court or government statute. The mandatory rules with respect to mediation in Canada are dependent on each province’s legislature. Currently, six of Canada’s provinces have seen mediation become a mandatory part of civil proceedings (British Columbia, Alberta, Saskatchewan, Ontario, Quebec, and Nova Scotia). Because Ontario is widely regarded as the mediation hub of Canada, it will be used here as a case study to analyse the various ways in which mediation for commercial and civil cases are regulated in Canada. 3 Cliff Hendler is one of North America’s foremost commercial mediators. From 1990 through 2010, he was the founder and president of DRS Dispute Resolution Services LP. In 2010 he merged that firm with ADR Chambers, Canada’s largest provider of dispute resolution processes and training. Contact: chendler@aDrca. 4 Alicia Kuin is a researcher in the areas of mediation, international negotiations, and the discourse of terrorism in relation to peace processes. Alicia has a Masters Degree in Conflict Studies and Human Rights from Utrecht University in the Netherlands, has certificates in ADR and Advanced ADR from the University of Windsor, and she is currently taking a master’s degree in law in alternative dispute resolution at Osgoode Hall Law School in Toronto, Ontario. Contact: [email protected].

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e. Sanctions by the court if mediation is not tried (in good faith) (Yes). The sanctions by the court if mediation is not tried are simply in terms of cost, as a hearing will be scheduled. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court Yes. Mediation is gaining momentum in Canada as a result of the many incentives involved. For example, it provides the opportunity to bring the long journey to the courtroom to an end by coming to a settlement in mediation within a few months as opposed to the years that it can take for cases to reach the courtroom. In Ontario, parties will not be assigned a court date without first having attended mediation. As a result of attending mediation, there is a substantial reduction in legal costs as well as the risks associated with the unpredictability of the courtroom. In addition, as mediation is protected by the principle of confidentiality parties may negotiate freely without any cost or evidentiary consequences should the matter need to proceed to a next stage. h. Outside counsel presence/representation during mediation sessions allowed Yes. In the majority of civil action mediations, civil counsel is present. i. Outside counsel presence mandatory No. It is not mandatory but if a party is represented by a lawyer, the lawyer will attend the mediation as well. All parties are required to attend mediation unless there is an insurer there who may act on behalf of the party under the insurance contract (Fact Sheet: Mandatory Mediation, 2010).

2. Mediation clause a. Case admissible in court with a mediation clause No. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. c. If parties signed a mediation clause they have to mediate first before going to court Yes.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. See 3.b. b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual Yes. The mediation procedure is governed by the unique mediation agreement signed by the particular parties involved in the case.

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c. Mediator can offer a non-binding opinion Yes. Section 7(3)(b) of the 2010 Commercial Mediation Act states that the mediator has the authority to ‘make proposals for settlement of the dispute at any stage of the mediation’ (2010, c. 16, Sched. 3, Section 7(3)(b)). ADR Canada’s National Mediation Rules clarifies this point by noting in Section 6(2) that while the mediator may provide views or opinions on a matter, they are not providing legal advice to the parties. Therefore, a mediator’s evaluative approach must not be construed as professional advice, and with this in mind, parties must exclusively rely on their own council for legal and professional direction (ADR Canada, 2011). Section 12(2) further notes that if all parties to the mediation agree, ‘the Mediator may produce for the parties a non-binding recommendation for terms of settlement. This recommendation is the Mediator’s reasonable attempt to find acceptable settlement terms’ (ADR Canada, 2011).

CA

d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. The facilitative approach is the most commonly taught style throughout Canada, as it focuses on the mediator’s neutrality, ability to ask questions and analyse options, and does not necessarily require expertise in a specific area. As a result of the market becoming more sophisticated, the most common approach is a blend of facilitative and evaluative processes. For example, mediators for commercial disputes tend to be more evaluative while mediators for community based disputes commonly use a more facilitative approach. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. As per 3.e., the facilitative mediation process is mostly taught, although the evaluative mediation style is commonly practiced. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. See 3.e. Outside of civil and commercial mandatory mediation, the transformative approach is often used by mediators who have a background in social work, psychology, or restorative justice. The transformative approach commonly applies to divorce, family, neighbour, or youth dispute resolution processes. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. See 3.f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) (Mix). Mediators in both commercial and civil disputes tend to conduct the opening statements in a joint session, and then transition into caucusing (also referred to as ‘shuttle diplomacy’) on a needs basis. Caucusing allows the parties to speak with the mediator candidly about their concerns or interests, and to openly discuss options and risks. Allowing parties to have one-on-one time with the mediator also provides the opportunity for trust to build between both the party and mediator, and the party and the process.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) (Mix). See 3.k.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are many different levels of mediation certificate courses and programmes that you can take through schools or organisations throughout Canada. However, ‘The Chartered Mediator’ (C.Med) designation is the only national designation for practicing mediators in Canada. The designation is geared to recognise a ‘generalist competence’ at a high level, the goal being to assist the public in finding experienced and qualified mediators’ (ADR Institute of Canada INC, 2011). b. Set by market (private mediation bodies) Yes. The C. Med. designation can be obtained through the ADR Institute of Canada (ADR Canada), and is recognised nationally. c. Set by public regulation No. There is no public regulation in Canada pertaining to the accreditation of mediators. d. Number of hours for basic mediator training 40 hours. There is no nationally recognised ‘basic mediator training’. However, the completion of 40 hours of ADR training with a course that has been approved by ADR Canada meets the criteria for membership to the Institute. In addition, 80 hours of mediation training with an approved course satisfies the first set of criteria for the C.Med (chartered mediator) designation, thus fulfilling the Educational requirements listed in 4.1.f. e. Mandatory CPD for accredited/certified mediators Yes. Upon obtaining a C.Med designation from ADR Canada, Section Vll of the document ‘Principles, Criteria, Protocol, Competencies for the Designation of Chartered Mediator’ states that, ‘every three years, Chartered Mediators are required to acquire 100 points as per the Continuing Education and Engagement Program’ (ADR Institute of Canada INC, 2011). f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. The designation is not dependent on a specific mediation style, but is rather awarded to individuals upon the successful completion of the following competencies: education (80 hours theory and practice + 100 hours study or training); practical experience (15 hours + mediations); skills assessment (demonstrate competency as a mediator); pledge to the code of ethics; member in good standing with ADR Canada; pay membership fees; continuing education; and obtain insurance (ADR Institute of Canada INC, 2011). g. Accreditation through written exam (Yes). Meeting the Educational requirements for ADR Canada’s 100 hours of study or training may include writing a final paper or exam for an approved affiliate school or programme. h. Accreditation through performance-based assessment Yes. See 4.1.f.

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4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. While there are some programmes and courses available for individuals who want to take part in mediation advocacy training, there is no official accreditation or certification process that is recognised in Canada for mediation advocates. j. Set by Market (private mediation bodies) Yes. See 4.2.i. k. Set by public regulation No. See 4.2.i.

5.

Who can be a mediator?

CA

a. Set by market (private mediation bodies) Yes. The C.Med designation is not a requirement to be a practicing mediator in Canada. A wide array of areas in the dispute resolution realm requires different skills and competencies from their mediator. As a result, success in the field is dependent on an individual’s specific expertise in a given area. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Anyone can be a practicing mediator in Canada. It should be noted that although the majority of mediators in Canada have a law degree, we are seeing a trend in a growing number of non-lawyer mediators since a law degree is not a requirement to obtaining employment as a practicing mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 1990. Mandatory mediation in Ontario began to make its way into the legal system in the 1990s with Section 21(2) of the Ontario Rules of Civil Procedure (R.R.O 1990, Reg. 194).

8.

Bodies providing mediation

a. Mediation bodies may have various Legal forms Yes. b. Individuals may be providers of mediation services Yes. See 5.c.

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c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted (Yes). b. Fixed in some cases by public regulation Yes. For example, the Ontario Mandatory Mediation Programme (OMMP), which applies to certain civil actions under rules 24(1) and 75(1) of the Rules of Civil Procedure, has a roster of mediators whose fixed rate is set according to the number of parties involved in the mediation process. The mediation fee is set as follows: 2 parties = $600 plus GST 3 parties = $675 plus GST 4 parties = $750 plus GST 5+ parties =$825 plus GST The cost of the mediation is commonly split equally by the parties and is paid directly to the mediator, unless the mediation agreement stipulates otherwise. According to the OMMP, prior to mediation the parties and the mediator should agree upon a continuing rate if the parties are unable to agree upon a resolution within three hours of the commencement of the mediation process. In addition to the fees listed above, a mediator may charge further external expenses that the parties agree to before the mediation begins (Fact Sheet: Mandatory Mediation, 2010). c. Average mediator fee per hour for commercial or cross-border cases CAD $400-750. The fee per hour for commercial cases generally ranges from $400 per hour to $750 per hour, depending on the mediator. The majority of mediators also differentiate between half and full-day rates. d. Average mediator fee per hour in civil cases CAD $400-750. The fee per hour for civil cases also generally ranges from $400 per hour to $750 per hour, depending on the mediator. Similar to commercial mediators, civil cases are also commonly charged in accordance with a half or full-day rate.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. Although mediator fees are not subsidised in court-annexed schemes, it is important to note what happens if the parties fail to pay their fees and expenses in accordance with the mediation agreement. The 2010 Commercial Mediation Act, Section 14 states that if one or more of the parties signs the settlement agreement (which includes the agreed upon fees) but fails to pay the mediator, enforcement of payment can take place under the provisions set out in Section 13, which relates to the enforcement of the settlement agreement.

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Section 13 states that an application to a judge or court can be made if the following occurs: (2) If a party to a settlement agreement fails to comply with the terms of a settlement agreement, another party wishing to enforce the agreement may, on notice to all other parties who signed the agreement, (a) apply to a judge of the Superior Court of Justice for judgment in the terms of the agreement; or (b) apply to the Superior Court of Justice for an order authorising the registration of the agreement with the court (2010, c. 16, Sched. 3, s. 13 (2)).

10. Legal context

CA

a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation is now ingrained and institutionalised in the court systems of many provinces in Canada. While mediation is widely used in certain jurisdictions, its use is also slowly expanding in others. The two main reasons for the expansion of the field are twofold: 1) to ensure that cases go through a proper risk analysis and; 2) to ensure that cases avoid the cost and delays associated with the protracted litigation process. c. Mediation procedure has impact on statute of limitations No.

11. Mediated settlement a. Contract Yes. Every mediation begins with an opening statement by the mediator followed by the signing of a confidentiality agreement. If the parties to mediation come to a resolution pertaining to their dispute, then a settlement contract is drafted by the parties and the mediator. This contract is unique to each mediation session. The mediation contract is legally binding. If a party to the mediation does not follow through with the signed contract, the other party(s) has/have two options: 1. Make a motion for judgment in accordance with the signed terms of the settlement contract; or 2. Move forward with the legal proceedings as if the mediation and the signing of the contract had not taken place, this is possible due to the principle of confidentiality. See 12.a. (Fact Sheet: Mandatory Mediation, 2010). b. Automatically enforceable No. A mediation settlement agreement does not automatically imply an enforceable title. c. Enforceable under some circumstances which are up to the parties No.

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d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. Information disclosed in mediation is protected under the principle of confidentiality. Section 8(2) of the 2010 Commercial Mediation Act states that ‘Information relating to the mediation must be kept confidential by the parties, the mediator and any other persons involved in the conduct of the mediation’ (2010, c. 16, Sched. 3, Section 8(2) to (3)). However, the following exceptions apply to the confidentiality rule: if all parties agree to the disclosure of information; if by law disclosure is required; if it is required to enforce the settlement agreement; if the mediator requires the disclosure in order to respond to any claims of misconduct; if it is needed to show that the mediator failed to enforce confidentiality; if information is publically available; and if protection of any persons health and safety is dependent on the disclosure of information (2010, c. 16, Sched. 3, Section 8(2) to (3)). b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes.

13. Education a. Mediation education is a common component of legal education curriculum Yes. Mediation is offered as an optional area of specialisation for law students at several Canadian law schools. This is a trend that we expect to see continue to grow due to the popularity of mediation in Canada. b. Mediation advocacy education is a common component of legal education curriculum (Yes). ADR advocacy has been gaining momentum across law schools in Canada, and many have begun to introduce a mandatory mediation advocacy class, which is a requirement upon graduation. The difference emphasised here between mediation education and mediation advocacy, is that students (in most cases) are not training to become a practicing mediator in law school, but do receive training regarding the mediation process and how best to represent their clients during mediation sessions.

14. Most relevant literature or references, jurisprudence, articles, law –– ‘The New Lawyer: How Settlement is Transforming the Practice of Law’ by Julie MacFarlane, 2008.

15. Mediation legislation texts a. Weblink to legislation in national language –– Commercial Mediation Act. S.O. 2010 CHAPTER 16 SECHEDULE 3. 2010 http://www. search.e-laws.gov.on.ca/en/isysquery/d1dd8aa1-8324-4a2d-91b6-c5128c5a098d/1/ doc/?search=browseStatutes&context=#hit1

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–– Fact Sheet. ‘Mandatory Mediation: under rules 24.1 and 75.1 of the Rules of Civil Procedure’. Ontario. 2010. http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/fact_sheet_ mandatory_mediation.pdf –– ADR Canada. ‘National Mediation Rules’. 2011. http://www.adrcanada.ca/resources/ documents/National_Mediation_Rules_2012August30.pdf –– ADR Institute of Canada, INC. ‘Principles, Criteria, Protocol, Competencies, for the designation CHARTERED MEDIATOR. 2011. http://www.adrcanada.ca/resources/documents/ CMedCriteriaSept2011.pdf –– Rules of Civil Procedure. O. Reg. 575/07, s. 6 (1). http://www.e-laws.gov.on.ca/html/regs/ english/elaws_regs_900194_e.htm – s24p1p01 b. Weblink to English or other translation See 14.a. c. Other references –– ADR Institute of Canada, INC. http://www.amic.org/ –– Ministry of the Attorney General. Mandatory Mediation Program. http://www.attorney general.jus.gov.on.ca/english/courts/manmed/

CA

16. Country specific remarks Over the course of the last twenty-five years, mediation has evolved into a leading component of conflict resolution across Canada. While its success and rise in popularity has helped to transform our judicial systems and processes, there is no national Canadian law concerning mediation. ADR Canada, a national non-profit professional organisation, along with its provincial counterparts, has standardised rules of practice that are non-regulatory or enforceable under any court or government statute. The mandatory rules with respect to mediation in Canada are dependent on each province’s legislature. Currently, six of Canada’s provinces have seen mediation become a mandatory part of civil proceedings (British Columbia, Alberta, Saskatchewan, Ontario, Quebec, and Nova Scotia). Because Ontario is widely regarded as the mediation hub of Canada, it will be used here as a case study to analyse the various ways in which mediation for commercial and civil cases are regulated in Canada. Below is a list of ADR Canada’s Associate Institutes, where you can find links to information pertaining to the rules and regulations surrounding mediation in each province. – – – – – – –

British Columbia Arbitration & Mediation Institute (BCAMI) ADR Institute of Alberta (ADRIA) ADR Institute of Saskatchewan Inc.(ADRISK) Arbitration & Mediation Institute of Manitoba Inc. (AMIM) ADR Institute of Ontario, Inc. (ADRIO) L’Institut de médiation et d’arbitrage du Québec (IMAQ), ADR Atlantic Institute (ADRAI)

Mediation definition There is no ‘legal’ definition of the word or term ‘mediate’ in Canada.

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Mediation regulation and approach Country: Canada Prepared by Clifford M. Hendler, Alicia K. Kuin 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(Yes) Yes Yes Yes (Yes) No Yes Yes No No No Yes No Yes Yes No F/E F F/E F NA (Mix) (Mix) Yes Yes No 40 hrs Yes Yes (Yes) Yes

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Mediation regulation and approach Country: Canada Prepared by Clifford M. Hendler, Alicia K. Kuin 4.2. Mediation advocacy accreditation 5. Who can be mediator?

CA

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No Yes No No No NA 1990 Yes Yes No (Yes) Yes CAD$400-750 CAD$400-750 No No No No

Yes No Yes No No No Yes Yes Yes (Yes)

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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44. The Republic of CHINA 1 Prepared by Andrew Wei Min Lee2 – Vivian Feng Ying Yu3 – Julia Zhu Yi4

1.

Attempt to mediate

a. Always voluntary Yes. Section 9 (Chapter I, General Provisions) and Section 83 (the first section in Chapter XIII, Mediation) of the Civil Procedure Law state the voluntary nature of mediation. When adjudicating civil cases, the people’s courts may mediate the disputes according to the principles of voluntariness and lawfulness; if a mediation settlement agreement cannot be reached, the court shall render judgments without delay. b. Mandatory (in some cases) No. See 1.a. c. Court referral or court-connected mediation possible Yes. Before a civil trial officially begins, the procedure is that the judge will ask if the parties are willing to mediate. If so, the litigation will turn into judicial mediation (an inside-court mediation), under the organisation of the judge. In judicial mediation, the judge will take the role of the mediator. Chances are that the parties will not accept the court’s mediation suggestion (otherwise they would settle outside the court without bothering to bring a lawsuit), so the process maintains its litigation nature. During litigation, a form of mediation can also be found on some particular issues. For example, the judge may suggest that a party not conduct a damage evaluation but instead accept the other party’s compensation proposal based on his/her own prediction of the evaluation gained from his/her work experience. So on this particular issue, the judge actually plays a mediator’s role. In terms of the people’s mediation, in the People’s Mediation Act, Section 18 specifically states that a grassroots court,5 before accepting the case, can propose that the parties refer to a people’s mediation committee for a dispute resolution if it finds it wiser to refer the case to a people’s mediation committee because the conflict is not of a serious nature.

1 Last update of information: May 2013. 2 Andrew Wei Min Lee is founder and president of the Leading Negotiation Institute, a Beijing-based organisation whose mission is to promote the theory, practice and teaching of Chinese dispute resolution techniques. He is a fellow of Harvard Law Schools’ Programme on Negotiation, Stanford Law School’s Gould Center and a Weinstein Fellow. Contact: [email protected]. 3 Vivian Feng Ying Yu is vice president of the Leading Negotiation Institute. She specialises in media relations and cross-cultural negotiation in China. She has held programmes around the world including in the United States, Malaysia, Austria, Japan and Australia. Ms Feng has taught negotiation and communication across mainland China at institutions such as Peking University, Zhejiang University and Tsinghua University. Contact: [email protected]. 4 Julia Zhu Yi is a graduate of Peking University and a research assistant for the Leading Negotiation Institute of China. She is the national champion for the China University English Language Negotiation Competition and has a certificate in international business negotiation from Hamline University Law School. 5 The official name for ‘grassroots court’ is ‘district court’, which is at the administration level of district, the lowest administration unit in China.

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d. Court-ordered mediation possible No. The judge can advise parties to try mediation, see 1.c., but cannot mandate parties to go to mediation. If the parties refuse to mediate (either by judicial mediation or people’s mediation), the litigation proceedings will continue. See. 1.a., 1.b. and 1.c. e. Sanctions by the court if mediation is not tried (in good faith) No. (Please note that China has no case law.) f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties.

CN

i. Outside counsel presence mandatory No. In judicial mediation and arbitral mediation, which are usually complicated commercial cases or cross-border cases, having lawyers present is common practice. But in people’s mediation, which usually involves minor conflicts, lawyers are usually not involved.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. As mediation is of a voluntary nature indicated in the Civil Procedure Law, an oral or a written mediation clause is not binding for the parties, yet many contracts may still include the mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. However, there is no case law (China has no case law.) c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. Although Chapter IX of the People’s Mediation Act is called a ‘Mediation Procedure’, the content only indicates the general principles of mediation, such as free will, the first priority of dispute resolution is to avoid adversity, the mediator can involve the colleagues, neighbours of the parties to offer help, etc. The way mediation is conducted is not regulated and neither is the mediation approach. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the contract between the parties and the mediator.

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c. Mediator can offer a non-binding opinion Yes. In people’s mediation, the first priority is to get the conflict settled outside directly adversarial legal process. So a mediator usually proposes solutions. Usually, such a mediator is a senior, sophisticated person with a respected reputation within the community where the parties live or work. Also, the chances are that the mediator at least indirectly knows the conflicting parties so, with the trust of both of the parties, the mediator can and will offer a solution as advice to settle the conflict. In judicial mediation, the civil procedure law does not forbid or encourage the mediator to offer advice, so it is up to the mediator’s individual style. In commercial mediation, Section 20 of the China Council for the Promotion of International Trade (CCPIT) and China Chamber of International Commerce (CCOIC) Mediation Rules 2012 (Section 23 of the Mediation Rule 2005), states that the mediator may offer the parties a settlement proposal. d. Mediator can offer a binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative. Based on the limited cases published on the CCPIT and CCOIC website, mediators often offer advice or settlement proposals to parties. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. Commercial disputes can only be mediated through arbitral mediation or commercial mediation. In arbitral mediation, because of the mixed mediation-arbitration nature of the dispute resolution process, the mediator/arbitrator’s directive style naturally applies to mediation. In commercial mediation, based on the limited cases published on the CCPIT and CCOIC website, the progress and pace of mediation is usually controlled by the mediator. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative in divorce judicial mediation. The judge/mediator usually gives their own opinion and educate the parties on relevant legal aspects. Mix. In other civil cases, the style is up to the mediator. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. Civil disputes can only be mediated by judicial mediation or people’s mediation. Arbitral mediation and commercial mediation only deal with commercial disputes. Because of China’s continental law origin, the dispute resolver usually has directive power. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used (when it is used, see 3.e. and 3.g). Besides neutral or general opinions and legal opinions, mediators often introduce options, ways to make the solution sustainable workability and particularly ways to help the process to move forward (e.g., engaging another expert, combining processes, offering to give mediator advice). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. In the CCPIT and CCOIC’s Mediation Rules, the mediator has the right to meet either party independently. However, this cannot be seen as caucus because during such meetings, the other party is not around and may not necessarily be informed of such meetings by the mediator.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint session only. Joint sessions are only used for judicial mediation. Because this kind of mediation is integrated (potentially) with litigation in the courtroom, the predominant process is definitely joint sessions only. Mix. This is the predominant style for people’s mediation. Because people’s mediation is conducted among living or working communities as an approach to help parties to avoid lawsuits, mediators do their job in a very flexible way, always using mixed styles.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. In people’s mediation, it is the committee that nominates the mediator. In judicial mediation, any judge can conduct mediation, so there is no independent accreditation or certification for the mediator qualification for judges. In arbitral mediation and commercial mediation, the mediator is nominated by arbitration tribunals or mediation centres.

CN

b. Set by market (private certifying bodies) No. For people’s mediation, judicial mediation arbitral mediation, see 4.1.a. (Yes). For commercial mediation, any individual can, in theory, apply to a mediation centreCCPIT and CCOIC to be a mediator. But in practice, the mediator is usually nominated by the mediation centre even though mediation centres are not regulated by law. They are under the auspices of the relative state authority. c. Set by public regulation No. See 4.1.b d. Number of hours for basic mediator training (No). For people’s mediator and judicial mediator, see 5.c. Theoretically, there is no training for commercial and arbitral mediators of the CCPIT and CCOIC. Because these mediators mostly work part-time, the required training time is quite short. Any mediator at the CCPIT and CCOIC in his or her first term (one term is four years) must complete some basic mediation training (no minimum period of time indicated.)After that, the annual CPD training of registered mediators is only 4 hours. (See CCPIT and CCOIC Mediator Training Requirement Chapter II, Section 10, 11, 12. (http://adr.ccpit.org/typeinfo.aspx?t1=16&t2=45)) Even though basic annual training is required for both kinds of mediators, its implementation, according to our observation, may not be very consistent. According to our knowledge, in practice, many unofficial or even casual discussions held among the mediators can be counted as training hours. From another perspective, such training, even though required under the Arbitration Act, are not a prerequisite for becoming a qualified mediator in China. Actually, Chinese mediators come from a pool of senior legal professionals who the nomination committee believes already possess abundant legal knowledge and sufficient understanding of the actual practice. Their current or previous occupations include lawyers, law professors and judges. So in reality, we can conclude that actually, no basic mediator training time is required in this sense. e. Mandatory continuing professional development for accredited/certified mediators Yes. 4 hours per year for commercial mediators. See 4.1.d.

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f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) No. The CCPIT and CCOIC Mediation Centre has its own set of rules and conditions concerning the accreditation of their mediators. It asks for additional practical experience and/or a performance-based assessment. NA. For people’s mediation, judicial mediation and arbitral mediation. See 5.c. g. Accreditation through written exam No. h. Accreditation through performance-based assessment Yes. For commercial mediators, the CCPIT and CCOIC Mediation Centre has a performance-based assessment as part of its accreditation procedure. See the link in 4.d. and see 4.1.f.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) Yes. All initiatives are private, there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.a, 4.b. and 4.c. b. Set by public regulation No. see 5.c. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. The requirement for people’s mediation committee members is set by the law as ‘adult citizens who are impartial, decent and dedicated to the people’s mediation work, and have a certain level of education, policy understanding and legal knowledge. Yes. For commercial mediation, arbitral mediation and judicial mediation, see Article 2 of the Mediator Qualification Rules of the CCPIT and CCOIC Mediation Centre. http://adr.ccpit.org/ typeinfo.aspx?t1=16&t2=44 d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) Yes. For commercial mediation, see 5.c.

6.

EU Directive

NA.

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The Variegated Landscape of Mediation

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

CN

a. Mediation bodies may have various legal forms Yes. For people’s mediation, the mediation provider is the people’s mediation committee which is established at grassroots level within living or working communities. No. For judicial mediation and arbitral mediation, the mediator is the judge or mediator, so there are no independent mediation bodies. Yes. For commercial mediation, the only mediation provider in China is the China Council for the Promotion of International Trade (CCPIT) and the China Chamber of International Commerce (CCOIC) Mediation Centre (CCPIT and CCOIC Mediation Centre) (http://adr.ccpit. org/english/index.aspx). This organisation is run by the state, but some mediators come from the private sector. b. Individuals may be providers of mediation services Yes. Individuals may provide services for commercial mediation and people’s mediation. But for commercial mediation, if the mediator is not registered at the CCPIT and CCOIC Mediation Centre, the parties must file an application to the Mediation Centre for acknowledgement of the person’s mediator status. In people’s mediation, any adult citizen with decency and enthusiasm can put themselves forward to the people’s mediation committee. No. Individuals may not provide services for judicial mediation and arbitral mediation. c. Mediation provider qualifications/requirements determined by public regulation Yes. Public regulation determines all mediator qualifications and requirements.

9.1. Mediator fees a. Freely contracted No. There are no charges for people’s mediation. For judicial mediation, the fee is regulated by law. For arbitral mediation and commercial mediation, the fee is regulated by the rules of bodies providing mediation. b. Fixed in some cases by public regulation (No). See 9.1.a. c. Average mediator fee per hour for commercial or cross-border cases NA. Counted by hour but by the disputed amount. d. Average mediator fee per hour in civil cases NA. The mediation fee is currently calculated as fixed percentage of the disputed amount, not by the hour. There is no such concept of ‘mediator fee’ in current China.

9.2. Financing and legal aid e. Legal aid available for mediation services No. The legal aid system in China only applies to criminal cases.

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f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. In judicial mediation, a judge can be a mediator if both parties agree to settle the conflict through mediation. In arbitral mediation, some arbitrators are judges. In commercial mediation, mediators may also be judges or retired judges. In people’s mediation, a judge can also be nominated as member of the mediation committee. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. For judicial mediation. No. For people’s mediation, arbitral mediation, or commercial mediation.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement. b. Automatically enforceable (No). See 11.c. c. Enforceable under some circumstances which are up to the parties Yes. The Section 98 of the Civil Procedure Law states that in judicial and arbitral mediation, parties can ask a civil-law notary or a judge to make their settlement agreement enforceable. d. Enforceable under some circumstances defined by public regulation No. See, however, 11.c.

12. Confidentiality a. Regulated by law No. For peoples’ mediation. In the People’s Mediation Act, it is the parties’ right to choose whether the mediation is conducted publicly or privately. Yes. For divorce cases in judicial mediation. Yes. For arbitral mediation and commercial mediation. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract)

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Yes. The CIETAC Arbitration Rules introduce a general exemption to give evidence in arbitral or judicial proceedings regarding information arising out of or in connection with mediation for registered mediators. See Article 45 of the CIETAC Arbitration Rules on http://www. cietac.org/index.cms

13. Education a. Mediation education is a common component of legal education No. Mediation courses are only offered at postgraduate level at several universities. b. Mediation advocacy education is a common component of legal education No. Seldom legal practice skills are taught in Chinese law schools.

14. Most relevant literature or references, jurisprudence, articles, law 1) For general introduction of mediation in China–

CN

2) For judicial mediation in China–

2009

3) For people’s mediation in China– 4) For the arbitral mediation in China– 5) For the theory and practice of commercial mediation in China–

15.

Mediation legislation texts

a. Weblink to legislation in national language NA. See 15.b. b. Weblink to English or other translation –– For judicial mediation and people’s mediation, please see the bilingual Attachment 1- the Civil Procedure Law and Attachment 2- the People’s Mediation Act. –– For arbitral mediation: CIETAC Arbitration Rules (Article 45 combination of conciliatio with arbitration) http:/cn.cietac.org/Rules/rules.pdf –– For commercial mediation: CCPIT and CCOIC Mediation Rules 2005 (the latest version 2012 has no available English translation online) http://adr.ccpit.org/upload/downloadfile/Mediation%20Rules%20(2005).pdf c. Other references –– For commercial mediation, see CCPIT& CCOIC introduction: http://adr.ccpit.org/english/ typeinfo.aspx?t1=117&t2=123 –– For mediator accreditations, see Mediators in CCPIT& CCOIC: –– http://adr.ccpit.org/tjylist.aspx?t1=16 –– http://adr.ccpit.org/typeinfo.aspx?t1=16&t2=44 –– http://adr.ccpit.org/typeinfo.aspx?t1=16&t2=45

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–– http://adr.ccpit.org/typeinfo.aspx?t1=16&t2=46 –– For CCPIT & CCOIC Mediation fees: –– http://adr.ccpit.org/english/typeinfo.aspx?t1=119&t2=131

16. Country specific remarks Firstly, people’s mediation. People’s mediation can be found in the Section 111 of the Chinese Constitution. But please note that it is NOT within the legal system but a social management approach. The first priority goal of people’s mediation is to avoid the escalation of minor conflicts, usually between two individual parties, and thus the aim is to settle the conflict in at an early stage. People’s mediation committees can be set up within living community and professional organisations. They deal with the minor conflicts (which may not necessarily involve legal disputes). Usually labour mediation is conducted by people’s mediation based in particular professional organisations. Secondly, judicial mediation. This mediation is within the legal system and dynamically integrated with litigation. Rather than being conducted by a specialised mediation body, judicial mediation is led by a judge and the mediation proceeding may be activated either before the litigation officially begins, or during the litigation process for several particular issues. Thirdly, arbitral mediation. Similar to judicial mediation, arbitral mediation, as its name indicates, involves the arbitrator potentially taking on the role of mediator. So the two dispute resolutions are integrated with the proceedings. The biggest representative of arbitral mediation is CIETAC, but CIETAC only deals with commercial cases. Fourthly, commercial mediation. Commercial mediation is the closest in meaning to commercial mediation around the world. The only commercial mediation body is the CCPIT and CCOIC Mediation Centre. It has a central centre and over 40 local chambers. The local chambers are under the leadership of the central chamber. The CCPIT and CCOIC are public sector bodies with a humanitarian structure (promotion channels) controlled by government authority. In conclusion, there is no uniform mediation (both in terms of substance and procedure) in China. So the answers about China’s mediation set forth above are basically organised under the framework of the four types of mediation introduced here. Another key point is to distinguish the process of ‘formal mediation’ i.e., a form of mediation that is codified by laws, or at least written rules, and agreements enforceable by court as opposed to ‘informal mediation’ i.e., mediation that has been done traditionally over thousands of years by ‘respected elders’. Modern China is regularly cited as being founded in 1949, the birth of the ‘People’s Republic of China’. Prior to this date, China was governed by Emperors or at least ‘Warlords’ often citing as authority the Divine Mandate of Heaven. Modern China, administered by a government, is gradually moving towards a Rule of Law paradigm. In relation to mediation, the advantages of the modern paradigm include being more transparent, predictable and accountable. The disadvantage of the modern paradigm is that mediation is becoming more ‘legalistic’ and taking place in court rooms or ‘mediation centres’ in business districts, as opposed to places like a traditional ‘tea house’, and is arguably losing the more traditional ‘preserve the relationship’ goal of mediation.

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Mediation definition In China, mediation has no uniformed meaning as in other jurisdictions. Basically, there are four types of mediation.

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Mediation regulation and approach Country: The Republic of China Prepared by Andrew Wei Min Lee, Vivian Feng Ying Yu, Julia Zhu Yi 1. Attempt to a. Always voluntary mediate b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific procedure duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accredita­ b. Set by market (private certifying bodies) tion c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocacy advocates accredita­ j. Set by market (private certifying bodies) tion k. Set by public regulation

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Yes No Yes No No No No Yes No Yes Yes No No Yes Yes No E D E/Mix D All Mix Joint/Mix No No/(Yes) No (No) Yes No/NA No Yes No Yes No

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Mediation regulation and approach Country: The Republic of China Prepared by Andrew Wei Min Lee, Vivian Feng Ying Yu, Julia Zhu Yi

CN

5. Who a. Set by market (private certifying bodies) can be b. Set by public regulation mediator? c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing mediation b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator a. Freely contracted fee b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing e. Legal aid available for mediation services and Legal f. Mediator fees covered by legal insurance schemes aid g. Mediator fees subsidised in court connected schemes 10. Legal a. Is there a special relationship between judges and mediators/ context mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confiden­ a. Regulated by law tiality b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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Yes No No/Yes Yes NA No Yes(people’s)/ No(judicial/arbitral)/ Yes(commercial) Yes(people’s/commercial)/No(judicial/arbitral) Yes No (No) NA NA No No No Yes

Yes(Judicial)/ No(people’s/arbitral/ commercial) … Yes (No) Yes No No(people’s)/Yes Yes No No

No = No (No) = No as a rule, but with (informal) exceptions

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45. ECUADOR1 Prepared by Juan Montalvo Perero2 – Adriana Lasso3

1.

Attempt to mediate

a. Always voluntary (Yes). According to Ecuadorian law, whenever two or more parties want to mediate, they need to have a written agreement. There are very few exceptions in which the attempt to mediate is mandatory. b. Mandatory (in some cases) (Yes). There are two specific cases in which mediation is mandatory. The first way the parties approach mediation is through arbitration. According to Ecuadorian law, once a party has presented a request for arbitration, and the other one has answered, the director of the arbitration centre has to call parties to mediation. The second way in which mediation is mandatory is in employment law, where employee and employer need to mediate before a trial. c. Court referral or court-connected mediation possible Yes. In most cases a judge may refer a case to mediation, as long as both parties accept. d. Court-ordered mediation possible (Yes). Mediation is court-ordered only in certain areas, such as employment law. In other cases both parties need to agree in order for mediation to occur. e. Sanctions by the court if mediation is not tried (in good faith) No. There are no sanctions imposed by courts if there is not a (serious) attempt to mediate. It is very common that Only a lawyers participate in mediations, and sometimes they just go to say that their clients do not want mediation. Even in these cases, there are no sanctions. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions imposed by law if there is not an attempt to mediate in good faith.

1 2

Last update of information: August 2013. Juan Fernando Montalvo Perero is a lawyer that graduated with honors from Universidad San Francisco de Quito. He has taken several courses besides a law degree, such as the Academy of Arbitration in Paris and the graduate programme ‘Making and Saving Deals in the Global Business Environment’. In addition to his studies he founded SvarLaw law firm with three partners. He has worked as an associate attorney in several law firms. He teaches at Universidad Internacional del Ecuador as ADR professor, coach in arbitration moots and is head of the departmen of ADR. He has published in several books and journals. Contact: [email protected]. 3 Adriana Lasso Adriana is currently a law student. She has participated in several mediation courses, especially in the Chamber of Commerce in Quito (Ecuador’s capital). Adriana is a paralegal at the law firm SvarLaw, she is involved in the mediation and arbitration legal department. She has practiced in family mediation and has done pro bono work concerning mediation as well as work in a legal aid office. Furthermore Adriana has participated in various arbitration competitions at a national level. Contact: [email protected].

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g. Incentives if mediation is tried voluntarily before going to court No. There are no incentives for voluntarily approaching mediation before going to court. h. Outside counsel presence/representation during mediation sessions allowed Yes. Whenever parties are mediating they can have a lawyer present, or a representative that will accompany them during the mediation. i. Outside counsel presence mandatory No. It is not mandatory for outside counsel to be present in any case.

2. Mediation clause a. Case admissible in court with a mediation clause (No). A mediation clause is binding and therefore a court could not hear a case unless mediation has taken place. The only exception to this is when both parties agree not to mediate and go directly to court. Nevertheless, the official position is that mediation must take place.

EC

b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (No). The case is admissible but the judge needs to take into account if there is a mediation clause and the parties need to try mediation before addressing their issues before a judge. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). Parties must mediate if they have a mediation clause, unless both parties resign from mediation or agree not to mediate and decide to go to court. If one party goes to a court and the other does not demand mediation, then it is understood that both are resigned to mediate.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. The law establishes that it is up to the arbitration and mediation centres to describe the procedure used in mediations. However, the law prescribes when mediation is confidential and in which cases people can attempt to mediate. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Parties may decide whether they want to be assisted by an independent mediator, and follow the procedure they decide on, or be assisted by a mediator that works for an arbitration and mediation centre. c. Mediator can offer a non-binding opinion Yes. The mediator can help the parties reach a solution that benefits both of them, and provide ideas and advice on how to solve the problem. d. Mediator can offer a binding opinion No. The mediator is there to assist the parties, but the solution has to be between them, not as mandated by the mediator. This is regulated by law.

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e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Advice with legal opinion. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint Session, at the moment caucus is not very popular. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint session.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. A mediator has to have a certification in order to exercise as one. b. Set by market (private certifying bodies) No. It is established by law how a person can be accredited as a mediator. There are courses to become a mediator given by state entities as well as chambers of commerce and arbitration and mediation centres. c. Set by public regulation (Yes). The law establishes what are the requisites needed in order to be accredited as a mediator. It is up to mediation centres how the training is done. d. Number of hours for basic mediator training 80 hours. A person needs to complete a certain amount of theoretical and practical hours of training before being accredited as a mediator. The amount of hours needed is generally 80, 40 theoretical and 40 practical hours of training. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. Each centre has a particular method. But the general rules are prescribed by law. Therefore every mediation centre must fulfil these requirements.

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g. Accreditation through written exam No. There is no written exam that professionals have to take to become mediators, only a theoretical and practical course and a minimum number of hours. See 4.1.d. h. Accreditation through performance-based assessment Yes. Accreditation is decided by the training centre. Even if there is a set of rules established, each centre has the final decision about whether a person meets their standards for becoming a mediator.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Any lawyer can represent a client in mediation. There is no special accreditation or certification needed in order to be a mediation attorney. j. Set by market (private certifying bodies) No. Mediation advocacy accreditation is not set by the market as it is a new field in Ecuador and therefore attorneys do not have special accreditation.

EC

k. Set by public regulation No. Any attorney can represent a client in a mediation dispute.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) (Yes). Arbitration and mediation centres and the law determine who can be a mediator. b. Set by public regulation Yes. The law allows anyone who has completed the courses to be a mediator. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Anyone can be a mediator, they just need to meet the requirements to become one. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Anyone can be a mediator, they just need to complete the requisites to become one.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 1997. First law appeared in 1997, it has been modified in 2005 and 2006.

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8.

595

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. It depends on the structure given by the arbitration and mediation centre or the independent mediator. b. Individuals may be providers of mediation services Yes. The ‘independent mediator’ figure exists, where a person accredited as a mediator can provide these services. c. Mediation provider qualifications/requirements determined by public regulation (No). It depends mainly on the Arbitration and Mediation centres, not so much provided by law.

9.1. Mediator fees a. Freely contracted No. The mediator fees are given by Arbitration and Mediation centres, and it applies also for independent mediators. b. Fixed in some cases by public regulation (Yes). The decision to set fees for mediators is given also to the Arbitration and Mediation centres. c. Average mediator fee per hour for commercial or cross-border cases $150 (estimate). It varies depending on the mediator and the amount of the mediation. Since most mediation is confidential, it is impossible to give an accurate average fee, but an estimate would be US$ $150 an hour. d. Average mediator fee per hour in civil cases $0-250 (estimate). An estimated range between $50 and $250 per hour would broadly cover average mediator fees in Ecuador. There are, however, also some cases in which the amount is established according to a percentage of the amount in dispute. It is impossible to establish an accurate average amount as these are private institutions. Some examples: Mediation Centre de la función judicial is a government entity, and the services are free. Mediation Centre de la Procuraduría General del Estado is also a government entity, but has very low fees. Mediation Center de la Cámara de Comercio de Quito is a private entity, and the fee is a percentage of the amount in dispute.

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). The Public Defence Office must provide mediation services if the party requests it. f. Mediator fees covered by legal insurance schemes No. Ecuador does not have a mediation culture, therefore insurance does not cover mediation in their services. g. Mediator fees subsidised in court-connected schemes Yes. In any legal/court process, mediation is mandatory and it is free. The Ecuadorian Constitution establishes that any legal process is free. Following the same line of thought, mandatory mediation will be always free.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (Yes). Judges must respect mediation clauses and inform mediators if they know a case that has a mediation clause and parties want to respect it. If parties have reached a partial agreement in mediation a judge cannot rule on that part of the dispute. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. If there is a mediation settlement agreement, it is legally binding and must be taken into account. It has the same effect as a sentence (final judgment). Also, mediation before going to court is mandatory in several cases. c. Mediation procedure has impact on statute of limitations (Yes). Almost non-existent, but by law it is possible for mediation procedures to affect the statute of limitations.

11. Mediated settlement

EC

a. Contract No. The mediation settlement agreement is not seen as a contract. See 10.b. b. Automatically enforceable Yes. It has the same effect as a sentence (final judgment) and therefore can be enforced with the aid of the public system and the courts if necessary. c. Enforceable under some circumstances which are up to the parties No. It is not up to the parties to make it enforceable or not; it is mandatory and has to be respected and enforced, if necessary even with the aid of public force. d. Enforceable under some circumstances defined by public regulation Yes. It is enforced as a final decision given by a judge or a court.

12. Confidentiality a. Regulated by law Yes. The principle is that mediation is always confidential. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). Parties can decide to abolish confidentiality and make it public. When it comes to mediating with the State it usually is not confidential.

13. Education a. Mediation education is a common component of legal education curriculum (No). During legal education, it is not necessary or mandatory to complete a mediation course. However, there are several universities that have mediation as an elective course.

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597

b. Mediation advocacy education is a common component of legal education curriculum No. There is no advocacy education for training lawyers in how to represent a client in mediation. There are no courses a lawyer can follow to learn the difference between representing a client in litigation or in mediation.

14. Most relevant literature or references, jurisprudence, articles, law Most of the literature is from the United States. Nevertheless there are some people who are trying to create new literature. Probably the principal professor who is advocating for these fields is Jorge Zalles. He has two books, and several articles about this field. – Introducción a la teoría del conflicto. Origen, Evolución, Manejo y Resolución by Zalles Jorge H. – Barreras al Diálogo y al Concenso. Diagnóstico y Posibles Respuestas by Zalles Jorge H. – Getting To Yes, by Roger Fisher,Bruce Patton and William Ury. – Getting Past NO. Negotiating in Difficult Situations by William Ury. – Ximena Bustamante V. El Acta de Mediación.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://w w w.google.com.ec/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rj a&ved=0CCEQFjA A&url=http%3A%2F%2Fw w w.pge.gob.ec%2Fes%2Fdocumentos%2 Fdoc_download%2F93-ley-de-arbitraje-y-mediacion.html&ei=XKarUJSUDZHO8wTEqY DICQ&usg=AFQjCNGNJmqGYxfJHKZoWNv52hu4zdO3xA b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks In practice mediation in Ecuador is not a field professionals use much. However, it is a growing field and is becoming more important every day. More lawyers and companies are considering mediation as an alternative to trial, as it is a faster and more economic method. Mediation definition According to the Arbitration and Mediation Act in Ecuador, mediation is defined as: ‘Art. 43. La mediación es un procedimiento de solución de conflictos por el cual las partes, asistidas por un tercero neutral llamado mediador, procuran un acuerdo voluntario, que verse sobre materia transigible, de carácter extrajudicial y definitivo, que ponga fin al conflicto.’ Section 43. Mediation is a process of conflict resolution in which the parties, assisted by a third neutral person called a mediator, attempt to reach a voluntary agreement, that addresses subjects of arbitrability of an extra judiciary and definitive matter, that puts an end to the conflict’. There is no definition for mediator.

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Mediation regulation and approach Country: Ecuador Prepared by Juan Montalvo Perero, Adriana Lasso 1. Attempt to mediate

2. Mediation clause

EC

3. Mediation procedure

4.1. Mediator accreditation

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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(Yes) (Yes) Yes (Yes) No No No Yes No (No) (No) (Yes) No Yes Yes No E F E D GA/LO Joint Joint Yes No (Yes) 80 hrs No Yes No Yes

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599

Mediation regulation and approach Country: Ecuador Prepared by Juan Montalvo Perero, Adriana Lasso 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No (Yes) Yes No No NA 1997 Yes Yes (No) No (Yes) $150/hr (est.) $0-250/hr (est.) (Yes) No Yes (Yes)

Yes (Yes) No Yes No Yes Yes (Yes) (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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46. EGYPT 1 Prepared by Judge Dr Ehab Elsonbaty 2

1.

Attempt to mediate

a. Always voluntary Yes. There is no specific law that obligates the parties to opt for mediation. b. Mandatory (in some cases) Yes. In cases involving banking and investment, and banking disputes, the law may mandate the parties to work on an amicable settlement before opting to go to court.

EG

c. Court referral or court-connected mediation possible (No). With exception of family law cases in which a Settlement Office is established under the supervision of the court to try to resolve the case before it goes before the court. d. Court-ordered mediation possible No. The judge can advise parties to try mediation, but cannot mandate parties to go to mediation. e. Sanctions by the court if mediation is not tried (in good faith) No. The law does not impose any sanctions. f. Sanctions by law if mediation is not tried (in good faith) No. The law does not impose any sanctions. g. Incentives if mediation is tried voluntarily before going to court No. The law does not impose any incentives. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. In complex commercial cases or cross-border cases, the presence of lawyers during mediation is, however, common practice. 1 Last update of information: April 2013. 2 Judge Dr Ehab Maher Elsonbaty is a senior judge and a member of the civil, and commercial panels of the Egyptian Ccourts. He is now a on secondment to the State of Qatar as a senior legal advisor to the Office of H.H. the Amir, where he is also a member of the Council of Ministers for the Permanent Committee for Llegislative Affairs. He is also a certified arbitrator and mediator. Dr.Dr Elsonbaty holds two mMaster degrees and a Ph.D. He lectures on cyber law topics, technology in litigation and private international law in at various universities. He is a consultant to the ITU, UNODC, UNECA, Council of Europe, and ARADO. Dr.Dr Elsonbaty speaks Arabic, English, Italian and French. His areas of specializaisation are: commercial transactions (M & A, contracts), private international law (conflict of law, jurisdiction, arbitration, and ADRs) Ccyber laws (cybercrime, e-commerce, electronic signature), and cCriminal jJustice. Contact: [email protected].

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601

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Egyptian courts generally rule that as mediation is of a voluntary nature, an oral or a written mediation clause is not binding for the parties. It may, however, be assumed that this line, in the present jurisprudence, is strongly influenced by the inadequate quality of most mediation clauses. In most cases, they are very short and not specific, in the absence of any regulatory framework for mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. However, there is no record of a cassation court precedent. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the contract between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. As a rule a mediator does not offer advice, however, the mediator is allowed to do so at the parties’ request. d. Mediator can offer a binding opinion Yes. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The Egyptian mediation style has its roots in a facilitative mode, which is still common practice among many Egyptian practitioners. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative /Evaluative. Especially in family cases. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used.

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j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are several organisations which accredit mediators such as Cairo Regional Centre for International Commercial Arbitration http://www.crcica.org.eg/ and General Authority for Investment GAFI, http://www.gafinet.org/English/Pages/default.aspx. However, there is no law demanding a certain Accreditation of mediators. b. Set by market (private certifying bodies) Yes. There are several organisations of mediators (providers of mediation services or mediator interest representation groups), among which The Egyptian ADR Association http:// www.adregypt.com, is the largest. None of these organisations are regulated by law.

EG

c. Set by public regulation (Yes). in some activities such as investments. Presently not in general. d. Number of hours for basic mediator training 20 hours. (3 days). e. Mandatory continuing professional development for accredited/certified mediators No. This system is not applicable in Egypt. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) (Yes). Each organisation of mediators referred to in 4.a.and 4.b has its own set of rules and conditions concerning the accreditation of their mediators. Most organisations ask for additional practical experience and/or a performance-based assessment. See however, 4.c. g. Accreditation through written exam (Yes). Some of the organisations referred to in 4.a. and 4.b. See however, 4.c. h. Accreditation through performance-based assessment (Yes). Some of the organisations referred to in 4.a. and 4.b. have made a performance-based assessment a part of their accreditation procedure. See however, 4.c.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. Mediation advocacy is slowly being picked up as a separate field of mediation study. j. Set by market (private certifying bodies) Yes. All initiatives are private, there is no law governing mediation advocacy.

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46 Egypt

k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.a, 4.b. and 4.c. b. Set by public regulation No. Not yet. See 4.a., 4.b. and 4.c. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone can be a mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Presently anyone can be a mediator.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Most mediation providers are associations, partnerships, foundations or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual to be mediation provider. Also see par 8.c. c. Mediation provider qualifications/requirements determined by public regulation No. It is not foreseen that there will be legislation to govern the structure of bodies providing mediation.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation Yes. When conducted under the umbrella of a government entity such as GAFI.

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c. Average mediator fee per hour for commercial or cross-border cases US$ 300 (estimate). d. Average mediator fee per hour in civil cases US$ 300 (estimate).

9.2. Financing and legal aid e. Legal aid available for mediation services No. Legal aid for mediators is not available. f. Mediator fees covered by legal insurance schemes (Yes). Not generally covered but some insurance companies cover mediator fees in a limited way under their insurance schemes. There are currently also no incentives in insurance companies schemes to incentivise the use of mediation over court proceedings. g. Mediator fees subsidised in court-connected schemes No. Not at present.

EG

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court connected mediation schemes? No. Not at present. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Courts accept the role of mediators and their work. c. Impact mediation procedure on statute of limitations? No. In that there is neither a specific law nor case law in this regard, therefore the general principle of law applies, it would be very unlikely that the court would consider the effect of the mediation process on status of limitation as valid.

11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement as provided by the Civil Code. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Parties can ask a civil-law notary or a judge to make their settlement agreement enforceable. d. Enforceable under some circumstances defined by public regulation No.

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12. Confidentiality a. Regulated by law (No). Confidentiality is only regulated by general norms of law. There is no specific law on this. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (No). For national cases, mediators do not have the general right to refuse to give evidence in subsequent proceedings. However, if they have signed a statement to the contrary, it will be brought before the court.

13. Education a. Mediation education is a common component of legal education No. Mediation courses are offered at several universities, but it is not seen as a common component of the legal curriculum. b. Mediation advocacy education is a common component of legal education No. Mediation advocacy is slowly being picked up as a separate field of study.

14. Most relevant literature or references, jurisprudence, articles, law NA. International recognised materials from ADR organisations and association are often used.

15. Mediation legislation texts a. Weblink to legislation in national language NA. See 1.c. b. Weblink to English or other translation NA. See 1.c. c. Other references –– www.crcica.org.eg/ –– www.gafinet.org/English/Pages/default.aspx.

16. Country specific remarks –– Egypt is a civil-law country. No specific legislation on mediation is out yet, however, mediation does not contradict the general norms of Civil Code and Civil and Commercial Procedures Law. –– The practice of mediation is still young and growing, however, the abovementioned associations and organisations are working hard on education, awareness and codifying. Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Egypt Prepared by Ehab Elsonbaty

EG

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes Yes (No) No No No No Yes No Yes Yes No No Yes Yes Yes F F F/E F All Mix Mix Yes Yes (Yes) 20 hrs No (Yes) (Yes) (Yes) No Yes No

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607

Mediation regulation and approach Country: Egypt Prepared by Ehab Elsonbaty 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border)

Yes No No No NA No

a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases

Yes Yes No

Yes Yes $300 (est.) d. Average mediator fee per hour in civil cases $300 (est.) 9.2. Financing and e. Legal aid available for mediation services No Legal aid f. Mediator fees covered by legal insurance schemes (Yes) g. Mediator fees subsidised in court connected schemes No 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart No from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the (Yes) legal system?) c. Mediation procedure has impact on statute of limitations No 11. Mediated a. Contract Yes settlement b. Automatically enforceable No c. Enforceable under some circumstances, which are up to the parties Yes d. Enforceable under some circumstances defined by public regulation No 12. Confidentiality a. Regulated by law (No) b. Exemption from obligation to give evidence in court proceedings or arbitration (No) (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum No b. Mediation advocacy education is a common component of legal education No curriculum Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

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No = No (No) = No as a rule, but with (informal) exceptions

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47. INDIA 1 Prepared by Prathamesh D. Popat2

1.

Attempt to mediate

IN

a. Always voluntary (Yes). Parties always have the option of choosing their preferred ADR mechanism. They usually have it in their contract. Even when they are litigating in court and the court asks them to consider ADR, they have a choice between mediation, conciliation, arbitration and judicial settlement. Should the parties not be able to agree upon some particular ADR mechanism and the court feels it is a case fit for settlement, it may force them to go for mediation. For matters pending in court, the court can insist that parties consider one or the other ADR mechanism and should they not be able to agree on any, it may refer them to mediation. b. Mandatory (in some cases) Yes. Some legislation, like that pertaining to Electricity Boards and Commodity Exchanges, stipulate that an ADR mechanism must be set up by the service providers for dealing with disputes with consumers/end-users and that an amicable settlement must first be attempted through mediation or conciliation before referring the dispute to arbitration. c. Court referral or court-connected mediation possible Yes. The Code of Civil Procedure 1908 has been amended by adding a new Section 89 and Order X Rules 1A, 1B, 1C to give the courts of justice the power to refer cases pending before them to some form of ADR, if they deem it appropriate. The Supreme Court has adopted in its judgements in Salem Bar Association v. Union of India the model drafts prepared by the Law Commission of India as the Civil Procedure ADR Rules and the Civil Procedure Mediation Rules for the very purpose of smooth implementation of court-annexed ADR, including mediation. The judgement of the Supreme Court of India in Afcons v Cherian Varkey (Civil Appeal 6000 of 2010) has, while clarifying some issues pertaining to ADR, given a suggestive list of cases which would not be appropriate for settlement by any ADR mechanisms and made it clear that courts should refer all other cases to some or the other appropriate form of ADR. And here the Supreme Court has stated that where ‘the suit is complicated or lengthy, mediation will be the recognised choice.’

1 Last update of information: June 2013. 2 Prathamesh D. Popat, founder of Prachi Mediation Chambers, started his practice as a counsel at the Bombay High Court in the Chambers of now Senior Counsel Aspi P Chinoy after being admitted to the Bar in 1991. While initially appearing only in courts and tribunals, his practice is focussing more on ADR mechanisms. He is an accredited/certified LEADR and IMI mediator, and conducts private as well as court-annexed mediations. He also acts as an advisor to parties opting for mediation. Contact: [email protected].

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d. Court-ordered mediation possible Yes. Whereas consent of parties is essential for getting them to attempt to resolve their disputes through arbitration or conciliation, the court can order them to try out mediation even if one or both/all parties refuse to consent to the same. e. Sanctions by the court if mediation is not tried (in good faith) No. However, the situation is soon likely to change (see Rule 13(b) of the Civil Procedure Mediation Rules drafted by the Law Commission of India and adopted with modifications by the High Courts of each State of India).)Rule 13(b) states: ‘If a party fails to attend a session or a meeting notified by the mediator, other parties or the mediator can apply to the court in which the suit is filed, to issue appropriate directions to that party to attend before the mediator and if the court finds that a party is absenting himself before the mediator without sufficient reason, the court may take action against the said party by imposition of costs.’ Though this is the position in law, I have yet to see any of my parties doing that (applying to court) even when the other party has failed to appear repeatedly in spite of the court’s order. However, things are likely to change soon as, under the courts pushing ADR, more and more parties and lawyers are taking mediation seriously and will soon get more sophisticated in matters relating to ADR. Even though the costs may not be a deterrent, the lawyers would be concerned about the court passing orders detrimental to their clients’ interests should they fail to show participation in good faith. f. Sanctions by law if mediation is not tried (in good faith) No. There is no separate legislation on mediation and hence there are no such and other similarly important provisions available for making mediation more widely used as an effective dispute resolution mechanism. g. Incentives if mediation is tried voluntarily before going to court No. However, where parties have, in a pending litigation, wholly settled their disputes through an ADR mechanism, the court Fees are refunded in full in most states of India. h. Outside counsel presence/representation during mediation sessions allowed Yes. There is no general rule for prohibiting participation by anyone other than the parties. Private mediations happen as per the parties’ agreement and court-annexed mediations already have lawyers on both sides who usually always accompany their clients. There are rare exceptions in some statutory ADR provisions in a few laws, which have stricter provisions for representation of parties by others (like those having an ombudsman system). But these do not represent the general picture and these are so few that they should be ignored so as to avoid confusion. Regarding representation through an authorised representative: court-annexed mediations require parties to be present themselves, unless they are not resident in India (Rule 13 of the Bombay High Court’s Civil Procedure Mediation Rules); statutory mediations, too, require the presence of the parties. ‘The parties not resident in India, may be represented by their counsel or power of attorney holder at the sessions or meetings.’ (Rule 13 of Civil Procedure Mediation Rules). i. Outside counsel presence mandatory No.

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2. Mediation clause a. Case admissible in court with a mediation clause Yes. In fact, parties genuinely seeking finality for their dispute through amicable resolution processes may be happier with court-annexed mediation rather than private mediation as an outcome in court-annexed mediation is immediately executable. In comparison, if any party reneges on their obligation in private mediation, a suit would have to be filed first, which would take several years to be heard, decided and appealed before a final outcome which could be executed.

IN

b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. (See the Lokesh Garments v. MTNL judgement of Delhi High Court dated 11.1.2002). c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. However, this scenario will soon change as the culture of mediation spreads, especially with the backing of court-annexed mediation. The practice thus far has been to have only an arbitration clause in all contracts, if at all. Hence mediation is not found in any contracts as a pre-cursor to arbitration or litigation. Even where it is found, it would usually have a step clause, requiring first mediation and then arbitration. Once there is an arbitration clause, the court is bound, under the Arbitration and Conciliation Act, 1996, to refer it to arbitration. There being no statute requiring the court to first refer it to mediation in view of the mediation clause in the contract, the court would be duty-bound to follow the statutory provision of asking parties to commence arbitration as there is ample precedence on this point by all the courts, including the Supreme Court.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Presently there is no applicable legislation for the regulation of ad hoc mediation. Hence, parties can choose their own procedure for reference to mediation, as they can when appointing the Mediator who, in turn, can choose their own process and mould it as they weave through the dynamics of the process. For court-annexed mediation, the parties can choose the procedure to be followed for the conduct of the mediation, failing which the one laid down in Rule 11 will have to be followed. Similarly, the procedure for conciliation, a close cousin of mediation, is well described in law (see Sections 60 to 80 of the Arbitration and Conciliation Act, 1996). Rule 11 regulates that ‘Where the Parties have not agreed on a procedure to be followed by the Mediator, the latter is to: (i) Schedule the dates and timings of the sessions in consultation with the parties where they have to be present; (ii) Conduct the mediation sessions in the areas designated by the concerned Court; (iii) Require the parties to provide and exchange, 10 days before the sessions, their respective brief memorandum of the items that require resolution, their position on each item and such further information as may be required for the Mediator to understand the issues;

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(iv) Require the parties to provide copies of such pleadings and documents as also such other information as he may require in connection with the issues;’ b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). Parties are free to choose their own procedure for reference to and appointment of mediator. However, where their contractual relationship is under the aegis of a statute or a set of rules or regulations which stipulate the dispute resolution process, then these would prevail. Examples of this can be found in cases involving the Electricity Boards and Commodity and Stock Exchanges. c. Mediator can offer a non-binding opinion Yes. The process being flexible, and as there is no legislation or regulatory body making stipulations for the profession, mediators can be as flexible as they deem appropriate to assist the parties in reaching a resolution of their own volition. And for that purpose, they may offer some suggestions in the course of brainstorming and option generation, making it clear that they are mere suggestions, meant only for consideration of parties. d. Mediator can offer a binding opinion No. (See Rule 17 of the Civil Procedure Mediation Rules: ‘The mediator shall not impose any decision on the parties’.) e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative). It would depend upon the dynamics of the dispute whether a facilitative or evaluative style is appropriate for a given commercial dispute. However, parties having a legal relationship would be better off opting for conciliation, an evaluative style, and following the procedure laid down for that purpose in the Arbitration and Conciliation Act, 1996, so as to benefit from the instant enforceability afforded to the settlement by that Act. There is some anecdotal occurrence of a transformative approach, but only in a family business scenario. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. However, see 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. However, see 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. However, see 3.e. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral/general advice. Section 67(4) of the Arbitration and Conciliation Act, 1996, stipulates that: ‘The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor’. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix.

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k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). Several institutions and organisations, and especially the courts, are endeavouring to have their own panels of accredited/certified mediators and have, for that purpose, started arranging training for their constituents.

IN

b. Set by market (private certifying bodies) (Yes). It is ultimately the market that decides which provider of dispute resolution services to opt for and the decision used is guided by the long-standing trust in a given institution/ organisation or the preferred individual. See 4.1.c. c. Set by public regulation (Yes). There is no formal law in place yet for mediation and hence no standards are set for mediators’ accreditation. However, the Supreme Court has made it mandatory for all high courts to establish rules for mediation that include stipulations for training mediators and accrediting them by putting them on their mediators panel. The same is true of some regulatory authorities, who have stipulated that their constituents must establish infrastructure for resolving their end-user disputes through mediation and for which purpose they must have a panel of trained mediators. d. Number of hours for basic mediator training 40 hours. Initial enthusiasm led to training courses being devised by some public bodies for over 100 hours, which were later reduced to far fewer hours. However, of late the consensus seems to be hovering around 40 hours. e. Mandatory continuing professional development for accredited/certified mediators (No). Although it is very much required for a field which is soft skill-intensive, there is only talk of having continuing training being imparted from time to time to mediators who have already undergone training. This will soon change with greater emphasis being placed on training by the several regulatory bodies as also by the courts. Today, it is somewhat like ‘you get a training once and you are a mediator for lifetime’, and if you fall into one of the listed categories, like retired judge or senior bureaucrat, you do not even need that initial training. However, some courts do endeavour to provide follow-up training for some of their empanelled mediators. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) Yes. Rule 4 of the Civil Procedure Mediation Rules lists several categories of persons eligible for empanelment as mediators merely by virtue of their designation. These include retired judges, retired senior bureaucrats, retired senior executives, legal practitioners with 15 years standing in district courts or higher courts, experts and other professionals with 15 years standing. g. Accreditation through written exam No.

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h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. Mediation bodies can make their own rules as to who can be on their roster. It is common for disputants to choose as a mediator the person they both trust. And it need not be a person who is trained or is even a ‘neutral’ in the strict sense. b. Set by public regulation (No). There is no law in place stipulating who can be a mediator. However, the High Courts do have Rules stipulating mediator qualifications where Court-Annexed mediation is concerned. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No general legislation. 2002 (Civil Procedure Code). Conciliation has been introduced through the Arbitration and Conciliation Act in 1996. Mediation was effected in the Code of Civil Procedure, 1908, in 2002 (though the same was introduced in 1999). Prior to these, mediation was provided for in the Industrial Disputes Act, 1947.

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Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. There is no general legislation for mediation. Only some regulatory bodies and the courts havefor their own consumption, introduced certain guidelines through rules, regulation, notifications or circulars. That being so, mediation bodies may have such legal forms as suit their purpose. b. Individuals may be providers of mediation services Yes. However, their qualifications and stature will determine whether or not they will get appointed often. c. Mediation provider qualifications/requirements determined by public regulation No. The courts and regulatory bodies for specific markets are not to be considered here as their mediation providing services are restricted to their respective domains of operation and do not influence the mediation providers for the public at large.

9.1. Mediator fees

IN

a. Freely contracted Yes. Except in the case of institutional ADR, in which case it would be as per the rules of the institution concerned. b. Fixed in some cases by public regulation No. There is no law regulating the mediator fees. It is only in the case of court-annexed mediation that each high court stipulates the fees as a general rule or on a case-to-case basis. c. Average mediator fee per hour for commercial or cross-border cases Rs. 0- 10.000. Mediation is a very new field as an independent professional practice and, as such, data on fees charged by mediators is not available. The courts are urging lawyers and others to get training as mediators and offer their services at very reduced fees. Initially these were as low as Rs. 500 (US$10) for every two hours in Mumbai and that after the first four hours were free. However, lawyers charging Rs. 10,000 to 50,000 (US$200 to 1,000) per hour as legal fees willingly offered their services pro bono and continue to do so even today. As there is a need for spreading the culture of ADR in general and mediation in particular, lawyers continue to charge low or no fees whenever they are requested to mediate. There are also some mediators who, for mediation, charge half or one-third of what they would charge for giving their time as arbitrators (typically Rs. 5,000 to 10,000 per hour) and they agree to lower fees especially if the claim amount is too small, not warranting too much expenditure. These neutrals, when they get parties to resolve their disputes amicably through a few sessions of mediation (as compared to several days of arbitration), benefit from a ‘feel-good’ factor. Thus Rs. 3000 (US$60) per hour may be considered to be a rough and ready average fee for a mediator. d. Average mediator fee per hour in civil cases Rs. 0-10.000. There is no great sophisticated distinction between different types of mediations, hence see ‘9.c.’

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9.2. Financing and legal aid a. Legal aid available for mediation services Yes. b. Mediator fees covered by legal insurance schemes No. Not even lawyers are covered by any insurance scheme. c. Mediator fees subsidised in court-connected schemes Yes. Each state’s high court has its own fee structure for mediators and these are hugely subsidised.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from courtconnected referrals or court-connected mediation schemes? No. However, judges in the lower level of the judiciary prefer referring matters for mediation to their brother judges. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Presently to a large extent. However, several service providers of arbitration are now endeavouring to also provide mediation and conciliation as additional services. c. Mediation procedure has impact on statute of limitations No. There is no legislation for mediation. Hence, there are no legal provisions stipulating that commencement of a mediation procedure will stop the limitation clock from ticking. Even the provisions relating to Conciliation stipulate that a party may ‘initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.’

11. Mediated settlement a. Contract Yes (out-of-court)/(No) (in court). If it is a private mediation, it is like any other contract requiring a lawsuit to be filed for seeking legal remedies. In the case of court-annexed mediation, it is taken on record by the court and the pending litigation is disposed of in view thereof. This makes the mediated settlement immediately enforceable by way of direct execution. b. Automatically enforceable No. (See 11.a.). However, the private settlement arrived at through the process of conciliation as laid down in the Arbitration and Conciliation Act, 1996, is enforceable forthwith (see Section 74, together with Section 30 of the Arbitration and Conciliation Act, 1996). c. Enforceable under some circumstances which are up to the parties (No) (out-of-court mediation)/(Yes) (in court). The parties can either refer the dispute directly to conciliation as per the Arbitration and Conciliation Act, 1996, or first refer the dispute to arbitration and from there have it referred to conciliation or mediation. The

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settlement achieved through either route would give it an enforceable title. For in-court mediation, see 11.a. d. Enforceable under some circumstances defined by public regulation Yes. See 11.c.

12. Confidentiality a. Regulated by law Yes. (See Rule 20 of the Civil Procedure Mediation Rules and Section 75 of the Arbitration and Conciliation Act, 1996) b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes) out-of-court /Yes (in court mediation), explicit in court-annexed mediation (see Rule 2 of the Civil Procedure Mediation Rules). If there is conciliation, it can be waived by the agreement of the parties (see Section 80 of the Arbitration and Conciliation Act, 1996).

IN

13. Education a. Mediation education is a common component of legal education curriculum Yes. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, jurisprudence, articles, law –– Model Rules of ADR and Model Rules of Mediation framed by Law Commission of India –– Mediation Practice and Law – by Sriram Panchu published by Lexis-Nexis Butterworths Wadhwa –– Mediation and Conciliation – by Prathamesh D Popat – a Monograph Series publication of The Chamber of Tax Consultants –– Code of Civil Procedure, 1908

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation –– http://ssi.up.nic.in/DIMatter/Acts/arbitrationnconciliationact1996.pdf –– http://bombayhighcourtnic.in/mediation/civil%20procedure.pdf c. Other references NA.

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16. Country specific remarks Whereas law relating to Conciliation was introduced along with the law relating to Arbitration in 1996, the provisions for Court-Annexed ADR introduced in Section 89 of the Code of Civil Procedure, 1908 have led to drafting of a Model set of Rules for ADR and Mediation by the Law Commission of India which have been adopted by the several High Courts in India with such amendments as they considered appropriate. These rules relate to court-annexed ADR implemented by these high courts and the courts sub-ordinate to them. Mediation definition While the Industrial Disputes Act, 1947(http://www.indiankanoon.org/doc/500379/) gives elaborate procedures for conciliation, it does not define it. Mediation too has not been defined. The only definitions that I have come across are those contained in the definitions of ‘Settlement’ as enumerated in the Bombay High Court’s ‘Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006’.3 ‘Settlement by “conciliation” means the process by which a conciliator who is appointed by ­parties or by the court, as the case may be, conciliates the disputes between the parties to the suit by the application of the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) in so far as they relate to conciliation and in particular, in exercise of this powers under Sec­tions  67 and 72 of that Act, by making proposals for a settlement of the dispute and by ­formulating or reformulating the terms of a possible settlement; and has a greater role than a mediator. Settlement by “mediation” means the process by which a mediator appointed by parties or by the court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2006 in Part II, and in particular, by facilitating discussion between the parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties own responsibility for making decisions which affect them.’

3

These provisions can also be found on http://mediate.com/prachi/pg2.cfm under ‘statues and rules.

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Mediation regulation and approach Country: India Prepared by Prathamesh D. Popat 1. Attempt to mediate

2. Mediation clause

IN

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(Yes) Yes Yes Yes No No No Yes No Yes Yes No No (Yes) Yes No F/(E) F F F N/GA Mix Mix (Yes) (Yes) (Yes) 40 hrs (No) Yes No No

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Mediation regulation and approach Country: India Prepared by Prathamesh D. Popat 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract

b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes (No) No No NA No Yes Yes No Yes No Rs.0-10.000 Rs.0-10.000 Yes No Yes No

Yes No Yes (out-of-court)/ (No) (in court) No (No) (out-of-court)/ (Yes) (in court) Yes Yes (Yes) (out-of-court)/ Yes (in court) Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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48. INDONESIA 1 Prepared by L.M. Hayyan ul Haq Ph.D., SH., LL.M., Ph.D.2 – Dr Zainal Asikin, SH., SU.3 – Dr Zainul Daulay, SH., M.Hum. 4

ID

1.

Attempt to mediate

a. Always Voluntary (Yes). In Indonesia, principally, the core characteristic of mediation is voluntary. However, for some cases, mediation is not always voluntary, for example, in banking disputes. In this respect, the disputes are usually sparked by suspended payment in loan cases and auction cases. In auction cases, the bank has the authority to sell the guaranteed goods through an auction system, but the creditor is also provided an opportunity to sell their own guaranteed goods in order to obtain a reasonable price. In practice, the decision to sell through an auction or by the creditor themselves will be decided through deliberation-based mediation. Under the Indonesian legal system, all banking disputes should be mediated by the Banking Mediation Institution (Lembaga Mediasi Perbankan – LMP). This compulsory mediation is based on the Regulation of Indonesian Supreme Court (PERMA) No. 02/2003 concerning the procedure of Mediation in the Court and the regulation of the Bank of Indonesia (Peraturan Bank Indonesia – PBI) No. 8/5/PBI/2006. Under Section 616 of the Indonesian Civil Procedure (Rechtsvordering (Rv),5 it is stated that grants, divorce, status disputes of a person and other disputes regulated under the Indonesian positive laws cannot be solved through mediation and arbitration.6 In addition to the these cases, many cases or legal disputes, which are solved under the existing living laws in society, such as adat law (see 16), are recognised and allowed. In this respect, mediation is not compulsory. Principally, the contracting parties themselves should solve the resolution of conflicts or disputes that arise from contract law. According to Section 6, of the Act No.30/1999 concerning Arbitration and Alternative Dispute Resolution, all civil disputes or different views is solved by parties themselves based on good faith principle. The resolution could be achieved without the settlement through a litigation approach in the public court. The settlement of disputes and different views through alternative dispute resolution, as referred to in Section 1, should be settled in a direct meeting of the disputants during

1 Last update of information: May 2013. 2 Hayyan ul Haq, LL.M., Ph.D, Business Law Department, Mataram University, Indonesia, and Molengraaff Institute for Private Law, Utrecht University, the Netherlands. Contact: [email protected]; [email protected]. 3 Dr Zainal Asikin, SH., SU. Business Law Department, Mataram University, Indonesia. Contact: [email protected]. 4 Dr Zainul Daulay, SH., M.Hum. International Law Department, Andalas University, Indonesia. Contact: [email protected]. 5 This Rv is still effective in Indonesia, as the Indonesian legal system applied the Concordance Principle that adopted and applied all Dutch regulations under colonial rule that are still effective. 6 This is because mediation and arbitration cannot create an authentic act like a court’s decision. Therefore, divorces, status of a legal person, and testaments should be decided through a court decision.

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a period of maximum 14 days and the results should be recorded in a written agreement.7 If a dispute or different opinions or views, as referred to in the Section 2, cannot be solved, the dispute will be solved by a third party, an advisor, and the independent and expert persons in the case concerned. The team can consist of one or more persons.8 If the disputants, with the assistance of the third parties, fail to settle or solve the disputes or achieve the settlement agreement within a maximum of 14 days, the disputants could contact an arbitration institution or other alternative dispute resolution institution to appoint a mediator.9 The efforts in solving the disputes or different views through mediation, as referred to above, should be confidential. Moreover the mediation should be concluded within a period of 30 days, with a written agreement signed by all interested parties.10 Clearly, the settlement of disputes through mediation could involve expert witnesses or other experts that are appointed by disputants (related parties).11 If the settlement agreement cannot be achieved under the guidance of the appointed mediator, the disputants could ask the court’s assistance to appoint another mediator. In this case, the chief justice of the district court will appoint a mediator to settle the case.12 b. Mandatory (in some cases) (Yes). Normally, mediation in certain cases in Indonesia, such as civil cases in general, banking, and environmental disputes, are encouraged, even obliged, whereas for criminal cases, mediation is not recognised or allowed. Even though, in practice, societies frequently apply informal mediation to criminal cases, this has no direct impact for legal enforcement. In this context, the process of the results of mediation cannot eliminate the character of the criminal case. However, the results of mediation could be taken into consideration by a judge to reduce the punishment. c. Court referral or court-connected mediation possible Yes. See 1.d. d. Court-ordered mediation possible Yes. The regulation to oblige the parties to mediate comes from the Indonesian legal procedure (HIR and RBG). Before the judge (court) examines the case, he or she usually asks or instructs the parties to do participate in mediation through a court mediator (a judge mediator, see 16). e. Sanctions by the court if mediation is not tried (No). In this case, a judge will provide an opportunity for the parties to settle their dispute through mediation. A judge will usually not examine the case if it is not handled or solved by a mediator first. The mediators are provided by the court or another institution and mediation should be tried for at least 30 days.13

7 8 9 10 11 12 13

Act No.30/99 concerning Arbitration and ADR, Section 6(1). Act No.30/99 concerning Arbitration and ADR, Section 6(2). Act No.30/99 concerning Arbitration and ADR, Section 6(3). Act No.30/99 concerning Arbitration and ADR, Section 6(4). Act No.30/99 concerning Arbitration and ADR, Section 13(1). Act No.30/99 concerning Arbitration and ADR, Section 13(2). See: Regulation of Indonesian Supreme Court (PERMA) No.02/2003, Section 2.

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f. Sanction by Law if mediation is not tried No. There is no legal sanction if mediation is not tried or implemented. This is because mediation in Indonesia is done on a voluntarily base (see 1.a). g. Incentives if mediation is tried before going to court No. However, Act No.30/1999, Section 1 puts the burden of the arbitrational costs on the party that loses the arbitration. In this respect, the Act obliges the losing party to take the responsibility to handle all arbitrational costs.14 However, if demands are partly fulfilled or granted, the cost of the arbitration is borne by both parties/disputants equally.15 Based on this, it is to be expected that some cost implications for mediation may be decided by the courts. h. Outside counsel presence/representation during mediation session allowed Yes. i. Outside counsel presence Mandatory Yes. For out-of-court mediation. No for in court mediation.

ID

2. Mediation Clause a. Case admissible in court with a mediation clause No. The case law of the Indonesian Supreme Court (court decision) states that the Indonesian Supreme Court will nullify any court decision that ignores mediation and arbitration clauses.16 For example, if in a civil case the contracting parties agreed to settle their disputes through mediation and arbitration, and the court makes a decision about the case without considering the mediation and arbitration clauses, the Indonesian Supreme Court will nullify the court decision.17 In these cases, the Indonesian Supreme Court holds that the court decisions have not accurately considered that mediation and arbitration clauses gives absolute authority to arbitration to settle the dispute. Parallel with the above opinion and position, the case law of the Indonesian Supreme Court (MARI) No.255 K/SIP/1976 states that the Indonesian Supreme Court has no authority to examine a case or disputes where the dispute contains mediation and arbitration clauses. This statement or view has been visualised and implemented in its decision on 30 September 1983 in the case Datok Wong Heck Guong and PT. Metropolitan Timber Ltd. v. Gapki Trading Co. Ltd, even though the defendant did not invoke the arbitration clause. The case law of the Indonesian Supreme Court (MARI) No. 3179/PDT/1984 states ‘if the agreement between the two contracting parties contains mediation and arbitration, the public court has no authority to examine and to solve the case

14 Act No.30/99 concerning Arbitration and ADR, Section 77(1). 15 Act No.30/99 concerning Arbitration and ADR, Section 77(2). In this respect, the all parties will be burdened by the arbitrational or mediational cost if the mediation put the burdens on both parties. But, if one of parties’ demands is fully fulfilled, it means that the other is assumed to be the losing party that was at fault, therefore referring to the court system, and justice principle. In this case, it is just the losing party that was at fault should take all punlishment, pay fines and the cost of court examination decided by court. 16 It is important to note that according to the Indonesian legal system, the steps of the litigation should include mediation first. If mediation fails, it must be solved through arbitration. Then, if the arbitration fails, the case should proceed to litigation step. See: The Act No.30/1999, Sections 3 and 6. Even if the case has already gone to court, the judge usually advises and refers the disputants to mediation again. 17 See: Case law of the Indonesian Supreme Court (Decision Court) No.2179 K/Pdt/2010), Case law of Indonesian Supreme Court (MARI) (Court Decision) No.255 K/SIP/1979.

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either at the stage of convention or reconvention’.18 Parallel with the above case law, see also: Case law of the Indonesian Supreme Court No.177/K/SIP/1981 concerning the competence or authority of the court.19 In this case, the public court of Central Jakarta said that it has no authority to examine and solve the case because Article 5 of the Rental Contract on 15 June 1976 explicitly said that all damages in the rental case must be examined or solved through mediation and arbitration’. This is because the rental contract already mentioned that mediation should be the first alternative solution to calculate and solve the damages in the rental contract. So legal principle in Indonesia maintains that the public court has no authority to handle, examine or solve any case that contains mediation and arbitration clauses. Therefore, the judge will refuse the case that has not been solved through mediation and arbitration. Because of this clear case law on mediation and arbitration clauses, it can be expected that similar rules will be effective to any case with a mediation clause. In any contract made by contracting parties, there is usually a clause that regulates dispute settlement and that disputes related to the contract will be solved through mediation, particularly in business contracts drawn up by a civil-law notary. However, for contracts that are not made by a notary, there is generally no arbitration or mediation clause. If the process of mediation cannot be done and achieve conflict resolution, the contracting parties have to agree to choose the court to solve or handle the case. If a contract is not drawn up by a notary, parties are not bound by the regulation that obliges them to solve their disputes through mediation. But, in practice, the disputants will normally try mediation first to solve their disputes voluntarily. If mediation fails, then they will agree to choose the court for solving their mediation. This is because the judge will advise and refer the disputants to mediation and arbitration to solve their disputes. b. Case admissible in court, however, the judge may take this into account and there is some case law (No). In general the case is not admissible in court if there is a mediation clause. However, there are exceptions, especially in cases involving bankruptcy (insolvency). Even if there are mediation and arbitration clauses, the Indonesian Supreme Court maintains that the Commercial Court should handle the case because it has authority to settle or handle bankruptcy cases. This rule was introduced to provide equitable protection to third parties or public interest. However, even though the Indonesian Supreme Court gives authority to the Commercial Court in settling insolvency cases, the Commercial Court still has an accord institution that provides an opportunity to formulate and agree to a mutual agreement. In the Indonesian legal system, this accord institution has a similar function to mediation and arbitration. It is likely that a mediation clause will be treated the same way. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. Under the Indonesian legal system and based on related case law, if there is a mediation clause, mediation is always mandatory or compulsory and has to be implemented before the case is filed in the public court. But if the case does not contain a mediation clause, the public court will have authority to settle the case. See 2.a. and b.

18 Case law of Indonesian Supreme Court (MARI) No. 3179/PDT/1984. 19 Case law of Indonesian Supreme Court No.177/K/SIP/1981.

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3.

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Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law Yes. Described and determined in Law and the mediation provider institution. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Flexible. c. Mediator can offer a non-binding opinion Yes. d. Mediator can offer a binding opinion Yes. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral and general advice. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Joint session. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint session.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). Act No.30/1999 concerning Arbitration and ADR, does not regulate the accreditation of mediators in detail. The Section 12 of the Arbitration and ADR Act only regulates the requirements for mediators in general. See 5.b. b. Set by market (private certifying bodies) (No). See 5.b.

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c. Set by public regulation Yes. See 5.b. d. Number of hours for basic mediator training NA. There is no common practice or regulation yet. There is no clear regulation on the institution that has rights and competence to prepare and provide training and education for professional mediators as well as to provide certification for professional mediators in Indonesia. This is different from the role of curator in Indonesia, where training (minimum 200 hours), permission, and appointment are handled and facilitated by the Ministry of Law and Human Rights. e. Mandatory continuing professional development for accredited/certified mediators No. See 5.b. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. See 5.b. g. Accreditation through written exam No. See 5.b. h. Accreditation through performance-based assessment No. See 5.b.

4.2. Mediation advocacy accreditation No. See 4.d. i. Accreditation/certification or recognition of mediation advocates No. See 4.d. j. Set by market (private certifying bodies) No. See 5.b. k. Set by public regulation No. See 4.d.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. b. Set by public regulation Yes. Act No.30/1999 concerning Arbitration and ADR, Section 12(1), states that ‘the eligible person to be appointed as a mediator should fulfil the following requirements: (a) she or he should has legal capability, (legal knowledge and skill); (b) the age of a mediator is at least 35 years old; (c) she or he should not have any relationship or family relationship with the disputants, (d) she or he should not have financial interest or other interests related to the arbitrational decision; (e) she or he has experiences or has been mastering their fields (expertise) for at least 15 years’.

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In Section 12(2), the Act excludes the judge and prosecutor or other judicial staff from being mediators.20 After examining this section, we found inconsistency in the legal endeavours at a practical level. This is because the regulation of the Indonesian Supreme Court (PERMA) No.03/2003 appointed a judge to be a mediator. Some persons, such as judges in the district court, provincial court and Supreme Courts, recognised these inconsistencies. They commented that the existence of mediator judges in the provincial and district levels are caused by the lack of mediators as well as capable (cognisant and skilled) mediators at provincial and district levels. The Regulation of the Indonesian Supreme Court (PERMA) No.02/2003 determines that a mediator should be certified as a mediator. This certification is a document that states that the mediator passed the mediation education and training that have been offered by institutions accredited by the Indonesian Supreme Court.21 However, the Indonesian Supreme Court does not explain which institutions have been accredited to provide accredited training to be an accredited mediator. In detail, Section 6 (1) of PERMA No.02/2003 states that a mediator in the court should come from judicial staff or a judge in the related court. The section also states that the mediator could be a non-judge, but she or he must have a certified as a mediator.22 Furthermore, the section states that every court should have at least two mediators.23 Then, in its Sec­ tion  6(3), the regulation obliges every court to have a list of mediators including their curriculum vitae and experience as mediators. All of the mediators under the related court should be annually evaluated. Thus, based on the regulation of the Indonesian Supreme Court (PERMA No.02/2003), a judge could be a mediator as long as she or he has passed the accredited training and is a certified mediator. According to government regulation No.54/2000, the institution of mediation in environmental issues in Indonesia is the institution providing mediation services established by the government. In this respect, the institutions that provide mediation services are the central and regional government.24 It is stipulated that the institutions that are established by the central government should be validated and determined by the Minister of Environment when they are established in the institution that is responsible for controlling the impact on the environment.25 The institutions that are established by the regional government are to be validated and determined by the governor or the head of district or major when they are placed in the institution that is responsible for handling and controlling the impact on the environment at a regional level. For mediators that fall under the Regulation of the Bank of Indonesia (PBI) No. 8/5/ PBI/2006, even though the regulation requires a special banking mediator for handling banking disputes, it does not regulate the training process, examination or certification for banking mediators. Thus, it can be concluded that the existence, status and the role of mediator in Indonesia are regulated under various regulations, such as (i) the appointment of a mediator by courts after being certified by the Indonesian Supreme Court; (ii) the appointment of a mediator by the government as an environmental mediator; and (iii) the appointment of mediator by society based on their skills, capabilities and professionalism. There is no clear regulation on the institution that has rights and competence to prepare and provide training and education for professional mediators as well as to provide 20 21 22 23 24 25

See: Act No.30/1999, Section 12(2). See: PERMA No.02/2003, Section 1(10). See: PERMA No.02/2003, Section 6(1). See: PERMA No.02/2003, Section 6(2). See: Government Regulation (PP) No.54/2000, Section 8(1). See: Government Regulation (PP) No.54/2000, Section 8(2).

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certification for professional mediators in Indonesia. This is different from the role of curator in Indonesia, where their training, permission and appointment are handled and facilitated by the Ministry of Law and Human Rights. For these reasons, it is necessary to recommend that the Indonesian Supreme Court needs to strengthen the internal mechanism in preparing professional mediators, not only at the central level, but also at provincial and district levels. This effort could be started from academic cooperation with universities and other national and international professional institutions for mediation. This academic cooperation could focus on the method for formulating a strategic curriculum in mediation, on standardising the curriculum and on the output of the training and education of mediation. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 5.b. A mediator needs to have legal knowledge or skills, but does not have to be a legal professional. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.b. and c.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 1999.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. For example, mediation bodies for banking disputes and mediation bodies for environmental cases or other general commercial cases. b. Individuals may be providers of mediation services Yes. But individual mediators are usually appointed by the courts. Some individual mediators are also associated with a mediator institution. c. Mediation provider qualifications/requirements determined by public regulation (No). Only for the mediation provider for banking disputes. That is Banking Mediation Institution (Lembaga Mediasi Perbankan (LMP)).

9.1. Mediator fees a. Freely contracted Yes. In the Indonesian legal system, there is no clear regulation on incentives, operational cost, and other costs for preparing and making mediation or arbitration. The Act No. 30/1999, Section 76 generally regulates the cost of arbitration. The section states that all arbitrational costs are determined by the arbitrator.26 In detail the Act No.30/1999 regulates some 26 Act No.30/99 concerning Arbitration and ADR, Section 76(1).

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components of arbitration that covers: (a) honorarium (fee) for arbiter;27 (b) operational cost incurred by the arbitrator;28 (c) expenses for witnesses or expert witnesses which are needed in the examination of the disputes;29 and (d) administration costs.30 b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases Around Rp. 1,000,000 (one million rupiahs). d. Average mediator fee per hour in civil cases In between Rp.700,000 (seven hundred thousand rupiahs) and Rp. 1,000,000,- (one million rupiahs).

9.2. Financing and legal aid a. Legal aid available for mediation services Yes.

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b. Mediator fees covered by legal insurance schemes No. c. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. Judges are obliged to offer mediation and appoint mediators before they examine the case. This obligation is provided for in the Indonesian legal system. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. mediation is a preliminary step in settling the case through litigation system. c. Mediation procedure has impact on statute of limitations No.

11. Mediated settlement a. Contract Yes.

27 28 29 30

Act No.30/99 concerning Arbitration and ADR, Section 76(2)(a). Act No.30/99 concerning Arbitration and ADR, Section 76(2)(b). Act No.30/99 concerning Arbitration and ADR, Section (76)(2)(c). Act No.30/99 concerning Arbitration and ADR, Section 76(2)(d).

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b. Automatically enforceable Yes. c. Enforceable under some circumstances which are up to the parties No. d. Enforceable under some circumstances defined by public regulation Yes.

12. Confidentiality c. Regulated by law No. d. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

13. Education a. Mediation education is a common component of legal education curriculum Yes. Mediation is generally taught in legal education curricula at Indonesian universities. b. Mediation advocacy education is a common component of legal education curriculum No. Not yet. Mediation advocacy training is usually covered in advocacy education in post-­ academic programmes.

14. Most relevant literature or references, jurisprudence, articles, law NA.

15. Mediation legislation texts a. Weblink to legislation in national language. Implicit in the Act No.30/1999. b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks In resolving disputes through mediation in Indonesia, the institutions that have the competence, obligation and role to settle the disputes are:

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1. Institutions that provide mediation services and that are recognised by the government and/ or society for solving any dispute in environmental issues as regulated under government regulation (PP No.54/2000 concerning Non-Litigational Institutions that Provide Mediation Services in Environmental Disputes). 2. According to the Regulation of the Indonesian Supreme Court (PERMA) No.3/2003, mediation consists of mediators that are provided or listed by the court and mediators that practice outside the courts. In settling the case through mediation, the regulation stipulates that all parties (disputants) and their legal representatives or their lawyers should be present in the process of mediation. 3. Another form of mediation is regulated under the banking law system. In this respect, there is the Institution for Banking Mediation (LMP), which is regulated under the Regulation of the Bank of Indonesia (PBI) No.8/5/PBI/2006. The institution (LMP) is an independent institution established by the founders, but in carrying out their duties and obligations, the LMP is obliged to maintain its independence: it has to be independent of its founder (it must not obey the interests of its founder), and it must be independent from intervention of its founder or other parties or institutions. The LMP is an institution that plays a role in mediating certain cases or disputes in the field of banking. However, it should be noted that the LMP is not a part or subordinated institution of the Bank of Indonesia. It is also free and independent from the intervention of the Bank of Indonesia. 4. In addition, in Indonesia, there is mediation that has been practiced by Indonesian communities through their cultural institutions. This culture-based alternative dispute resolution is a part of cultural approaches for settling internal disputes in Indonesian local communities. It is a part of cultural mechanisms in Indonesian adat communities that have been used to solve their own disputes or conflicts from generation to generation. They use and have integrated local cultural wisdom into internal legal mechanism in adat law system to solve any conflicts arising in their own community.31 This culture-based mediation can be found in many adat communities in Indonesia, such as in Kalimantan,32 Bali,33 Papua,34 South Sulawesi,35 Lombok and so forth. To visualise culture-based mediation, it is relevant to describe the mediation practices in Sasak Adat Community in Lombok. They have two institutions to solve the dispute of the adat community through mediation, namely: (i) Kerama Gubuk, and (ii) Majelis Pemusungan. The two institutions are classified based on the regional indicator: (i) West Lombok, and (ii) North Lombok. For the Western part of Lombok, the mediation institution is called Kerama Gubuk,36 while for the Northern Part of Lombok, it is called Majelis Pemusungan, where its members consist of local members of the community. However, the two culture-based mediation institutions apply the same principles in 31 It is not surprising as we know that Indonesia consists of more than 250 million people that inhabit more than 3,000 islands. Geographically, Indonesia consists of 17,506 islands. From this geographical condition, Indonesia creates uniqueness in the socio-cultural life of the people. The cultural richness has left much local wisdom that is used to maintain the lives of the people from generation to generation. 32 For example, in the Adat Community of Daya Taman (West Kalimantan), the mediation instrument and process is handled and solved by the Institution of the Kombong Community. This institution solves the disputes before proceeding to court. 33 In the Adat Community of Bali, the institution for mediation is called sangkepan (a meeting of the adat village to solve any civil case or dispute), while criminal disputes are isolved by the district court. 34 In Papua, the institution for mediation is called ondoafi or ondofolo. It solves any cases of conflict of the adat that are related to adultery, rape, assault, murder, assassination, killing and adat land disputes. 35 In South Sulawesi, the institution for mediation is called keammatoaan or ammatoa. This institution is used to solve any dispute in the adat community. 36 Members of the Kerama Gubuk consist of members of the adat, exponents of a religion and members of society. They form a council or committee to solve any dispute or local conflict related to civil and criminal cases. They solve the disputes before proceeding to court.

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settling their own conflicts, namely: (i) the Soloh (Peace) Principle;37 (ii) the Serasi (Harmony) ­Principle.38 The Procedure of Mediation under the Act No.30/1999 1. Dispute resolution of different opinions or views through alternative dispute resolution as referred to the Section (1) should be solved in the direct meeting of the disputants within a maximum of 14 days, when the results should be visualised or noted in a written agreement. 2. If the dispute or different opinions or views as referred to the Section (2) cannot be solved, instead of a written agreement between the contracting parties or disputants, the dispute will be solved by a third party, an advisor, the independent and expert persons in the related case. This could involve one person or a team of people. 3. If the disputants fail to settle or solve the disputes or achieve a settlement agreement with the assistance of the third parties and within a maximum of 14 days, the disputants could contact the arbitration institution or other alternative dispute resolution institution to appoint a mediator. 4. The efforts in solving the disputes or different views through mediation as referred to in the above description have to maintain confidentiality. Within 30 days, the mediator should succeed in helping the disputants to achieve an agreement and document this in a written agreement signed by all the parties. 5. Agreement of dispute resolution of different views or opinions in a written document is a final and binding decision. These final and binding decisions should be implemented by the disputants based on the good faith principle. The solution decided upon should be registered in the public court within a maximum of 30 days from the signing of the document. 6. The agreement of the dispute solution or different view or opinion as referred to in the above description should be implemented within a maximum of 30 days from the date of its registration. 7. If the solution as referred to in above cannot be achieved, the disputants, based on their agreement, could propose another solution through an arbitrational institution or ad hoc arbitration. Procedure of Mediation in the Regulation of the Indonesian Supreme Court (PERMA) No. 02/2003 The stages of mediation if the mediator is selected from the list of mediator judge are as follows: 1. Within a maximum of 7 days after the selection and appointment of the mediator, both parties should deliver a photocopy of documents that describe the case position, a photocopy of the necessary documents and other relevant informational documents related to the dispute to the mediator and disputants.

37 Soloh (Peace) Principle. This principle is reflected through the capacity of the community to maintain and protect their community as well as to respect the feelings and interests of their community. In this respect, the disputants try to understand each other in terms of the deep message or deep interest or will of their counterparts or their opponents, contenders or challengers. (tao saling undur pasang). (Based on personal communication with some adat exponents in Lombok, in the period from March to April 2013.) 38 Harmony Principle. This principle emphasises the importance of harmony in the environment and living in a comfortable environment. It applies the local wisdom ‘empaq bau, aik meneng, tunjung tilah’, which means the fish is caught in the pond without destroying the water and waterlily flowers. Mediation should able to bring the stability, comfortable and harmony of the disputants and other related parties and society. It is illustrated as the principle of (adeq ta tao jauk aiq), which means the water that could make disputants milder and calm them and society. (Based on personal communication with some adat exponents in Lombok, in the period from March to April 2013).

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2. The mediator is obliged to determine the schedule for the meeting while preparing the mediation process to solve the dispute. 3. In the mediation process, the disputants could be represented, accompanied or supported by their lawyers. 4. If it is necessary, the mediator could use a caucus or joint sessions, or work with co-mediators. 5. The mediator should encourage disputants to identify and explore their interests, and to find various alternatives and an appropriate solution for the disputants. 6. The final result, either agreement (settlement) or disagreement, of the mediation process should not take more than 22 working days after the selection or appointment of the mediator. 7. With the permission of the disputants or their legal representatives (lawyers), a mediator could invite one or more experts in a certain field to provide opinions or considerations that may support any party in resolving the differences. 8. All service fees for one or more experts are borne by the two parties or disputants based on their agreement. 9. If the mediation results in agreement, the parties with the assistance of the mediator have an obligation to formulate a written agreement that must be agreed and signed by the two parties or disputants. 10. It is obligatory to include in the agreement a clause for the possibility of revocation or a statement that the case is settled and the agreement is final and binding. 11. Before the disputants sign the agreement, the mediator is obliged to examine the clauses of the agreement to make sure that the agreement does not contradict the law. 12. All disputants are obliged to revisit and meet with the judge on the day of the court proceeding for the case to inform the judge about the result of the agreement. 13. The judge can strengthen and validate the agreement as a decision. If the selected mediator is not on the list of mediators determined by the judge, the mediator will be given the chance or opportunity to settle the case within 30 days. From the above description, it can be concluded that: 1. The dispute settlement through mediation should be freely and independently implemented by the mediator and with expert assistance in order to allow the disputants to express their mind and interests freely. 2. The mediator and experts may offer a non-binding solution that might be useful for the disputants. 3. The time taken by mediation is much shorter, and the process is simpler and easier than the one used in court. 4. The cost for mediation is not expensive when compared to cases handled by the court. 5. The results of the settlement have the same power (effectiveness) as a judge’s decision. This is because the results of the mediation and arbitrational settlement can be executed after it they are registered in the court, so the disputants cannot ignore or challenge the results of  the mediation and arbitrational settlement. This is based on the Act No.30/1999, Sec­ tions 3 and 6, and the clause which mentions that the mediation result is final and binding for the disputants. Mediation definition There is no legal or official definition for mediation in Indonesia.

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Mediation regulation and approach Country: Indonesia Prepared by Hayyan ul Haq, D. Zainal Asikin, Dr Zainul Daulay 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(Yes) (Yes) Yes Yes (No) No No Yes Yes No (No) Yes Yes Yes Yes Yes F/E F F/E F N/GA Joint Joint (No) (No) Yes NA No No No No

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Mediation regulation and approach Country: Indonesia Prepared by Hayyan ul Haq, D. Zainal Asikin, Dr Zainul Daulay 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

ID

9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No Yes No No NA 1999 Yes Yes (No) Yes No Rp. 1.000.000 Rp. 700,0001.000.000 Yes No No Yes

Yes No Yes Yes No Yes No No Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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49. ISRAEL 1 Prepared by Professor Mordehai (Moti) Mironi2 – Hagit Shaked3

1.

Attempt to mediate

a. Always voluntary (Yes). In 1992 mediation was introduced into the Israeli legal system together with other alternative dispute resolution techniques through an amendment of the Courts Act of 1984. Section 79(c) of the Act enables the court to refer a case to mediation upon the parties’ consent. In 1993 the Minister of Justice introduced the Court Regulations (Mediation) 1993. This set of regulations applies only to court-referred mediations. b. Mandatory (in some cases) (Yes). Following the recommendations of the Rubinstein Committee, whose mission was to examine ways of encouraging the use of mediation, including mandatory mediation, a model of mandatory pre-mediation sessions was introduced. Litigants in civil claims exceeding US$12,500 are required to attend a meeting with a mediator, the purpose of which is to explain the process of mediation to the parties, exchange information and see whether the case could suitably be settled in mediation. Parties do not pay for this meeting as the mediators who participate in the programme volunteer their time. This pre-trial exposure to mediation lasts for up to 90 minutes and is called ‘mahüt’, an acronym for ‘familiarity and coordination gathering’. The mahüt pre-trial mandatory exposure to mediation is facilitated by an experienced mediator/s chosen from a panel by the court’s administration. At the end of the meeting, litigants are free to decide whether to proceed with mediation or go to trial. Parties that refuse to attend the mahüt meeting cannot proceed to trial. The model was launched in September 2008, initially as a pilot programme in three trial level courts. Recently it was extended to six additional trial level courts and soon will be further extended to include the Labour Courts. (Civil Procedure Regulations Section 99A-99L; Announcement Listing the Courts in which an Information Exchange, Acquaintance and Coordination Pre-Mediation Session will be Conducted, 2007, Y.P. 778). c. Court referral or court-connected mediation possible Yes. Currently, all courts have implemented a referral system to mediation. Judges may refer parties upon their consent to mediation in civil, commercial, family and labour cases. The judge may advise and encourage parties to stay the proceedings and attempt mediation at every stage of the trial. If the parties refuse, court proceedings will continue. Cooperation between the former Supreme Court President, Professor Aaron Barak, and Harvard Law School Professor, Frank Sander, led to the implementation of the first pilot programme of a court-annexed ADR programme in Tel Aviv Magistrate Court in 1997. Over 1 2

Last update of information: June 2013. Professor Mironi is a professor of law at Haifa University, Faculty of Law, and a mediator of international and domestic disputes. Contact: [email protected]. 3 Hagit Shaked has been an ADR Professional since 1997, mediating multi-party, cross-cultural, international and domestic disputes. Contact: [email protected].

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time, other courts have adopted similar programmes and have gradually become one-stop shop settlement centres, where special settlement judges and other staff members of the court, such as clerks, judges’ assistants and lay judges in the labour courts, organise free of charge case settlement and mediation services of one sort or another. d. Court-ordered mediation possible No. The judge can advise parties to try mediation, but cannot mandate parties to mediate. If the parties refuse to try mediation, the court proceedings will continue. See 1.a.and 1.b. e. Sanctions by the court if mediation is not tried (in good faith) (No). There are no sanctions by the court imposed on parties refusing to refer the case to mediation. Participating in a pre-trial exposure to mediation (mahüt) is, however, mandatory. See. 1.b.

IL

f. Sanctions by law if mediation is not tried (in good faith) No. The law imposes no sanctions on parties refusing the court’s recommendation or the other party’s offer to refer a case to mediation. The regulations specifically state that not consenting to refer the case to mediation shall not affect the result of court proceeding. However, participating in pre-trial exposure to mediation (mahüt) is mandatory. See 1.b. g. Incentives if mediation is tried voluntarily before going to court No. Participating in pre-trial exposure to mediation (mahüt) is free of charge. There are no incentives for trying mediation before going to court. There is, however, one limited monetary inducement in the form of a rebate of court fees if the case is settled through mediation. h. Outside counsel’s presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. The parties may consult with an expert or any other person during the mediation process. The regulations allow the mediator to meet the lawyers and the parties with or without their lawyers, upon party’s consent. i. Outside counsel’s presence mandatory No. In commercial – civil cases or cross-border cases the presence of lawyers during mediation is a common practice.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. At present there is no authority as to the question of a mediation clause being legally binding for the parties. In the absence of general legislation regarding mediation or ADR, the regulation applies only to court-referred mediation. As a result, courts may not grant a stay on litigation on the basis of a pre-dispute contractual mediation clause. Such a clause may be interpreted as any other obligation under contract law. b. Case admissible in court; however, the judge may take this into account and there is some supporting case law Yes. There was one old labour case pointing in that direction. In this case, the National Labour Court refused a plea for injunction against a strike on the grounds that the employer had failed to take part in mediation. (4-13 Ramat Gan Givataim Labor Council v. Elko Ltd. 9 P.D.A. 113).

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c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes) court mediations/No out-of-court mediations. Mediation procedure in court-referred mediations is regulated by law. The Court Regulations (Mediation) 1993 regulate some aspects of mediation. The regulations deal with the timing of referral, obligations of the mediator, confidentiality of the process, the information that should be conveyed to the parties by the mediator prior to the mediation process, mediator fees, reasons for ending mediation and validation of the mediation agreement, when reached. Other mediations are solely governed by the contract between the parties and the mediator. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes) court mediations/No out-of-court mediations. See 3a. The regulations pertaining to court-referred mediation (Court Regulations (Mediation) 1993) provide a proposed language for a mediation contract to be signed by the parties and the mediator prior to entering mediation. In practice, most mediators follow this contract. c. Mediator can offer a non-binding opinion No. According to the Court Regulations (Mediation) 1993, which apply to court-referred mediations, a mediator is neither allowed to offer advice outside her/his area of expertise nor to state a legal opinion, including in her/his area of specialty. The mediator is allowed to offer solutions and to suggest options for a mediation agreement. Nonetheless, since most mediation in civil commercial disputes is actually case settlement, in practice most mediators do offer non-binding advice, often upon request of the parties. d. Mediator can offer binding opinion No. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative. Since most mediation in commercial disputes tends to be case settlements, the predominant style is evaluative. This is especially true for prominent lawyers and retired judges who feel much more comfortable using an evaluative approach based on their subject matter expertise. In contrast, professional mediators in family, labour and employment disputes as well as mediators who take part in the ‘mahüt’ pre-trial mandatory exposure to mediation tend to adopt a more facilitative mode. The transformative approach is hardly used in commercial disputes. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. The facilitative approach as to process has been gradually replaced by a directive approach. See also 3.e.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Mix. See 3.e. In family cases a facilitative or sometimes a transformative approach are used by practitioners with a social work/psychological background, whereas mediators with a legal background have a strong tendency towards a more evaluative style. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Mix. Mediators with a social work/psychological background will generally use a facilitative approach; mediators with a legal background commonly stick to a more directive/evaluative approach.

IL

i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice/Legal opinion/Case Evaluation/Proposed solutions. See 3.c. Notwith­ standing the prohibition provided for in the Court Regulations (Mediation) 1993, in practice evaluative mediators frequently give general advice, legal opinions and case evaluation as part of their ‘reality check’. In addition, they offer options for possible compromise solutions based on their experience and subject matter expertise. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mixed, other) Mix. In most commercial cases, mediators tend to alternate between joint sessions and caucus, usually starting with a joint session and breaking to caucus when communication is no longer effective, or when the mediator senses that there is confidential information that one of the parties may want to share privately. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mixed, other) Mix. See 3.j.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. The Bar Association and mediation providers run mediation training leading to certification. The Gadot Commission (Sarah Gadot, Report of the Advisory Commission to the Courts with Regard to Mediation, May 1998) was appointed to delineate the qualifications and their respective training programmes for mediators appointed by the court in court-referred mediation. Based on the Gadot Commission’s recommendations, the Court Regulations 1996 (Mediators Roster) were amended in 1999 requiring mediators to complete 40 hours of training. The regulations were repealed in April 2008. Presently there is no legal requirement for an official certification in order to practice as mediator and virtually anyone can call himself/ herself a mediator. This also includes mediators who may serve in court-referred mediation. In practice, basic mediation training comprises 60 hours. The Rubinstein Commission established separate and more stringent qualifications for mediators participating in the ‘mahüt’ pre-trial mandatory exposure to mediation project. They include basic training, practicum, advanced training comprising 16 supervised mediation sessions, recommendations, and completion of six mediated settlements. b. Set by market (private certifying bodies) Yes. There is a non-profit association of mediators and an ADR Forum run by the Bar Association. These organisations are not regulated by law.

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c. Set by public regulation No. See 4.a. d. Number of hours for basic mediator training 60 hours. See 4.1.a. Although the regulations have been abolished, the common training for mediators is 60 hours and an additional 20 hours for family mediators. Many mediators choose to continue their basic training through a ‘practicum’ which allows them to work in small groups of eight and participate in supervised ‘real life’ mediation, usually in small claims cases. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (No). Each organisation trains mediators according to its own programme. All rely heavily on role-playing in negotiation and mediation simulations. g. Accreditation through written exam No. None of the mediation training programmes require a written exam a part of the accreditation. h. Accreditation through performance-based assessment (Yes). Only the mediators who are on the court’s panel in the mahüt pre-trial exposure to mediation programme may periodically be subject to performance-based assessment (usually once a year unless there is a specific complaint) as part of their accreditation procedure.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates (No). There is no formal or public regulated scheme for certification or accreditation of mediation advocates. Mediation advocacy is slowly being developed as a separate field of study. There have been sporadic attempts to implement collaborative law, so far with little success. j. Set by market (private certifying bodies) Yes. There is no law governing mediation advocacy. k. Set by public regulation No. See 4.2.j.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.a., 4.b. b. Set by public regulation (No). See 4.a. and 4.b. Although not required by law, most practicing mediators do complete the 60 hours of training. Public regulations apply only to mediators who are on the court’s panel in the mahüt pre-trial mandatory exposure to mediation programme.

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c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone can be a mediator. In fact, anyone can call himself/herself a mediator as no regulation regarding professional certification or accreditation exists. Even the mediators in the court-administered mediation panel for the mahüt pre-trial exposure to mediation programme do not have to be lawyers. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There is no specific regulation concerning cross-border mediation.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No. There is no general mediation legislation. In 1992/1993 some rules for court-referred mediations were introduced. See 1.a.

IL

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Most mediation providers are privately owned firms, partnerships or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation (Yes). Only in cases referred to mediation via the mahüt pre-trial mandatory exposure to mediation programme is the mediator bound by a limited hourly rate of 800 NIS ($200). Contingent fees or fees based on the value or quantum of the case are not allowed in court-referred mediation. c. Average mediator fee per hour for commercial or cross-border cases 800-2,000 NIS ($200-$500). There is no distinction between commercial or cross-border cases and civil cases. d. Average mediator fee per hour in civil cases 800-2,000 NIS ($200-$500). There is no distinction between commercial or cross-border cases and civil cases.

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9.2. Financing and legal aid e. Legal aid available for mediation services Yes. Legal aid for litigants is available on a pro bono basis by the Israel Bar Association. This also applies when the case is referred to mediation. f. Mediator fees covered by legal insurance schemes (No). The only exception is the medical profession whose insurance policy covers mediator fees for both malpractice claims and employment related disputes. g. Mediator fees subsidised in court-connected schemes (No). The only exception is the court-annexed mahüt pre-trial exposure to mediation programme. The first meeting, which may last up to 90 minutes, is free of charge. Actually it is the mediator who subsidises the parties, not the court or the state.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Courts can refer civil, commercial, labour and family cases to mediation at every stage of the proceedings. As the court proceedings are stayed, the mediator is required to inform the court regarding the progress of the mediation process without divulging or disclosing any substantive information, including information regarding parties’ attitudes, participation and contribution to the mediation process or the causes for the termination thereof. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Mediation is part of the legal system. It is commonly used in all civil and commercial cases. The courts have launched internal mediation programmes where special settlement judges and other staff members of the courts, such as clerks, judges’ assistants and lay judges in the labour courts, align free-of-charge case settlement and mediation services of one sort or another. c. Mediation procedure has impact on statute of limitations No. Statute of Limitation law does not deal with mediation. Under the general rule, the prescription period is not delayed by pre-action negotiations. In court-referred mediation, the issue is not relevant since the critical time for the statute of limitations is the day of filling. In other cases it is for the parties to agree contractually that the period of time devoted to efforts to reaching agreement through mediation will not be taken into account for the statute of limitations.

11. Mediated settlement a. Contract Yes. Generally speaking, a mediated settlement will qualify as a binding and enforceable contract. Such an agreement may be submitted to court and may get an enforceable title as a court verdict.

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b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. See 11.a. c. Enforceable under some circumstances which are up to the parties (Yes). It is up to the parties to decide by mutual consent whether or not to submit the mediation agreement to the court in order to give it the power of a court judgment. In the vast majority of cases, parties choose to file their mediated agreement with the court in order to achieve the added avenue of enforcement. As part of an effort to encourage potential litigants to use mediation even before initiating court proceedings, the law authorises judges to issue consent decrees bestowing the power of the court’s judgment on agreements reached through pre-action mediation, i.e., in situations where a lawsuit was not filed. d. Enforceable under some circumstances defined by public regulation No. 11.c.

IL

12. Confidentiality a. Regulated by law (Yes) in court-referred mediation/(No) in out-of-court mediation. Confidentiality with regard to court-referred mediation proceedings is regulated by law. In other instances, confidentiality is contractual. In practice, the confidentiality provisions contained in the Court Regulations (Mediation) 1993 serve as a model for all other mediations. Information conveyed in mediation and all communication made during mediation sessions are confidential through privilege and secrecy provisions and may not be used as evidence in court. If mediation is ceased and the case returns to court, the mediator and the parties may not report the underlying reasons or disclose any information with regard to the parties’ positions in mediation and the mediator’s proposed solution. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. Court Regulations (Mediation) 1993 specifically state that information exchanged between the parties and with the mediator during mediation shall not be used as evidence in court.

13. Education a. Mediation education common component in legal education curriculum No. Mediation and ADR courses and seminars are offered as elective components in law school curricula at several universities. The leading universities which have graduate conflict resolution programmes tend to be interdisciplinary and not necessarily affiliated with the law school or the school of business administration. b. Mediation advocacy education is a common component of legal education curriculum No. Mediation advocacy has been making its way very slowly into the curriculum as a separate field of study. Currently only two law schools offer some training in this field for law students. The impetus has been their participation in the ICC International Mediation Competition.

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14. Most relevant literature or references, jurisprudence, articles, law –– Michal Alberstein, Jurisprudence of Mediation (2007) –– Elad Finkelstien, ‘Privatization and Regulation: The Legal Regime Governing Mediation’ 30 Tel Aviv University Law Review 623 (2008). –– Mordehai Mironi, Mediation and Strategic Change (2008). –– Mordehai Mironi, ‘Experimenting with ADR as a Means for Peaceful Resolution of Interest Labor Disputes in Public Health Care – A Case Study’ 71 Law and Contemporary Problems 201 (2011). –– Mordehai Mironi, ‘Mediation v. Case Settlement: The Unsettling Relations between Mediation and Courts – A Case Study’ Harvard Negotiation Law Review (Forthcoming, 2014). –– Martinez, Purcell, Shaked and Mehta, ‘Dispute System Design: A Comparative Study of India, Israel and California. Cardozo Journal of Conflict Resolution’ Volume 14, 2013. –– Omer Shapira, Use of Power and Influence in Mediation (2007). –– Itzhak Zamir, ‘Mediation in Public Affairs’ 7 Law & Government 119 (2004).

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks – Generally speaking, the regulatory approach that has been adopted in Israel has been a private market approach. In practice, this has meant no public regulation regarding qualifications and accreditation of mediators as well as the mediation approach (case settlement v. mediation, evaluative, directive, transformative, facilitative, etc.). There is only scant regulation as to the mediation process applicable to court-referred cases. The exception is the mahüt pre-trial mandatory exposure to mediation programme that currently operates on an experimental basis in nine general trial courts and the labour courts. In recent years there have been calls, including from the Bar Association’s ADR forum, for drafting a comprehensive ADR Act that will regulate the qualifications and accreditation of third party neutrals who act as mediators and arbitrators, and will promulgate an ethical code for the conduct of mediation, arbitration and other ADR processes. Mediation definition There is no special definition for mediation.

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Mediation regulation and approach Country: Israel Prepared by Mordehai (Moti) Mironi, Hagit Shaked

IL

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation clause a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific procedure duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

The variegated landscape_1.indb 644

(Yes) (Yes) Yes No (No) No No Yes No Yes Yes No (Yes)(in court)/ No(out-of-court) (Yes)(in court)/No (out-of-court) No No E D Mix Mix GA/LO/O Mix Mix Yes Yes No 60 hrs No (No) No (Yes)

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645

Mediation regulation and approach Country: Israel Prepared by Mordehai (Moti) Mironi, Hagit Shaked 4.2. Mediation advocacy accreditation 5. Who can be mediator?

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/ certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/ certified mediator (cross-border)

6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies providing a. Mediation bodies may have various legal forms mediation b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or crossborder cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law

13. Education

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

(No) Yes No Yes (No) No No NA No Yes Yes No Yes (Yes) $200-500 $200-500 Yes (No) (No) No

Yes No Yes No (Yes) No (Yes) (in court-­ referred mediation)/ (No) (in out-of-court mediation) Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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50. JAPAN1 Prepared by Haig Oghigian2 – Takeshi Yoshida3 – Mami Ohara4

1.

Attempt to mediate

a. Always voluntary No. See 1.b.

JP

b. Mandatory (in some cases) Yes. In the following two cases, it is mandatory. First, under the Domestic Relation Trial Act, a party is required to file a motion for public mediation (or conciliation) held by a family court before filing a lawsuit related to personal status or other family matters (Sec­tion  18(1)). Second, under the Conciliation of Civil Affairs Act, a party who is seeking for increase or a reduction of rent under the Land and Building Lease Act is required to file a motion for public mediation (or conciliation) held by a court before filing a lawsuit (Section 24(2)(1)). c. Court referral or court-connected mediation possible Yes. For general civil disputes, court-based mediation is available under the Conciliation of Civil Affairs Act (Section 2). For confirming personal status or resolving other family disputes, family court-based mediation is also available under the Domestic Relation Trial Act (Section 17). For negotiations on debt payment, a special court-based mediation in which the court has the authority to stay compulsory execution under the Special Mediation Act (Section 3.1). Additionally, after filing a lawsuit, the court may also function as a mediator at the parties’ request. See also 4.1.a. d. Court-ordered mediation possible Yes. The court in charge of the case can order mediation (or conciliation) procedure at its discretion under the Conciliation of Civil Affairs Act (Section 20.1), if it is considered appropriate for resolving the case. See also 4.1.a. e. Sanctions by the court if mediation is not tried (in good faith) No.

1 Last update of information: February 2014. 2 Mr Haig Oghigian is co-chair of the firm’s Litigation & Dispute Resolution Practice Group. He focuses his practice on International Arbitration/Mediation and is recognised by Chamber’s Global, Asia Pacific Legal 500 and Euromoney Expert’s Guide, in the field of Dispute Resolution. His arbitration practice is enriched by his experience in government as a Canadian diplomat and his extensive corporate commercial background. Contact: [email protected]. 3 Mr Takeshi Yoshida is a member of the Baker & McKenzie’s Dispute Resolution Group in Tokyo and focuses his practice on international and domestic dispute resolution. Contact: takeshi.yoshida@ bakermckenzie.com. 4 Ms Mami Ohara is based in Baker & McKenzie’s Tokyo Office, and serves as a member of the firm’s Global and Regional Dispute Resolution Group. She focuses her practice on international dispute resolution, with a particular emphasis on international arbitration and mediation. Contact: mami. [email protected].

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f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. Not formally, however, mediation can be a time and cost effective way to resolve disputes. h. Outside counsel presence/representation during mediation sessions allowed Yes. The parties and the mediator may opt for having outside counsel attend/represent the parties during the mediation sessions. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause No. However, the court may hear the case after the parties’ failure to mediate. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. However, there is no case law. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. Mediation is mandatory if the parties have agreed to refer the dispute to mediation to be administered by a specific institution which provides mediation service (e.g., the Central Committee for Adjustment of Construction Work Disputes or the Environmental Dispute Coordination Commission), although there are no established rules regarding this issue. However, if the parties fail to designate a mediation institution in the mediation clause, it is likely to be seen as a mere intention and a court will hear the case if the parties file a lawsuit. If the parties fail to resolve the dispute through mediation administered by the institution designated in the agreement, a court may hear the case after the failure of such attempt to mediate.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. There is no general regulation regarding the mediation procedure. However, for courtbased mediation, there are two regulations: the Conciliation of Civil Affairs Act, which governs mediation procedure for general civil disputes, and the Special Mediation Act, which governs mediation procedure for debt payment negotiations. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the contract between the parties and the mediator. Although court-based mediation is governed by law, the procedure can be conducted flexibly.

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c. Mediator can offer a non-binding opinion Yes. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/(Evaluative in court mediation). Generally mediation is based on the facilitative model, and the parties are encouraged to negotiate to reach a settlement. However, courtbased mediation may also be evaluative, in that the court may invite the parties to bring in a technical expert to submit an opinion (particularly in disputes involving technical matters). Court-based mediation may sometimes be directive, in that the courts may render a ruling on certain matters; however, such rulings are not final, and parties may subsequently bring the same matter to litigation if they wish to do so. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative/(Directive in court mediation). See 3.e.

JP

g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative /(Evaluative/Directive). Generally facilitative. Sometimes evaluative and directive depending on the nature of the dispute. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/(Directive). See 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used (see 3.g.). Besides neutral or general opinions and legal opinions, mediators often offer suggestions to proceed with the process (e.g., engage another expert, combine procedures, etc.). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Each mediation centre in Japan has its own accreditation system. As for court-based mediation, mediators are appointed by the court without the involvement of the parties. b. Set by market (private certifying bodies) Yes.

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c. Set by public regulation No. There is no national system or law that specifically regulates accreditation and the quality of standards of mediators in Japan. d. Number of hours for basic mediator training There is no mandatory requirement for basic mediator training. e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment Yes. Performance-based assessment forms a part of the accreditation procedure for most organisations.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no accreditation/certification or special recognition of mediation advocates. j. Set by market (private certifying bodies) Yes. All initiatives are private; there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

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7.

The Variegated Landscape of Mediation

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Apart from the courts and some mediation bodies that are governmental organisations, most mediation providers are privately run associations or foundations. b. Individuals may be providers of mediation services Yes. For example, individuals can get accreditation as mediation providers as long as they meet the requirements under the Promotion of Use of Alternative Dispute Resolution Act (e.g., Section 5, 6). See 8.c. c. Mediation provider qualifications/requirements determined by public regulation Yes. The Promotion of Use of Alternative Dispute Resolution Act gives accreditation as a mediation provider to a person or institutions with sufficient knowledge and ability and an adequate financial foundation to mediate.

JP

9.1. Mediator fees a. Freely contracted Yes. Some private institutions have their own rules and standards. For court-based mediation, courts do not charge mediator fees; however, an administration fee, based on the scale of administration expenses issued by the court (available in Japanese on the Japanese courts’ website: http://www.courts.go.jp/vcms_lf/315004.pdf), must be borne by the parties. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases JPY20,000 to JPY60,000. Based on the mediator rates set forth in the Japan Commercial Arbitration Association International Commercial Mediation Rules: hourly rates of JPY20,000 to JPY60,000 depending on the level of the mediators’ experience and the complexity of the case. d. Average mediator fee per hour in civil cases JPY20,000 to JPY60,000. See 9.1.d.

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No.

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g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Court-based mediation is seen as a part of the legal system through the resolution process provided by the subordinate courts. c. Mediation procedure has impact on statute of limitations Yes. However, commencement of court-based mediation, governmental mediation or private mediation provided by institutions accredited under the Act on Promotion of Use of Alternative Dispute Resolution interrupts the statute of limitations retroactively (from the date on which the mediation procedure commenced) if a lawsuit is filed with the court within a month after the parties fail to reach an agreement through mediation.

11. Mediated settlement a. Contract Yes. The enforceability of mediated settlement agreements is subject to normal contractual principles. In addition, court-based mediated settlement agreements are enforceable by following the same enforcement procedure as final and conclusive judgments rendered by the court. b. Automatically enforceable Yes. In-court mediation settlements are automatically enforceable. See 11.a. c. Enforceable under some circumstances which are up to the parties No. d. Enforceable under some circumstances defined by public regulation Yes in court mediation. See 11.a.

12. Confidentiality a. Regulated by law No. However, all mediation procedures are private and are not disclosed.

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b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

13. Education a. Mediation education is a common component of legal education curriculum (Yes). Mediation courses are offered as an elective component of legal education in Japan. b. Mediation advocacy education is a common component of legal education curriculum No. However, mediation advocacy education may form a part of the mediation education component.

14. Most relevant literature or references, jurisprudence, articles, law Act for Conciliation of Civil Affairs http://law.e-gov.go.jp/htmldata/S26/S26HO222.html Special Mediation Act http://law.e-gov.go.jp/htmldata/H11/H11HO158.html Act on Promotion of Use of Alternative Dispute Resolution http://law.e-gov.go.jp/announce/H16HO151.html

JP

–– –– –– –– –– ––

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks Mediation definition The term ‘mediation’ (choutei or assen in Japanese) is not defined in relevant legislation in Japan. However, it is most commonly defined by scholars as a procedure in which a neutral third party facilitates parties to a dispute in reaching a settlement by mutual concession. This concept includes three distinct types of mediation, namely, judicial, governmental and private mediation. An agreement reached in a judicial mediation (i.e., a mediation procedure in which a judge acts as a mediator) has the same legal affect as a final and binding judgment rendered by a court; whereas a mediation agreement reached in governmental or private mediation procedures is neither final or binding.

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Mediation regulation and approach Country: Japan Prepared by Haig Oghigian, Takeshi Yoshida, Mami Ohara 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

The variegated landscape_1.indb 653

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

No Yes Yes Yes No No No Yes No No Yes Yes No Yes Yes No F/(E in-court mediation) F/(D in-court mediation) F/(E/D) F/(D) All Mix Mix Yes Yes No NA No No No Yes

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Mediation regulation and approach Country: Japan Prepared by Haig Oghigian, Takeshi Yoshida, Mami Ohara 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

JP

9.1. Mediator fee

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases

9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No Yes No No No NA No Yes Yes Yes Yes No JPY20,000JPY60,000 JPY20,000JPY60,000 No No No No

Yes Yes Yes Yes No Yes in-court mediation No No (Yes) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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51. The LEBANON1 Prepared by Salwa Saad Khairallah2

1.

Attempt to mediate

a. Always voluntary (Yes). Lebanese courts always view mediation as a voluntary act that the parties should have tried prior to presenting their dispute to court. There is presently no law imposing mediation on parties. However, there is a draft of a mediation law that is presently under study by the relevant authorities, and which does not include any mandatory clauses. There is still no expectation about the date on which the mediation draft law will be looked at, but once it is passed and comes into effect, it is expected to release the legal system from lots of unnecessary pressure and produce a more comfortable and relaxing situation in the society, business in general and for families in particular, since most of the enterprises in Lebanon are family ones. b. Mandatory (in some cases) Yes. The Lebanese Labour Act, Section 30 decree 17386, for group labour contract, states that employer and employee should submit their dispute to the Mediation Centre at the Ministry of Labour for possible mediation prior to proceeding to Arbitration. Furthermore, the religious courts in Lebanon, which are the only body to look into and resolve family disputes, have a mandatory mediation session prior to trial to try to put end to the dispute, prior to proceeding to court. The mediator is usually a religious judge i.e., a priest in Christian courts and a Sheikh in Muslim courts. c. Court referral or court-connected mediation possible No/(Yes) draft law. This is not applicable in Lebanon. However, the draft mediation law, presently under study, does state under Section 2(a) that it is possible at any stage during court proceeding for the court or the relevant judge to advise parties to go to mediation, for the whole or part of the case under dispute Section 2.b. d. Court-ordered mediation possible No. The judge can informally advise parties to try mediation, but cannot mandate parties to go to mediation. If the parties refuse to mediate, court proceedings will continue.

1 Last update of information: June 2013. 2 Salwa Saad Khairallah is trained in maritime arbitration and is a supporting member of the LMAA (London Maritime Arbitrators Association), she is a fellow (mediation) in the CIArb, Lebanon branch, a member of CEDR, London, a member of Arbitralwoman, France. Salwa is presently following a LLM in International Dispute Resolution at Queen Mary University of London. She is a visiting speaker and lecturer at Ravensburg State University, Germany. She is also a managing partner of Consultancy Centre, Beirut that provides consultancy and ADR services. Contact: [email protected].

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e. Sanctions by the court if mediation is not tried (in good faith) No. As a rule there are no sanctions. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions, not even in the draft law. g. Incentives if mediation is tried voluntarily before going to court No. Incentives are not considered. h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties. Counsel may attend as common practice but there is no specific provision for attendance in the draft law. i. Outside counsel presence mandatory No. In complex commercial cases or cross-border cases the presence of lawyers during mediation is common practice.

LB

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). Lebanese courts generally rule that, as mediation is of a voluntary nature, a written mediation clause is not binding for the parties, unless one or all the parties request that this particular contract clause be enforced. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law (Yes). In general, if the parties are silent about it, the judge will proceed with the ruling. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.b. and 2.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No/(No) draft law. Mediation is not regulated by law. The mediation law draft has some mediation ethics that indicate a legal framework during the mediation process. Mediation is to be conducted within the judicial system. The law is silent about the way mediation is conducted, mediation will not be regulated and neither will the mediation approach (evaluative, facilitative, transformative, directive). b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the contract between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. As a rule a mediator does not offer advice or an opinion. However, the mediator is allowed to do so if the parties request this clearly.

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d. Mediator can offer a binding opinion No. The mediator is only a facilitator. Section 6 of the draft mediation law specifically states this. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative, (Evaluative). Lebanese mediation is basically facilitative. However, with the consent of parties or at parties’ request, the mediator may opt for another mediation style, depending on the nature of the dispute. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. The most common style is facilitative. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The main style is facilitative. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. The facilitative approach is the predominant one in general. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? NA. Evaluative mediation is not common practice in Lebanon, unless it is used in informal family disputes. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Caucus. Depending on the nature of the dispute. However, the general trend is caucus in private sessions. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Joint sessions. In civil mediation, family and labour cases, holding joint sessions is common practice.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are few local bodies that provide accreditation, based on completing a training course which includes mock mediations and assessments. However, several local mediators have obtained their accreditations from international institutions, such CEDR, CIArb, IMI, etc. b. Set by market Yes. There are few organisations of mediators (providers of mediation services or mediator interest representation groups), such CPM and Lebanese Mediation Centre at ICC Beirut. c. Set by public regulation No. Presently not.

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d. Number of hours for basic mediator training (6 days). Each of the local institutions has its rules and regulations. There is no specific law concerning mediator training, in general. However, the CEDR training at the Lebanese Mediation Centre (ICC Beirut) comprises around 6 days of extensive training. e. Mandatory CPD for accredited/certified mediators No. Unfortunately, the present draft law is also silent about the above. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) (No). Each organisation of mediators has its own set of rules and conditions concerning the accreditation of their mediators. g. Accreditation through written exam (Yes). Some organisations have made a written exam a part of their accreditation procedure. h. Accreditation through performance-based assessment Yes. Some organisations have made a performance-based assessment a part of their accreditation procedure.

LB

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates (No). There is no official scheme to certify or accredit mediation advocates. j. Set by Market Yes. All initiatives are private, there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market Yes. There is no specific rule about this point. However, taking into consideration the general mediation ethics and the related institutions, rules and regulations the answer is yes. Any person not convicted by law, having received the appropriate mediation diploma and accreditation, equipped with the right skills to conduct a mediation process and able to act as a neutral party, respecting the confidentiality of the process, can be a mediator. b. Set by public regulation No. Not yet. See 5.a. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone can be a mediator once accredited by one of the local of international organisations. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. See 5.c.

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51 The Lebanon

6.

659

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No. There is currently no legislation on mediation in Lebanon. The Lebanese Mediation Act is being drafted but remains under study.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Mediation providers are associations, private companies but also the Lebanese Mediation Centre at ICC Beirut. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual to be mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. The public regulation does not determine the mediation provider qualifications or requirements.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. Presently not applicable. Since the law is still a draft and the approval date is still unconfirmed, the mediator fees have not yet been discussed. c. Average mediator fee per hour for commercial or cross-border cases US$200-US$350. d. Average mediator fee per hour in civil cases US$400/half a working day. Depending on the case and the relevant mediator, it is basically US$400/half a working day.

9.2. Financing and legal aid e. Legal aid available for mediation services No. Presently this does not apply and the draft law is silent about it. f. Mediator fees covered by legal insurance schemes No. Presently this does not apply locally. Usually, the parties have to lodge an advance payment to the mediator or mediation institution in the pre-mediation phase. Then the remaining amount is paid either during mediation or at the end of mediation. g. Mediator fees subsidised in court-connected schemes

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No. Not yet applicable. The draft law did not tackle this point.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No/(No) draft law. However, the mediation law draft encourages mediators to inform the court about any obstacle they face during the mediation process (Section 6). b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. Not at present, but once the draft law is approved, the mediation process will be part of the legal system. Having said that, once a mediation clause is part of any contract between two or more parties, the parties have to abide by it and proceed to mediation.

11. Mediated settlement

LB

a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement which takes the form of a contract. Then the Lebanese Code of Obligations and Contracts applies. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. It has to be subject to a court decision. c. Enforceable under some circumstances which are up to the parties No. Parties will have to go to court. d. Enforceable under some circumstances defined by public regulation No. Not at present. However, once the mediation comes to a convenient end for all parties who consequently sign the relevant contract, the contract becomes a legally binding document and would be enforceable under local law.

12. Confidentiality a. Regulated by law No/Yes draft law. Since it is a voluntary process. However, the mediation law draft provides for confidentiality under Sections 6 and 7. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No/Yes draft law. According to the mediation draft law, Section 10, mediators do not give evidence related to the dispute in court proceedings, unless they have the clear consent of all parties.

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13. Education a. Mediation education is a common component of legal education curriculum No. Mediation courses are offered at present in just a few universities; they are available for students or any other interested persons. b. Mediation advocacy education is a common component of legal education curriculum No. Mediation advocacy in particular is not presently a trend.

14. Most relevant literature or references, jurisprudence, articles, law –– –– –– –– ––

Mainly international sources: Getting to Yes. Getting past No. The ADR Practice Guide. International Commercial Mediation.

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references –– In addition to CPM and Lebanese Mediation centre websites. –– [email protected] –– http://www.ccib.org.lb/Static/Mediation.aspx

16. Country specific remarks Although mediation is not covered by law, most lawyers try to sort out any dispute the amicable way, by informally contacting the other party’s lawyer to find a way to settle the dispute out of the court. The mediation procedure is still new and unfortunately some lawyers think that the mediation process in general, and mediators in particular, create conflict with the legal procedure and therefore it is not favourable. They forget that in some mediation styles and in some mediation phases the attendance of the party lawyers is mandatory, in particular at the time when the contract is to be drafted. However, now that the mediation definition and targets are widespread, parties in a conflict are more informed and most of them are willing to try a friendly process. The majority of the new generation are becoming internationally oriented due their studies abroad and representing the business of international companies, therefore mediation could have a promising future in Lebanon.

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Mediation regulation and approach Country: The Lebanon Prepared by Salwa Saad Khairallah 1. Attempt to mediate

2. Mediation clause

LB

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

(Yes) Yes No/Yes in draft law No No No No Yes No (Yes) (Yes) No No/(No) in draft law Yes Yes No F/(E) F F F NA Caucus Joint Yes Yes No (6 days) No (No) (Yes) Yes

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Mediation regulation and approach Country: The Lebanon Prepared by Salwa Saad Khairallah 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law

13. Education

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

(No) Yes No Yes No No No NA No Yes Yes No Yes No $200-350 $400/4 hrs No No No No/(No) in draft law No … Yes No No No No/Yes in draft law No/Yes in draft law No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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52. QATAR1 Prepared by Judge Dr Ehab Elsonbaty 2

1.

Attempt to mediate

a. Always voluntary (Yes). There is no specific law that obligates the parties to opt for mediation. However, a draft law is under be enacted soon. It regulates mediation based on the UNCITRAL Model Law 2002.

QA

b. Mandatory (in some cases) Yes. In banking, stock market and telecommunications cases, in which the law may mandate the parties to work on an amicable settlement, often with the help or even sponsorship of the regulators, before opting to go to court. c. Court referral or court-connected mediation possible Yes. With exception of family law cases in which it is compulsory for the court to encourage the parties to settle the dispute before going continuing proceedings, the judge can encourage parties in other cases to try to settle. If no settlement is reached, the parties will return to litigation. d. Court-ordered mediation possible Yes. The judge can unofficially encourage parties to try mediation or to settle the case. Except for some family cases, there is no law on which this is based, so a judge can unofficially encourage the parties to try to settle, but cannot mandate parties to go to mediation. e. Sanctions by the court if mediation is not tried (in good faith) No. The court does not impose any sanctions. f. Sanctions by law if mediation is not tried (in good faith) No. There are no sanctions under the law. g. Incentives if mediation is tried voluntarily before going to court No. The law does not offer any incentives.

1 Last update of information: June 2013. 2 Judge Dr Ehab Maher Elsonbaty is a senior judge and a member of the civil, and commercial panels of the Egyptian cCourts. He is now a on secondment to the State of Qatar as a senior legal advisor to the Office of H.H. the Amir, where he is also a member of the Council of Ministers for the Permanent Committee for Llegislative Affairs. He is also a certified arbitrator and mediator. Dr.Dr Elsonbaty holds two mMaster degrees and a Ph.D. He lectures on cyber law topics, technology in litigation and private international law in at various universities. He is a consultant to the ITU, UNODC, UNECA, Council of Europe, and ARADO. Dr.Dr Elsonbaty speaks Arabic, English, Italian and French. His areas of specializaisation are: commercial transactions (M & A, contracts), private international law (conflict of law, jurisdiction, arbitration, and ADRs) cCyber laws (cybercrime, e-commerce, electronic signature), and criminal justice. Contact: [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes. This decision is up to the parties and the mediator. i. Outside counsel presence mandatory No. In complex commercial cases or cross-border cases the presence of lawyers during mediation is, however, common practice.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Qatari courts generally rule that as mediation is of a voluntary nature, an oral or a written mediation clause is not binding for the parties. It may, however, be assumed that this, line in the present jurisprudence, is strongly influenced by the inadequate quality of most mediation clauses. In most cases they are very short and not specific, the absence of any regulatory framework for mediation. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. However, there is no record of a cassation court precedent. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the contract between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. As a rule a mediator does not offer advice or an opinion, however, the mediator is allowed to do so at the parties’ request. d. Mediator can offer a binding advice Yes. See 3.c. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. The Qatar mediation style has its roots in a facilitative mode, which is still common practice among many Qatari practitioners. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/evaluative. Especially in family cases. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All evaluative approaches are used. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

QA

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. There are several organisations who accredit mediators, such as the Qatar International Centre for International Commercial Arbitration and Mediation (http://qatarchamber.com/) and the International Court of Qatar and Dispute Settlement Centre (http://qicdrc.com.qa/). However, there is no law requiring specific accreditation of mediators. b. Set by market (private certifying bodies) Yes. There are several organisations of mediators including some private law firms which are working on promoting mediation in the State. None of these organisations are regulated by law. c. Set by public regulation No. Presently not. d. Number of hours for basic mediator training 20-25 hours. e. Mandatory continuing professional development for accredited/certified mediators No. This system is not applicable in Qatar. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) (Yes). Each organisation of mediators referred to in 4.a.and 4.b has its own set of rules and conditions concerning the accreditation of their mediators. Most organisations ask for additional practical experience and/or a performance-based assessment. See, however, 4.c. g. Accreditation through written exam (Yes). Some of the organisations referred to in 4.a. and 4.b. have written exams. See, however, 4.c.

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h. Accreditation through performance-based assessment (Yes). Some of the organisations referred to in 4.a. and 4.b. have made a performance-based assessment a part of their accreditation procedure. See, however, 4.c.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official scheme to certify or accredit mediation advocates. Mediation advocacy is slowly picking up as a separate field of mediation study. j. Set by market (private certifying bodies) Yes. All initiatives are private; there is no law governing mediation advocacy. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.a, 4.b. and 4.c. b. Set by public regulation No. Not yet. See 4.a., 4.b. and 4.c. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Presently anyone can be a mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Presently everyone can be a mediator.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

a. Mediation bodies may have different Legal forms Yes. Most mediation providers are associations, partnerships, foundations or private companies. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting individuals from being mediation providers. Also see 8.c.

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c. Mediation provider qualifications/requirements determined by public regulation No. It is not foreseen that there will be legislation to govern the structure of bodies providing mediation.

9.1. Mediator fees a. Freely contracted (Yes). See 9.1.b. b. Fixed in some cases by public regulation Yes. When conducted under the umbrella of a government entity. c. Average mediator fee per hour for commercial or cross-border cases US$ 300. d. Average mediator fee per hour in civil cases US$ 300.

9.2. Financing and legal aid

QA

e. Legal aid available for mediation services No. Legal aid for mediators is not available. f. Mediator fees covered by legal insurance schemes (Yes). Not generally covered but some insurance companies cover mediator fees in a limited way under their insurance schemes. There are currently also no incentives in insurance companies schemes to incentivise the use of mediation over court proceedings. g. Mediator fees subsidised in court-connected schemes No. Not at present.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. Not at present. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (No). Courts accept the role of mediators and their work, however, there is no law or formal acknowledgement. c. Impact mediation procedure on statutes of limitations? No. In there is neither a specific law nor case law with that regard, therefore the general principle of law shall apply, it would be very unlikely that the court may consider the effect of a mediation process on validity of statutes of limitation.

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11. Mediated settlement a. Contract Yes. A mediated settlement in most cases will qualify as a binding settlement agreement as provided by the Civil Code. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. Parties can ask a civil-law notary or a judge to make their settlement agreement enforceable. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law (No). Confidentiality is only regulated by general norms of law. No specific law on this. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (No). For national cases, mediators do not have the general right to refuse to give evidence in subsequent proceedings. However, if they have signed a statement to the contrary, it will be brought before the court.

13. Education a. Mediation education is a common component of legal education curriculum No. Mediation courses are offered at several universities, but it is not seen as a common component of the legal curriculum. b. Mediation advocacy education is a common component of legal education curriculum No. Mediation advocacy is slowly picking up as a separate field of study.

14. Most relevant literature or references, jurisprudence, articles, law Not Available.

15. Mediation legislation texts a. Weblink to legislation in national language –– http://qatarchamber.com/wp-content/themes/twentyeleven/forms/QICCA%20RULES %20ARABIC.pdf –– http://qicdrc.com.qa/

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b. Weblink to English or other translation NA. See 1.c. c. Other references NA.

16. Country specific remarks –– Qatar is a civil-law country. No specific legislation on mediation is out yet, however, mediation does not contradict the general norms of Civil Code and Civil and Commercial Procedures Law. –– The practice of mediation is still young and growing, however, the abovementioned associations and organisations are working hard on education, awareness and codifying. –– A draft law is due to be issued soon. It regulates mediation based on the UNCITRAL Model Law 2002.

QA

Mediation definition There is no statutory definition of mediation. The draft law will endorse the definition created by the UNCITRAL Model Law.

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Mediation regulation and approach Country: Qatar Prepared by Ehab Elsonbaty 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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(Yes) Yes Yes Yes No No No Yes No Yes Yes No No Yes Yes Yes F F F/E F All Mix Mix Yes Yes No 20-25 hrs No (Yes) (Yes) (Yes)

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Mediation regulation and approach

QA

Country: Qatar Prepared by Ehab Elsonbaty 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No Yes No Yes No No No NA No Yes Yes No (Yes) Yes $300 (est.) $300 (est.) No (Yes) No No

(No) No Yes No Yes No (No) (No) No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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53. RWANDA 1 Prepared by Tom Mulisa2

1.

Attempt to mediate

a. Always voluntary No. Sometimes it is compulsory, as in the case of divorce where mediations are mandatory before the divorce proceedings can continue (see Section 243, Civil Code Book I). Mediation is always voluntary in commercial affairs even with the introduction of the Kigali Arbitration Centre. Since it is a new approach to settling business affairs, it remains voluntary but there is much campaigning for the option by the Rwandan Private Sector Federation and the government of Rwanda. b. Mandatory (in some cases). Yes. In divorce cases and in cases to be heard by a mediation ‘committee’ (abunzi), the claim is inadmissible in court since under Section 18(13) of the PCCSA (Code of Civil Procedure, Commercial, Social and Administrative Law) a claim that has to be first heard by a mediation committee is inadmissible in court. The aforementioned ‘family mediation’ cases can also be said to be mandatory. c. Court referral or court-connected mediation possible Yes. Section 355 of PCCSA gives the judge the power during the proceedings of a case, to make the following order: point two of that Section (355) refers the parties to arbitrators or mediators in commercial matters if there is an arbitration or mediation clause in the contract between the parties; point three refers the matter to the mediation committee if the subject matter lies in its jurisdiction. Furthermore, Section 53 of the Arbitration and Conciliation in Commercial Matters Act recognises referrals by the court. d. Court-ordered mediation possible Yes. In cases of divorce (Section 243 CCBI of the Act mentioned above). Also Section 355 of PCCSA gives the court the power to order mediation. See 1.c. e. Sanctions by the court if mediation is not tried (in good faith) (No). Sanctions are provided for but if mediation is compulsory, the court declares the case inadmissible.

1 2

Last update of information: February 2014. Tom Mulisa is the founder and Executive Director of the Great Lakes Initiative for Human Rights (GLIHD) and a lecturer at the School of Law at the University of Rwanda. Has been involved in out-of-court settlements in a law firm in private legal practice and is member of the Rwandan Bar Association. Contact: [email protected].

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f. Sanctions by law if mediation is not tried (in good faith) No. Sanctions are provided for but if mediation is compulsory, the court declares the case inadmissible. g. Incentives if mediation is tried voluntarily before going to court (No). Except for mediation committee decisions, which become binding after the court affixes the enforcement terms to the case. Settlements made in a commercial mediation process are not binding. h. Outside counsel presence/representation during mediation sessions allowed Yes. In commercial conciliation and mediation, the counsel is allowed to attend, but in cases tried by the mediation committee neither the lawyer’s assistance nor representation is allowed. Mediation committees are charged with dealing with claims of for amounts less than US$40,761 US$ (3 million Rwandan Francs) and mainly civil cases. i. Outside counsel presence mandatory No. Not mandatory.

RW

2. Mediation clause a. Case admissible in court with a mediation clause No. The case becomes inadmissible as soon as one party invokes the mediation clause and the court recognises the validity of the mediation clause. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law. No. However, there is no jurisprudence. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. Mediation is compulsory in these cases under the inviolability of contract as provided for by Section 64 of the Contract Act.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law (Yes). In divorce cases, there is mediation procedure, but /not in other cases. Procedures for mediation in divorce are laid down because it takes 6 months as provided for by the law, but in commercial disputes cases it is flexible since parties are free to determine most of the procedure in their contract when mediation is optional. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. If it is contractual, it is flexible since parties are free to determine most of the procedure in their contract if mediation is optional. c. Mediator can offer a non-binding opinion Yes. If agreed upon by the parties, the opinion is binding. However, in some cases parties still have the right to appeal.

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d. Mediator can offer a binding opinion Yes. Mediation committee law and the PCCSA, make such decisions enforceable. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative. This approach is the most commonly used approach in commercial disputes. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Transformative. This approach is the most commonly used style in this situation. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other). Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. In future, the Kigali International Arbitration Centre (KIAC) will be organising courses for the certification of mediators. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. There is no public regulation on the accreditation or certification of mediators. d. Number of hours for basic mediator training Three days (KIAC). e. Mandatory continuing professional development for accredited/certified mediators No. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No.

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g. Accreditation through written exam Yes (KIAC). h. Accreditation through performance-based assessment Yes (KIAC).

4.2. Mediation advocacy accreditation i. Accreditation or certification of mediators No. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

RW

a. Set by market (private certifying bodies) Yes. In Rwanda, there is now the Kigali International Arbitration Centre (KIAC) where mediators are trained and certified. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 2008. Rwanda has since 2008 a law on mediation.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. KIAC administers and promotes mediation in commercial matters (Section 4(2) of the Kigali International Arbitration Centre Act), and an informal mediation process which is administered by a formal institution.

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b. Individuals may be providers of mediation services Yes. No law prohibits an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. Freely contracted. b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases US$ 1.000. The fee is US$1,000 for a case ranging from 0 to 50,000 US$. This amount is found on the KIAC website. d. Average mediator fee per hour in civil cases NA. In civil cases, there is no fee for mediation.

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). Legal aid is available for mediation in civil cases determined by law, but not for commercial cases. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. However, a judge can refer cases to mediation, so a judge and mediator complement each other. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Mediation is beginning to be introduced and used, and this makes it part of the legal system. It is part of the legal system as it is set by laws, the constitution and it is part of procedural issues (PCCSA) and stimulated by the new Kigali International Arbitration Centre. c. Mediation procedure has impact on statute of limitations Yes. Entering into conventional mediation suspends prescription as long as it is lasting (it has legal effect of formal notice).

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11. Mediated settlement a. Contract Yes. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties Yes. It is enforceable when it bears an enforceable title from the court. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law Yes. Ethics and deontology govern the professionals in that field.

RW

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) Yes. This is regulated by both criminal and evidence law.

13. Education a. Mediation education is a common component of legal education curriculum No. b. Mediation advocacy education is a common component of legal education curriculum No.

14. Most relevant literature or references, jurisprudence, articles, law The Kigali International Arbitration Centre has only been in place since 2011. New mediators and arbitrators are being trained. There is not much case law as we are yet to see some cases going to arbitration or mediation. In mediation and arbitration training, the text of the Rwandese law and textbooks and a syllabus of foreign (mainly British) institutions are mostly used at KIAC. Act No005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters, Act No21/2012 of 14/06/2012 relating to civil, commercial, administrative and labour procedure, Act No 51/2010 of 10/01/2010 establishing the Kigali International Arbitration Centre and determining its organisation, functioning and competence.

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15. Mediation legislation texts. a. Weblink to legislation in national language: –– http://kiac.org.rw/ –– http://kiac.org.rw/IMG/pdf/kigali_international_arbitration_center_-_kiac_arbitration_ rules_2012_-_published_on_28.05.12.pdf –– Act N°49/01 du 06/07/20102010 Presidential Order specifying modalities for electing the mediation Committee members., N°49/01 du 06/07/2010 No particular weblink. b.Weblink to English or other translation: –– http://kiac.org.rw/ –– http://kiac.org.rw/IMG/pdf/kigali_international_arbitration_center_-_kiac_arbitration_ rules_2012_-_published_on_28.05.12.pdf –– Act N°49/01 du 06/07/20102010 Presidential Order specifying modalities for electing the Mediation Committee members., N°49/01 du 06/07/2010 c. Other references NA.

16. Country specific remarks Since 2008, Rwanda has had a law on mediation. Before the enactment of this law, mediation in Rwanda was only used in civil cases. Mediation and arbitration in Rwanda seem not to be understood well, but with the recent creation of the Kigali International Arbitration Centre by the Rwanda Private Sector Federation, there is a growing awareness by the business community, lawyers, non-lawyers to the option of mediation and arbitration. In the year 2012, some mediator and arbitrator training courses were organised by the KIAC. Those first participants will be Rwanda’s certified mediators and arbitrators. We will now see more business and commercial entities taking up mediation and arbitration. We are also yet to see how the courts and tribunals will react to the decisions from the outcomes of mediation, once they have made decisions. We use the term ‘decisions’ because ‘rulings’ are made courts.

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Mediation regulation and approach Country: Rwanda Prepared by Tom Mulisa

RW

1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of the procedure mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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No Yes Yes Yes (No) No (No) Yes No No No Yes (Yes) Yes Yes Yes E D T F GA Mix Mix Yes Yes No 3 days No No Yes Yes

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53 Rwanda

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Mediation regulation and approach Country: Rwanda Prepared by Tom Mulisa 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes No No No NA 2008 Yes Yes No Yes No $1.000 (est.) NA (Yes) No No No

(Yes) Yes Yes No Yes No Yes Yes No No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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54. SINGAPORE1 Prepared by Aloysius Goh Choong Sien2

1.

Attempt to mediate

a. Always voluntary (Yes). See 1b.

SG

b. Mandatory (in some cases) (No). Mediation is not mandatory in Singapore. However, under the Child Focused Resolution Centre (CFRC) programme, couples filing for divorce who have at least one child below the age of 8 years have to undergo mandatory counselling and mediation after filing for divorce. (See link: http://app.subcourts.gov.sg/Data/Files/File/InforBooklet_Brochures/Infor_Law %20GazetteDec2011.pdf) c. Court referral or court-connected mediation possible Yes. Court-based mediation takes place after parties have commenced litigation proceedings. This type of mediation is mainly carried out by the Subordinate Courts and is coordinated by the Primary Dispute Resolution Centre (PDRC). d. Court-ordered mediation possible No. The Subordinate Courts require all parties who file for civil claims to go for mediation unless they provide reasons why they should not (the opt-out system). However, for the CFRC programme (see 1b), mediation is mandatory. e. Sanctions by the court if mediation is not tried (in good faith) Yes. The court reserves the right to take into account unsatisfactory reasons for not attempting mediation or unreasonable termination of mediations when making cost orders. f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court (No). However, mediation by the PDRC (Primary Dispute Resolution Centre) is free and can lead to time and cost savings for the parties.

1 Last update of information: May 2013. 2 Mr Aloysius Goh is the Managing Director of Peacemakers Consulting, a private provider of mediation services based in Singapore. ‘Peacemakers’ is also the name of an ongoing annual series of mediation workshops and competitions for the youth which was developed in 2010 by Aloysius together with other leaders in the Singapore mediation community. Through Peacemakers (both the company and the workshop) Aloysius has been an active advocate for increased collaboration between all stakeholders in the mediation community to raise awareness of mediation practice as well as the standards of mediation. Contact: [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes. The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process. i. Outside counsel presence mandatory (No) in general, but it is encouraged. Yes under the CFRC programme (see 1b), attendance of counsel with the parties is required. This depends on the forum of the mediation. When the mediation is conducted under the court dispute resolution scheme, counsels are required. However, when mediation is initiated by the parties themselves, they do not need counsel to be present with them.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. b. Case admissible in court, however, the judge may take this into account and there is some case law Yes. See 1.e. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. There is no legislation in Singapore prescribing the procedure for mediation. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. The mediation procedure differs according to the body administering the mediation. The mediation procedure is prescribed by the mediation body. However, the level of detail in the prescription varies. Commercial mediation bodies and those affiliated with the courts are more detailed while the mediation bodies which are affiliated with volunteer-run schemes have little detail. In all bodies, the enforcement of level of quality and ethical performance of mediators is minimal. c. Mediator can offer a non-binding opinion Yes. Under the court dispute resolution (CDR) process, it is not uncommon for the mediators to offer non-binding opinions. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Commercial disputes at SMC (Singapore Mediation Centre) are mediated based on a facilitative model.

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f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. The CDR process is a highly evaluative or ‘rights-based’ form of mediation. This judge-driven CDR differs considerably in nature from many of the facilitative alternative dispute resolution processes. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative/Evaluative. See 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. The merits of the case are candidly and openly discussed in the Singapore Courts. Evaluative mediation in the Singapore courts operates with the applicable principles of law as its focal point, and parties have a full appreciation of the time, costs and other implications of a litigated outcome.

SG

j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. Each mediation centre in Singapore has its own accreditation system. The Singapore Mediation Centre (SMC) and Primary Mediation Centre (PDRC) accredit mediators through training and assessment. The SMC’s accreditation is limited to a period of one year and is subject to renewal. Re-accreditation is granted if the mediator engages in at least eight hours of annual continuing education in mediation and is available to conduct at least five mediations per year if requested to do so. Community mediation centres accredit mediators through their own appointment systems. b. Set by market (private certifying bodies) Yes. c. Set by public regulation No. There is no national system or law to regulate the accreditation, the quality or standards of mediators in Singapore. d. Number of hours for basic mediator training 40 hours. For Accreditation to practice as a mediator, at least 5 days x 8 hours, i.e., 40 hours. e. Mandatory continuing professional development for accredited/certified mediators (Yes). See 4.1.a.

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54 Singapore

f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. g. Accreditation through written exam Yes. SMC’s accreditation procedure includes a written exam. See 4.1.a. h. Accreditation through performance-based assessment Yes. Performance-based assessment forms part of the accreditation procedure. See 4.1.a.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. In Singapore, there is no accreditation/certification or special recognition of mediation advocates. Generally, the role of mediation advocate is played by the parties’ respective legal counsels. j. Set by market (private certifying bodies) No. k. Set by public regulation No.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.1.a, 4.1.b and 4.1.c. b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Any person can be a mediator after being accredited by the relevant bodies. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. There are no regulations on cross-border mediations in Singapore.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No. There is no legislation for mediation per se in Singapore.

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8.

The Variegated Landscape of Mediation

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. It can take the form of an association, private organisation or the courts. Besides SMC (Singapore Mediation Centre) and the courts, there are trade and professional organisations that offer mediation services e.g., Association of Banks in Singapore, Institute of Estate Agents, National Association of Travel Agents in Singapore, etc. Government agencies in Singapore also provide mediation services e.g., Insolvency and Public Trustee’s Office, Strata Titles Board, Tribunal for the Maintenance of Parents, etc. b. Individuals may be providers of mediation services Yes. There are no rules prohibiting an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. The mediation industry is not regulated in Singapore.

9.1. Mediator fees a. Freely contracted Yes.

SG

b. Fixed in some cases by public regulation No. c. Average mediator fee per hour for commercial or cross-border cases $900-$2,900/day. Based on Singapore Mediation Centre’s rates: $900 per day to $2,900 per day depending on the quantum of claims. d. Average mediator fee per hour in civil cases $900-$2.900/day. See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services (Yes). The community mediation centres in Singapore offer free mediation services to the public. In addition, where parties who have filed an action in court later decide to go for mediation under CDR scheme, mediation sessions are free for the parties. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. However, the court dispute resolution (CDR) process requires the judges to mediate certain cases at the subordinate courts.

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b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) (Yes). Mediation is made part of the legal system through the CDR process at the subordinate courts. Where parties decide not to mediate without reason, or do not engage in mediation in good faith, the courts may decide to award costs against them if they succeed at trial.

11. Mediated settlement a. Contract Yes. In most private mediations, parties would usually reduce the terms of the agreement in writing and sign on the document. It would be a legally binding agreement. As such, the enforceability of such settlement agreements is subject to normal contractual principles. Where there are pending court proceedings, the settlement agreement may provide for its terms to be recorded as a consent judgment or court order. It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award. b. Automatically enforceable No. c. Enforceable under some circumstances which are up to the parties Yes. See 11.a. d. Enforceable under some circumstances defined by public regulation No.

12. Confidentiality a. Regulated by law (Yes). Generally, under common law, statements made on a ‘without prejudice’ basis during negotiations towards settlement of a dispute are inadmissible in subsequent court proceedings relating to the same subject matter. As such, the ‘without prejudice’ privilege is usually applicable in most mediation. However, the privilege is not absolute and in certain cases, ‘without prejudice’ matters may be raised where justice requires or circumstances exist giving rise to the non-applicability or waiver of the privilege. In equity, persons who receive information in circumstances of confidence cannot make unauthorised use of the information. A court may grant relief if there has been actual abuse or threatened abuse of confidential information. A number of statutory provisions exist to protect confidentiality of mediation through privilege and secrecy provisions. These provisions reinforce the common-law position and in some cases extend the coverage. In Singapore, some examples of such protection would be Sections 19 and 20 of the Community Mediation Centres Act (Cap 49A), Sections 49(5) and 50(4) of the Women’s Charter (Cap 353) and Section 23 of the Evidence Act (Cap 97), which are potentially applicable to communications made during a mediation session. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No.

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13. Education a. Mediation education is a common component of legal education curriculum Yes. Basic mediation is a core curriculum in the preparatory courses before candidates are called to the bar, and there are brief introductory modules in the universities as part of courses on the Singapore Legal System. Detailed mediation courses are offered as electives at the universities (National University of Singapore and Singapore Management University). However, spaces available are limited and only a minority of graduates each year attend the electives. b. Mediation advocacy education is a common component of legal education curriculum Yes. There is an introduction to mediation advocacy in the preparatory courses before candidates are called to the bar.

SG

14. Most relevant literature or references, jurisprudence, articles, law –– Getting to Yes: Negotiating Without Giving In by Professor Roger Fisher and William Ury; and –– Mediation: Principles, Process, and Practice (Singapore Edition), 2000 by Professor Laurence Boulle and Teh Hwee Hwee –– http://www.singaporelaw.sg/content/Mediation.html –– http://www.aseanlawassociation.org/docs/w4_sing2.pdf –– http://app.subcourts.gov.sg/Data/Files/File/e-adr/PAPER%20FOR%20SPIDR.pdf –– http://www.mediation.com.sg/ –– http://app2.mlaw.gov.sg/cmc/ –– http://app.subcourts.gov.sg/civil/print.aspx?pageid=54106

15. Mediation legislation texts a. Weblink to legislation in national language NA. b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks Mediation is not new to Singapore. The launch of formal mediation was in 1993. Since then, numerous state agencies have been created to promote its use. The drawback to this is the lack of coordination and a uniform practice standard and quality. In addition, there has also not been much coordinated publicity to educate the public on what constitutes good mediation. The opaqueness of the practice has thus discouraged people from taking up mediation and the cases are few compared to other developed jurisdictions like Hong Kong, Australia, the UK and the US.

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Thankfully, there has been a lot of activity in Singapore regarding mediation recently. As recently as May 2013, there was an announcement that mediation may become compulsory for community disputes. A framework is being reviewed for this. (See link http://www.channelnewsasia.com/news/singapore/govt-mulling-mandatory-mediation-for-som/672342.html) In addition, in March 2013, the Chief Justice announced the Primary Justice Project, key elements of which were to increase the use of mediation and to enhance the competence of lawyers in supporting the mediation process. (See link http://app.supremecourt.gov.sg/default. aspx?pgid=4621&printFriendly=true) Mediation definition There is no statutory definition of mediation.

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Mediation regulation and approach Country: Singapore Prepared by Aloysius Goh Choong Sien 1. Attempt to mediate

2. Mediation clause

SG

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) (No) Yes No Yes No (No) Yes (No)/Yes Yes Yes No No Yes Yes No F F F/E F/E All Mix Mix Yes Yes No 40 hrs (Yes) No Yes Yes No No No

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Mediation regulation and approach Country: Singapore Prepared by Aloysius Goh Choong Sien 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

Yes No No No NA No Yes Yes No Yes No $900-2.900/day $900-2.900/day (Yes) No No No

(Yes) … Yes No Yes No (Yes) No Yes Yes

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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55. SOUTH AFRICA 1 Prepared by Professor Dr. Barney Jordaan2

1.

Attempt to mediate

a. Always voluntary Yes. However, almost 50 statutes (ranging from company law to environmental and consumer disputes) provide for voluntary mediation. New mediation rules are being drafted for inclusion in the Rules of Court that will possibly introduce some mandatory elements. The rules are expected to become effective during the first half of 2013 as a pilot project in some courts.

ZA

b. Mandatory (in some cases) Yes. A compulsory and fairly robust process of ‘conciliation’ applies in employment disputes as a pre-condition for access to arbitration, adjudication or engaging industrial action. Conciliation can best be described as a truncated evaluative mediation process. c. Court referral or court-connected mediation possible No. New mediation rules are being drafted that will provide for court-connected mediation (see 1.a). d. Court-ordered mediation possible No. Current Rules of Court only require parties to arrange a pre-trial conference at which consideration should be given to having the dispute resolved through mediation, arbitration or a decision by a third party. e. Sanctions by the court if mediation is not tried (in good faith) No. As a rule there are no sanctions but some courts have of late started penalising legal representatives who do not advise their clients about the option of mediation in matters that are eminently suitable for mediation, e.g., divorce disputes. f. Sanctions by law if mediation is not tried (in good faith) No. However, the draft mediation rules provide that a court may make an adverse costs order against a litigant who unreasonably refuses to participate in mediation. g. Incentives if mediation is tried voluntarily before going to court No.

1 Last update of information: December 2012. 2 Barney is professor extraordinaire at the Graduate School of Business of Stellenbosch University (USB) and adjunct professor at the Graduate School of Business of the University of Cape Town. He teaches negotiation and conflict resolution in the MBA and executive education programmes at both schools. He is the founder and head of the USB’s Africa Centre for Dispute Settlement. The Centre is an African hub for academic research, development and teaching of dispute settlement theory and practice. Contact: [email protected].

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h. Outside counsel presence/representation during mediation sessions allowed Yes. No legal representation is permitted during conciliation proceedings in employment disputes. i. Outside counsel presence mandatory No.

2. Mediation clause a. Case admissible in court with a mediation clause Yes. Because of its voluntary nature, courts will not compel an unwilling party to mediate. However, courts may make an adverse costs order if one party unreasonable refused to attempt mediation. There are new mediation rules (see 1.a. and f.). b. Case admissible in court, however, the judge may take this into account and there is some case law Yes. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court No. See 1.a.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is not regulated by law and there are no plans as yet to introduce a mediation statute. The draft mediation rules will regulate court-aligned mediation. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Mediation is solely governed by the mediation agreement between the parties and the mediator. c. Mediator can offer a non-binding opinion Yes. As a rule mediators do not offer advice but may do so at the request of all the parties. In employment disputes, commissioners of the Commission for Conciliation Mediation and Arbitration (CCMA) are given statutory power to make ‘advisory’ awards. d. Mediator can offer a binding opinion No. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. However, more experienced mediators adopt a variety of styles depending on the nature of the dispute and the wishes of the parties. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Facilitative. See 3.e.

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g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. See 3.e. In employment disputes an evaluative style is typically used. In collective bargaining disputes (e.g., over wages) a facilitative model is typically used. Relationshipbuilding initiatives between organised labour and employers vary between facilitative and transformative styles. This is also true of family disputes and disputes in family-owned businesses. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Facilitative. See 3.e. and 3.g. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? Neutral/general advice, when it is used (see 3.e). j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Most matters start with a joint session but there is no fixed rule. In some cases a mediator might decide that the relationship between the parties is good enough for a joint session only. In other cases the relationship might be so poor that only caucuses are used.

ZA

k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. However, it is customary in family disputes to have joint sessions only.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators Yes. A voluntary (opt-in) accreditation standard was developed by the Dispute Settlement Accreditation Council of South Africa (DiSAC), a body made up of academic institutions, mediation service providers and other interested parties (see www.usb.ac/disputesettlement). In addition to mediator accreditation standards, DiSAC has also developed accreditation standards for training of mediators and for the accreditation of mediation service providers. There are no plans as yet to regulate mediation, including accreditation of mediators, through legislation. In addition, private mediation service providers have their own set of internal standards for membership of their mediation panels. b. Set by market (private certifying bodies) Yes. See 4.1.a. c. Set by public regulation No. d. Number of hours for basic mediator training 40 hours. e. Mandatory continuing professional development for accredited/certified mediators Yes. DiSAC requirements (see 4.1.a) include the need for on-going training and development to retain accreditation.

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f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) No. g. Accreditation through written exam No. h. Accreditation through performance-based assessment Yes. DiSAC requirements (see 4.1.a.) stipulate that a performance-based assessment is required as part of mediation training.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Mediation advocacy training is increasing as the uptake of mediation increases. j. Set by market (private certifying bodies) Yes. All initiatives are private. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. See 4.1.a., 4.1.b. and 4.1.c. b. Set by public regulation No. There is no law regulating the mediation profession. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. Any person can be trained as a mediator. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. Cross-border mediation is not regulated.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since No.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. The reputable mediation service providers are either private or public companies.

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b. Individuals may be providers of mediation services Yes. c. Mediation provider qualifications/requirements determined by public regulation No. Those registered as private or public companies must, however, comply with legislation generally applicable to all companies.

9.1. Mediator fees a. Freely contracted Yes. b. Fixed in some cases by public regulation No. However, it is likely that fees will be prescribed in the case of court-aligned mediation (see 1.a) c. Average mediator fee per hour for commercial or cross-border cases ZAR 1,000 (11 ZAR = 1€) d. Average mediator fee per hour in civil cases ZAR 1,000 (11 ZAR = 1€)

ZA

9.2. Financing and legal aid e. Legal aid available for mediation services No. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. It is unclear whether a subsidy will be made available by government once the mediation rules (1.a.) become effective.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. However, the court dispute resolution (CDR) process requires the judges. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) No. However, the new mediation rules will make court-aligned mediation part of the civil justice system, as they will form part of the Rules of Court. c. Mediation procedure has impact on statute of limitations No. Prescription periods are not interrupted. However, the draft mediation rules envisage that time limits prescribed by the rules of court for the delivery of pleadings and notices, the filing of affidavits or the taking of any step by any litigant are suspended during the period

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55 South Africa

697

from the time a matter is referred to a dispute resolution officer to the time of the outcome of the mediation process.

11. Mediated settlement a. Contract Yes. It constitutes a contract under common law provided it meets the normal requirements for validity of contracts, e.g., consensus, legality, etc. b. Automatically enforceable No. The mediation agreement is enforceable like any other contract. c. Enforceable under some circumstances which are up to the parties Yes. See 11.b. d. Enforceable under some circumstances defined by public regulation No. See 11.b.

12. Confidentiality a. Regulated by law No. However, generally mediation agreements will provide for confidentiality. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) No. This has to be regulated by mediation agreements.

13. Education a. Mediation education is a common component of legal education No. As a general rule mediation courses are not offered at law schools as a compulsory subject. Some universities do provide a mediation elective. b. Mediation advocacy education is a common component of legal education No.

14. Most relevant literature or references, jurisprudence, articles, law –– Commercial Mediation: A User’s Guide, J. Brand, F. Steadman & C. Todd

15. Mediation legislation texts a. Weblink to legislation in national language NA. See 1.a.

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b. Weblink to English or other translation NA. See 1.a. c. Other references –– http://www.usb.ac.za/disputesettlement/dispute_settlement_accreditation_council. html

16. Country specific remarks

ZA

Mediation became the leading form of dispute resolution in employment and collective bargaining disputes during the early 1980s. The Labour Relations Act of 1995 finally gave its prominence official sanction with the establishment of the CCMA, whose primary function is ‘conciliation’ and arbitration of employment and labour-related disputes (see 3.c.). Now, nearly 50 statutes provide for mediation (see 1.a.) yet it is seldom used, with parties and their representatives seemingly more interested in litigation. However, there is a groundswell of support developing for mediators, both from the side of some senior and seasoned lawyers as well as larger corporates (e.g., insurers), which is culminating in (court-aligned) mediation rules being introduced for the first time for civil and commercial disputes. Mediation is also being widely promoted by tertiary institution such as the Africa Centre for Dispute Settlement at the University of Stellenbosch Business School in South Africa (www.usb.ac.za/disputesettlement). Mediation definition There is no statutory definition of mediation yet, although (voluntary) mediation rules will soon be included in our rules of court. At the moment, therefore, we do not have a legal definition of the term. However, the draft mediation rules (which will probably be implemented in the course of this year) define mediation as: ‘‘Mediation’ means the process by which a mediator assists the parties to litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in attempt to solve the dispute’.

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55 South Africa

699

Mediation regulation and approach Country: South Africa Prepared by Barney Jordaan 1. Attempt to mediate

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory 2. Mediation a. Case admissible in court with mediation clause clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court 3. Mediation a. Details of mediation procedure, approach and/or specific duties of procedure the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment 4.2. Mediation i. Accreditation/certification or recognition of mediation advocates advocacy j. Set by market (private certifying bodies) accreditation k. Set by public regulation

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Yes Yes No No No No No Yes No Yes Yes No No Yes Yes No F F F F N/GA Mix Mix Yes Yes No 40 hrs Yes No No Yes No Yes No

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Mediation regulation and approach Country: South Africa Prepared by Barney Jordaan 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation 9.1. Mediator fee

ZA

9.2. Financing and Legal aid 10. Legal context

11. Mediated settlement

12. Confidentiality

13. Education

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border)

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases e. Legal aid available for mediation services f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations a. Contract b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

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No NA No

a. Mediation legislation since

Yes = Yes (Yes) = Yes as a rule, but with (informal) exceptions

Yes No No

Yes Yes No Yes No ZAR 1.000 (est.) ZAR 1.000 (est.) No No No No

No No Yes No Yes No No No No No

No = No (No) = No as a rule, but with (informal) exceptions

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56. Introduction to the United States of America 1 Prepared by Professor Hal Abramson2 Any examination of US mediation regulations should begin with a reminder: the US is not a monolithic country. Within this single country, there are fifty states, Washington D.C, and a federal government. The federal government and the states share and divide power based on the governing principle of federalism. The federal government’s powers are limited to the ones granted in the Constitution with all other powers reserved for the states, including powers to regulate domestic and local concerns. Within this constitutional structure, mediation is primarily left to the states to regulate, with each state adopting its own regulatory framework although there are federal mediation programmes. This section focuses on the regulatory frameworks of the states. The states do not follow a uniform approach to regulation. The distinctive differences and similarities can be usefully mapped on the grid fashioned for this book. The grid offers a comprehensive checklist of what features of mediation regulation to track when examining a state’s framework. The four US state chapters in this book provide illuminating illustrations of how features can vary. California, Florida, and Texas with robust mediation cultures have adopted the best-developed frameworks although each one is somewhat different. The fourth chapter on New York illustrates a more limited, partial framework in a state where mediation is not an integral part of the legal culture. The primary initiative to develop a uniform approach has been limited to privilege and confidentiality protections in mediations. The over 250 different state privilege statutes have generated confusion over what information can be safely shared in mediations, and sharing information is considered essential to the success of mediation. By establishing a uniform approach to this complex and intricate feature, participants are more likely to be candid because they would know what information could be safely shared with the other side and the mediator. With high hopes, a model privilege law, known as the Uniform Mediation Act (UMA) was prepared by the National Conference on Commissioners on Uniform State Laws, in conjunction with the American Bar Association’s (ABA) Section on Dispute Resolution. A joint expert committee drafted the UMA and held extensive public hearings. The UMA was approved by the Uniform Commissioners and ABA between 2001 and 03 for adoption by the states. Since then, only ten states along with Washington D.C. have passed the UMA (as of 2013) although others states are considering it. The adopting states are Washington, Idaho, Utah, South Dakota, Nebraska, Illinois, Ohio, New Jersey, Vermont, and Iowa. In other states, privilege and confidentiality protections can vary as illustrated by the four state chapters. Each one fashioned its own approach with California affording one of the strongest if not the strongest protections in the US.

1 2

Last update of information: January 2014. Hal Abramson is a full-time faculty member at Touro Law Center, New York, where he teaches, trains, and writes on how attorneys can effectively represent clients in domestic and international mediations and how mediators can resolve intercultural disputes. [email protected].

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The grid identifies other issues that can distinguish a state’s regulatory framework. You may want to give special attention to the following distinguishing issues when reading the state chapters or researching other states. Whether mediation is a voluntary process or mandated can vary among states, as well as within a state, depending on each court’s jurisdiction. For example, Florida courts mandate that many types of cases be referred to mediation. California courts can mandate the use of mediation when the amount in controversy is less than $50,000, while other cases may not be compelled into mediation although participants can feel pressured by judges and local norms to use mediation. And in New York, mandatory and voluntary mediation programmes can be found scattered across the state, with variations from county to county. Whether parties must participate in good faith, how good faith is defined, and what sanctions for any breach may be imposed can vary. Practitioners need to investigate these questions in order to avoid unknowingly breaching a good faith obligation.

US

The authorised role of the mediator can vary over a well-documented range of facilitating, evaluating, and issuing binding opinions, with some states leaving it up to the parties to decide. Florida law, for instance, bars a mediator from issuing a binding opinion and limits its authority to give a non-binding one although it permits mediators to issue binding opinions when authorised by the parties. Whether a mediator must be accredited and the requirements for accreditation can also vary. California, one of the most mediation active states in the US, does not have a state certification programme, although local courts may impose minimum training requirements as a condition of service on their local panels. In contrast, Florida, also one of the most active mediation states, runs a mediator certification programme that operates under the auspice of the Florida Supreme Court, and judges can refer cases only to certified mediators, although parties can select non-certified ones. These US state studies offer a rich comparison of regulations and approaches in significant mediation states as well as offer a valuable template for guiding your own investigation of regulations in other states. For your best initial reference on mediation regulation and approaches in the US, see Sarah R. Cole, Craig A. McEwen, Nancy H. Rogers, James R. Coben, and Peter N. Thompson, Mediation: law, policy and practice (2011-2012 Edition).

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57. USA – California 1 Prepared by Eric van Ginkel2

1.

Attempt to mediate

a. Always voluntary (Yes). In California, the state courts of general jurisdiction (Superior Court) are organised by county: one court system for each of the 58 counties. Generally, each Superior Court adopts by Local Rules its own ADR programme within the boundaries of the provisions of the California Code of Civil Procedure (CCP) and the state-wide California Rules of Court. Under California law, mediation is almost always voluntary, but in practice, it is often ‘strongly suggested’. For civil cases, Section 1775.5 CCP provides that ‘the court shall not order a case into mediation where the amount in controversy exceeds $50,000’. b. Mandatory (in some cases) (Yes). In accordance with Section 1775.5 CCP, all Superior Courts have adopted mandatory mediation for unlimited jurisdiction civil cases where the amount in controversy does not exceed $50,000. For ‘limited jurisdiction’ cases (where the amount in controversy exceeds the Small Claims Court maximum ($10,000 in most cases; $5,000 for corporate plaintiffs), but does not exceed $25,000), each Superior Court may decide by local rule whether those cases are also subject to mandatory mediation. Most courts have adopted a rule that limited jurisdiction cases may not be ordered to mediation. In these cases, however, some form of ADR process is often strongly suggested. Thus, only unlimited jurisdiction cases where the amount in controversy is between $25,000 and $50,000 are subject to mandatory mediation. As a result of the fiscal crisis of the court system in California, the ADR programme in Los Angeles has been shut down, and all local rules dealing with ADR (other than judicial arbitration) have been repealed. Until January 1, 2016, pursuant to California Rules of Court, rule 3.720(b) and LASC Local Rule 3.23, judges are to issue orders in each individual case with respect to how to deal with alternative dispute resolution. In 1981, California enacted the first mandatory Mediation Act addressing child custody disputes (Cal. Civ. Code Section 4607(a) et seq. (West 1981) (repealed 1982), replaced by Cal. Family Code Sections 3170-3173), which provides that all disputes concerning child custody or visitation, including petitions for visitation from stepparents or grandparents, will be set by the court for mediation. These provisions also state that natural or adoptive parents not party to the dispute are not required to participate in the mediation but, if they do not, they waive their right to object to any resulting settlement. Courts are allowed to waive mandatory mediation  in cases involving domestic violence, which cases are handled by Family Court Services under guidelines by the California Judicial Council (Cal. Rules of Court, Rule 1257.2). 1 Last update of information: December 2013. 2 Eric van Ginkel is a mediator and arbitrator specialising in international business, hi-tech, oil & gas, commercial real estate, and intellectual property-related dispute resolution. Since 2004 he has been an adjunct professor of law at the Straus Institute for Dispute Resolution of Pepperdine University School of Law. Contact: [email protected].

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c. Court referral or court-connected mediation possible Yes. Courts often refer cases to mediation. In principle, each Superior Court in California (other than Los Angeles) has an alternative dispute resolution office for implementing both court-referred and court-ordered mediation. As noted previously, due to the fiscal crisis in the California court system, the Los Angeles Superior Court has closed its ADR Office, and all local rules relating to alternative dispute resolution other than those dealing with judicial arbitration have been repealed. Each judge is now expected to assign individual cases to an ADR process without the benefit of the ADR Office or the local rules applying to this process. d. Court-ordered mediation possible (No). Certain programmes allow courts to order cases into mediation as an alternative to (non-binding) judicial arbitration. Other programmes merely encourage  voluntary  mediation. At least according to one appellate case, the court has no power, however, to order parties to attend and pay for private mediation over their objection ((Jeld-Wen, Inc. v. Sup.Ct. of San Diego County, 146 Cal.Appp.4th 536 (2007)).)

US

As discussed in previous paragraphs, the Civil Action  Mediation  Program is a  court-connected programme in California that allows court-ordered alternative resolution for certain cases (CCP Sections 1775-1775.15).) (The programme does not pre-empt other existing or future ADR programmes in the trial courts; CCP Section 1775.13). e. Sanctions by the court if mediation is not tried (in good faith) (No). The court may impose sanctions for non-compliance with its local rules or the court’s orders, under a general provision (see e.g., LASC Rule 3.10, SBSC Rule 14.03). Obviously, if mediation is not mandated, the court cannot impose sanctions, but litigators tend to assume that judges draw a negative inference when a party fails to appear at a mediation session. f. Sanctions by law if mediation is not tried (in good faith) No. There can be no court-ordered sanctions for appearing but not mediating in good faith, as disclosure of that fact would violate California’s strict confidentiality laws (CA Evidence Code Section 1119). See Foxgate Homeowners Association, Inc. v Bramalea California, Inc., 26 Cal.4th 1 (2001). Contractually, parties may agree that there are consequences to a failure to comply with a provision that each party must appear at a properly scheduled mediation, or a failure to send to such mediation an officer or representative of a corporation with the proper authority. The most common ‘sanction’ is that the clause providing that the losing party pay the winning party’s attorney fees will not apply if such a winning party violated the provision dealing with participation in the mediation. California courts have enforced this type of sanction. Johnson v Siegel, 84 Cal.App.4th 1087 (2000); Frei v Davey. 124 Cal.App.4th 1506 (2004); Van Slyke v Gibson, 146 Cal.App.4th 1296 (2007). g. Incentives if mediation is tried voluntarily before going to court No. There are no incentives for trying mediation voluntarily before going to court. h. Outside Counsel presence/representation during mediation sessions allowed Yes. In civil actions (other than small claims cases, which do not allow attorneys to be present at trial), it is customary for the attorneys to be present at the mediation. In family law cases, the parties are at times not represented by attorneys at the mediation. In all cases, the decision is up to the parties.

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57 USA – California

705

i. Outside Counsel presence mandatory No. There is no legal requirement for attorneys to be present, whether in-house or outside counsel. This would be contrary to the principle of party autonomy that applies to mediation.

2. Mediation clause a. Case admissible in court with a mediation clause (No). An analysis of the court decisions in the United States from 1999 through 2003 showed that courts will generally enforce a pre-existing obligation to participate in mediation, whether the obligation was judicially created, mandated by statute or stipulated in the parties’ pre-dispute contract. See James R. Coben and Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation about Mediation, 11 Harv. Negot. L.Rev. 43, 105 (2006). See also the cases cited under 1.f. Consequently, if there is a pre-existing obligation to participate in mediation, the court may refuse to allow the case to go forward until the mediation process has been completed. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law Yes. See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). Provided the clause in the agreement is carefully drafted, and clearly requires mediation before a party has the right to sue in court or bring a claim in arbitration, preferably as a condition precedent, that clause will generally be upheld. An agreement to mediate is held to be a binding contract, but the mediation process itself is voluntary in that the parties retain the right to choose whether or not to continue to participate, as well as to agree or not to agree with a proposal to resolve the dispute. Some mediation clauses require that the parties attend mediation for a minimum number of hours or days before they are permitted to discontinue their participation.

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. The mediation procedure itself is not regulated by law. b. Mediation procedure, style and approach of the mediator fully flexible/contractual (Yes). In principle, mediation is solely governed by the contract between the parties and the mediator. Various provider institutions, such as the American Arbitration Association and JAMS, as well as the International Institute for Conflict Prevention and Resolution (‘CPR’) have developed procedures for the conduct of the mediation. The parties may choose to refer to such provisions in their contract or agree to adopt one of these once a conflict has arisen. Absent the agreement of the parties to follow certain rules or a set of rules, the mediator is expected to adopt such rules as she may deem fit. c. Mediator can offer a non-binding opinion Yes. As a rule a mediator does not offer advice, however, the mediator is allowed to do so, preferably if the parties request this. The California International Arbitration and Conciliation

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Act (Sections 1297.11 et seq. CCP), is explicit on this point: Section 1297.361 provides that the conciliator may at any time prepare a draft settlement agreement, whereas Section 1297.362 provides that no party may be required to accept such draft settlement agreement.

US

d. Mediator can offer a binding opinion (Yes). Although it is clearly legal for the parties to agree to such an arrangement, so-called ‘binding mediation’ is a rare and relatively new form of dispute resolution and is not yet generally accepted. Currently, its use is almost exclusively limited to the construction industry, mostly for the resolution of small monetary disputes. Generally, binding mediation starts out as a regular, informal mediation to seek resolution of as many issues as possible. If the parties reach an impasse as to certain issues, the mediator renders a binding decision regarding such unresolved issues. All issues so resolved are memorialised in a binding mediation settlement agreement. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. The facilitative and evaluative styles are the two most common styles for commercial mediation. Many attorneys prefer a more evaluative style regarding the substance, although academics maintain that the facilitative style will usually yield the best results, including solutions that may be missed if the mediator uses a predominantly evaluative style. The transformative mediation style is not commonly used for commercial disputes. Often misunderstood, it is worth noting that the various styles recognised in Riskin’s original grid are intended as a continuum, and assume that the mediator will apply whatever style she considers most suitable at a given point in the mediation process. This is how the various styles are usually applied by a well-trained and more experienced mediator. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive (Facilitative). The directive style of mediating is probably the prevailing approach in commercial disputes, as it combines well with the evaluative style of mediating typically used by retired judges turned mediator. Generally, of course, how the mediator approaches the mediation process depends largely on their personal style. Academics often stress that the mediator who is ‘gently directive,’ in a manner that the parties barely notice, obtains the best results. In practice, there are also mediators who are totally facilitative with regards to the process. One well-known mediator in the Los Angeles area commented that the mediator should be in charge of the process, but preferably without the parties being aware of it. g. Predominant mediation style for civil (family) disputes re substance (facilitative, evaluative, transformative, other) Transformative/(Evaluative). In family cases, the more recent trend is toward a transformative approach because many mediators are becoming more educated about social and psychological issues. They will try to transform the dispute because spouses with children need to maintain a relationship over time. Some divorce mediators may tend to use an evaluative style with respect to the relevant legal claims. h. Predominant mediation approach for civil (family) disputes re process (facilitative, directive, other) Facilitative. Generally, family mediators in California tend to take a more facilitative or gently directive approach.

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57 USA – California

707

i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. The evaluative approach is used at different times by different mediators. Experience teaches most mediators when to take a non-evaluative approach and when to offer an opinion of the case. It is often preferred by attorneys who work on a contingent fee basis, and for that reason they often select retired judges as mediators, as they tend to be more evaluative than their attorney/non-attorney colleagues. When a mediator is evaluative, or asked to give their evaluation of the matter, it is always given as a non-binding general advice (unless it is a ‘binding mediation’; see 3.d.). A few years ago, some superior courts (including the Los Angeles Superior Court) added an ADR process called ‘neutral evaluation’ (originally called ‘early neutral evaluation’). The neutrals selected for this process are attorneys with extensive experience in the type of case they are asked to evaluate. To date, litigators have shown only modest interest in this form of ADR process. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Although many attorneys do not favour joint sessions, mediators commonly use a mix of joint sessions and caucuses. It used to be common practice that mediation would begin in joint session. Lately, there has been more variety in the mix and, in cases where emotions run high, the mediator may choose to begin with caucusing with each party, and only move to a joint session after the parties have gotten used to the mediation process. In smaller tort cases (vehicle accidents, slip and falls) it is not unusual that the entire mediation process is done in caucus. k. Predominant mediation process for civil (family) disputes (caucus (only), joint session (only), mix, other) Mix. In family mediation, it depends on whether the emotions are too much to handle facing the other spouse, especially when not represented by counsel. There is no clearly predominant process. It is assumed that a mix of the two is the most common.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (No). Mediation in the United States is an unlicensed profession. Anyone can hold themselves out as a mediator, no matter how little or how much schooling or training such person has had. It is assumed, not always accurately, that the market will choose the mediator who is the most effective. There is no state-recognised accreditation or certification of mediators in California. Some states, including Florida, New Hampshire, North Carolina and South Carolina, do have a certification process in place for certain categories of mediators. At the federal level, the US Departments of Labor and the Navy have certification for mediators. From time to time, private companies attempt to sell training and ‘certification’, but these are not officially recognised, and generally regarded as meaningless. On the other hand, there are legitimate, ABA approved academic degrees one can obtain. For example, at the Straus Institute for Dispute Resolution at Pepperdine University School of Law, those who have a law degree (‘Juris Doctor’) can obtain a postgraduate degree of Master of Laws (LL.M.) in Dispute Resolution, and those with another academic degree can get a (postgraduate) Master of Dispute Resolution degree. Those degrees are obviously evidence of thorough training in the field. Several other universities offer comparable courses, including Harvard, University of Missouri at Columbia, Hamline and Ohio State (Moritz). These are the top five dispute resolution programmes as ranked in the annual US News

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evaluation for 2013. (see ). When one searches the internet for academic degrees in dispute resolution, however, not all courses appear to be equally legitimate. b. Set by market (private certifying bodies) Yes. Given that there is no formal accreditation in the United States, the theory is that selection of mediators is done by market forces. This process is not without its problems, as the consumers of mediation do not necessarily select the mediator that academics believe would serve them best. For example, many attorneys (the group of consumers that does most of the selecting of mediators) mistakenly believe that knowledge of a particular area of the law is more important than training and experience in mediating, even when it is generally presumed among scholars that the latter is much more important, and knowledge of a particular area of the law much less relevant.

US

c. Set by public regulation (No). For the reasons set forth above, there are no public regulations that apply to the qualification of mediators, with the exception of court-annexed mediation. In the context of court-annexed mediation, mediators will be subject to minimum standards of conduct (see California Rules of Court, Rules 3.850 through 3.860) and complaint procedures (see California Rules of Court, Rules 3.865 through 3.972) that may result in suspension or removal of the mediator from the court’s panel or list if a complaint proves to have merit (see CA Rules of Court, Rule 3.870). d. Number of hours for basic mediator training 40 hours. There are no state-wide requirements for the qualification of mediators in general, nor are there state-wide requirements for mediators in court-connected mediations in civil cases. There are, however, state-wide minimum qualification requirements for mediators who handle mandatory child custody and visitation mediations (see Fam. Code, Sections 1815-1816, and Cal. Rules of Court, Rule 5.210(f)). Effective 1 January 2011, the Judicial Council adopted Rule 10.781, entitled ‘Court-related ADR neutrals’, which in paragraph (a) provides that ‘each superior court that makes a list of mediators available to litigants in general civil cases … must establish minimum qualifications for the mediators eligible to be included on the court’s list … In establishing these qualifications, courts are encouraged to consider the Model Qualification Standards for Mediators in Court-Connected Mediation Programs for General Civil Cases issued by the Administrative Office of the Courts.’ The Model Qualification Standards suggest a minimum of 40 hours (among other requirements). Some courts in fact do require a minimum of 40 hours of mediation training, including the Alameda, Contra Costa and Riverside county superior courts. On the other hand, many courts do not follow the Model Qualification Standards: for example, the San Mateo superior court requires 5 days of training and participation in at least 5 mediations as mediator or co-mediator. The San Diego superior court requires 32 hours, the Orange County superior court requires 30 hours of training, and the Ventura and Santa Barbara courts require only 25 hours of mediation training (all among other requirements). (Until the repeal of the ADR Office, the Los Angeles Superior Court also required at least 40 hours of mediation training. In order to qualify for the ‘Party Select Panel’, that court required in addition the completion of at least 25 ‘Random Select’ court-annexed mediations (computer selected according to certain criteria relating to the nature of the dispute). See LASC Local Rules Appendix 3.B (repealed effective May 17, 2013).)

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e. Mandatory CPD for accredited/certified mediators No. As stated previously, California does not have a system requiring mediators to be accredited or certified. As to the court-connected programmes, the Model Qualification Standards suggest that the courts require the mediators on their panels follow at least 7 hours of continuing mediation training each two years and mediate at least two general civil cases in a court mediation programme every two years. Some courts have adopted similar requirements. (For example, Riverside Superior Court requires 3 hours of continuing mediation education every year, as well as conducting at least 3 mediations each year.) f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) NA. g. Accreditation through written exam NA. h. Accreditation through performance-based assessment NA.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are no special requirements for acting as a mediation advocate, although it is generally assumed that an advocate in the mediation of litigated cases is an attorney. This person is not necessarily the same advocate who appeared in the litigation, as some companies retain separate counsel for the purpose of trying to settle the case. A developing field, especially in the area of family law, is collaborative lawyering. Upon the parties agreement to resolve their points of disagreement without going to court, a ‘team’ of two collaborative lawyers is formed, whose primary purpose is to find a settlement that best meets the specific needs of each party. In 2009 (amended in 2010), the Uniform Law Commission adopted the Uniform Collaborative Law Act. It has been adopted in Ohio, Washington, Nevada, Utah, Texas, Alabama and the District of Columbia and is currently pending in five other states (but not California). Sometimes, collaborative lawyers will seek the help of a mediator, but this appears to be rare, as collaborative lawyers see their own, joint process as a dispute resolution process. If the process fails, the parties are to retain new counsel for purposes of litigation. j. Set by Market No. Mediation advocacy is not accredited and does not become so by market forces. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. There is no accreditation or certification of mediators in California. As stated previously, in California anyone can hold themselves out as a mediator, no matter how little or how much schooling or training such person has had. As noted previously, it is assumed that the market selects the mediator the parties think is the best person to help settle the dispute.

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b. Set by public regulation No. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. As stated previously, there is no accreditation or certification of mediators in California. Mediators of litigated cases need not be lawyers. In fact, there are a number of highly qualified and highly regarded mediators in California who are not attorneys. The Straus Institute at Pepperdine Law School offers a special 32-unit Master’s Degree in Dispute Resolution for non-lawyers who have a bachelor’s degree. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

EU Directive

NA.

US

7.

Mediation legislation

a. Mediation legislation since 1997. The principal legislation regarding domestic civil mediation in California consists of Sections 1115 – 1128 of the Evidence Code, which defines mediation, when mediation begins and when it ends (and how), and regulates mediation confidentiality. These provisions were adopted in 1997, with an effective date of 1 January 1998. (See http://www.mediate.com/ articles/ab939.cfm). The laws dealing with the creation of what is now called the Family Conciliation Court, and the mediation of child custody and visitation, are set forth in Sections 1820 – 1842 and 3170 – 3188 of the Family Code. These provisions were originally enacted in 1939, and repeatedly amended, most recently in 2010. The International Arbitration and Conciliation Act is set forth in Sections 1297.11 – 1297.432 of the Code of Civil Procedure, of which Sections 1297.341 – 1297.432 deal with international mediation. This Act was adopted in 1988.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Mediation bodies can range from solo practitioners to corporations with numerous mediators working for them. Surprisingly, there is no generally available list of mediation provider organisations. b. Individuals may be providers of mediation services Yes. There are no rules preventing an individual from being a mediation provider. c. Mediation provider qualifications/requirements determined by public regulation No. There is no prescribed structure for mediator providers. Generally, mediation providers are organised as corporations or limited liability companies.

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9.1. Mediator fees a. Freely contracted (Yes). For mediations that are not court-connected, the mediator fee is freely contracted. b. Fixed in some cases by public regulation (Yes). Fees for court-connected mediations are often set by the local court. The fees vary considerably from court to court. Random examples include Contra Costa: ½ hour preparation time and first two hours free; Riverside: for cases under $100,000, $50 per hour per party for first hour of preparation and two hours of mediation; San Diego: $150 per hour for the first two hours; San Francisco: one hour of preparation and two hours of mediation free of charge, but the San Francisco Bar Association charges $250 per party as an administrative fee; Ventura: one hour of preparation and three hours of mediation free of charge (Ventura also has a party pay mediation panel, presumably at market rate); and San Mateo: market rate as published on the list of panelist mediators. Until the repeal of most ADR-related local rules as of 17 May 2013, Los Angeles mediators appointed from the ‘random select panel’ performed the first three hours free of charge. If appointed from the ‘party select panel,’ the parties paid the mediator $150 per hour for the first three hours. The party select panel was rarely used. c. Average mediator fee per hour for commercial or cross-border cases US$400-500. The average hourly fee for commercial cases is between $400 and $500. Beginner mediators usually charge less, while more experienced mediators can charge upward of $800 to $1,200 per hour. d. Average mediator fee per hour in civil cases US$250-400. The average mediator hourly fee for family cases is generally somewhat lower. We estimate that it is between $250-$400.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. In 1986, the California legislature adopted the Dispute Resolution Programs Act (DRPA), which provides for the local establishment and funding of informal dispute resolution programmes. These DRPA programmes subsidise non-profit ADR providers that specialise in providing free or low-cost mediation services to litigants in small claims, civil harassment, unlawful detainer and other civil actions. Commonly, the courts pay a small portion of their filing fees to the DRPA provider organisations and provide the rooms for the volunteer mediators to perform their work. f. Mediator fees covered by legal insurance schemes (No). Mediator fees are not generally covered by any insurance schemes (legal insurance is not very developed in the United States), but some insurance companies cover mediator fees in a limited way as a means of encouraging mediation. g. Mediator fees subsidised in court-connected schemes (Yes). Almost all court-connected cases are ‘subsidised,’ in the sense that the mediators donate their services in accordance with the local rules as they apply to court-connected mediation, and the court and the litigators (and their clients) benefit from mediators who mediate for free or at a reduced rate. See examples in 9.1.b.

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Exceptionally, the Santa Barbara Superior Court’s ADR programme provides that when the judge orders the case to limited mediation, it is at no (or reduced) cost to the parties, provided that the parties follow CADRe’s mediator assignment procedures. Under this programme, mediators receive a small compensation from the court. Cases in excess of $50,000 are sent to another programme, in which the mediators are also asked to provide the first three hours of the mediation free of charge. Mediations of child custody and visitation issues performed under the auspices of a Family Conciliation Court are free of charge.

10. Legal context

US

a. Is there a special relationship between judges and mediators/mediation, apart from courtconnected referrals or court-connected mediation schemes? No. There is no special relationship between judges and mediators. With a few exceptions, judges in California tend to favour mediation. And attorneys who do not first attempt good faith mediation will earn the disapprobation of the judge in many cases. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. While most Californians may not think that mediation is an official part of the state’s legal system, each of the Superior Courts (except Los Angeles) has an ADR programme that involves practically every case pending before that court, whether by mandate or by court referral. In that respect therefore, mediation is an integral part of the civil procedure governing the development of a case and, one could say therefore, part of the legal system. c. Mediation procedure has impact on statute of limitations (No). Generally, mediation procedures are not initiated until after a case has been filed. Therefore, the legislature decided that any provision to delay the running of any applicable statute of limitations would serve no purpose. If mediation takes place before a case has been filed, the attorney for plaintiff needs to be cautious not to let the statute of limitations run. On the other hand, the California International Arbitration and Conciliation Act (adopted in 1988 and incorporated into the Code of Civil Procedure), in Section 1297.382, provides as follows: ‘1297.382. Limitations; tolling All applicable limitation periods including periods of prescription shall be tolled or extended upon the commencement of conciliation proceedings to conciliate a dispute under this title and all limitation periods shall remain tolled and periods of prescription extended as to all parties to the conciliation proceedings until the 10th day following the termination of conciliation proceedings. For purposes of this article, conciliation proceedings are deemed to have commenced as soon as (a) a party has requested conciliation of a particular dispute or disputes, and (b) the other party or parties agree to participate in the conciliation proceeding.’

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11. Mediated settlement a. Contract Yes. Sections 1123 and 1124 of the California Evidence Code provide that, in order to be admissible into evidence (and therefore enforceable), a mediated settlement must be in writing, or reduced to writing within 72 hours after it was recorded (in accordance with Sec­ tion 1118 Evid. Code), and comply with certain other conditions, including that the agreement includes wording to the effect that the agreement is both enforceable and may be disclosed. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. (But see 11.d. below with respect to international mediation.) c. Enforceable under some circumstances which are up to the parties Yes. The parties can agree to incorporate the settlement into a judgment. This so-called ‘stipulated judgment’ is used particularly when the settlement calls for payment of a certain amount in instalments or the performance of other obligations in the future. d. Enforceable under some circumstances defined by public regulation (No). Under California law, there is no provision, whether or not defined by public regulation, that renders a settlement agreement immediately enforceable. However, pursuant to Section 1297.401 of the California International Arbitration and Conciliation Act which applies to international mediations held in California, ‘the written [settlement] agreement shall be treated as an arbitral award rendered by an arbitral tribunal duly constituted in and pursuant to the laws of this state, and shall have the same force and effect as a final award in arbitration.’ Therefore, once signed by the parties or their representatives and the mediator, the mediation settlement agreement automatically has the binding force of an arbitral award.

12. Confidentiality a. Regulated by law Yes. The confidentiality of all mediation other than mediation involving child custody and visitation disputes is regulated in Sections 1115 to 1128 of the California Evidence Code. These provisions create nearly absolute confidentiality for the mediation process, which may sometimes lead to unfair exclusion of evidence as the California Supreme Court has given a very strict interpretation to Section 1119 of the Evidence Code. Section 1119 makes confidential virtually everything communicated in connection with mediation (commencing from the first communication with the mediator and covering all mediation-related communications, even between attorney and client) and excludes such communications from evidence in most proceedings. Section 1119(a) provides that: ‘No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any arbitration, administrative action, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.’ Similarly, Section 1119(b) makes all writings prepared specifically for the purpose of, or created during, the mediation process confidential and inadmissible. Section 1119(c) provides that even outside of adjudicatory proceedings, parties must maintain the confidentiality of all mediation communications, negotiations, and settlement discussions.

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For international mediations held in California, Section 1297.371 CCP governs the confidentiality of the mediation process. This provision is comparable to Sections 1119(a) and (b) for domestic mediations. For child custody and visitation disputes, (mandatory) mediation takes place pursuant to Family Code Section 3170 and following. More than half the county courts in California have adopted local rules pursuant to Family Code Section 3183 that authorise the mediator to make recommendations to the court as to custody and visitation if the matter has not been fully settled. For that specific purpose, the mediators are designated as ‘child custody recommending counsellors’ to circumvent the confidentiality of the process (as provided in Family Code Section 3177). b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (Yes). Section 703.5 of the Evidence Code provides (with certain rare exceptions) that no arbitrator of mediator is compelled to testify, in any subsequent civil procedure, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with mediation. This provision can be waived by agreement of all the parties (See Simmons v Ghaderi, 44 Cal. 4th 570 (2008)).

US

13. Education a. Mediation education is a common component of legal education curriculum (No). Most law schools still do not make mediation a required, separate course. On the other hand, it may be touched upon in the context of the course in civil procedure. b. Mediation advocacy education is a common component of legal education curriculum No. Neither ‘mediation advocacy’ nor ‘negotiations’ are required, separate courses in any law school in the United States.

14. Most relevant literature or references, jurisprudence, articles, law The vast amount of relevant books and articles on the subject of mediation is too great to list here. Among the most useful books, here is a fairly arbitrary selection: –– Leonard L. Riskin, James E. Westbrook, Chris Guthrie, Leonard L. Riskin et al., Dispute Resolution and Lawyers (American Casebooks 4th Ed. 2009); –– Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (3d Ed. 2003); –– Matthew Guasco & Peter Robinson, Principles of Negotiation (Entrepreneur Press 2007); –– David A. Lax & James K. Sebenius, 3-D Negotiation (Harvard Business School Press 2006); –– Harold I. Abramson, Mediation Representation, Advocating as a Problem-Solver in any Country or Culture. (Notre Dame, Indiana: The National Institute for ­Trial ­Advocacy, 2010); –– John W. Cooley, The Mediator’s Handbook. (Notre Dame, Indiana: National Institute for Trial Advocacy, 2d Ed. 2006); –– Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation, The Transformative Approach to Conflict (San Francisco: Jossey-Bass, 2d Ed. 2004); –– Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution (­Jossey-Bass 2001).

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The most important periodicals publishing articles concerning mediation include: –– Pepperdine Dispute Resolution Law Journal –– Ohio State Journal on Dispute Resolution –– Harvard Negotiation Law Review –– Cardozo Journal of Conflict Resolution –– Journal of Dispute Resolution –– Mediate.com –– See also http://www.law.georgetown.edu/library/research/guides/adr_mediation.cfm for a comprehensive Alternative Dispute Resolution and Mediation Research Guide.

15. Mediation legislation texts a. Weblink to legislation in national language (i) Code of Civil Procedure Sections 1775 – 1775.15: (http://www.leginfo.ca.gov/cgi-bin/dis playcode?section=ccp&group=01001-02000&file=1775-1775.15) (ii) Evidence Code Sections 703.5 and 1115 – 1128: (http://www.leginfo.ca.gov/cgi-bin/disp laycode?section=evid&group=00001-01000&file=700-704 for Section 703.5, and http:// w w w.leginfo.ca.gov/cgi-bin/displaycode?section=evid&group=01001-02000&file= 1115-1128, for Sections 1115-1128.; (iii) Code of Civil Procedure Section 1297.13: http://law.onecle.com/california/civil-procedure/ 1297.13.html (iv) Code of Civil Procedure Sections 1297.341 – 1297.432: http://ca.regstoday.com/law/ccp/ ca.regstoday.com/laws/ccp/calaw-ccp_PART3_TITLE9p3_CHAPTER7.aspx (v) Sections 1800 – 1842 and 3170 – 3188 Family Code: http://www.leginfo.ca.gov/.html/ fam_table_of_contents.html (iv) California Rules of Court, Rules 3.890 – 3.898: (http://www.courts.ca.gov/cms/rules/ index.cfm?title=three) b. Weblink to English or other translation NA. See 15.a. c. Other references NA.

16. Country specific remarks Mediation is now well established in all states of the United States, and particularly in California, one of the forerunners insofar as the practice of mediation is concerned. In many areas of the state, the number of mediators appears to exceed the demand for the service, particularly in the large urban centres of Los Angeles and San Francisco. Mediation definition Section 1115 of the California Evidence Code defines mediation as follows: (a) ‘Mediation’ means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. Section  1297.341 of the California Code of Civil Procedure in the chapter dealing with international mediation (conciliation) reads as follows: 1297.341. State policy; resolution of disputes by conciliation.

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It is the policy of the State of California to encourage parties to an international commercial agreement or transaction which qualifies for arbitration or conciliation pursuant to Section 1297.13 to resolve disputes arising from such agreements or transactions through conciliation. The parties may select or permit an arbitral tribunal or other third party to select one or more persons to serve as the conciliator or conciliators who shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. Section 2 of the Uniform Mediation Act defines ‘mediation’ as follows:

US

(1) ‘Mediation’ means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

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Mediation regulation and approach Country: United States of America – California Prepared by Eric van Ginkel 1. Attempt to mediate

2. Mediation clause

3. Mediation procedure

4.1. Mediator accreditation

4.2. Mediation advocacy accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation

(Yes) (Yes) Yes (No) (No) No No Yes No (No) Yes (Yes) No (Yes) Yes (Yes) F/E D/(F) T/(E) F GA Mix Mix (No) Yes (No) 40 hrs No NA NA NA No No No

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Mediation regulation and approach Country: United States of America – California Prepared by Eric van Ginkel 5. Who can be mediator?

US

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No NA 1997 Yes Yes No (Yes) (Yes) $400-500 $250-400 Yes (No) (Yes) No

Yes (No) Yes No Yes (No) Yes (Yes) (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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58. USA – Florida State Courts1 Prepared by Professor Sharon Press2

1.

Attempt to mediate

a. Always voluntary No. In Florida the state court judge has the authority to order (mandate) any filed civil action for monetary damages to mediation. Section 44.102, Florida Statutes. b. Mandatory (in some cases) Yes. Pursuant to state statute, ‘A court, under rules adopted by the Supreme Court: (a) Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless: 1. the action is a landlord and tenant dispute that does not include a claim for personal injury; 2. the action is filed for the purpose of collecting a debt; 3. the action is a claim of medical malpractice; 4. the action is governed by the Florida Small Claims Rules; 5. the court determines that the action is proper for referral to nonbinding arbitration…; 6. the parties have agreed to binding arbitration; 7. the parties have agreed to expedited trial…; 8. the parties have agreed to voluntary trial resolution… . (c) In circuits in which a family mediation programme has been established and upon a court finding of a dispute, shall refer to mediation all or part of custody, visitation, or other parental responsibility issues … . Upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process.’ Section 44.102(2), Florida Statutes. c. Court referral or court-connected mediation possible Yes. Generally, court referrals to mediation of civil cases above $15,000 in controversy are made to private mediators who are certified by the Florida Supreme Court. Small claims cases (up to $5,000 in controversy) are often mediated by volunteers or contract mediators who work for the court. Famliy cases (dissolution of marriage and modifications of parental responsibility arising from dissolution of marriage) are mediated either by court staff, court contract or private mediators. Dependency (abuse and neglect) cases are generally mediated by court staff or contract mediators. d. Court-ordered mediation possible Yes. See 1.b. 1 2

Last update of information: June 2013. Sharon Press, professor of law and dispute resolution, Institute Director, Hamline University School of Law. Contact: [email protected].

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e. Sanctions by the court if mediation is not tried (in good faith) Yes. Pursuant to court rules (1.720(f), Florida Rules of Civil Procedure), a party can be sanctioned for failure to appear at a duly noticed mediation without good cause. Sanctions can include award of mediation fees, attorney fees, and costs against the party who fails to appear. A party fulfils the appearance requirement by the physical presence of ‘the party or a party representative having full authority to settle without further consultation, and the party’s counsel of record, if any, and a representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of plaintiff’s last demand or policy limits, whichever is less, without further consultation.’ (emphasis added) Rule 1.720(b), Florida Rules of Civil Procedure In 2011, the rule was amended to define a ‘party representative having full authority to settle’ as ‘the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party.’ The rule does not require ‘good faith participation’ and specifically states that ‘nothing herein shall be deemed to require any party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.’ Rule 1.720(c), Florida Rules of Civil Procedure.

US

f. Sanctions by law if mediation is not tried (in good faith) No. See 1.e. g. Incentives if mediation is tried voluntarily before going to court No. There are no incentives for trying mediation before going to court. h. Outside counsel presence/representation during mediation sessions allowed Yes. Pursuant to Rule 1.720, Florida Rules of Civil Procedure, counsel for represented parties in civil (non-family) cases are required to attend and participate in mediation sessions. For small claims cases (below $5,000 in controversy), attorneys are not required to participate. For family cases, attorneys may attend but they are not required to do so. i. Outside counsel presence mandatory (Yes). Counsel is required to be present at mediation of civil cases above $5,000 in controversy, but not for cases below $5,000 in controversy and for family cases. See 1.h.

2. Mediation clause a. Case admissible in court with a mediation clause No. If there is a mediation clause in effect, the court will require the parties to mediate before pursuing a court action. See, for example, Ocean-Yachts, Inc. v. Florida Yachts International, Inc., 950 S2d 44 (Fla.App. 3 Dist. 2007). This is also generally true throughout the US state courts. See James Coben and Peter N. Thompson, Disputing irony: a systematic look at litigation about mediation, 11 Harv. Negot.L.Rev. 43 (2006). b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. See 2.a.

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c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. Assuming the court finds the clause to be valid the parties will be required to pursue mediation prior to seeking court review. See 2.a.

3

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No for out-of-court/Yes. Court-ordered mediation is described in law and court rule, but it is not rigid. The mediation statute provides that ‘Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.’ Sec­tion 44.102(1), Florida Statutes. See Rules 1.700 – 1.750, Florida Rules of Civil Procedure; Rule 7.290, Florida Rules of Juvenile Procedure; and Rules 12.740 – 12.741, Florida Family Law Rules of Procedure. Many of the procedural rules also contain some flexibility by allowing the parties to stipulate or agree to a different procedure. For example, rule 1.710(a) states that ‘mediation shall be completed within 45 days of the first mediation conference unless extended by order of the court or by stipulation of the parties.’ (emphasis added). Rule 1.710(c) states ‘unless stipulated by the parties … the mediation process shall not suspend discovery.’ (emphasis added). Similar phrases are included in rules 1.720 and 1.730, Florida Rules of Civil Procedure. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. In addition to court-ordered mediation, individuals can commit to utilising mediation services themselves either before or after a dispute arises. For court-ordered cases, flexibility is embedded in the rules (see 3.a.). If the parties agree in advance via a contractual clause, they may designate a set of procedures or a provider institution they would use. If so, they would likely be bound by those procedures. If the parties do not specify procedures in advance or decide to pursue mediation after a dispute arises, they are free to agree on the procedures they will follow. c. Mediator can offer a non-binding opinion No. The Mediator Standards of Professional Conduct in Florida (Rules 10.200 – 10.690, Florida Rules for Certified and Court-Appointed Mediators) apply to all mediators who are certified by the Florida Supreme Court in whatever mediations they conduct (court-ordered or voluntary) and to all mediators who conduct court-ordered mediations even if they are not certified by the Florida Supreme Court. While less clear than the prohibition against a mediator offering a ‘binding opinion,’ (see  3.d.), the ethical standards governing mediators in Florida have been interpreted to prohibit mediator opinions which have an impact on the parties’ self-determination or the outcome of the mediation. For some parties, a mediator opinion – even one that is ‘non-binding’ – will compromise that party’s self-determination and such action by the mediator would be impermissible and a violation of the ethical standards governing mediation. For example, see Florida Rules for Certified and Court Appointed Mediators Rule 10.310 Self Determination. (a) Decision-making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.

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(b) Coercion Prohibited. A mediator shall not coerce or improperly influence any party to make a decision … (emphasis added) Committee Notes … It is critical that the parties’ right to self-determination (a free and informed choice to agree or not to agree) is preserved during all phases of mediation. A mediator must not substitute the judgment of the mediator for the judgment of the parties…or in any other way impair or interfere with the parties’ right of self-determination. While mediation techniques and practice styles may vary from mediator to mediator and mediation to mediation, a line is crossed and ethical standards are violated when any conduct of the mediator serves to compromise the parties’ basic right to agree or not to agree. Special case should be taken to preserve the party’s right to self-determination if the mediator provides input to the mediation process…. (emphasis added)

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d. Mediator can offer a binding opinion No. In addition to the discussion in 3.c., Florida Rules for Certified and Court-Appointed Mediators Rule 10.370 Advice, Opinions, or Information contains the following provisions: (c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute or direct a resolution of any issue…. A mediator shall not offer a personal of professional opinion as to how the court in which the case has been filed will resolve the dispute. It may also be helpful to read the following excerpt from the Committee Notes to Rule 10.370, Florida Rules for Certified and Court Appointed Mediators: The primary role of the mediator is to facilitate a process which will provide the parties an opportunity to resolve all or part of a dispute by agreement if they choose to do so…. A mediator may … raise issues and discuss strengths and weaknesses of positions underlying the dispute. Finally, a mediator may help the parties evaluate resolution options… In providing these services however, it is imperative that the mediator maintain impartiality and avoid any activity which would have the effect of overriding the parties’ self-determination. While mediators may call upon their own qualifications and experience to supply information and options, the parties must be given the opportunity to freely decide upon any agreement. Mediators shall not utilise their opinions to decide any aspect of the dispute or to coerce the parties or their representatives to accept any resolution option. The Committee Note to Rule 10.310, Florida Rules for Certified and Court-Appointed Mediators, makes clear that if the parties request the mediator to serve as a decision-maker, the mediator may decline to do so. ‘If the mediator decides to serve in such a capacity, compliance with this request results in a change in the dispute resolution process (from mediation) impacting self-determination, impartiality, confidentiality, and other ethical standards. Before providing decision-making services, therefore, the (neutral) shall ensure that all parties understand and consent to those changes.’ (emphasis added) e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Facilitative is the predominant officially recognised mediation style as articulated in mediation statutes (44.1011 – et seq., Florida Statutes), court rules, ethical standards, and mediation training standards. Most mediators in Florida are certified by the Florida Supreme Court as a means of establishing credentials so that the ethical standards (Florida Rules for Certified and Court-Appointed Mediators) which apply to certified mediators in

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whatever cases they mediate (court-ordered or pre-suit/voluntary) are relevant even to private mediators who mediate non-court-ordered cases. In practice, there are many mediators who use an evaluative style, especially in large civil cases. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. Given the extensive procedural framework adopted by the court for court-ordered mediation, the process and procedures tend to be set by the mediator; however, as pointed out in 3.a., the parties are free to stipulate modifications in nearly every circumstance. In non-court-ordered cases, the mediators tend to set the process and procedures as well. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative. Facilitative is the predominant officially recognised mediation style as articulated in mediation statutes (44.1011 – et seq., Florida Statutes), court rules, ethical standards, and mediation training standards. In practice, there are many mediators who use an evaluative style. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive. Given the extensive procedural framework adopted by the court for court-ordered mediation, the process and procedures tend to be set by the mediator; however, as pointed out in 3.a., the parties are free to stipulate modifications in nearly every circumstance. See 3.f. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator Accreditation a. Accreditation/certification or recognition of mediators Yes. The Florida Supreme Court certifies mediators in five categories: county (civil cases below $15,000 in controversy); circuit (civil cases $15,000 and above in controversy); family; dependency; and appellate. See rules 10.100 – 10.130, Florida Rules for Certified and CourtAppointed Mediators. b. Set by market (private certifying bodies) No. It is not set officially, but the market dictates who gets hired. For court-ordered cases, the court rules provide for a ten-day period for the parties to agree on a mediator (Rule 1.720, Florida Rules of Civil Procedure). If the parties do not agree on a mediator, the court will appoint a certified mediator. Generally, the parties do agree and the court rarely selects the mediator. For non-court-ordered cases, the parties are free to select a mediator however they wish. c. Set by public regulation Yes. See 4.1.a.

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d. Number of hours for basic mediator training 20-40+ hours. County mediators are required to complete a minimum of 20 instructional hours (exclusive of breaks); circuit mediators are required to complete a minimum of 40 instructional hours (exclusive of breaks); family mediators are required to complete a minimum of 40 instructional hours (exclusive of breaks); dependency mediators are required to complete a minimum of 40 instructional hours (exclusive of breaks); and appellate mediators are required to be already certified as a circuit, family or dependency mediator and complete a minimum seven instructional hours. See Florida Supreme Court Administrative Order AOSC10-51. e. Mandatory continuing professional development for accredited/certified mediators Yes. The Florida Supreme Court requires certified mediators to complete continuing mediator education (CME) during every two-year renewal cycle. See Florida Supreme Court Administrative Order AOSC11-1. All certified mediators must complete 16 hours of CME, which shall include a minimum of four hours of mediator ethics, a minimum of two hours of domestic violence education, and a minimum of one hour of diversity/cultural awareness education in each two-year renewal cycle, including the two years following initial certification. Family and Dependency mediators must complete an additional two hours of the required 16 hours in domestic violence education per each renewal cycle, for a total of four hours. Appellate mediators must complete no less than four hours of appellate mediation specific education. This may be part of … the required 16 hours per each renewal cycle of the underlying certification. Mediators who are certified in more than one area must complete 16 hours of CMW applicable to each of their areas of certification. Hours completed may be utilised toward more than one area of certification is the subject matter is relevant to each field of certification…. At a minimum, 50% of the required CME hours must be satisfied by attendance, not as a lecturer or presenter, at a live lecture, live seminar, or an audio/video playback of a seminar attended by a group that discussed the materials presented. f. Accreditation through set of rules (e.g. age, education, professional background, ­experience, etc.) Yes. The rules for certification are found in the Florida Rules for Certified and CourtAppointed Mediators and Administrative Orders of the Florida Supreme Court. The certification requirements are based on a point system whereby a mediator must attain a certain number of points (for example, county, family, circuit and dependency mediators must have at least 100 points) which include a minimum number (set by rule) for training (specific to the type of certification sought), education/mediation experience, and mentorship. Miscellaneous points can be earned via licensure or certification in another related profession (e.g., psychology, mental health, accounting, or law), conversational ability in a foreign language, successful completion of a mediation training programme which is certified or approved by a jurisdiction other than Florida, and for other Florida mediator certifications. See Rule 10.105, Florida Rules for Certified and Court-Appointed Mediators. g. Accreditation through written exam No. h. Accreditation through performance-based assessment No. In order to become certified by the Florida Supreme Court, mediators must earn a minimum number of points, as specified by type of certification, in ‘mentorship’ activities. Observation of a mediation session of the type for which certification is sought earns an

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applicant 5 points while completing a mediation session (of the type for which certification is sought) under supervision earns an applicant 10 points. The certified mediator who provides this mentoring is not obligated to complete any formal assessment of the mediator.

4.2. Mediation advocacy Accreditation i. Accreditation/certification or recognition of mediation advocates No. There is no official accreditation or certification of mediation advocates. j. Set by market (private certifying bodies) No. Individuals will hire advocates based on their perceived level of expertise. However, there is no certification. k. Set by public regulation No. There is no law governing mediation advocacy.

5.

Who can be a mediator?

a. Set by market (private certifying bodies) No. There is no title act in Florida which means that anyone can be a mediator; however, if an individual wishes to be eligible for a court to order cases to him/her, the mediator must be certified by the Florida Supreme Court. See 4.1. The parties may agree on a non-certified mediator who is otherwise qualified by training or experience to mediate within ten days of the court’s order of referral to mediation. See Rule 1.720, Florida Rules of Civil Procedure; Rule 8.290(e), Florida Rules of Juvenile Procedure; and Rule 12.741, Florida Family Law Rules of Procedure. However, the parties may not select a ‘senior judge’ (a retired judge who continues to serve as a judge on an ad hoc basis) to serve as a mediator unless that judge is certified. b. Set by public regulation Yes. See 4.1. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. See 4.1 f. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No.

6.

Scope EU directive NA

7.

Mediation legislation

a. Mediation legislation since 1987. Comprehensive legislation (allowing the trial judge to order civil cases to mediation or arbitration) was adopted in 1987 with an effective date of 1 January 1988. The first family mediation statute was adopted in 1982 and the first citizen dispute settlement (community mediation) statute was adopted in 1985.

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8.

The Variegated Landscape of Mediation

Bodies providing mediation

a. Mediation providers can have different legal forms Yes. There is no restriction on the legal form for a mediation provider. Providers can be solo practitioners, partners, associations, or companies. b. An individual can be a provider of mediation services Yes. See 8.a. c. Mediation provider qualifications/requirements determined by public regulation No. There are no public regulations related to the structure of a mediation provider.

9.1. Mediator fee

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a. Freely contracted (Yes). The rule 1.720(g), Florida Rules of Civil Procedure provides: The mediator may be compensated or uncompensated. When the mediator is compensated in whole or part by the parties, the presiding judge may determine the reasonableness of the fees charged by the mediator. It contemplates that the parties will agree on a fee for the mediator and only in the absence of such an agreement will the court set the fee. In practice, the court rarely gets involved in setting the mediator’s fee. b. Fixed in some cases by public regulation No. There is no public regulation of mediator fees, but there are some mediators who are on the court’s staff and are paid a salary for mediation services. These mediators typically handle family and/or dependency cases for those who are unable to afford a private mediator. c. Average mediator fee per hour in commercial or cross-border cases: US$ $150-350. The average range for mediator services is $150 – $350 (US dollars). d. Average mediator fee per hour in civil cases: US$ $150-350. The average range for mediator services is $150 – $350 (US dollars).

9.2. Financing and legal aid e. Legal aid available for mediation services No. There is no legal aid for mediators but there are some court staff mediators and volunteers who will mediate for free or reduced costs. f. Mediator fees covered by legal insurance schemes No. Generally, mediator fees are not covered by insurance. g. Mediator fees subsidised in court-connected schemes Yes. For county court, family, dependency and appellate cases, parties of limited financial means may receive mediation services for free or at a reduced cost. Generally, circuit cases are not handled within the courts but parties may find private mediators who are willing to work on a sliding scale basis.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? Yes. If no agreement is reached at mediation, ‘the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.’ Rule 1.730, Florida Rules of Civil Procedure. (See also Rule 8.290(o), Florida Rules of Juvenile Procedure, and Rule 12.740(f), Florida Family Law Rules of Procedure) Senior judges, (retired judges who are subject to recall or continue to serve as judges on an ad hoc basis), must be certified in order to mediate in a court-ordered case. See Rule  10.100(g), Florida Rules for Certified and Court-Appointed Mediators; Rule 1.720(f), Florida Rules of Civil Procedure; Rule 8.290(e), Florida Rules of Juvenile Procedure; Rule  12.741(b)(6), Florida Family Law Rules of Procedure. In addition, senior judges have additional ethical requirements regarding conflicts of interest. Rule 10.370(e), Florida Rules for Certified and Court-Appointed Mediators provides: Senior Judge. If a mediator who is a senior judge has presided over a case involving any party, attorney, or law firm in the mediation, the mediator shall disclose such fact prior to mediation. A mediator shall not serve as a mediator in any case in  which the mediator is currently presiding as a senior judge. Absent express consent of the parties, a mediator shall not serve as a senior judge over any case involving any party, attorney, or law firm that is utilising or has utilised the judge as a mediator within the previous three years. A senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services. See also 10.c. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Given the extensive statutory and court rule basis for court-connected mediation, it is seen as an integral part of the legal system. c. Mediation procedure has impact on statute of limitations No/Yes court-ordered mediation. Use of mediation will not toll the statute of limitations; however, if the case is mediated pursuant to a court order, it can be filed (thus satisfying the statute of limitations) and mediated prior to any court proceedings. The court-ordered mediation statute specifically includes a tolling of the time periods for responding to an offer of settlement or an offer or demand for judgment until an impasse has been declared by the mediator or the mediator has reported to the court that no agreement was reached. Section 44.102(5), Florida Statutes.

11. Mediated settlement a. Contract Yes. A mediated agreement can be enforced in the same manner as any other contract.

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b. Automatically enforceable No out-of-court mediation/Yes if the agreement is the result of a court-ordered mediation. In court-ordered cases, the rules provide that sanctions may be imposed by the court ‘in the event of any breach or failure to perform under the agreement.’ Rule 1.730(c), Florida Rules of Civil Procedure. See also Rule 8.290(q) Florida Rules of Juvenile Procedure (for dependency mediation rule) and Rule 12.740(f), Florida Family Law Rules of Procedure (for family mediation rule). For small claims cases, the rules provide that the agreement reached as a result of mediation ‘shall be written in the form of a stipulation’ which ‘may be entered as an order of the court.’ Rule 1.750(f), Florida Rules of Civil Procedure. c. Enforceable under some circumstances which are up to the parties Yes. The parties may decide not to file the agreement with the court. If they do file, the procedures as outlined above in b. will apply. If they choose not to file their agreement, they will be able to enforce the agreement as a contract (see a. above) d. Enforceable under some circumstances defined by public regulation See 11.b.

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12 Confidentiality a. Regulated by law Yes. The Mediation Confidentiality and Privilege Act is found in Sections 44.410 to 44.406, Florida Statutes. b. Exemption from obligation to give evidence in court proceedings or arbitration Yes. Exemption is statutorily provided for mediation parties and regulated by contract for mediator. A mediation party (as defined in Section 44.403(3), Florida Statutes) has ‘a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications’. Section 44.405(2), Florida Statutes. The mediator does not have an independent privilege. The Florida Statutes also contain a confidentiality provision (‘all mediation communications shall be confidential’ Section 44.405(1), Florida Statutes) and an enforcement section if any mediation participant ‘knowingly and wilfully discloses a mediation communication.’ Section 44.406, Florida Statutes.

13 Education a. Mediation education common component in legal education curriculum Yes. Given the pervasive use of mediation in Florida, most law schools provide some education relating to mediation either as part of general civil procedure or in elective classes or clinics in mediation. b. Mediation advocacy common component in legal education curriculum No. While not common, mediation advocacy is sometimes included as part of an elective mediation class or taught as a stand-alone elective.

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14. Literature references –– –– –– –– –– –– –– ––

Mediation Theory and Practice (3rd Edition) Alfini, Stulberg and Press (Lexis) The Promise of Mediation, Bush and Folger The Middle Voice, Stulberg and Love Stories Mediators Tell, Love and Galton Mediation Ethics, Waldman You Just Don’t Understand, Tannen Getting to Yes, Fisher, Ury and Patton Getting Past No, Ury

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.flcourts.org/gen_public/adr/bin/ResourceHandbook2013.pdf –– This handbook contains all of the statutes, court rules and administrative orders which govern the court-connected mediation programme in Florida. b. Weblink to English or other translation NA. See 15.a. c. Other references NA.

16. Country specific remarks The state of court-connected mediation in Florida is extremely well developed. There is a state office of dispute resolution in the Office of the State Courts Administrator (dispute resolution centre- DRC) which serves as a staff to the Florida Supreme Court Committees on Mediation and Arbitration Rules and Policy (standing committee of the Florida Supreme Court), the Mediator Qualifications Board (handles grievances against certified and court-appointed mediators), the Mediation Training Review Board (handles complaints about certified mediation training programmes), and the Mediator Ethics Advisory Board (provides advisory ethical opinions to mediators). The DRC also handles the administrative tasks of certifying mediators and training programmes on behalf of the Florida Supreme Court. Mediation definition Mediation is defined in the Florida Statutes (44.1011(2)) as: ‘Mediation’ means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making  authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

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Mediation regulation and approach Country: United States of America – Florida Prepared by Sharon Press 1. Attempt to mediate

2. Mediation clause

US

3. Mediation procedure

4.1. Mediator accreditation

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a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

No Yes Yes Yes Yes No No Yes (Yes) No No Yes No (out-of-court)/Yes Yes No No F D F D All Mix Mix Yes No Yes 20-40+ hrs Yes Yes No No

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Mediation regulation and approach Country: United States of America – Florida Prepared by Sharon Press 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/ certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/ certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or crossborder cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated settlement

a. Contract b. Automatically enforceable

c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No No Yes No No NA 1987 Yes Yes No (Yes) No $150-350 $150-350 No No Yes Yes

Yes No/Yes (courtordered mediation) Yes No (out-of-court mediation)/Yes Yes No (out-of-court mediation)/Yes Yes Yes Yes No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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59. USA – New York 1,

2

Prepared by Giulio Zanolla3

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1.

Attempt to mediate

a. Always voluntary (Yes). In New York, there are various courts that include the Court of Appeals; Appellate Term of the Supreme Court; Supreme Courts; County Courts; Surrogates Courts; Family Courts; Court of Claims; New York City Criminal Courts; New York City Civil Courts; City Courts; Town and Village Courts. Additionally, there are a group of ‘problem-solving’ courts that include Drug Court, Domestic Violence Court, Sex Offense Court, Mental Health Court and Community Court, which are usually parts of the local court or County or Supreme Court. Various ADR processes are employed in the different court levels. In New York, mediation is predominantly voluntary, but for certain court-annexed mediation, judges have the discretion to mandatorily refer parties to mediation for a free initial session (e.g., Section 202.70 Rules of the Commercial Division of the Supreme Court, Rule 3 and in many local court rules). Within this spectrum, judges sometimes encourage parties to mediate. Mediation is always voluntary with the community dispute resolution centres programme (CDRCs), a programme which has operated in New York since 1981 pursuant to Section 21A of the New York State Judiciary Law. Mediation and other dispute resolution processes conducted by the CDRCs are statutorily defined by voluntary participation. The CDRCs have handled over 1.2 million cases serving more than 2.8 million individuals since their inception in 1981 and have conducted over 700,000 dispute resolution processes. b. Mandatory (in some cases) (No). Generally, no: mediation in New York is primarily voluntary, whether through CDRCs, court-annexed or private. The court system does oversee an attorney-client fee dispute resolution programme, pursuant to Part 137 of the Rules of the Chief Administrator, and it provides that in the event of a fee dispute between an attorney and client, the client may seek to resolve the dispute by arbitration. The attorney’s participation is mandatory at the client’s election. An exception is constituted by recent regulation related to hurricane Sandy, which orders certain insurance companies to offer mediation to their insured parties for certain claims arising from hurricane Sandy. However, mediation remains voluntary for the policyholder. See Fifteenth Amendment (entitled ‘Mediation’) to 11 NYCRR 216 et seq.

1 Last update of information: July 2013. 2 Valuable information can be found on the ADR webpage of the New York courts, which also includes links to the relevant laws and local rules provided: www.nycourts.gov/adr. 3 Giulio Zanolla is an associate mediator at Weinstein Melnick LLC in New York. Giulio is a lawyer and mediator trained in Italy and the US, with substantial experience in mediation and ADR and a legal background in international business transactions, insurance law, securities law and litigation. Contact: [email protected].

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c. Court referral or court-connected mediation possible (Yes) (Yes). Courts can refer cases to mediation. Referrals are made from the bench from Supreme, Family, Surrogate, and City Courts. In the court-annexed arena, selected cases are referred to mediation as soon as possible after an action has commenced or at any other time deemed appropriate by the judge. Referrals are also made by non-judicial clerks from family, city or town and village courts to community dispute resolution centres existing in all 62 counties. Due to serious cuts in the budget for the New York State Unified Court System in April 2011, a New York city-wide family court programme was cut. Mediation is still offered in custody and visitation cases through a roster of paid mediators. d. Court-ordered mediation possible Yes. In most court-annexed ADR programmes, judges are given discretion by way of local court rule to order parties to an initial mediation session which is free of charge. The parties are free to end the mediation at the conclusion of the initial session or may choose to continue on a voluntary basis at which time the mediator may seek compensation for any future mediation sessions. e. Sanctions by the court if mediation is not tried (in good faith) (No). Generally most court-annexed ADR programme rules do not contain good faith requirements. While there are a couple of exceptions, wherein some local protocols allow judges to sanction for bad faith, this is rarely done. New York federal courts have not developed any clear standards for evaluating good faith in court-ordered mediation. Nevertheless, New York district courts have given narrow interpretation to the good faith requirement in relation to orders to attend mediation, provide pre-mediation submissions, and, in some cases produce representatives with appropriate settlement authority. See In re A.T. Reynolds & Sons, 452 B.R. 374, 381 (S.D.N.Y. 2012). f. Sanctions by law if mediation is not tried (in good faith) No. g. Incentives if mediation is tried voluntarily before going to court No. There are no institutional incentives for trying mediation voluntarily before going to court. h. Outside counsel presence/representation during mediation sessions allowed Yes. Local court ADR Rules address the presence of counsel and encourage attorneys to participate in mediation. The ultimate decision is up to the parties. i. Outside counsel presence mandatory No. There is no legal requirement that counsel participate in mediation.

2. Mediation clause a. Case admissible in court with a mediation clause (No). New York courts generally enforce mediation agreements that represent valid binding contracts among the parties. Federal courts, especially in New York, have traditionally respected the validity and binding nature of ADR contractual provisions. Some courts went as far as applying the provisions of the Federal Arbitration Act (FAA) by analogy in order to enforce mediation agreements. See case law cited in Refreshing Contractual Analysis Of ADR Agreements By Curing Bipolar Avoidance Of Modern Common Law, 9 Harv. Negot. L.

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Rev. 1 (2004); see also A systematic look at litigation about mediation, 11 Harv. Negot. L.Rev. 43, 105 (2006). However, unless explicitly provided for by contract, the minimum standard requirement of compliance is not clearly established, and participating in a mediation session could constitute a very minimum requirement. b. Case admissible in court. (No). See 2.a. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court Yes. Provided the clause represents a binding agreement requiring mediation before a party can bring a lawsuit in court or a claim in arbitration, the clause will generally be upheld. As a matter of law, an agreement to mediate is held to be a binding contract, but the mediation process itself is voluntary in that the parties retain the right to leave the session at any time. No precise minimum standard requirement of participation is clearly established.

US

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No (private mediation)/Yes (in court and community centres). Privately administered mediation procedures are not regulated by law. Mediation procedures in the court-annexed arena are regulated by local court procedures and in some instances uniform court rules. For example, the Uniform Rules of the Commercial Division, Part 146 (state-wide qualifications and training requirements for mediators and neutral evaluators serving on court rosters) of the Rules of the Chief Administrative Judge, and Part 137 (Attorney Client Fee Dispute) of the Rules of the Chief Administrative Judge all regulate the practice of ADR in court-connected cases. The community dispute resolution centres are governed by Section 21A of the New York State Judiciary Law. Although not rigid, procedures are defined in terms of confidentiality of the mediation process, the types of cases that cannot be mediated, requirements to become a mediator and other related guidelines, but nothing is described statutorily about how the process should be conducted. b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/­ contractual Yes. The mediation process is governed by the contract between the parties, and by the agreement between them and the mediator, or the mediation organism. Most mediation providers have developed mediation rules, governing the process and the conduct of the mediator, that the parties adopt when choosing to have the case administered by a certain entity. c. Mediator can offer a non-binding opinion Yes. Generally mediators tend to avoid giving direct opinions on the merit of the case, even if not binding. However, it is not unusual for mediators to express their view on the possible outcomes, especially if the parties request the mediator to do so. The Neutral Evaluation process is specifically used to receive non-binding opinions on the merit of the case.

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d. Mediator can offer a binding opinion No. Mediation is considered to be a non-adjudicative ADR process, therefore, mediators do not offer binding opinions on the merit of the dispute. However, the parties can agree on requesting the mediator to decide one or more specific issues in dispute, as well as to offer a binding opinion on the case, however, such would be considered a hybrid process rather than purely mediation. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative Facilitative and evaluative are the most common styles adopted in commercial disputes. Especially in a commercial context, mediators tend to be more evaluative than in other type of cases, and often counsel and parties seek or expect some level of evaluation from the mediator. Styles and practices differ among practitioners, however, major providers of mediation services for commercial disputes afford broad latitude to their panellists in terms of mediation styles. Most experienced mediators are able to adapt their styles to the needs of the case using both facilitative and evaluative techniques as it fits at different stages of the procedure. In the court-connected arena, court rosters employ the facilitative and evaluative style of mediation in commercial disputes, but the majority emphasis is placed on facilitative mediation. CDRCs use facilitative and transformative styles of mediation and generally involve smaller monetary cases. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive (Facilitative). In the private arena, mediators of commercial cases generally adopt a directive approach regarding the mediation process, as parties and counsel generally expect to be guided through the process by the mediator. Similarly, in the court-annexed context, mediators are usually directive in regard to the process, even if mostly facilitative in style. The degree of control that the parties retain over the process in mediation may in certain cases depend on the level of sophistication of the parties and their counsel. Very experienced and knowledgeable attorneys in mediation are usually more proactive in working with the mediator in the development of the process. g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Facilitative/Evaluative. Facilitative and evaluative styles are the most commonly used in mediation of civil disputes. Among mediators in private practice styles vary substantially, however, frequently mediators present themselves as capable of using both facilitative and evaluative styles based on the preference of the parties and the needs of the specific case. In the court-connected arena, most mediators tend to follow a purely facilitative approach. In family cases, the facilitative style is more often used, but there is an increase in the number of transformative mediators for these types of cases. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive/(Facilitative). Mediators in civil cases are mostly directive regarding the process. In family cases, however, mediators frequently adopt a purely facilitative model, and increasingly often also a transformative approach. In the court-connected arena, court rosters employ facilitative and evaluative styles of mediation in civil disputes, but mostly emphasis is placed on facilitative mediation. Facilitative or directive mediator orientations to process depend much on individual personal styles.

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i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? General advice. Generally mediators use evaluative techniques in the form of general advice on issues regarding the merit of the case, or expressing their view regarding the likely outcome. The evaluative approach is mostly adopted to reality test the parties’ positions and assist them to accurately assess the merits of their case. Mediators usually prefer to limit the use of evaluative techniques within the private sessions with each party (caucus) in order to not compromise the parties’ perception of their neutrality. It is not unusual for a party in mediation to request the mediator’s opinion on their case, or specific issues thereof. If a mediator is evaluative, or asked to give an evaluation of the matter, it is typically given as a non-binding, general assessment of the strengths and weaknesses of the case. Some courts employ a Neutral Evaluation process. These neutrals are attorneys with extensive experience in the case type in which they are being asked to evaluate, and their opinion is non-binding.

US

j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. Mediators commonly use a mix of joint sessions and caucuses. There are practitioners who use exclusively joint sessions, and others (less frequently) who use exclusively causes. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix. There is no identified predominant process. Typically, caucus is used only when needed. In the private arena, many mediators use caucuses at some stage of the process for the majority of their mediations. For CDRCs, however, joint session is the predominantly used process.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators No. In the US the practice of mediation is not specifically regulated, and there is no state-­ recognised accreditation or certification of mediators in New York. Mediators do not need a license to practice either. A mediator working with a CDRC is authorised by their individual centre only after they have met at least the minimum requirements as delineated y the New York State Office of Court Administration’s Alternative Dispute Resolution Office (ADR Office). These requirements include but are not limited to initial training hours by a state-certified mediation trainer, minimum apprenticeship standards that include mediating structured role plays, observation of live mediations, co-mediation with experienced mediators and mediation assessments, advanced training for special case types, ongoing continuing education of six hours annually, and mediating at least three cases each year. Part 146 of the Chief Administrative Judge (Guidelines For Qualifications And Training Of ADR Neutrals Serving On Court Rosters) governs the use of mediators on court rosters. b. Set by market (private certifying mediation bodies) Yes. Commercial providers (e.g., JAMS, American Arbitration Association, etc.) set their own standards in the private arena, and adopt internal criteria for the selection, training and continuing education requirements for mediators included in their rosters. Private mediation providers generally select their panellists individually based on self-determined requirements and standards.

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c. Set by public regulation No. d. Number of hours for basic mediator training 40 hours. In the court-annexed arena, Part 146 of the Chief Administrator provides guidelines for minimum qualifications and training, and 40 hours of training is required for court rosters that includes 24 hours of initial mediation training followed by 16 hours of training tailored to the types of cases that will be mediated. The website link can be found on http:// www.nycourts.gov/rules/chiefadmin/146.shtml. Local judicial authorities then uses these guidelines to set their protocols based on the programme they are offering and they meet or exceed the minimum training qualifications. Examples of local programmes include Supreme Court commercial mediation programmes in Erie, Nassau, New York, Westchester and Supreme Court matrimonial mediation programmes in Orange and Westchester and parenting plan (custody/visitation) mediation programmes being offered in the majority of New York State Counties by the CDRCs. CDRC mediators receive a minimum of 30 hours of training and an additional minimum of 12 hours for special case types (e.g., custody/visitation mediation and parent-child mediation). e. Mandatory continuing professional development for accredited/certified mediators No. Only in the court-connected context are there certain requirements for continuing education for mediators. The CDRCs rules require that mediators achieve 6 hours every year. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. (Only for court-connected/CDRC mediation). g. Accreditation through written exam No. h. Accreditation through performance-based assessment No. (Except for Community DR Centres). For the Community Dispute Resolution Centres, each programme authorises individuals to mediate for their centre after they have completed their training requirements and are evaluated through a performance-based assessment.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. There are no special requirements or accreditations to act as mediation advocate. However, courses in mediation advocacy and representation are increasingly present in most Law Schools’ ADR curricula. A developing field, especially in family law, is the practice of collaborative law which, although not necessarily involving mediation, it entails the representation of parties exclusively in collaborative dispute resolution processes instead of litigation. j. Set by Market No specific standards or accreditations exist. k. Set by public regulation No. There is no law governing mediation advocacy.

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5.

The Variegated Landscape of Mediation

Who can be a mediator?

a. Set by market Yes. Anyone can hold him or herself out as a mediator in private practice but for a mediator to provide service in a court-annexed arena, they would need the approval of the local court, which is similar to what is required of a CDRC mediator, who would need the approval or certification of the local community dispute resolution centre. b. Set by public regulation No. State requirements for the practice of mediation. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. No requirement for legal education or training exists for the practice of mediation. However, certain local court protocols require legal training and a certain minimum amount of experience as an attorney, along with good standing membership to the NY State Bar Association in order to become eligible for their mediator rosters. d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) No. As for domestic cases, no specific requirement of legal background exists.

6.

EU Directive

US

NA.

7.

Mediation legislation

a. Mediation legislation since 1981. New York’s Civil Law Practice Rules (4547): Compromise and offers to compromise. Evidence of any conduct or statement made during compromise negotiations shall be inadmissible in other proceedings, in order to encourage settlement negotiations. Most courts adopting an ADR programme provide for specific rules to govern the mediation practice within the court. Section 21 A of the Judiciary Law was enacted in 1981 and it provides statutory reference to all community dispute resolution centres working in New York.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. Mediation providers can have different legal forms ranging from solo practitioners to larger institutions organised and structured in different ways, including partnerships, LLCs, corporations and non-profit entities. The major private providers of mediation services usually enlist several neutrals in their panels, and offer centralised case management and ADR consultation services, as well as adequate office space to conduct the mediations. A complete list of all mediation bodies does not appear to be available on line. b. Individuals may be providers of mediation services Yes. There are many solo practitioners providing mediation services independently. c. Mediation provider qualifications/requirements determined by public regulation

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No. There is no prescribed structure for mediator providers.

9.1. Mediator fees a. Freely contracted (Yes). For mediations that are not court-connected, the mediator fee is freely contracted. b. Fixed in some cases by public regulation (Yes). Fee policies for court-connected mediations are set by the local court and range from no fees to fees agreed to by parties and mediator. In New York County Supreme Court Commercial Division, for example, after mediators meet their two pro bono mediation requirement for the year, the fee is $250 per hour while the fee in New York County Supreme Court Matrimonial Division is $300 per hour. c. Average mediator fee per hour for commercial or cross-border cases US$400 – $800 (estimate). In private practice, it is not unusual for commercial mediators to price their service based on half-day/day rates. Hourly rates in commercial and cross-border cases may vary widely. We estimate the average mediator fee to range between $400 and $600 per hour. Nevertheless, less experienced mediators may have lower rates, while more experienced and successful mediators could charge substantially higher fees. d. Average mediator fee per hour in civil cases US$200 – $ 400 (estimate). Also in civil cases, many mediators adopt half day/day rates. When applied, hourly rates may vary substantially based on the mediator’s practice, her or his affiliation and, sometimes, on the complexity of the case. Generally, in the family mediation context, the mediator fees may be in average lower than for other civil cases.

9.2. Financing and legal aid e. Legal aid available for mediation services Yes. The Community Dispute Resolution Centres, through state legislation, receive general appropriation funding for non-profit ADR providers that specialise in providing free or lowcost mediation services to litigants in civil, criminal matters and family matters. There is legal aid authority for lawyers to represent parties in mediation, but it is not heavily utilised. f. Mediator fees covered by legal insurance schemes (Yes). Only in specific cases). Legal insurance schemes may or may not provide coverage for mediation costs. However, in civil and commercial cases involving a liability insurance policy, it is not unusual for the carrier to cover, at least in part, the costs associated with mediation. The insurance carrier may have an obligation to advance or contribute to the costs relating to the mediation process based on the policy language regarding defence costs, and/or based on the principle of the ‘duty to defend’ owed by the insurer to its insured. g. Mediator fees subsidised in court-connected schemes Yes. The majority of CDRC cases require no fee to the parties, and in rare exceptions, involve nominal fees. In several court-annexed arenas, the fees are offset by local rule requiring mediators to provide two or three cases pro bono each year and, in other programmes, the first one or two sessions or the first couple of hours are provided for free or at a reduced cost. The New York City Family Court pays mediators $50 per hour to handle custody and visitation mediation in addition to child permanency mediation.

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10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? No. There is no special relationship between judges and mediators. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. Judges, both in state and in federal courts, can and often do refer parties to mediation services. In local courts it is not unusual for the court clerk to invite the parties to participate to the free mediation programme offered by the court. c. Mediation procedure has impact on statute of limitations (No). The mediation process itself does not have a direct effect on the statute of limitations. However, the parties may agree in an ADR clause or agreement that a demand to participate in mediation as required by the agreement shall have the effect to toll the statute of limitation. In fact, in the private arena, especially in regard to complex civil and commercial cases, it is not unusual for the parties to enter into agreements to toll the statute of limitations, and/ or to avoid the filing of pleadings and motions with the court pending the attempt to resolve the case through mediation.

US

11. Mediated settlement a. Contract Yes. The mediated settlement agreement has the binding effect of a contract and will generally be subject to the principles and rules provided by contract law. b. Automatically enforceable No. A mediated settlement agreement is not automatically enforceable. c. Enforceable under some circumstances which are up to the parties Yes. The parties can agree to incorporate the settlement into an arbitration award or, in some circumstances into a judgment. For example, in certain court-annexed mediation programmes, the parties are given the option to agree that, in cases involving the default of one party to implement the terms of the settlement agreement, the court will enter a default judgment in the amount agreed in the settlement or even in the amount of the original claim. d. Enforceable under some circumstances defined by public regulation No. The mediated settlement is considered a private contract and not an enforceable title.

12. Confidentiality a. Regulated by law (No). There is no specific legislation specifically addressing confidentiality in mediation. However, New York’s Civil Law Practice Rules (4547 – ‘Compromise and offers to compromise’) state that evidence of any conduct or statement made during compromise negotiations is inadmissible, thus encouraging settlement negotiations. In the private arena, most mediation bodies adopt their own rules including provisions regarding the confidentiality of the

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mediation process to which the parties agree. Generally, such provisions extend the privilege of mediation confidentiality to the parties as well as to the mediator. For CDRCs mediations, Section 21A of the New York State Judiciary Law provides for the confidentiality of all cases mediated through this programme. Confidentiality protection is excluded in regard to matters involving child abuse or neglect. The Federal Rules of Evidence (Rule 408) also delineate a ‘Compromise and Offers to Compromise’ provision. The Southern District of New York has local Rule 83.9, which states that the ‘entire mediation process shall be confidential and the mediation process shall be treated as a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by contract) No.

13. Education a. Mediation education is a common component of legal education curriculum Yes. Mediation is offered at most law schools in New York, many of which offer clinical programmes on mediation through which the students, after being trained as mediators, can acquire direct practical experience through collaborations with certain court-connected and community mediation programmes. Most law students learn about mediation through school before they graduate. Law schools in New York offering ADR/mediation programmes include: Benjamin N. Cardozo School of Law, NYU, Fordham School of Law, Columbia University, Brooklyn Law School, and others. More information on national rankings of law schools’ ADR programmes can be found at: ) b. Mediation advocacy education is a common component of legal education curriculum Yes. Most New York law schools provide some form of content on mediation advocacy education.

14. Most relevant literature or references, jurisprudence, articles, law – Roger Fisher and William Ury, Getting To Yes: Negotiating Agreements Without Giving In (­Penguin Books, Second Ed. 1991); – Menkel-Meadow, Love, Schneider, Mediation: Practice, Policy ad Ethics (Aspen 2006) – Leonard L. Riskin, James E. Westbrook, Chris Guthrie, et al., Dispute Resolution and Lawyers (American Casebooks 4th Ed. 2009); – J. Stulberg and L. Love, The Middle Voice: Mediating Conflict Successfully (Carolina Academic Press, 2009) – E. Galton and L. Love, Stories Mediators Tell (ABA Section of Dispute Resolution, 2012) – Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (Third Ed. 2003); – Matthew Guasco & Peter Robinson, Principles of Negotiation (Entrepreneur Press 2007); – Harold I. Abramson, Mediation Representation, Advocating as a Problem-Solver in any Country or Culture. (Notre Dame, Indiana: The National Institute for Trial Advocacy, 2010); – John W. Cooley, The Mediator’s Handbook. (Notre Dame, Indiana: National Institute for Trial Advocacy, 2d Ed. 2006);

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– Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation, The Transformative Approach to Conflict (San Francisco: Jossey-Bass, 2d Ed. 2004); Among the most important periodicals publishing articles concerning mediation there are: – Cardozo Journal of Conflict Resolution – Conflict Resolution Quarterly – Harvard Negotiation Law Review – Ohio State Journal on Dispute Resolution – Pepperdine Dispute Resolution Law Journal – Mediate.com

US

15. Mediation legislation texts a. Weblink to legislation in national language Legislation –– Article 21A of the New York State Judiciary Law (Community Dispute Resolution Centres Programme) – http://www.nycourts.gov/ip/adr/Publications%5CArticle21A.pdf –– Part 146 of the Rules of the Chief Administrative Judge establishes state-wide qualifications and training requirements for mediators and neutral evaluators serving on court rosters. – http://www.nycourts.gov/ip/adr/Part146.shtml#part146 –– Uniform Mediation Act (Bill No. S00139 – currently being examined by the Senate Judiciary Committee) – http://assembly.state.ny.us/leg/?default_fld=&bn=S00139&term=2013& Summary=Y&Text=Y Court Rules –– Fee Dispute Resolution Program (Part 137 of the Rules of the Chief Administrator) http://www.nycourts.gov/admin/feedispute/pdfs/Part137June2009.pdf –– New York Civil Practice Law & Rules – Article 45 – § 4547 Compromise and Offers to Compromise – http://law.onecle.com/new-york/civil-practice-law-rules/CVP14547_4547.html b. Weblink to English or other translation NA. c. Other references NA.

16. Country specific remarks Beyond the cultural roots of mediation that have taken hold in many countries, its history in the United States can also be traced to the use of arbitration and mediation in the labour movement. The federal government promoted commercial arbitration as early as 1887, when it passed the Interstate Commerce Act, which set up a mechanism for the voluntary submission of labour disputes to arbitration by the railroads and their employees. More recently, mediation has grown out of two separate movements: one out of the social and political activism of the 1960s, as a response to the urban disorders of that time, and the other out of the efforts, both within and outside of government, to reform the justice system (e.g., Roscoe Pound: The causes of popular dissatisfaction with the administration of justice, 1976). Also, there was a growing acceptance of divorce as a common life event. In the past twenty years, many states have adopted state-wide efforts for the promotion and funding of mediation efforts for their communities and justice systems. New York State has helped to lead this effort for the past thirty-three years, where

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the New York State Unified Court System has funded efforts to promote alternative dispute resolution process for the people of this state. A majority of private, court-annexed and CDRC mediators, whether working for organisations or as sole practitioners, accept the Model Standards of Conduct for Mediators, written by committee through the efforts of the American Bar Association, American Arbitration Association and the Association of Conflict Resolution. The New York State Unified Court System created the Mediator Ethics Advisory Committee (‘MEAC’) in 2006. The creation of the Committee stemmed from the promulgation of the 2005 Standards of Conduct for New York State CDRC Mediators by the Office of Alternative Dispute Resolution and Court Improvement Programs and the Standards’ drafting Committee. These standards were developed to educate mediators regarding current standards of practice; to guide mediators in their practice; to promote public confidence in mediation as a dispute resolution process; and to inform mediating parties about the process. The three major objectives of MEAC are: 1) to respond to inquiries from mediators in community dispute resolution centre programmes; 2) to promote professional development and consistency of practice among dispute resolution practitioners; and 3) to recommend changes to mediator standards of conduct for the New York State community dispute resolution centre mediators that govern mediators who provide dispute resolution services under the auspices of a community dispute resolution centre (‘CDRC’). New York as a global trade and financial centre has developed a favourable environment for the development of mediation in the private sector as well. Many national and international ADR organisations have a strong presence in New York, including headquarters, offices and operations to participate in a growing market, in which new providers continue to appear to serve the needs of different sectors and industries. New York is one of the premier venues in the US and globally for mediations of some of the most relevant domestic and international cases in the commercial and financial sectors. Also, sophisticated courts, especially federal courts handling complex financial and commercial cases, often invite the parties to reach efficient resolution of such cases through mediation, and in general support the use of the mediation process by the parties at any stage of litigation. For example, in 2003 the US Court for International Trade in New York adopted a protocol including guidelines to implement a court-annexed mediation programme, as well as to promote settlement of international trade disputes through mediation outside the court. Mediation is increasingly an integral part of the New York legal environment, as parties and counsels become more and more sophisticated in the use of the mediation process to resolve disputes in many legal areas and industries. The New York Senate Judiciary Committee is currently evaluating the adoption of the Uniform Mediation Act providing for privilege and confidentiality of the mediation communications as well as other legal principles relating to the mediator’s neutrality. The full text of the bill can be found on the NY legislature website.

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Mediation regulation and approach Country: United States of America – New York Prepared by Giulio Zanolla 1. Attempt to mediate

2. Mediation clause

US

3. Mediation procedure

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law

b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) 4.1. Mediator a. Accreditation/certification or recognition of mediators accreditation b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

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(Yes) (No) (Yes) Yes (No) No No Yes No (No) (No) Yes No (out-of-court)/ Yes (in-court, community centres) Yes Yes No F/E D/(F) F/E D/(F) GA Mix Mix No Yes No 40 hrs No No No No

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Mediation regulation and approach Country: United States of America – New York Prepared by Giulio Zanolla 4.2. Mediation i. Accreditation/certification or recognition of mediation advocacy advocates accreditation j. Set by market (private certifying bodies) k. Set by public regulation 5. Who can be a. Set by market (private certifying bodies) mediator? b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) 6. EU directive 7. Mediation a. Mediation legislation since legislation 8. Bodies a. Mediation bodies may have various legal forms providing b. Individuals may be providers of mediation services mediation c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes No No No NA 1981 Yes Yes No (Yes) (Yes) $400-800 (est.) $200-400 (est.) Yes (Yes) Yes No

Yes (No) Yes No Yes No (No) No Yes Yes

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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60. USA – Texas1 – State and Federal Courts2 Prepared by Professor Kimberlee K. Kovach3

US

1.

Attempt to mediate

a. Always voluntary No. In fact, the practice of settling and resolving pending litigation through mediation was primarily initiated with the passage of the Texas ADR Act, specifically Chapter 154.001, et. Seq., Tex. Civ. Prac. and Rem. Code, which authorised mandatory dispute resolution procedures, including mediation. With the passage of this statute, courts were provided the specific authority to order or mandate that litigants participate in mediation. See Sec­ tion 154.021 Tex. Civ. Prac. and Rem. Code. While procedures for objections were set forth in the statute, see Section 154.022 (b), few objections were sustained. In most instances, courts were very active in ordering or mandating cases to mediation, and even initially directed the case to a specific mediator. As the legal profession grew more familiar with mediation, in many instances the parties, through their attorneys, would schedule the case for mediation prior to the court’s order. In many jurisdictions, particularly those in larger cities, the courts include the requirement to mediate by a date certain as part of the case scheduling order or local court rules. b. Mandatory (in some cases) Yes. In fact, when court-ordered mediation began, most of the cases were mandated by the courts. See 1.a. The particular provision authorising the courts mandate provides: ‘A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure… ‘. Although the statute in the referral section specifically references ‘alternative dispute resolution procedure’, and in other sections defines five processes, (see Section 154. 023. 514.024, 154.025, 154.026 and 154.027 Tex. Civ. Prac. and Rem. Code), mediation was and remains the most common process used. Courts do, however, generally permit parties to choose alternative ADR processes, if specifically agreed upon by the litigants.

1 Last update of information: July 2013. 2 I have deliberately included both state and federal courts in the heading as, within the state of Texas, mediation practice has developed very similarly in both jurisdictions. In fact, once the Federal ADR Act was enacted in 1998, several federal courts within the state modelled their ADR rules and referral procedures after what the state courts had done throughout the early nineties. Therefore while mediation practice throughout the state is not regulated or uniform, as will be discussed in this chapter in much greater detail, many similarities exist for state and federal courts, in both procedural matters as well as practice. 3 Professor Kimberlee K. Kovach has over thirty-five years of experience in mediation, as a mediator, teacher, trainer and author. She is currently serving as a visiting lecturer at Baylor Law School, in Texas. Contact: [email protected]; [email protected].

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c. Court referral or court-connected mediation possible Yes. Most private mediation is that of pending lawsuits. While, as noted, courts no longer refer each specific case, most lawyers filing and answering lawsuits within the state are aware of the need to mediate at some point during the litigation process. d. Court-ordered mediation possible Yes. Very common and as noted, judges for the most part no longer order specific cases to specific mediators. It has now become common that courts, as part of the routine pre-trial or scheduling orders, include a specific time frame within which mediation must be completed. Consequently, courts do continue to order cases to mediation, although in a less explicit manner. e. Sanctions by the court if mediation is not tried (in good faith) Yes. In some instances there are sanctions. Case law in Texas has developed in a somewhat conflicting manner. The first case to specifically address the issue of referral and participation was Decker v. Lindsay, 824 SW2d 247 (1992), which specifically held that a court can order the parties to go to mediation, but cannot order them to participate in good faith. However, subsequently, the Texas Family Code added a provision which did require participation in good faith, although the consequences of a failure to do so were not clear. In subsequent appellate decisions, the Texas courts have split decisions in their treatment of court sanctions of parties for failing to participate in mediation in good faith. The federal courts vary as well, as appears to be the case in many US jurisdictions. See Peter Thompson, Good faith mediation in Federal Courts, 26 Ohio St. J. Disp. Resol. 363 (2011). f. Sanctions by law if mediation is not tried (in good faith) No. No applicable statute or case law exists which provides for such a sanction. On the other hand, the consequences for failing to mediate generally are addressed by each court. Therefore each individual judge has great discretion regarding the method and manner of the sanction which might be imposed upon a party for failing to mediate. g. Incentives if mediation is tried voluntarily before going to court Yes. In some cases there are incentives. In the early days of mediation practice, before courts were provided the direct authority to order the parties to mediate (see 1.a.), some judges decided to provide an early trial setting if the litigants participated in mediation. (Of course, this early setting would be applicable only in those instances where the case did not settle.) In some jurisdictions, this or other similar approaches (such as setting a scheduling conference early) may be imposed by the court. In at least one jurisdiction, mediation was essentially a condition precedent to retaining a case on the court’s docket if the case was susceptible to dismissal for ‘want of prosecution’. Texas courts have been, and still are, very individualistic in approach to dispute resolution procedures. h. Outside counsel presence/representation during mediation sessions allowed Yes. While no specific rule or requirement addressing the matter exists, it is generally the accepted practice that the lawyers representing the parties in the litigation are present and quite actively participate in the mediation. i. Outside counsel presence mandatory No. It is entirely the decision of the client and lawyer whether the lawyers attend. In most cases, however, other than perhaps some small claims cases, the practice is that the lawyers attend with their clients.

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748

The Variegated Landscape of Mediation

2. Mediation clause a. Case admissible in court with a mediation clause (Yes). Courts are likely to enforce valid agreements to mediate; the parties, however, must be the ones to raise the issue with the court. b. Case admissible in court, however, the judge may take this into account and there is some supporting case law No. If there is a valid mediation clause that the judge is made aware of, then the case will be referred to mediation first, in most instances. c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court (Yes). The issue, however, must be brought to the courts attention by the lawyers. If so, and it is clear in the contract that mediation is a condition precedent to either arbitration or litigation in the courts, then the court will so order. Several Texas cases have so held.

US

3.

Mediation procedure

a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law No. Mediation is defined only in general terms, and no other specifics as to the procedure are provided. The definition provides that ‘mediation is a forum in which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them.’ Section 154. 023 Tex. Civ. Prac. & Rem. Code. In practice, however, mediation is quite flexible and has taken on a broad spectrum of conduct and approaches. See also 3.c. – k. b. Mediation procedure, style and approach of the mediator fully flexible/contractual Yes. Since no real supervisory or administrative body or entity exists in Texas that oversees or administers mediation practice, how mediation is conducted is left essentially to the parties to determine. Although courts have some ability to superintend the process, the court’s focus has been primarily on the parties’ attendance and level of participation. c. Mediator can offer a non-binding opinion Yes. Although Section 154.023(b) provides that ‘a mediator may not impose his own judgment on the issues for that of the parties’, in practice a non-binding opinion is often provided by mediators in an effort to avoid impasses. d. Mediator can offer a binding opinion No. However, see 3.c. In some instances, with the explicit agreement of all of the participants, mediators may in essentially transition into the arbitrator role, explicitly declaring the mediation to be over. In this context, then, the mediator (now turned arbitrator) issues a binding opinion. e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Facilitative. Although the Texas state statute defines mediation as a facilitative process, (see 3.a.), in practice most commercial mediators transition toward a more evaluative approach. This is often a result of the influence of the lawyer representatives in the

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749

mediation, who focus and often dominate the discussions in a legalistic manner. In addition, while codes of ethics for mediators exist, which in some instances call for a more facilitative approach, enforcement is lacking since no regulatory body exists. As a consequence, no method for assuring compliance – or even knowledge of – ethical or practice standards exists. f. Predominant approach in commercial disputes re process (facilitative, directive, other) Directive. Generally a directive approach is observed. g Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) Evaluative/Facilitative. See 3.e. h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) Directive/mix. Generally directive as well, although quite likely on a continuum, depending upon the mediator and the needs of the litigants in the case. As mediators have increased experience in a variety of matters, they have become more likely to change or modify their approach on an ‘as needed’ basis, depending upon the issues that arise during the mediation itself. i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, ­other)? All. All of the ways suggested, and likely others, depending upon the mediator and his/her assessment of the needs of case, i.e., the barriers to settlement or resolution. j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) Mix. k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) Mix.

4.1. Mediator accreditation a. Accreditation/certification or recognition of mediators (Yes). The statute which sets out the requirements for mediators, is Section 154. 052, Civ. Prac. & Rem. Code, which merely states that in order to qualify for an appointment as an impartial third party (not specifically mediation), the individual must complete 40 classroom hours of training. The statute also provides in Part c that even if the individual does not qualify through the training, the courts have discretion to appoint that person, if the court bases its decision on ‘legal or other professional training or experience in particular dispute resolution processes.’ A voluntary organisation, the Texas Mediation Credentialing Association (TMCA), was created several years ago. See www.txmca.org. It is comprised of representatives from several state-wide organisations in an effort to create an entity to ‘promote quality mediation throughout Texas’. A number of mediators have joined, by applying and receiving a designation based in most part upon experience, both in terms of years and number of mediations conducted. The application and assessment is based upon a form. It remains, however, a voluntary membership organisation and membership is not required for any type of practice. Currently the system is not well known by the general public or those attorneys who represent clients in mediations.

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750

The Variegated Landscape of Mediation

b. Set by market (private certifying bodies) Yes. See TMCA in 4.1.a. In terms of the users of mediation, the market actually determines who serves as mediators. The process is primarily one of selection of the mediator by the lawyers representing the parties. In some commercial and civil cases, where a lawsuit has not been filed and the parties are not represented by counsel, the mediator is often one referred to the parties by another lawyer or other professional the parties have dealt with. c. Set by public regulation No. There is no real public regulation other than the provision in the statute. See 4.1.a. and d. Although, as noted, some voluntary accreditation exists, there is no public law or regulation setting forth requirements other than basic training.

US

d. Number of hours for basic mediator training 40+ hours. The statute sets the minimum number of hours at forty classroom hours of training. The first training for volunteer mediators in Texas, which was held in September of 1980, was also a 40-hour course. While this requirement or qualification is only for those seeking court appointments, as noted in 4.1.a, in practice most if not all individuals who hold themselves out as mediators, whether as volunteers or private practice mediators, have completed at least the initial 40 hour training. e. Mandatory continuing professional development for accredited/certified mediators (No). In order to remain a credentialed mediator with the TMCA, however, mediators are required to participate in at least five hours of mediation related education. See www.txmca. org. f. Accreditation through set of rules (e.g., age, education, professional background, e ­ xperience, etc.) No. Not generally. While some organisations or providers have set their own set of criteria or rules for membership or inclusion on rosters, no public state-wide rules exist. Membership organisations, however, do insist that members adhere to the applicable mediator code of ethics or standards of conduct, and have established complaint procedures. g. Accreditation through written exam (No). This is rarely the case. The only written examination of mediators would be in several of the law schools where mediation is taught. h. Accreditation through performance-based assessment No.

4.2. Mediation advocacy accreditation i. Accreditation/certification or recognition of mediation advocates No. Nothing exists. j. Set by Market (private certifying bodies) No. Accreditation or certification for mediation advocates exists. To the limited extent that clients (parties) are aware and familiar with mediation practice and the differences in effective legal representation in such a forum, some distinct selection may occur. It is probably more common in family law matters. k. Set by public regulation No.

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60 USA - Texas - State and Federal Courts

5.

751

Who can be a mediator?

a. Set by market (private certifying bodies) Yes. A free market approach is the dominant method of choice or mediator selection throughout the state of Texas. b. Set by public regulation No. In general it is not set by public regulation and yes for court appointments, where the only requirement is the completion of the forty-hour classroom training. See 4.1.d. c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) No. No such professional training, education, or qualification requirements exist. However, as noted in 4.1.a., courts have the discretion to appoint individuals as mediators who have not completed the requisite training but possess other ‘legal or professional’ training or education. See Section 154. d. Only a lawyer/legal professional can be an accredited/certified mediator No.

6.

EU Directive

NA.

7.

Mediation legislation

a. Mediation legislation since 1983. Texas has had mediation legislation since 1983, when the legislature first passed the statute which established the funding to create and support local dispute resolution centres. (community mediation centres). See Section 152.001, et seq., Tex Civ. Prac. & Rem. Code. The stated policy contained in the legislation was beneficial in the passing of the Texas ADR Procedures Act in 1987. The Texas ADR Act, Section 154.001, et seq., Tex. Civ. Prac. & Rem. Code, was one of the first comprehensive ADR acts in the United States. This statute provides the authority to the courts to mandate ADR use (see 154.021 Tex. Civ. Prac. & Rem code). In addition, the legislation sets forth definitive procedures, qualifications and legal parameters for mediation and ADR practice, thereby serving as the foundational law and procedure for all ADR use within the state. Many provisions were also replicated by the federal courts in Texas when they implemented mediation and ADR programmes.

8.

Bodies providing mediation

a. Mediation bodies may have various legal forms Yes. This is not addressed in any regulation, and thus no restrictions exist. Providers of mediation services range from sole practitioners, to partnerships to corporations, both for profit and not for profit. b. Individuals may be providers of mediation services Yes. Most mediators are individual providers of mediation and dispute resolution services.

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The Variegated Landscape of Mediation

c. Mediation provider qualifications/requirements determined by public regulation No.

9.1. Mediator fees a. Freely contracted Yes. For the most part, it is a free market. b. Fixed in some cases by public regulation No. In some programmes, perhaps, such as the United States Postal Service programme, the parameters for fees are established, but are solely internal to the individual programme rather than made by any public law or regulation. c. Average mediator fee per hour for commercial or cross-border cases US$2,000 to $5,000 per day. The range is very broad, and the practice in Texas, as well as several other jurisdictions in the United States is a per day (or half day) fee, rather than an hourly rate. An example of the range for a full-day mediation fee is from $2,000 to $5,000. The amount is evenly divided between the parties. Generally modifications are made in multi-party cases.

US

d. Average mediator fee per hour in civil cases US$2,000 to $5,000 per day. The range is very broad. See 9.1.c.

9.2. Financing and legal aid e. Legal aid available for mediation services No. Legal aid is available for mediation services, although legal aid lawyers are likely to represent their clients in the context of mediations. f. Mediator fees covered by legal insurance schemes No. g. Mediator fees subsidised in court-connected schemes No. Not in the private sector. However, in many counties governing boards, the local county commissioners court, have been granted discretion by statute to increase court filing fees, (up to a limit of $10 per case) (see Chap. 152.001 et seq.). This then comprises the dispute resolution fund of that county (or a combination of counties in smaller jurisdictions). Those monies primarily fund and support the local dispute resolution centres (DRCs), which provide mediation services at no, or very little cost to the general public. In court-annexed cases, where the parties cannot afford private mediator fees, the dispute resolution centres generally provide a mediator at no or little cost.

10. Legal context a. Is there a special relationship between judges and mediators/mediation, apart from court-connected referrals or court-connected mediation schemes? (No). While early in the development of court-annexed mediation in Texas several of the judges who initially made the mandatory referrals to mediators did so to specific individuals, such a practice rarely occurs now. Even the practice of reporting back to the court whether a case settled or not, is no longer, for the most part, within the purview of mediators. The lawyers representing the parties do most, if not all, of the communicating with the court. There

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753

may be, however, smaller jurisdictions within the state where communication between the judge and the mediator is more likely. Moreover the code of ethics for mediators provides that mediators and judges should avoid the appearance of impropriety. b. Relationship between mediation and legal system (is mediation seen as part of the legal system?) Yes. As most mediation that occurs is done in the context of court-annexed matters, it is quite common that both the general public as well as lawyers view mediation as a legal process, rather than as an independent, stand-alone process, quite different from the adversary process. In fact, an unpublished study several years ago, by a marketing professor at the University of Texas Business School, confirmed that the general public throughout the state of Texas was aware of mediation, but also viewed it as part of legal proceedings, rather than a stand-alone process. See Kimberlee K. Kovach and Linda Golden, Public perception of mediation: truth or consequences, (2004), unpublished Manuscript on file with author. c. Mediation procedure has impact on statute of limitations No. None, unless by the litigants’ voluntary agreement or agreed stipulation.

11. Mediated settlement a. Contract Yes. Specifically set forth in the Texas statute, (see Section 154.071 Tex. Civ. Prac. & Rem Code), which provides that if the parties ‘reach a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract’. b. Automatically enforceable No. As a contract, all applicable law, rulings and contract law apply to the mediated agreement. While initial court holdings varied, it is now common to view the mediated agreement as a contract, in accordance with the statutory provision. For additional information, see Peter Robinson and Ellen Deason for general commentary on the topic.4 c. Enforceable under some circumstances which are up to the parties No. See 11.a. and b. d. Enforceable under some circumstances defined by public regulation No. See 11.a. and b.

12. Confidentiality a. Regulated by law (Yes). Many Texas mediators contend that the statute provides broad confidentiality.5 Yet Texas courts have treated confidentiality provisions very differently, and much conflicting case law exists. 4 Ellen E. Deason, Enforcing mediated settlement agreements: contract law collides with confidentiality, 35 U.C. Davis L. Rev. 33 (2001). Peter Robinson, Centuries of contract common law can’t be all wrong: why the UMA’s exception to mediation confidentiality in enforcement proceedings should be embraced and broadened, 2003 J. Disp. Resol. 135. 5 See Brian D. Shannon, Dancing with the one that ‘brung us’ – why the Texas ADR community has declined to embrace the UMA 2003 J. Disp. Resol.

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The Variegated Landscape of Mediation

b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) (No). As noted in 12.a., courts have varied in their decisions regarding the extent and limits of mediation confidentiality.

13. Education a. Mediation education is a common component of legal education (No). Rarely for the practicing bar. While for a number of years it was common to have mediation information or education integrated in a number of subjects at legal education conferences at both the state and local level, this is no longer the case. Mediation (and other dispute resolution educational efforts) is mainly focused on the neutrals themselves. Many, many attempts have been made over the years to incorporate mediation education as part of other continuing legal education programmes. Although some were successful early on, only rarely do those programmes now include information or education about mediation specifically. With regard to law schools, all of the law schools have some ADR courses, and most offer specific courses in mediation.

US

b. Mediation advocacy education is a common component of legal education No. Not unless a specific ADR programme includes it.

14. Most relevant literature or references, jurisprudence, articles, law –– L. Wayne Scott, THE LAW OF MEDIATION IN TEXAS, 37 St Mary’s L Rev 325 (2006) –– Kovach & Galton, Texas ADR: A Future so Bright We Gotta Wear Shades, 31 St. Mary’s L. J. 949 (2000) –– Texas State Bar ADR Handbook, (3rd Edition) –– Kovach, Mediation in a Nutshell, (2nd Ed. 2010) –– Kovach, Mediation: Principles & Practice (3rd Ed. 2004) –– Texas Practice Guide, Alternative Dispute Resolution (2012-1013)

15. Mediation legislation texts a. Weblink to legislation in national language –– http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.154.htm b. Weblink to English or other translation NA. c. Other references NA.

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16. Country specific remarks Mediation practice, both court-related as well as in the private sector, developed a bit differently in Texas to the way it did in many other states or jurisdictions. Although one statute, through its specific language, encompassed all courts throughout the state, each court was given great latitude to design its own policy and procedures. It would not be uncommon, for example, for two judges, with courts in the same building, to address mediation matters quite differently. Thus, unlike Florida, which has a central administrative core, no such entity existed or exists within the state of Texas. Comprehensive data was not gathered, although some jurisdictions did maintain records for some period of time. As a consequence, most of what is known regarding Texas mediation practice is based upon personal experiences and the informal reporting at bar meetings, conferences and other gatherings of lawyers and mediators. Texas has been, and continues to be, one of the leaders in the development of dispute resolution practice within the United States. Texas quickly followed the Neighborhood Justice Center (community mediation centre) movement, beginning in 1980. The first forty-hour mediation class of mediators was trained in September 1980. Soon after, as a number of judges and lawyers learned about ADR and mediation, additional programmes and experimental projects were established. This work was augmented considerably by the passage of the 1987 Texas Dispute Resolution Act, which served as significant momentum for the development of additional programmes and projects. With a broad state statute providing courts the authority to refer cases to mediation, use in both the court-annexed and private sectors increased rather notably. Although many of the cases that are mediated are pending in courts, mediation practice remains more individual and private, as no state-wide coordination exists. Mediation definition: ‘mediation is a forum in which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them.’ Section 154. 023 Tex. Civ. Prac. & Rem. Code.

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756

The Variegated Landscape of Mediation

Mediation regulation and approach Country: United States of America – Texas Prepared by Kimberlee K. Kovach 1. Attempt to mediate

2. Mediation clause

US

3. Mediation procedure

4.1. Mediator accreditation

a. Always voluntary b. Mandatory (in some cases) c. Court referral or court-connected mediation possible d. Court-ordered mediation possible e. Sanctions by the court if mediation is not tried (in good faith) f. Sanctions by law if mediation is not tried (in good faith) g. Incentives if mediation is tried voluntarily before going to court h. Outside counsel presence/representation during mediation sessions allowed i. Outside counsel presence mandatory a. Case admissible in court with mediation clause b. Case admissible in court, however, the judge may take this in account and there is some supporting case law c. If parties included a mediation clause in their contract, they have to mediate first before they can go to court a. Details of mediation procedure, approach and/or specific duties of the mediator described in the law b. Mediation procedure, mediator duties, style and approach of the mediator fully flexible/contractual c. Mediator can offer a non-binding opinion d. Mediator can offer a binding opinion e. Predominant mediation style for commercial disputes re substance (facilitative, evaluative, transformative, other) f. Predominant approach in commercial disputes re process (facilitative, directive, other) g. Predominant mediation style for civil disputes re substance (facilitative, evaluative, transformative, other) h. Predominant mediation approach for civil disputes re process (facilitative, directive, other) i. If applicable, how is evaluative mediation used (neutral, general advice, legal opinion, other)? j. Predominant mediation process for commercial disputes (caucus (only), joint session (only), mix, other) k. Predominant mediation process for civil disputes (caucus (only), joint session (only), mix, other) a. Accreditation/certification or recognition of mediators b. Set by market (private certifying bodies) c. Set by public regulation d. Number of hours for basic mediator training e. Mandatory continuing professional development for accredited/ certified mediators f. Accreditation through set of rules (e.g., age, education, professional background, experience, etc.) g. Accreditation through written exam h. Accreditation through performance-based assessment

The variegated landscape_1.indb 756

No Yes Yes Yes Yes No Yes Yes No (Yes) No (Yes) No Yes Yes No E/F D E/F D/mix All Mix Mix (Yes) Yes No >40 hrs (No) No (No) No

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Mediation regulation and approach Country: United States of America – Texas Prepared by Kimberlee K. Kovach 4.2. Mediation advocacy accreditation 5. Who can be mediator?

6. EU directive 7. Mediation legislation 8. Bodies providing mediation

i. Accreditation/certification or recognition of mediation advocates j. Set by market (private certifying bodies) k. Set by public regulation a. Set by market (private certifying bodies) b. Set by public regulation c. Only a lawyer/legal professional can be an accredited/certified mediator (domestic) d. Only a lawyer/legal professional can be an accredited/certified mediator (cross-border) a. Mediation legislation since

a. Mediation bodies may have various legal forms b. Individuals may be providers of mediation services c. Mediation provider qualifications/requirements determined by public regulation 9.1. Mediator fee a. Freely contracted b. Fixed in some cases by public regulation c. Average mediator fee per hour in commercial or cross-border cases d. Average mediator fee per hour in civil cases 9.2. Financing and e. Legal aid available for mediation services Legal aid f. Mediator fees covered by legal insurance schemes g. Mediator fees subsidised in court connected schemes 10. Legal context a. Is there a special relationship between judges and mediators/ mediation, apart from court-connected referrals or courtconnected mediation schemes? b. Relationship mediation and legal system (is mediation seen as part of the legal system?) c. Mediation procedure has impact on statute of limitations 11. Mediated a. Contract settlement b. Automatically enforceable c. Enforceable under some circumstances, which are up to the parties d. Enforceable under some circumstances defined by public regulation 12. Confidentiality a. Regulated by law b. Exemption from obligation to give evidence in court proceedings or arbitration (regulated by law or contract) 13. Education a. Mediation education is a common component of legal education curriculum b. Mediation advocacy education is a common component of legal education curriculum

No No No Yes No No No NA 1983 Yes Yes No Yes No $2.000-5.000/day $2.000-5.000/day No No No (No)

Yes No Yes No No No (Yes) (No) (No) No

Yes = Yes No = No (Yes) = Yes as a rule, but with (informal) exceptions (No) = No as a rule, but with (informal) exceptions

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The variegated landscape_1.indb 758

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IV. Appendix

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1. Index of countries in alphabetical order ARGENTINA: Buenos Aires (AR) 478 AUSTRALIA (AU) 487 AUSTRIA (AT) 46 BAHAMAS (BS) 506 BAHRAIN (BH) 515 BARBADOS (BB) 524 BELGIUM (BE) 62 BRAZIL (BR) 533 BULGARIA (BG) 72 CAMBODIA (KH) 550 CAMEROON (CM) 559 CANADA (CA), Ontario 568 CROATIA (HR) 86 CYPRUS (CY) 99 The CZECH Republic (CZ) 108 DENMARK (DNK) 119 EGYPT (EG) 600 ESTONIA (EE) 128 ECUADOR (EC) 591 FINLAND (FI) 139 FRANCE (FR) 153 GERMANY (DE) 167 GREECE (GR) 181 HUNGARY (HU) 193 INDIA (IN) 608 INDONESIA (ID) 620 ISRAEL (IL) 635 IRELAND (IE) 210 ITALY (IT) 220 JAPAN (JP) 646 LATVIA (LV) 236 The LEBANON (LB) 655 LITHUANIA (LT) 248 LUXEMBOURG (LU) 261 MALTA (MT) 270 The NETHERLANDS (NL) 280 POLAND (PL) 295 PORTUGAL (PT) 306 QATAR (QA) 664 ROMANIA (RO) 316 RUSSIA (RU) 404 RWANDA (RW) 673 SERBIA (CS) 416 SINGAPORE (SG) 682 SLOVAKIA (SK) 330

The variegated landscape_1.indb 760

SLOVENIA (SI) 341 SOUTH AFRICA (ZA) 692 SPAIN (ES) 353 SWEDEN (SE) 369 SWITZERLAND (CH) 430 The Republic of CHINA (CN) 579 TURKEY (TR) 453 UKRAINE (UA) 467 UNITED KINGDOM (GB): E  ngland and Wales 380 UNITED KINGDOM (GB): Scotland 393 USA (US) – California 703 USA (US) – Florida State Courts 719 USA (US) – New York, 732 USA (US) – T  exas – State and Federal Courts 74

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2. Country contributors in alphabetical order Name: Harold Abramson

Country: United States of America (introduction)

Hal Abramson is a full-time faculty member at Touro Law Center, New York, where he teaches, trains, and writes on how attorneys can effectively represent clients in domestic and international mediations and how mediators can resolve intercultural disputes. Hal is an experienced domestic and international commercial mediator (serves on US and international panels) and has taught or trained throughout the United States as well as in Australia, China, France, Germany, Hong Kong, Hungary, Italy, India, Israel, Netherlands, Russia, Singapore, Switzerland and Turkey. He served as Chair of the ABA Committee that drafted its mediation representation competition rules and assisted the ICC in Paris in launching its international mediation representation competition. He recently served as Chair of the IMI Task Force in The Hague, which designed and launched an Inter-Cultural Mediator Certification Programme. Abramson’s publications include two books, Mediation representation-advocating as a problemsolver (Apen-2013, Oxford Univ. Press for Outside of North America – 2011, and recipient of the CPR 2004 Book Award) and International conflict resolution-ADR consensual processes (co-authored). Website: www.tourolaw.edu/faculty/abramson (for a more detailed biography) Email: [email protected] Name: Lin Adrian

Country: Denmark

Lin is an assistant professor at the Law Faculty at the University of Copenhagen as well as a trained and active mediator. Her main areas of research are currently mediation in institutionalised settings as well as mediation and other forms of alternative dispute resolution in general. She is teaching law students mediation at master degree level as well as professionals in an executive master programme on mediation and dispute resolution. In addition, Lin teaches and supervises mediation in many professional settings outside the university such as, for example, the national court-connected mediation programme and she is also a visiting lecturer at other academic institutions. Prior to her appointment at the University of Copenhagen, Lin worked with mediation and dispute resolution as a consultant as well as in an NGO, offering mediation in criminal matters. She has also worked at a directorate under the Ministry of Justice and as a judge-in-training at a municipal court. For several years Lin headed Association for Mediation – a cross-disciplinary organisation for mediators and others with an interest in mediation in Denmark. Lin is the author of a number of articles on mediation, a practitioner’s handbook on mediation and a book on court-connected mediation in Denmark. Website: http:/jura.ku.dk/ansatte/profil/?id=62609 Email: [email protected] Name: Mfor Divine Afuba

Country: Cameroon

Mfor Divine Afuba is a legal advisor at Cabinet Marie-Andrée Ngwe in Douala, Cameroon. He focuses on commercial, corporate, investment and project finance law.

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He holds a Licence en Droit and a Maîtrise en Droit from the University of Yaoundé II – Soa. He also holds an LL.M. from the University of Pretoria (South Africa) and an LL.M. from the London School of Economics. He has served as a project assistant at the Southern African Development Community (SADC) Parliamentary Forum, on attachment from the University of Pretoria. Email: [email protected] Name: Guy Arendt

Country: Luxembourg

Guy Arendt is partner of the Luxembourg firm Bonn & Schmitt and in charge of the dispute resolution department. He is a generalist lawyer, whose activities cover matters in the areas of commercial law (negotiation of contracts), litigation and arbitration, bankruptcy and restructuring, IP /IT law, real estate law, e-commerce and new technologies. He was admitted to the Bar in 1980. Guy Arendt advises on media law matters (regulatory issues, broadcasting licences, transfer or licence of IP rights, etc.), telecommunications law (sharing of infrastructure agreements, interconnection, right of way, licences, etc.) and IT law (advice on the implementation of internet sites etc.). Bonn & Schmitt has acted for the Telecommunication Regulatory body in Luxembourg which is the ILR (Institut Luxembourgeois de Régulation). He has experience in litigation and dispute resolution in the IT and telecommunications industry. Guy Arendt was president of the Bar Council in 2006 and 2007. Website: www.bonnschmitt.net Email: [email protected] Name: Seçkin Arikan

Country: Turkey

Seçkin Arikan was born in Turkey, graduated from Ankara University School of Law, studied as foreign visiting student at the University of Texas School of Law in Austin, Texas, and has attended several training on mediation. He has been practicing law in Ankara since 1993, is founder and managing partner of Arikan-Arikan Law Office. He served as the president of Ankara Bar Association ADR Centre between 2005 and 2010, and has been serving as the president of the Union of Turkish Bar Associations ADR Centre since 2012. Beside his private practice on commercial, corporate, international trade law litigation, arbitration and mediation, he served as an instructor for various different courses on law at Baskent University School of Tourism and Administrative Sciences, Ankara University School of Law, Institute of Commercial and Banking Law, Middle East Technical University School of Administrative and Economical Sciences, and Ankara Bar Association Training Centre. He also served as trainer at many mediation (civil and criminal) training organised by different local bars and the UNDP. He also has organised several national and international legal conferences and symposium, and has attended as speaker or moderator to a large number of conferences mostly on ADR practices. He has written several articles and interviews on criminal and civil mediation issues which have been published in the media. On the specific issue of mediation, he represented Ankara Bar Association and the Union of Turkish Bar Associations to the Ministry of Justice, special committee preparing draft the Civil Mediation Act and Turkish National Assembly (Parliament) subcommittee of the Civil Mediation Act.

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He is the past president of Ankara Metropolitan Rotary Club and vice president of Turkish American Association in Ankara. Email: [email protected] Name: Simon Arvmyren

Country: Sweden

Simon Arvmyren’s main field of work is arbitration, mediation and other forms of dispute resolution within the area of commercial private law. His emphasis is on technically dense disputes. Since 2010 Simon has been a member of the Swedish National Committee of the International Chamber of Commerce (ICC), and since 2013, he has been part of the Commission on Arbitration of the ICC, Paris. The ICC Commission also deals with mediation issues. Contract law and tort law are Simon’s core areas of legal expertise. However, his practice as a dispute resolution lawyer covers most parts of commercial private law, such as insurance, cooperate law, environmental law and intellectual property law. As counsel Simon has, for instance, assisted clients at the Swedish Supreme Court on repeated occasions. Email: [email protected] Name: Zainal Asikin

Country: Indonesia

Zainal Asikin has been a lecturer at the Law Faculty of Mataram University, Indonesia, since 1981. He completed his Bachelor of Laws (SH) from Law Faculty of Mataram University, in 1980, and Master of Laws in Gadjah Mada University (SU) in 1986. Then, in 2009, he completed his doctoral studies (Ph.D.) at the University of Brawijaya Malang Indonesia. In 1981 he started his career as a lecturer at the Faculty of Law, University of Mataram, and was vice dean for academic affairs (1989-1997), and dean of the Faculty of Law, University of Mataram (1998-2006). Then, from 2006-2011 he served as vice rector IV (for Cooperation and Planning) at the University of Mataram. Now, he serves as director of postgraduate programme, Faculty of Law, University of Mataram. In addition, he has experience in managing the faculty, he wrote and published some books and articles, such as Pengantar Hukum Dagang (Introduction to commercial law, 2010), Bankruptcy law in Indonesia, Rajawali Press, Jakarta, 1990, 1996, 2001, 1006, 2013, Filsafat Hukum (Philosophy of law, Rajawali Press, Jakarta, 2013), Labour law, Rajawali Press, Jakarta, 1999, Legal Methods, Rajawali Press, Jakarta, 2005. Email: [email protected] Name: Gabriela Asmar

Country: Brazil

Gabriela Asmar started her career as a transaction lawyer, both in-house and as outside counsel. She has been head of legal departments and public affairs director at multinationals and has been responsible for multidisciplinary teams designing business strategies in telecommunications, investment banking and industrial sectors. She specialised in mediation in New York during an LL. M at New York University and worked in a New York Law Firm from 1999 to 2000. She is a recognised pioneer and developer of the mediation market in Brazil, and has served as a mediator in corporate, family, criminal and community conflicts with the Rio de Janeiro Court System and in private practice. Since 2007, she has been working fulltime with mediation. She teaches mediation at numerous universities in Brazil, such as UFRJ, UERJ, FGV and the Bar Association School of Law. She was one of the founders of the Mediation Commission at the Rio de Janeiro State Bar, for which she won the Innovare  Award 2009, given by the Supreme Court and others to relevant innovations in the

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legal arena. She has been involved in discussions about public policies on mediation within the court system and the legislative power. In 2011 Ms Asmar was the first Brazilian chosen as a Weinstein Fellow at JAMS – the world’s biggest mediation provider. In addition to her commercial practice, Ms Asmar is developing mediation in Brazil through conflict resolution programmes for children in schools located in the most violent areas of Rio de Janeiro. She is the founder and executive director of the Brazilian Centre for Partners for Democratic Change (Parceiros Brasil – Centro de Processos Colaborativos). Website: www.parceirosbrasil.org; www.partnersglobal.org Email: [email protected] Name: Lila Bakatselou

Country: Greece

Lila Bakatselou was born in Thessaloniki and graduated from the Law School of Aristotle University of Thessaloniki. She has been a lawyer since 1982 (Thessaloniki Bar), lawyer at the Supreme Court of Greece, a European Patent Attorney since 1987 and an accredited mediator since January 2011 (ADR Group UK/Mata Advanced Training/Harvard Negotiation Institute at Harvard Law School) and also a certified mediator according to Greek law since December 2012. She practices mostly civil and commercial law and law of intellectual property. She is a board member of the European Patent Institute (EPI), a member of the European Community Trade Mark Association (E.C.T.A.) since 1989 and president of the Hellenic Society for Disabled Children since 2002. She speaks Greek, English, French, German and Italian. Email: [email protected] Name: Graham Boyack

Country: Scotland

Graham is the director of the Scottish Mediation Network. The Network brings together mediators from all areas of mediation in Scotland and is responsible for promoting the use of mediation across all areas of Scottish life, providing opportunities for networking and professional development and promoting professional standards for mediators through the maintenance of the Scottish Mediation Register. Graham is relatively new to mediation having recently qualified as a mediator. He has worked in a number of third sector organisations in senior management roles prior to joining the Network. Website: www.scottishmediation.org.uk Email: [email protected] Name: Eldrid Bron

Country: The Netherlands

Eldrid Bron graduated from the Faculty of Lawat Utrecht University. During her study she followed several courses in mediation and wrote her thesis about comparative aspects of mediation regulation. Besides being a member of the task force for mediation advocacy of ACB foundation, corporate ADR and mediation (www.acbmeddiation.nl), Eldrid is the research assistant for the research project and for preparing the handbook The variegated landscape of mediation regulation. She is currently studying for her master’s degree in health law at Erasmus University of Rotterdam in the Netherlands. During this master degree course, she has been focusing on the possibilities of mediation in health law. In addition to her master degree studies, she completed the course at Schonewille & Schonewille to become an accredited ‘legal mediator’.

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Website: www.acbmediation.nl Email: [email protected] Name: Paola Cecchi Dimeglio

Country: France

Paola Cecchi Dimeglio (Ph.D., LL.M., Magistere-DJCE), is an attorney-mediator. She is currently a postdoctoral research fellow at Harvard Law School (Programme On Negotiation (PON)) and a joint research fellow at Harvard Kennedy School (Women and Public Policy Programme (WAPPP)). She is also involved as co-organiser and trainer in the Water Diplomacy Workshop initiated by the MIT-Harvard Public Disputes Programme and Tufts University. In parallel to her academic career, she is working with one of the United States’ pre-eminent mediators, Hon. Daniel Weinstein, and the Weinstein Group on complex mediations with aggregate values of multimillion dollars. She also consults for various firms on investment transactions and international strategic development. In 2011, she received the Weinstein Fellowship from the JAMS Foundation for her accomplishment in the field of ADR. Dr Cecchi Dimeglio is co-chair of the ABA IC committee on the future of ADR and has been nominated expert coordinator for several EU- and UN-funded projects on lawyers, ADR and gender. She sits on several scientific counsels for various organisations and conferences, among which the European Association of Judges for Mediation (GEMME-France). She is also a research affiliate at University of California Hastings College of the Law and Stanford University (Gould Center). Before joining PON, she was the research director of comparative law at The Hague University and practiced law in Paris for Landwell & Associés (PWC correspondent) and for Baker & McKenzie, where she focused on international contracts in Asia. Dr Cecchi Dimeglio has developed and taught several courses in the field of ADR, international (franchise) contracts, comparative law, intellectual property, law and gender at French, American and Dutch universities and published several articles and books on these topics. She earned a JD, LL.M., and a Magistére-DJCE degree in common and civil law and a Ph.D. in social sciences (summa cum laude) while studying at universities in France, Belgium, and the US. Website: Harvard Law School: http://www.pon.harvard.edu/faculty/paola-­cecchi-dimeglio/ Personal Website: http://www.paolacecchidimeglio.com Email: [email protected], [email protected] Name: Agis Chr. Georgiades

Country: Cyprus

Agis graduated in law (LL.B.) from the University of Leeds in 2003. He then completed the Bar Vocational Course at the Inns of Court School of Law and was called to the English Bar in October 2004, as a member of Lincoln’s Inn. He obtained an LL.M. in Corporate and Commercial Law from the London School of Economics in 2005, and a postgraduate diploma in International Mediation from Queen Mary College in 2010 (with distinction). He was admitted to the Cyprus Bar Association in 2006 and is the first Cypriot lawyer to be certified as an accredited mediator by the Chartered Institute of Arbitrators. Agis is currently the secretary of the Cyprus Branch of the Chartered Institute of Arbitrators, of which he has been a member (MCIArb) since 2006. He has published articles in relation to arbitration and mediation. Agis has regular appearances in the Supreme Court of the Republic of Cyprus and the Tenders Review Authority and also represents clients in mediation and arbitration proceedings. His work focuses on corporate and commercial law, advising clients on most related sectors, ranging from taxation to franchising, sale of goods and intellectual property. He also has

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substantial experience in construction disputes, and is representing a considerable number of local and international contractors in litigation, arbitration and ADR. Website: www.georgiades-law.com Email: [email protected] Name: Andrew Colvin

Country: England and Wales

Civil and commercial mediator, Andrew Colvin is an English barrister with practice in civil and commercial law, also qualified as avocat in France and has an Italian law degree from Siena. He is able to conduct mediations in English, French and Italian. He is also a fellow of the Chartered Institute of Arbitrators (FCIArb), is registered with the Italian Ministry of Justice as mediator and mediation trainer, is a panel member for Concilia and Bridge Mediation, and is a door tenant of Goldsmith Chambers. Website: www.legaleinglese.com Email: [email protected]; [email protected] Name: Zainul Daulay

Country: Indonesia

Dr Zainul Daulay is a lecturer at the Law School of Andalas University and deputy director of the Constitutional Study Centre (PUSaKO), where he is involved in dealing with settlement of constitutional rights of indigenous peoples. He is a researcher at Andalas University in traditional mediation and traditional knowledge of indigenous peoples. Zainul writes books on protection of traditional knowledge. Website: http://fhuk.unand.ac.id/ Email: [email protected] Name: Guiseppe De Palo

Country: Italy

Professor Giuseppe De Palo is a member of JAMS International and co-founder and president of the ADR Centre, Italy’s first and largest private ADR firm. He started his academic career in Italy in 1995 and, in 2002, became an international professor of Alternative Dispute Resolution Law and Practice at Hamline University School of Law (St. Paul, US). A fulltime mediator since 1998, Professor De Palo has contributed to the resolution of over 500 complex commercial disputes internationally. Furthermore, he is the mediator for many of Italy’s most prominent libel cases. Over the last ten years, he has been the team leader for several multi-million dollar consulting projects – funded by the World Bank, the European Commission, the Inter-American Development Bank and the IFC – to foster alternative dispute resolution in countries all over the world. At present, he directs EC-funded projects entitled ‘Judges in ADR’ and ‘Lawyers in ADR’, which support the use of the EU Mediation Directive throughout the Member States. Professor De Palo is the editor, author, and co-author of several books and articles in the field of ADR, some of which have been translated into Chinese, Arabic, Romanian and Turkish. Since 2009, he has been the co-editor of ‘Worldly Perspective’, a monthly column in CPR’s ‘Alternatives’ newsletter, covering mediation developments around the world. He is also a member of the board of editorial advisors of the Negotiation Journal, published by Harvard University. His latest book is EU Mediation Law and Practice, co-edited with Mary Trevor and published by Oxford University Press.

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A graduate of the universities of Bologna, Urbino and Berkeley, Professor De Palo works in Italian, English, French, and speaks basic German and Spanish. Website: www.adrcenter.com Email:[email protected] Name: Antti Heikinheimo

Country: Finland

Antti has worked with dispute resolution at Hannes Snellman Attorneys Ltd for the past 30 years. He has been a partner at the firm since 1988. Antti was head of the firm’s dispute resolution group from 1995 to 2000 and the firm’s managing partner from 2000 to 2004. Antti is a CEDR Accredited Mediator. He is a regular trainer and principle lecturer in different training programmes for judges provided by the Finnish Ministry of Justice in mediation and in programmes provided by the bar for lawyers in private practice. Antti holds several positions of trust related to mediation. Amongst other things he is vice chairman of the Mediation Board of the Finnish Bar Association and vice chairman of the Mediation Forum of Finland. In 2007 the Government of Finland designated him to the ICSID (the International Centre for Settlement of Investment Disputes) Panel of Conciliators. Furthermore, Antti is Chairman of the Board of Directors of the Finnish Committee for UNICEF. Website: www.hannessnellman.com Email: [email protected] Name: Clifford M. Hendler

Country: Canada

Cliff Hendler is one of North America’s foremost commercial mediators. From 1990 through 2010, he was the founder and president of DRS Dispute Resolution Services LP. In 2010 he merged that firm with ADR Chambers, Canada’s largest provider of dispute resolution processes and training. His areas of expertise are insurance litigation, professional malpractice, class actions, defamation, sexual assault/abuse, workplace disputes, and community-based conflicts. Cliff co-managed the development of a mediation advocacy programme for the American Bar Association National Institute, which has since been taught to more than a thousand lawyers and mediators throughout North America. In 2008, he co-founded the Canadian National Mediation Advocacy Competition and in 2010, the subsequent International Mediation Advocacy Competition. Cliff has also been appointed as both judge and mediator through the International Chamber of Commerce (Paris, France) and the American Bar Association for national and international law school mediation competitions. Cliff is a founder, past president and distinguished fellow of the International Academy of Mediators, past chairman of the American Bar Association, Dispute Resolution Section’s Mediation Section, and past co-chair of the ABA National Institute on Advanced Mediation and Advocacy Skills Training. Email: [email protected] Name: Humberto Dalla Bernardina De Pinho

Country: Brazil

Humberto de Pinho is a prosecutor in Rio de Janeiro and professor at Rio de Janeiro State University. As a prosecutor, he works at a criminal small claims court, where he participates in the preliminary hearings that prepare disputants for the mediation procedure, and monitors its results. As a professor, he teaches mediation and other ADR mechanisms to his JD and JSD

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students, and directs the mediation clinic at his university. He has published books and articles in Brazil, Spain, Italy and United States. Website: http://www.humbertodalla.pro.br. Email: [email protected] Name: Luc Demeyere

Country: Belgium

Luc Demeyere has extensive experience in dispute resolution in various fields of business law, such as post-acquisition disputes, company disputes, business intermediaries, construction and insurance matters, professional liability of auditors. He practices litigation, arbitration (both as counsel and as arbitrator) and mediation in domestic and cross-border disputes. He has handled arbitrations under the ICC, Cepina, Vienna, NAI, DIS Rules and ad hoc arbitrations. Luc has an extensive publication record in his field of practice and is a member of the editorial board of b-Arbitra and of TMD, the Dutch-Flemish Journal for Mediation and Conflict Management. He is a regular speaker at conferences. He lectures at the University of Antwerp on negotiation and mediation, at the University of Brussels (VUB) on international arbitration, and at the Antwerp Bar on mediation. He is member of the board of directors of CEPANI; he is registered as an overseas arbitrator of Xi’an Arbitration Commission (China). Luc Demeyere is a member of the Antwerp Bar. He handles files in Dutch, English, German and French. Website: Email: [email protected] Name: Renate Dendorfer-Ditges

Country: Germany

Renate Dendorfer-Ditges was admitted as a lawyer to the courts of Germany as well as to the courts of the State of New York and to the US Federal Courts. She is working as a partner in the Munich office of HEUSSEN Rechtsanwaltsgesellschaft mbH since 2004. She has also been a professor of law at the Baden-Wuerttemberg Cooperative State University, Campus Ravensburg, since 2002, and as an honorary professor for dispute resolution at the European Business School, Oestrich-Winkel since 2010. Professor Dendorfer-Ditges studied law and business administration in Bielefeld (Germany), Illinois (US) for her LL.M. degree and in Maastricht (the Netherlands) for her MBA degree. Before her career as lawyer and partner of HEUSSEN Rechtsanwaltsgesellschaft mbH, she worked as an in-house counsel and as the head of the legal departments for several companies. She is specialised in dispute resolution (mediation and arbitration), corporate law, labour law and international business law. She has been appointed by Who’s Who Legal for 2012 and 2013 as one of the leading commercial mediators in Germany. Professor Dendorfer-Ditges is the author of several articles and publications, especially in the area of commercial mediation and arbitration. She has been trained as mediator in the United States (Harvard Law School, Boston) and Germany (Fern Universität Hagen). She is member of the DIS – German Institution for Arbitration, the CIArb (London), the EUCON (Munich) and of CPR (New York). In addition, she has been a speaker at several conferences, not only in Germany, but also in Armenia, Austria, France, Italy, the Netherlands, Turkey, United Kingdom and the United States. Professor Dendorfer-Ditges was awarded the ‘Landeslehrpreis’ of 2005 for the programme on commercial mediation at the Baden-Wuerttemberg Cooperative State University. Websites: http://http://www.heussen-law.de

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http://www.dhbw-ravensburg.de/de/studium-lehre/uebergreifende-studienangebote/wirt schaftsmediation/ http://www.ebs.edu/wirtschaftsmediation.html Email: [email protected]; [email protected] Name: Anete Dimitrovska

Country: Latvia

Anete Dimitrovska is a junior associate at LAWIN, specialising in dispute resolution, real estate and labour and employment matters. She received a Bachelor of Laws degree from the University of Latvia, Faculty of Law and an Master of Laws degree from the Riga Graduate School of Law, with a specialisation in the European Union and International law. Anete expresses her interest in dispute resolution by actively taking on opportunities for extra studies in this field and participating in various related activities to gain additional practical experience. For example, she has successfully participated in the International Negotiation Competition in Law, held in 2011 in Copenhagen, Denmark. It is a law students’ competition, in which a team of two law students representing a party/client negotiates either an international transaction or a resolution of an international dispute with an opposing team of two law students. In 2012, Anete took part in the intensive summer school course ‘Consumer rights in the European Union: Alternative dispute resolutions and collective redress’ in Udine, Italy. Within the framework of the summer school, the participants analysed the latest trends of the alternative dispute resolution and consumer protection, paying special attention to class actions and collective redress. Website: www.lawin.com Email: [email protected] Name: Ehab Elsonbaty

Country: Egypt and Qatar

Judge Ehab Maher Elsonbaty is a senior judge and a member of the civil and commercial panels of the Egyptian Courts. He is now a secondment to the State of Qatar as a senior legal advisor to the Office of H.H. the Amir, where he is also a member of the Council of Minster Permanent Committee for legislative Affairs. He is also a certified Arbitrator and mediator. Dr Elsonbaty holds two Master degrees and a Ph.D. He lectures on cyber law topics, technology in litigation and private international law in various universities. He is a consultant to the ITU, UNODC, UNECA, Council of Europe, and ARADO. Dr Elsonbaty speaks Arabic, English, Italian and French. His areas of specialisation are: commercial transactions (M & A, contracts), private international law (conflict of law, jurisdiction, arbitration, and ADRs) cyber laws (cybercrime, e-commerce, electronic signature), and criminal justice. Dr Elsonbaty is co-founder of the Egyptian ADR Association and its first secretary general. Email: [email protected] Name: Vivian Feng Ying Yu

Country: China

Ms Feng is vice president of the Leading Negotiation Institute. She specialises in media relations and cross-cultural negotiation in China. She has held programmes around the world including in the United States, Malaysia, Austria, Japan and Australia. Ms Feng has taught negotiation and communication across Mainland China at institutions such as Peking University, Zhejiang University and Tsinghua University.

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Ms Feng is the Chinese co-author of Breaking Robert’s Rules, a book on negotiation strategies and communicating effectively in meetings, the English version being authored by Professor Lawrence Susskind of the Program on Negotiation at Harvard Law School. Ms Feng holds a Bachelor of International Trade and also a Bachelor of Arts and Literature from Xi’an Foreign Language University. She speaks Mandarin and English. Website: www.leadingnegotiation.com; www.negotiationchina.com Email: [email protected] Name: Constantin-Adi Gavrilă

Country: Romania

Constantin-Adi Gavrilă, is mediator and mediation trainer, co-founder and general manager of the Craiova Mediation Centre Association, first president of the Romanian Mediation Centre’s Union and first vice-president of the Romanian Mediation Council. He was honoured with the Association for Conflict Resolution (ACR) International Development Committee’s 2009 Outstanding Leadership Award for outstanding contributions to international conflict resolution. He mediates cases of all types including commercial, family and real estate, taking a practical and business-oriented approach to dispute resolution. With ten years of experience as mediator, he is able to quickly grasp the central issue in dispute, using creative approaches to help parties solve seemingly intractable problems. Mr Gavrilă co-ordinated as general manager extended programmes in mediation: participation in the legislative process in the mediation field, training of mediators, systems development, and information dissemination. He is an IMI certified mediator, a JAMS International panellist, a Kluwer Mediation Blog contributor and a member of the Independent Standards Commission convened by the International Mediation Institute (IMI). Website: www.mediere.ro Email: [email protected] Name: Thomas Gaultier

Country: Portugal

Thomas is a consultant at AAA Advogados in Lisbon. He is a graduate from the University of Paris X Nanterre Law School. He has an LL.M in Alternative Dispute Resolution from the University of Texas in Austin (2008/2009), during which he focused on international arbitration and litigation and alternative dispute resolution, and mediation, as well as becoming a certified mediator, and where he participated in the Graduate Portfolio Program in Alternative Dispute Resolution, presenting his research on the theme of ‘Cyber arbitration’. He co-authored EU Mediation Law and Practice – Portuguese Chapter (published by Oxford University Press in October 2012), the Portuguese Chapter of the International Comparative Legal Guide to International Arbitration 2010/ Portugal – Global Legal Group (GLG) – (published in August 2010) and has won the Consulegis Thomas Marx award in 2010 with his paper on the topic of cross-border commercial mediation. He is the vice-president and co-founder of the ICFML – Instituto de Certificação e formação de Mediadores Lusófonos, a non-profit organisation aimed at training and certifying Portuguesespeaking mediators. Thomas teaches mediation and negotiation at the ICFML. Website: www.icfml.org; www.aaa.pt Email: [email protected]

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Name: Aloysius Gho Choong Sien

Country: Singapore

Mr Aloysius Goh is the managing director of Peacemakers Consulting, a private provider of mediation services based in Singapore. ‘Peacemakers’ is also the name of an ongoing annual series of mediation workshops and competitions for youth which was developed in 2010 by ­Aloysius, together with other leaders in the Singapore mediation community. Through Peacemakers (both the company and the workshop) Aloysius has been an active advocate for increased collaboration between all stakeholders in the mediation community to raise awareness of mediation practice as well as the standards of mediation. An alumni of the prestigious National University of Singapore, Aloysius received his Master of Laws degree in 2009 on a NUS Research Scholarship. His research thesis advocated clear standards for the practice of mediation advocacy and for collaborative dispute resolution systems to be developed as part of a mature legal system. He is a trainer at the Singapore Mediation Centre and teaches at the NUS Law School. He is also an Associate Mediator of the Singapore Mediation Centre and the Primary Dispute Resolution Centre. As the legal counsel and company secretary of various public and private sector companies, Aloysius’ problem-solving and conflict management skills have facilitated numerous highvalue and complex commercial deals in healthcare, education, information technology and construction. He has also mediated family and social disputes through active non-profit engagements in human development and poverty alleviation projects in Asia. Email: [email protected] Name: James Gilhooly SC

Country: Ireland

James Gilhooly is a senior counsel who was called to the Bar of Ireland in 1982 and admitted to the Inner Bar in 1998. Before going into legal practice, he had extensive experience as a merchant banker and corporate finance advisor. His undergraduate degree is in business (BComm, University College Dublin, 1969). He holds postgraduate qualifications in European law, domestic arbitration and international arbitration. He is a Bar Council accredited mediator and a fellow of the Chartered Institute of Arbitrators, a fellow in International Legal Practice of the International Bar Association and a fellow of the European Legal Institute. He is also a member of the German/Irish Lawyers Association. Website: http://www.lawlibrary.ie/members/barrister.asp?barID=369 http://www.linkedin.com/pub/james-gilhooly/8/563/255 Email: [email protected] Name: Ulla Glaesser

Country: Germany

Professor Glaesser is academic director of the Institute for Conflict Management and the postgraduate, interdisciplinary master’s programme on mediation at the European University Frankfurt (Oder). She is also partner of the Berlin-based mediation firm TGKS, Troja Glaesser Kirchhoff Schwartz. Ulla holds law degrees from the University of Bonn, Germany, and from Boalt Hall School of Law, University of California, Berkeley. As a mediator and facilitator, Ulla supports dispute resolution, conflict management and decision-making processes within or between organisations/corporations. In addition to her practical work, Ulla teaches mediation and ADR skills at various universities, the German Academy of Judges, the United Nations Office at Geneva (UNOG) and numerous other places.

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As an academic, Professor Glaesser is continuously involved in research projects focussing on different fields of mediation – namely the establishment of mediation and other ADR procedures in the German corporate sector, evaluation research on court-annexed mediation and formative research on the potential of mediation in the area of legal protection insurances. She has published broadly on mediation methodology as well as the establishment of mediation and ADR procedures in various realms of society. Her work has taken her to Austria, Australia, Belgium, Canada, France, Norway, Switzerland and the United States. Websites www.europa-uni.de/ikm, www.rewi.europa-uni.de/master-mediation, www.tgks.de Email: [email protected], [email protected] Name: Ewa Gmurzynska

Country: Poland

Dr Ewa Gmurzyńska is an associate professor at Warsaw University Faculty of Law and Administration. She received her J.D. and Ph.D. degree at Warsaw University Law School and Master of Laws degree at the University of Florida Levin College of Law. Presently she is director of the Centre for American Studies, a join programme of Warsaw University and University of Florida. She trained as a mediator in the State of Florida, Georgia and Poland. She is a practicing mediator in civil and commercial disputes and is involved in many mediationrelated initiatives in Poland including: vice-presidency of the Civil Council for Alternative Dispute and Conflict Resolution at the Ministry of Justice, co-founder and member of the board of directors of the Centre for the Amicable Dispute Resolutions, director of the Mediation Clinic at the Faculty of Law and Administration of Warsaw University. She is also the author of a book about mediation in the American legal system (in Polish) and editor and co-author of a book about theory and practice of mediation (in Polish), as well as and many articles related to mediation and negotiation topic. Email: [email protected] Name: Ana Maria Maia Gonçalves

Country Portugal

Ana has experience as a lawyer, teacher, mediator and organisational developer. She is a founder of Convirgente, the first appropriate dispute resolution consulting company in Portugal and part of the Neuroawareness team. Ana is a graduate from UAL Lisbon and has a Master of Laws (2008). She has followed Mediation Courses in several institutions in UK, France, Portugal, the US and Australia. Ana is an accredited mediator for the ADR group and for the International Mediation Institute, she is listed as an internationally recognised commercial mediator in the Who’s Who Legal 2011 survey, is a CPR panellist and is part of the Portuguese mediators list of ‘Julgados de Paz’. Ana lectures at the major Portuguese universities on the topics of ADR, mediation and negotiation. She is a regular speaker at international conferences. Ana is the president of the ICFML and a member of the Portuguese mediation federation, FMC – Federação Nacional de Mediação de Conflitos. Ana speaks English, French and Portuguese. She works with a wide range of international clients, particularly on cross-border disputes, often online, and has mediated a wide variety of disputes in France, Portugal, Australia and the United States, countries where she has lived. Ana also works inside the organisational world, delivering collaboration management training and assisting through coaching senior executives and lawyers in self-development and in developing their conflict management and negotiating skills. Ana has two children, and lives in San Diego, California.

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Website: www.convirgente.com; www.n€owareness.com; www.icfml.org; www.anagoncalves. com Email: [email protected] Name: Oscar Grech

Country: Malta

Oscar Grech held the post of assistant registrar of partnerships from 1967 to 1974 when employed as a civil servant at the Department of Trade. During the two consecutive years 1970 and 1971, he attended lectures on company law at the University of Malta. On the 1 June 1997, when the Registry of Companies became an integral part of the Malta Financial Service Authority, then known as the Malta Financial Services Centre, Oscar was appointed Registrar of Companies, a position held until retirement on 28 February 1999. He was retained as consultant for a further period of one year. As registrar, he spent 3 weeks at Companies House in Cardiff, Wales, to acquire practical experience in the overall administration of legislation that regulates limited liability companies. He lectured on company law at the Malta Institute of Accountants during the two academic years 2000-2001 and 2001-2003. In 2003 he published a book entitled Notes on the Companies Act. He is registrar of the Malta Mediation Centre and secretary to the board of governors of the Centre. Email: [email protected] Name: Alain Grosjean

Country: Luxembourg

Alain Grosjean is a certified mediator at the Centre de Médiation Civile et Commerciale, a Luxembourg mediation centre which was created by the Luxembourg Bar. He is also partner of the Luxembourg firm Bonn & Schmitt and in charge of the dispute resolution department. Alain is also member of the Luxembourg Bar Council and, in this respect, has conducted numerous mediations. Alain has written several articles on mediation and frequently holds conferences on mediation and public speaking methods. Website: www.bonnschmitt.net Email: [email protected] Name: Manuela Renáta Grosu

Country: Hungary

Dr Manuela Grosu studied law in Budapest at Eötvös Loránd University of Sciences between 2003 and 2009 where she attained a Master of Laws and Political Sciences summa cum laude. During her university studies, she spent one semester at Yeditepe University Law School in Istanbul as an Erasmus student. In Istanbul she studied mainly international commercial arbitration and international relations. Currently she is a Ph.D. candidate at Eötvös Loránd University. In addition to this, she is studying for an LL.M. in US and Global Business Law for International Business Lawyers, Suffolk University, Boston. As a visiting researcher at the Kukin Programme for Conflict Resolution at Cardozo School of Law, she is continuing her research on the possible interactions between non-binding ADR methods and arbitration in commercial and international commercial disputes, with special emphasise on multi-step clauses and hybrid procedures. In order to obtain practical experience of ADR as a Weinstein Fellow of the JAMS Foundation, she has observed the work of JAMS neutrals and is continuing her interview research with their participation. Email: [email protected]

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Name: Kvmar Haithiramani

Country: Barbados

Kvmar Haithirmani is one of the founding members and president of the ADR Association of Barbados Inc. A business administrator by profession, with a diverse business background, in trade, commerce, industry and property management and a certified mediator and paralegal, Kumar was born in India, but has lived most of his life in the Caribbean, namely Trinidad, Surinam, Guyana, and then in Barbados for the past 37 years or thereabouts. He was educated in the Caribbean, and obtained his McGill Matriculation from Lower Canada College in Montreal and his Bachelors in Business Administration at Bishop’s University in Quebec, Canada. In 2002, Kvmar completed his Master’s Degree (Hons) in Conflict Resolution at Antioch University, Ohio, US. In 2005, he was appointed a Justice of the Peace for Barbados. In 2007, he was accredited and registered by the Mediation Board of Trinidad and Tobago as a certified mediator for civil non-family matters. Since then, he has devoted most of his spare time to introducing ADR in general and mediation in particular to Barbados where as president of the ADR Association he is attempting to make the public aware of more favourable, non-adversarial alternatives to resolving conflict which they can use rather than resorting to litigation. He is a member of the: − Association for International Arbitration (AIA), Brussels; − Association for Conflict Resolution (ACR), Washington, D.C.; − ADR Institute of Canada; − Centre for Effective Dispute Resolution (CEDR) in the United Kingdom; and − he is a life member of the Council for National and International Commercial Arbitration (CNICA), India. He holds office and rank in the Masonic fraternity, Scottish Constitution; administers a Health Insurance Plan for his community, and is on the council of several other social organisations in Barbados. Website: www.adrbarbados.org Email: [email protected] Name: Bie Heyninck

Country: Czech Republic

Recognised European mediator in cross-border civil and commercial disputes, accredited by the Federal Mediation Commission and Mediation International committee member, Bie Heyninck is the founder and managing partner of the international niche law firm Heyninck & Partners based in Prague since 1995. Over a period of 18 years, she has become a well-known advisor for many international and local clients regarding their international business and disputes. She graduated from Antwerp University having read law and export management. Bie Heyninck is registered as a lawyer both with the Brussels and the Czech Bar Associations. Website: www.heyninck.cz Email: [email protected] Name: Triinu Hiob

Country: Estonia

Triinu Hiob is leads the dispute resolution team of lawyers at LAWIN Attorneys-at-Law. She has more than 10 years of legal experience in dispute resolution, and she is especially recognised in commercial, employment and insurance litigation. Since joining the firm in 2003, she has represented a number of leading private companies, as well as Estonian state authorities on various cases of utmost complexity. Triinu has been a member of the Estonian Bar Association

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since 2003. Triinu is a member of the Estonian Insurance Dispute Resolution Committee – a voluntary alternative dispute settlement body for insurance matters – where she acts as an arbitrator. Triinu is a guest lecturer at University of Tartu, Faculty of Law, teaching an advanced class in employment law. She is a regular contributor to employment law publications and a reputable lecturer at public seminars and conferences. Internationally, LAWIN is the highest ranked business law firm in the Baltics, with over 140 legal professionals working in five practice groups in Estonia, Latvia and Lithuania. The recent recognition of LAWIN includes Chambers Europe Award for Excellence 2012 for the Baltic region; Law Firm of the Year 2012 and 2011 European award for the Baltic States by The Lawyer magazine and Law Firm of the Year 2011: Baltics award for the legal innovation by International Financial Law Review (IFLR). LAWIN dispute resolution practice group is an acclaimed team with outstanding legal experience, handling the most complex and unprecedented business-related disputes in the Baltic States. LAWIN clients include domestic and foreign companies, multinational corporations, local and international financial institutions, investors and investment funds, as well as states and public institutions in practically all business sectors. LAWIN dispute resolution practice is internationally recommended by the most prestigious international legal directories, such as Chambers Global and Europe and Legal 500 EMEA. Website: www.lawin.com Email: [email protected] Name: Christer Holm

Country: Sweden

Christer Holm concentrates on working as a mediator in business disputes in Advokatfirman Krilon AB in 11174 Stockholm (P.O. Box 3570). Since leaving his position as general counsel of the Swedish Steel Corporation (SSAB) and going back to private practice, Christer Holm has been a partner of i.a. Holm Advokatbyrå and Sandart & Partners, primarily representing major Swedish mining, steel and engineering companies. He acts as arbitrator and mediator. He is a CEDR accredited mediator and lectures on mediation at Stockholm University, and at the Stockholm Chamber of Commerce and the Swedish Arbitration Association mediation training programmes. Email: [email protected] Name: Barney Jordaan

Country: South Africa

Barney is professor extraordinaire at the Graduate School of Business of Stellenbosch University (USB) and adjunct professor at the Graduate School of Business of the University of Cape Town. He teaches negotiation and conflict resolution on the MBA and executive education programmes at both schools. He is the founder and head of the USB’s Africa Centre for Dispute Settlement. The Centre is an African hub for academic research, development and teaching of dispute settlement theory and practice. He is a senior arbitrator and mediator, having been involved in ADR since 1987. He is certified by the International Mediation Institute in The Hague and the ADR Group (UK). In May 2011 he was appointed as external short-time consultant to the World Group’s Office of Mediation Services. He is listed in the 2011 and 2012 Who’s Who Legal (Commercial Mediators) of the International Bar Association, one of five in the Republic of South Africa. Website: www.usb/ac.za/disputesettlement Email: [email protected]

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Name: Bojana Jovin-Hrastnik

Country: Slovenia

Bojana Jovin-Hrastnik is a lawyer who has been working as a state attorney in the European Law Department of the State Attorney’s Office of the Republic of Slovenia since 2012. Since 2009, Bojana has been a member of the ADR Council at the Ministry of Justice of the Republic of Slovenia. Prior to this, Bojana held the following positions: − county court judge from 1997 to 2002; − district court judge from 2002 to 2012); − contact point for mediation in the District Court of Ljubljana in the period 2005-2006. In the period 2007-2012, Bojana was attached to the Ministry of Justice (fields of work: ADR; international cooperation). In that period, she took part in the Council’s Working Group for Civil Law (in Brussels), and participated in the discussion about the Directive 2008/52/EC in that Working Group. She is also working as a trainer at the Judicial Training Centre in Ljubljana (topics: ADR; judicial cooperation in civil matters). Email: [email protected] Name: Enga Kameni

Country: Cameroon

Enga is a manager of tax and legal services at Ernst & Young, Douala Cameroon. He focuses on the extractive industries, especially mining and oil and gas. He holds a master’s degree (LL.M) in corporate law and governance from Harvard Law School. Prior to joining Ernst & Young, Enga worked as a legal advisor for Perenco Oil and Gas in London as well as an international associate in the project finance and capital markets practice at Clifford Chance LL.P, Paris. Enga is licensed to practice law in the State of New York. Email: [email protected] Name: Natalija Kaminskienė

Country: Lithuania

Head of Department of the Institute of Communication and Mediation, Faculty of Social Policy in Mykolas Romeris University (Lithuania), practicing attorney-at-law and member of several institutional committees on mediation set up in Lithuania, Natalija is one of the first persons to introduce ADR and mediation to Lithuania and worked on its’ implementation into the legal system of this country. Her dissertation entitled Alternative civil dispute resolution was the first in Lithuania to open scientific discussions on ADR and mediation in Lithuania. Natalija is a researcher in the field of ADR, mediation and legal negotiation, and author of books and scientific articles in scholarly journals. Natalija Kaminskienė was the head of the working group that created the first new master in law study programme in Lithuania, entitled ‘Mediation’, for Mykolas Romeris University in 2010. She delivers lectures and seminars on the topics of ADR and legal negotiations. Natalija is a partner in the law firm Sviderskis, Kaminskiene ir partneriai where she is practicing law. Website: www.mruni.eu Email: [email protected]

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Name: Salwa Saad Khairallah

Country: The Lebanon

Salwa Saad Khairallah comes from the shipping industry where he gained 23 years of experience within the commercial, HR and insurance and claims departments. Salwa followed a number of arbitration courses with the Chartered Institute of Arbitrators, London, ending up with the Diploma in International Commercial Arbitration at Kebble College, Oxford. She has also obtained a postgraduate Diploma in International Commercial Mediation from Queen Mary University of London, and trained and became an accredited mediator with CEDR (Centre of Effective Dispute Resolution), London. Salwa is trained in maritime arbitration and is a supporting member of the LMAA (London Maritime Arbitrators Association); she is a fellow (mediation) in the CIArb, Lebanon branch, a member of CEDR, London, and a member of Arbitralwoman, France. Salwa is presently following a LLM in International Dispute Resolution at Queen Mary ­University of London. She is a visiting speaker and lecturer at Ravensburg State University, Germany. She is also a managing partner of Consultancy Centre, Beirut that provides consultancy and ADR services. Email: [email protected] Name: Kim Kovach

Country: Texas

Kimberlee K. Kovach has been a leader and visionary in the modern mediation and alternative dispute resolution movement for over thirty-five years. She is a leading teacher, trainer, scholar and practitioner in the field of mediation and other dispute resolution processes. Kovach has served as chair of the American Bar Association Section of Dispute Resolution, as well as chair of the State Bar of Texas ADR Section and the Houston Bar ADR Committee. Professor Kovach created and conducted the first mediation training in the state of Texas, and has continued to teach and train mediators around the globe. She has taught a variety of ADR courses in legal education for well over twenty years, and is the author of a widely adopted text book for law school use, Mediation: principles and practice (3rd ed. 2004). She is also the author of Mediation in a nutshell (2nd ed. 2010). Kovach has published numerous law review articles, book chapters as well as short articles on a variety of ADR and related topics. Her articles are often cited by scholars, courts and practitioners. She has lectured extensively throughout the United States and abroad, often serving as summer visiting faculty at a number of institutions. She has recently been assisting with mediation efforts in the Republic of Georgia. Kovach also serves as a mediator, arbitrator, and trainer, and is currently a visiting lecturer at Baylor Law School. Kovach was recently honoured with the prestigious Lifetime Achievement Award by the International Academy of Mediators in recognition of her work over a long period of time in the field of mediation. Email: [email protected] or [email protected] Name: Alicia K. Kuin

Country: Canada

Alicia is a researcher in the areas of mediation, international negotiations, and the discourse of terrorism in relation to peace processes. Her experience in ADR includes working on the negotiations between the National Democratic Front of the Philippines and the Government of the Philippines, with the United Nations at the International Criminal Tribunal for the former Yugoslavia, and teaching introductory negotiation and mediation workshops at high school, university, and graduate levels.

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Alicia has a Master’s Degree in Conflict Studies and Human Rights from Utrecht University in the Netherlands, has certificates in ADR and Advanced ADR from the University of Windsor, and she is currently taking an LL.M in Alternative Dispute Resolution at Osgoode Hall Law School in Toronto, Ontario Email: [email protected] Name: Tatiana Kyselova

Country: Ukraine

Tatiana Kyselova holds an LL.B from Donetsk National University, an LL.M from London School of Economics and Political Science, and a Ph.D. from the University of Oxford. She is associate professor at Kyiv-Mohyla Academy School of Law (Ukraine) and has taught international commercial arbitration, and alternative dispute resolution for undergraduates. She is convenor of the alternative dispute resolution course, postgraduate diploma in international dispute resolution (arbitration and mediation), taught by distance learning at the Centre for Commercial Law Studies, Queen Mary, University of London. Tatiana is a fellow of the Academic Fellowship Programme (OSI); member of the Drafting Committee for new Ukrainian Mediation Act. She was trained in mediation by Search for Common Ground (1997). She has advised IFC World Bank Group, UNDP and Council of Europe on development of mediation in post-Soviet countries. Tatiana’s research interests include socio-legal studies and alternative dispute resolution, particularly issues of globalisation of mediation regulation and practice, comparative ADR, and commercial dispute resolution. Website: http://ukma.academia.edu/TatianaKyselova Email: [email protected] Name: Jeremy Lack

Country: Switzerland

Jeremy Lack is an independent lawyer and ADR neutral. He is a JAMS international panellist and specialises in international commercial dispute prevention and resolution processes. He is a vice-chair of the Independent Standards Commission of the International Mediation Institute (IMI) and a panellist with AAA/ICDR, CMAP, CPR, IBMS, ICC, CMAP, INTA, IMI, SKWM/CSMC/ SCCM, the Singapore Mediation Centre and WIPO. He qualified as an English barrister in 1989 and as a US attorney-at-law in 1990. He is also registered as an EU lawyer with the Geneva Bar, and is a member of the Executive Committee of the Geneva Bar Association’s Section of Foreign Lawyers. He is a door tenant with Quadrant Chambers in London, a consultant to Charles Russell LLP in Geneva and London, and counsel to Pearl Cohen Zedek Latzer LLP in New York and Tel Aviv. He has a degree (MA Oxon) in physiological sciences and is also a co-founder of www.neuroawareness.com. Jeremy is also an adjunct faculty member with the University of Geneva and teaches at the Federal Polytechnic School of Lausanne (EPFL) in Switzerland. He handles negotiations, mediations, conciliations, arbitrations, litigations and mixed ADR hybrid processes in a wide range of fields and technologies. IMI mediator profile: http://imimediation.org/jeremy-lack2 LinkedIn profile: http://www.linkedin.com/pub/jeremy-lack/0/47/43b Email: [email protected]

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Name: Alexis Lafranchi

Country: Switzerland

A member of the SCCM (Swiss Chamber of Commercial Mediation) and FSA (Swiss Bar Association), and certified mediator, Alexis Lafranchi is a co-founder, partner and mediator with the law firm S & L Attorneys-at-Law in Nyon, Switzerland, which specialises in commercial, civil and administrative matters, and dispute resolution (negotiation, mediation, conciliation and arbitration). He is a member of the Vaud Bar Association and the Swiss Bar Association and is the secretary of the Executive Committee of the SCCM, as well as a member of the national Executive Committee of the SCCM Website: www.sl-avocats.ch E-mail: [email protected] Name: Adriana Lasso

Country: Ecuador

Adriana is currently a law student. She has participated in several mediation courses, including in the Chamber of Commerce in Quito (Ecuador’s capital). Adriana is a paralegal at the law firm SvarLaw, she is involved in the mediation and arbitration legal department. She has practiced family mediation and has done pro bono work concerning mediation, as well as work in a legal aid office. Furthermore, Adriana has participated in various arbitration competitions on a national level. Email: [email protected] Name: Loraine Lopich

Country: Australia

Lorraine Lopich is a director of Mediate Today Pty Ltd and Collaborative Lawyers Pty Ltd (an incorporated legal practice operating as ‘Lopich Lawyers’). She is a member of the Law Society of New South Wales and holds a current practising certificate. She has more than 20 years’ experience in providing high-quality legal and dispute resolution services. Lorraine is an experienced lawyer, collaborative lawyer, nationally accredited mediator, registered family dispute resolution practitioner and international facilitator and trainer. She has also had the conduct of litigated disputes in the Land and Environment Court and the Supreme Court of NSW relating to land use and development matters. Lorraine, however, has a strong commitment to the principles of mediation and an established record of case resolution without proceeding to the courts. Lorraine (and Mediate Today Pty Ltd) acts for a number of local government organisations including North Sydney Council, Woollahra Municipal Council, Ku-ring-gai Council, Warringah Council and Wollondilly Shire Council, where she provides a range of services including mediations and facilitation of development application issues, team building programmes and similar dispute resolution and workplace mediation. Lorraine was the chair of the Snowy River Shire Council from 1986 to 1991, and she also represented the Council on the Section 22 NSW Government Planning Committee. Website: www.mediate.com.au, www.lopichlawyers.com.au Email: [email protected] Name: Sanda-Elena Lungu

Country: Romania

Mrs Sanda Lungu is a judge at Craiova Court of Appeal, Commercial Division. She graduated from the Faculty of Law, N. Titulescu, in Craiova in 1997 and she followed a master’s degree

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course in human rights (graduated in 2007) and community law (graduated in 2010). She graduated from the judicial cooperation in civil and commercial matters courses organised by General del Poder Judicial-Escuela Judicial, Red Europea de Formacion Judicial, in Spain (2008 to 2009) and Consiglio Superiore della Magistratura, in Italy (2010). She attended training courses as a mediator at the International Judicial Academy, Washington DC, from January to February 2003, after which she continued to implement and promote mediation on the Steering and Supervisory Board of the Craiova Pilot Mediation Centre, according to the order of the Ministry of Justice No. 2919/C/2003, from 2003 to 2006. She took part in drafting Act No. 192/2006 on mediation, and she supported ongoing activity regarding mediation by organising and attending information seminars among judges and lawyers, publishing Sections in professional journals, working to develop work in this area. Currently she is a member of the Association of European Judges who support Mediation (GEMME), Romanian Section, and the Association of the Craiova Mediation Centre. Website: www.mediere.ro Email: [email protected] Name: Martin Magál

Country: Slovakia

Martin Magál is a partner and head of the dispute resolution practice in Allen & Overy Bratislava. Martin represents clients at general and arbitration courts and in the Constitutional Court of the Slovak Republic. His experience includes advising on disputes arising in the areas of banking and finance, unfair competition, trade secrets, employment, joint ventures, administrative and regulatory litigation as well as on general civil and commercial litigation matters. Martin is a member of the European Centre for Financial Disputes Resolution and the Chartered Institute of Arbitrators. Website: www.allenovery.com Email: [email protected] Name: Koschina L. Marshall

Country: The Bahamas

Koschina L. Marshall is an experienced mediator of many diverse contractual disputes, the former acting assistant registrar of the Supreme Court of The Commonwealth of The Bahamas responsible for dispute resolution conferences. Currently she is a prosecutor in the AttorneyGeneral’s Office, Nassau, The Bahamas. and an adjunct associate lecturer at the University of the West Indies/College of The Bahamas Law School, teaching alternative dispute resolution. Ms. Marshall holds the following academic degrees: B.A., (Hons), LL.B., (Hons) M.A., distinction and an LL.M. in Dispute Resolution from the University of Missouri in Columbia. She underwent extensive training in ADR at the Straus Institute for Dispute Resolution, Pepperdine University, and is a certified mediator, trainer and conflict resolver. She is the former co-chairperson of the Public Outreach Sub-Committee of the Mediation Section of the ABA and is presently a vice chair of the International Committee of the Dispute Resolution Section of the ABA and the international outreach person for the ABA’s Dispute Resolution Section’s Mediation Week. Email: [email protected]

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Name: Chiara Massidda

Country: Italy

Chiara Massidda is an Italian lawyer and mediator based in the Netherlands. Chiara is specialised in international and European law, works as in-house legal counsel in an international company in the medical sector. She also works as a legal advisor in several legal areas (international contracts, corporate and commercial law, M&A, IP, general conditions, compliance, international tenders). She has a great deal of experience working within a technical working environment, especially with business-to-business transactions. She has worked in several sectors, like oil and gas, energy, maritime, industrial, telecom, medical. Chiara works on a daily basis with different cultures and languages (English, Dutch, and Italian). She is registered at the Young Mediation Initiative and collaborates with the courses business mediation and mediation in Dutch legal practice given at Utrecht University. Website: www.chiaramassidda.com Email: [email protected] Name: Savath Meas

Country: Cambodia

Mr Savath Meas is from Cambodia, and is founder and president of the Cambodian Centre for Mediation (CCM), where he has trained over 400 mediators at a district and local level to address the growing numbers of local conflicts in Cambodia. He has worked for over 10 years in peace building and alternative dispute resolution (ADR). He holds a Master in Laws degree from the Royal University of Law and Economic Science and applied for conflict transformation studies from Pannasastra University of Cambodia; and a BA in Education from the Royal University of Phnom Penh. He recently received a fellowship through JAMS Institute to study ADR and mediation for eight months in Washington DC., US 2011. Website: www.CambodianMediation.org Email: [email protected]; [email protected] Name: Mordehai (Moti) Mironi

Country: Israel

Professor Mironi is a Professor of Law at Haifa University, Faculty of Law. Formerly he was an associate professor, Tel Aviv University Faculty of Law and visiting professor at Cornell University Law School and the University of Alberta, Canada. Professor Mironi’s areas of teaching and research include mediation, negotiation, ADR, arbitration, labour and employment law. He has published numerous books and articles in these fields. His recent book entitled Mediation and strategic change was published in 2008, and his recent article ‘Mediation v. Case Settlement: The Unsettling Relations between Courts and Mediation – A Case Study’ will be published in the Spring 2014 issue of the Harvard Negotiation Law Review. Professor Mironi is a co-founder and secretary treasurer of the Association of Academics for the Promotion of Mediation and Negotiation as an Academic Discipline; a former chairman of the Israel Bar Association’s ADR Forum and a former president, Israel’s Mediators Association. Professor Mironi serves on the mediation panel of WIPO (World Intellectual Property Organisation), CAS (Court of Arbitration for Sport) and Milan Chamber of Commerce. He is an overseas correspondent for the International Academy of Arbitrators (US) and a sustaining academic member of the C.P.R. Institute for Dispute Resolution. Professor Mironi has successfully mediated major disputes including international and domestic commercial disputes, nationwide labour and employment disputes, as well as public

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disputes. Among them: a dispute between war widows and the families of fallen soldiers, two nationwide doctors strikes in 2000 and in 2011, and the negotiations over recovery agreements for the city of Jerusalem. Email: [email protected] Name: Juan Fernando Montalvo Perero

Country: Ecuador

Mr Montalvo Perero graduated with honours from Universidad San Francisco de Quito with a degree in law. In addition, he graduated from the Academy of Arbitration in Paris. He was a fellow of the French organisation ‘Arbitration Academy’. He is also a candidate for Master’s Degree in Administrative Law at the Universidad San Francisco de Quito. He graduated from the Graduate Programme ‘Making and Saving Deals in the Global Business Environment’ in Milan, Italy, and fellow of the Italian organisation ‘Alternative Dispute Resolutions Centre’. Mr Montalvo Perero is a founding partner of SvarLaw and an external advisor to the law firm Zavala & Cía. Abogados. Prior to founding SvarLaw, he worked as an associate attorney at the law firm Morales & Asociados. At SvarLaw, he has been advising a several companies across various industries, including tourism, software development, entertainment, telecommunications and transportation. He has also conducted mediations to avoid litigation in a broad range of scenarios, reaching agreements that have significantly reduced expenses for companies. Mr Montalvo Perero teaches at Universidad Internacional del Ecuador as ADR professor, coach in arbitration moots and is head of the department of ADR. He has written several articles that have been published in books and national and international journals. Website: www.svar-law.com Email: [email protected] Name: Tom Mulisa

Country: Rwanda

Mr Tom Mulisa is the founder and Executive Director of the Great Lakes Initiative for Human Rights (GLIHD) a regional non governmental organization that runs a Legal Aid Clinic that assists indigent persons. The Legal Aid Clinic focuses on mediation and negotiation for family, divorce and insurance cases brought by clients. Mr Mulisa previously worked as a legal assistant for the legal Aid Clinic of the law school of the University of Rwanda. Currently he is a lecturer of Constitutional Law and International Human Rights Law at the School of Law of the University of Rwanda and he also teaches the module on Good Governance and Interviewing Techniques for Legal Practitioners at the Institute of Development and Legal Practice (ILPD). He is also a member of Rwandan Bar Association. Email: [email protected], [email protected], [email protected] Name: Blazo Nedic

Country: Serbia

Attorney-at-law, mediator, trainer, court interpreter for English Language, Blazo Nedic has over 20 years of experience including legal practice in the UK and Serbia, mediation practice in Serbia and the region. Over the years he has developed, managed and implemented over 40 international technical assistance and capacity building projects in the areas of rule of law, ADR and mediation, and democracy and human rights. He has written and co-authored several training programmes, presentations, manuals, films, and articles in the areas of rule of law, and ADR and mediation. Graduating from the Belgrade University Faculty of Law in 1991, and having obtained a Post-graduate Diploma in International Business Law in London in 1995,

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Blazo worked in private legal practice in the former Yugoslavia and the United Kingdom before joining the USAID-funded ABA/CEELI Rule of Law project in Serbia, where he served as a legal counsel and deputy country director for 9 years. Since 2008, Blazo has served as director of Partners for Democratic Change Serbia (Partners Serbia, Svetozara Markovica 9, Belgrade). Blazo Nedic is a certified attorney-at-law (advocat), and has been a member of the Serbian Bar Association since 1991 and an associate member of the American Bar Association Dispute Resolution Section since 2002. Blazo is an official English language court interpreter appointed by the Ministry of Justice of Serbia and has been licensed by the Belgrade High Court since 2003. He is an experienced mediator trained by the American Bar Association and has been licensed by the ADR Group, UK, since 2006. In September 2011, Blazo was appointed as a regional mediator of the World Bank Group Office of Mediation Services (MEF) for Serbia, Croatia, Bosnia and Herzegovina, Montenegro, Macedonia, Bulgaria and Albania. He is a mediator listed with the Anti-Discrimination Commissioner of Serbia. He is a member of the European Mediation Network Initiative (EMNI) and South East European Mediation Forum (SEEMF). In September 2012 Blazo was awarded a Weinstein International Mediation Fellowship by the JAMS Foundation. He speaks English and French, and mediates in Bosnian, Croatian and Serbian, and in English. From 2006 to 2008, Blazo Nedic worked as a coordinator, co-editor and lecturer in the ‘Support to Development of Mediation in Serbian Courts’ programme, a part of the ABA/CEELI Rule of Law Project in Serbia, funded by the USAID; as a part of the project, a mediation training film was produced, a mediation bench book was compiled for judges and lawyers; and 10 workshops for judges, and 6 basic and 2 advanced mediation courses for lawyers were held. In 2009, Blazo Nedic participated in the Partners Serbia (PS) project ‘Support to Kraljevo District Court Mediation Program’, a project implemented by the Genivar Consortium, within the Canada-Serbia Judicial Reform Project funded by Canadian CIDA, where he co-produced a final assessment report of the court-annexed mediation programme (http://www.partners-serbia. org/images/stories/pdf_ovi/kraljevo%20final.pdf). Since 2009, Partners Serbia and Blazo have served as implementing partners of the Berlin-based CSSP organisation in the German Foreign Ministry and Austrian Development Agency-funded project ‘Integrative Mediation in South Serbia’, where they work with Albanian, Serbian and Roma local communities in the south of Serbia. In 2010, Blazo delivered WB IFC-funded basic and advanced mediation training for lawyers in Montenegro. In 2010, Blazo Nedic lectured in the UNDP-funded training project ‘Mediation in Discrimination Cases’ – holding 12 courses throughout Serbia for civil society organisations representing marginalised and vulnerable groups, including people with disabilities. In 2011 Blazo delivered 2 courses to members of the Kosovo Property Agency, within a project funded by the British Embassy. Partners Serbia and Blazo, in cooperation with the WB IFC, implemented a Swiss Embassy-funded project ‘Commercial Mediation Capacity Building’, where he delivered mediation training to company lawyers, HR managers and in-house counsel. In 2012, Blazo Nedic and Partners Serbia created the ‘ADR Network’, a group of organisations practicing, implementing and promoting mediation, and published a book ‘Mediation in Serbia’ (http://www.partnersglobal.org/new-report-mediation-in-serbiaachievements-and-challenges). Partners Serbia and Blazo currently assist the Anti-Discrimination Commissioner in Serbia in developing a system for mediation in discrimination cases within the EU- and Sigrid Rausing Trust-funded project ‘Partnership for Anti-discrimination Protection in Serbia’. Most recently, Partners Serbia led a consortium of international organisations in winning the European Bank for Reconstruction and Development tender to provide ‘out-of-court restructuring’ assistance to the Serbian Chamber of Commerce and Industry, a project where Blazo will serve as a team leader over the next 2 years. At the same time, Partners Serbia and the Ombudsman of Vozdovac are developing a project to establish the first community mediation centre in Serbia.

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Blazo is a member of the Ministry of Justice of Serbia working groups for the new Mediation Act and Free Legal Aid Act. Website: www/partners-serbia.org Email: [email protected], [email protected] Name: Miguel Bernardo O’Farrell

Country: Argentina

Miguel B. O’Farrell graduated as a lawyer from the Buenos Aires University. His area of specialisation focuses on intellectual property law and, as a consultant with Marval, O’Farrell & Mairal, he advises clients in IP related matters and business law in general. He has wide experience in litigation before the Federal Courts. He also graduated as a mediator from both the Universidad Austral and from the Escuela de Abogacía de Buenos Aires. He is a panellist of the Arbitration and Mediation Centre of the World Intellectual Property Organisation (WIPO) for domain name conflicts, he is an INTA neutral and currently he chairs the Argentine Section of the Fédération Internationale des Conseils en Propriété Industrielle (FICPI). Email: [email protected] Name: Haig Oghigian

Country: Japan

Mr Haig Oghigian is co-chair of the Baker & McKenzie’s litigation and dispute resolution practice group. He focuses his practice on international arbitration/mediation and is recognised by Chamber’s Global, Asia Pacific Legal 500 and Euromoney Expert’s Guide, in the field of dispute resolution. His arbitration practice is enriched by his experience in government (as a Canadian diplomat) and his extensive corporate commercial background. Mr Oghigian has acted as counsel, arbitrator and mediator in a variety of ADR-related issues. He has appeared both as counsel and arbitrator before the International Chamber of Commerce (ICC), the Japan Commercial Arbitration Association, the American Arbitration Association as well as many other arbitral institutions. He obtained a Diploma in International Commercial Arbitration from Keble College, Oxford (1998) and was made a fellow of the Chartered Institute of Arbitrators. Website: http://www.bakermckenzie.co.jp/people/haig_oghigian.html http://www.bakermckenzie.com/HaigOghigian/ Email: [email protected] Name: Mami Ohara

Country: Japan

Ms Mami Ohara is based in Baker & McKenzie’s Tokyo Office, and serves as a member of the firm’s global and regional dispute resolution group. She focuses her practice on international dispute resolution, with a particular emphasis on international arbitration and mediation. Ms Ohara earned her LL.B and J.D. from Keio University and her LL.M. from Cornell Law School. She is a member of the New York Bar Association and is actively involved in the activities of the Japan Chapter of the Chartered Institute of Arbitrators. Website: http:/www.bakermckenzie.co.jp/e/people/mami_ohara.html http:/www.bakermckenzie.com/MamiOhara/ Email: [email protected]

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Name: Michele Paumgartten

Country: Brazil

Michele Paumgartten is a master degree candidate at UNESA RJ, where she is currently developing her thesis on access to justice and mediation. She has a scholarship from CAPES. She holds a postgraduate degree in labour law and corporate law. Email: [email protected] Name: Prathamesh D. Popat

Country: India

Prathamesh D. Popat is trained and accredited as a mediator by LEADR (Australia) and is an IMI certified mediator. He continuously updates his understanding of the dispute resolution field as well as his skills, by periodically participating at ADR conferences and attending training workshops conducted by institutions across the globe, some having trainers and experienced participants coming from different regions/jurisdictions/countries, bringing with them a variety of experiences and insights, which facilitates a quick comparison of the diversity in the practice of ADR mechanisms. Back home, Prathamesh practices as a mediator, advisor and trainer in basic and advanced mediation workshops. Alongside his private mediation practice, being a member of the Bombay High Court’s Panel of Mediators, he has also mediated several court-annexed mediations, referred to him by different courts. Besides being on several mediator panels,  Prathamesh is also  the co-chairman of the ­Mediation Committee of the Indian Merchants’ Chamber, a premier chamber of commerce based in Mumbai. Website: www.mediate.com/prachi; www.prachi.me Email: [email protected] Name: Sharon Press

Country: United States of America, Florida

Sharon Press is a professor of law and serves as the director of the Dispute Resolution Institute at Hamline University. Previously, Professor Press served for 18 years as director of the Florida Dispute Resolution Center where she was responsible for the ADR programmes associated with the state courts. Press is the recipient of numerous professional awards, including the Mary Parker Follett Award for Excellence and Innovation in Dispute Resolution presented by the Association for Conflict Resolution and CPR Institute for Dispute Resolution’s Special Award for Distinguished Contributions to the Field and Future of Dispute Resolution. Press is a Florida Supreme Court certified county and family mediator. She is co-author of the textbook: Mediation theory and practice (3rd Edition Fall 2013), with J. Alfini and J. Stulberg, and her scholarship has focused on mediation ethics and institutionalisation of ADR. She served on the committee that re-drafted the Model Standards of Conduct for Mediators (2005) and as vice-chair for ACR’s Pre-Dispute Arbitration Task Force. Press has worked with numerous states throughout the US, contemplating the use of court-connected mediation. Internationally, she has done work in Argentina, Haiti, Hungary, Jordan, Spain, Uruguay, and the Caribbean. Website: http://law.hamline.edu/disputeresolution/ Email: [email protected]

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Name: Marianne Roth

Country: Austria

Marianne Roth is professor of law at Salzburg University, Austria. In addition to this, she is practicing as an arbitrator under institutional and ad hoc rules, and has worked as a legal advisor and visiting professor for various institutions around the world (e.g., the Thai Ministry of Justice, Ukrainian Cabinet of Ministers, University of the Pacific McGeorge School of Law, California, University of Puerto Rico). Professor Roth held chairs at Humboldt University Berlin and Christian Albrechts University Kiel, Germany. She completed her Ph.D. and habilitation at Kepler University Linz, Austria, and holds an LL.M. from Harvard Law School. Professor Roth has received several academic awards (e.g., the Albert S. Pergam Prize of the New York State Bar Association) for her numerous writings. Website: http://www.uni-salzburg.at Email: [email protected] Name: Nora Šajbidor

Country: Slovakia

Nora Šajbidor is a junior lawyer at Allen & Overy, Bratislava. She graduated with honours from Comenius University in Bratislava in May 2012. In her work, Nora focuses on corporate law, competition law and civil litigation matters. Website: www.allenovery.com Email: [email protected] Name: Marian Gili Saldaña

Country: Spain

Marian completed her Ph.D. at Universitat Pompeu Fabra (Barcelona) on the topic ‘Mergers and acquisitions: letters of intent and representations and warranties’. She is an assistant professor in law at Universitat Pompeu Fabra (Barcelona) where she teaches and researches in different areas of private law. In this academic commitment, Marian publishes regularly on the areas of torts (auditor’s liability, products liability) and contracts (contract formation, remedies for breach of representations and warranties included in share purchase agreements). Marian is also involved in the mediation arena. She is one of the co-authors of the chapter on business mediation in the White Book on mediation in Catalonia. And she collaborates regularly with Dispute Management, SL, in the preparation of training materials both on business mediation techniques and on mediation law and practice. Email: [email protected] Name: Yasmin Sebah

Country: Bahrain

Yasmin has immense experience as a legal advisor and a consultant on international commercial law for foreign companies. She has over 10 years of teaching experience in various areas of law at both undergraduate and postgraduate level. Yasmin was head of the law department and was later appointed as vice principal at a London college.

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She is a certified mediator and a member of the research committee at the International Mediation Institute (IMI). She is currently working on a comparative research paper about the development of international commercial mediation in the Middle East and North Africa region. Email: [email protected] Name: Fred Schonewille

Country: The Netherlands

Legal mediator, mediation advocate, consultant and trainer in the Legal Mediation Firm Schonewille & Schonewille in the Netherlands, Dr Fred Schonewille runs a family mediation practice, is co-initiator and director of a national family mediation-network business (Hoefnagels Family Mediation) and is also a part-time judge. He is a researcher on the fields of mediation, negotiation, divorce law, inheritance law and family property law and is an author of books and articles in scholarly journals. He is a teacher and trainer in courses on the topics mentioned for professionals and a member of the editorial board of Tijdschrift voor Conflicthantering, the largest periodical on mediation and conflict management in the Netherlands. Furthermore Fred organises conferences and symposia about mediation and law. Fred currently is closely involved as an expert in the legislative process concerning the Dutch Mediation Act. He is the founder of the interfaculty minor mediation at Utrecht University and co-founder of the association for the promotion of mediation and negotiation as an academic discipline. He used to be a lecturer and researcher at Utrecht University in mediation, divorce law, inheritance law, family property law and the deontology of the civil-law notary profession. Before that he was a civil-law notary and for a short time a member of the Dutch Parliament. Websites: www.hoefnagelsfamilymediation.nl; www.legalmediation.nl; www.schonewille-schonewille.com Email: [email protected]; [email protected] Name: Manon A. Schonewille

Country: The Netherlands

Manon Schonewille is a partner in dispute resolution and deal-making training and resource centre, Toolkit Company, and a partner in the Legal Mediation Firm Schonewille & Schonewille. She is an IMI certified mediator, legal business mediator, IMI certified mediation advocate and a deal facilitator at Schonewille & Schonewille Legal Mediation in the Netherlands, as well as a JAMS international panellist. President of ACB Foundation, Corporate ADR & Mediation, a conflict management research centre founded in 1998 by large corporations, law firms and the Dutch Employers Association, VNO-NCW. Manon Schonewille completed the negotiation and advanced negotiation courses as part of the Program of Instruction for Lawyers at Harvard Law School (US). At the National Conflict Resolution Center (NCRC) in San Diego (US), she gained practical mediation experience in the US and successfully completed the credentialing programme. Besides working as a mediation advocate and mediator, she advises governments, corporations and leading law firms in the implementation of ADR mechanisms. She trains mediation trainers and professionals throughout Europe, the Middle East, Australia and the US in the advanced use of mediation and negotiation techniques, especially in inter-cultural environments. Besides being frequently asked to speak at international conferences and to be a guest lecturer at universities, she is the author of several books on mediation and negotiation techniques, deal mediation and mediation advocacy, including the handbook on mediation and negotiation techniques Toolkit generating outcomes. She taught and developed the business

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mediation and mediation advocacy course at Utrecht University, the Netherlands, and conducts research on deal facilitation and comparative mediation regulation and practices. She is the immediate past chair of the International Committee of the Dispute Resolution Section of the American Bar Association (ABA), chair of the IMI Task Force on Mediation advocacy and is a member of the Independent Standards Commission of the International Mediation Institute (IMI). Websites: www.schonewille-schonewille.com; www.legalmediation.nl; www.toolkitcompany. com; www.acbmediation.nl; www.jamsinternational.com Email: [email protected]; [email protected] Name: Julia Senior

Country: Luxembourg

Julia Senior was admitted to the Paris Bar and Luxembourg Bar (under her home title) in 2011. She is an associate in the dispute resolution practice of Bonn & Schmitt. She previously trained in mediation and participated in the 2009 ICC International Commercial Mediation Competition. Website: www.bonnschmitt.net Email: [email protected] Name: Hagit Shaked

Country: Israel

Hagit Shaked has been a full-time ADR specialist since 1997. She has mediated thousands of complex civil disputes, including cross-cultural disputes, both in Israel and abroad. Ms Shaked is a pioneer in the development of mediation in Israel and was the founder and the first director of the first case management and ADR programme in Tel Aviv District. She serves as a vice chair of the Tel Aviv Bar Association ADR Committee, and advises the Rubinstein Committee, which explores the use of ADR in Israeli courts. Ms Shaked teaches international commercial mediation at Bar Ilan University. She was a visiting scholar of the Gould Negotiation & Mediation Program at Stanford Law School as part of her international fellowship with the JAMS Foundation. Ms Shaked is a member of the Executive Committee of the ABA DRS IC. Linked in: http://il.linkedin.com/pub/hagit-shaked-gvili/6/7a0/289 JAMS Foundation: http://www.jamsadr.com/weinstein-fellowship/ Email: [email protected] Name: Tsisana Shamlikashvili

Country: Russia

Professor Tsisana Shamlikashvili is president of the National Organisation of Mediators (NOM), founder of the Scientific and Methodological Centre for Mediation and Law, chair of the Subcommittee on ADR and Mediation in the Russian Association of Lawyers, editor-in-chief of the magazine Mediation and Law, professor at the Moscow State University of Psychology and Education, holder of the chair ‘Mediation in Social Practices’ Tsisana Shamlikashvili is a CEDR-accredited mediator, mediator of JAMS International (US-UK), regional mediator of the World Bank for Russia, Kazakhstan and countries of Central Asia, member of Association for Integrated Mediation, board member of EMNI, council member of Straus Institute for Dispute Resolution, Pepperdine University (USA), associate board member of GEMME (Europe), and board member of AAPMAD (Association of Academics for the Promotion of Mediation as Academic Discipline). Professor Shamlikashvili is a practicing mediator in a wide range of cases, from complicated cross-border commercial disputes to family conflicts, as well as disputes involving intellectual

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property, the workplace, finance, personal injury and medical malpractice. She has a pioneering role in implementing mediation into Russian legal practice. Website: www.mediacia.com Email: [email protected]; [email protected] Name: Marianne Stegner

Country: Austria

Marianne Katharina Stegner has been working as a research assistant at the private law department of the University of Salzburg since March 2010. She represented the university at the 17th Willem C. Vis International Commercial Arbitration Moot and acted as coach in the 18 th and 20 th Moot. Besides this, she has worked as visiting lecturer at the Steinbeis Centre of Management and Technology in Berlin. She is currently writing on her doctoral thesis regarding Online Dispute Resolution. Email: [email protected] Name: John Sturrock

Country: Scotland

John Sturrock QC is the founder and chief executive of Core Solutions Group, recognised as Scotland’s leading business mediation service and providing high quality training in communication, conflict management and dispute resolution. John is recognised as Scotland’s leading business mediator and has been listed in Band 1 in both Chambers and Legal 500. In 2009, he was named Mediator of the Year at the Law Awards of Scotland. He has conducted over 300 mediations in a wide range of industries and sectors in the UK, Europe and Africa. As a mediator, he is a door tenant at Brick Court Chambers. John is a visiting professor at the University of Strathclyde and a distinguished fellow of the International Academy of Mediators. He has acted as facilitator of Scotland’s 2020 Climate Change Delivery Group and works with all the legislatures in the UK on scrutiny training. He is heavily engaged in conversations about how to improve policy-making and is also helping to lead an initiative to bring mediation to the churches in Scotland. In June 2010, John received the Honorary Degree of Doctor of Laws from Edinburgh Napier University. As a practicing advocate (barrister) until 2002, he was the first director of training and education at the Scottish Bar from 1994 to 2002. During that time he established the Bar’s world-leading and award-winning advocacy skills programme. As a member of the Judicial Studies Committee, he also designed and delivered the first skills training courses for Scottish judges. He was appointed Queen’s Counsel in 1999 and was named Specialist of the Year at the inaugural Scottish Legal Awards in 2003. Website: www.core-solutions.com Email: [email protected] Name: Mercedes Tarrazón

Country: Spain

Founding partner of Dispute Management SL, a Barcelona-based firm that specialises in international business advice and including dispute resolution and conflict management services, Mercedes has sound knowledge of management and corporate governance due to her background as past co-manager (1985 to 2000) and general counsel (1988 to 2000) of her families’ businesses. She is a fellow of the Chartered Institute of Arbitrators both in arbitration and in mediation and a distinguished fellow of the International Academy of Mediators.

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Mercedes is also a member for Spain at the ICC International Court of Arbitration; vicepresident of the Inter-American Commercial Arbitration Commission; member of the CPR European Advisory Committee; founding member of the Groupement Européen de Magistrats pour la Médiation; member of the board of management of the Club Español del Arbitraje, where she chairs the Commission on Mediation; member of the Barcelona Court of Arbitration and Consul of Barcelona’s Consolat de Mar (ADR Centre). Mercedes is one of the members of the working group that assisted the European Commission’s Directorate General for Justice and Home Affairs in preparing a European Code of Conduct for Mediators. Website: www.disputemanagement.es Email: [email protected] Name: Dimitra K. Triantafyllou

Country: Greece

Dimitra Triantafyllou is an IMI-certified civil, commercial and family mediator at DELTAtothe EPSILON and Piraeus Mediation Centre (PMC), a JAMS International Weinstein fellow (2011), a civil, commercial and family mediator, negotiation consultant, dispute resolution systems designer, an advanced mediation trainer and a practicing lawyer (since 1996 at Thessaloniki Bar Association) in the field of corporate, business and commercial law, specialising in the south eastern European Region. She is founder of DELTAtotheEPSILON, a joint synergy among professionals and business people for the promotion and development of ADR. She serves as a regular member of the National Mediators Accreditation Committee at the Hellenic Ministry of Justice, Transparency and Human Rights, which is an independent national regulatory body that accredits mediators, monitors and regulates mediators’ and mediation providers’ services as well as authorises and approves mediation training providers and mediation training programmes in Greece. She is a liaison member between the International Committee and the Membership Committee of the Dispute Resolution Section of the American Bar Association (ABA) and Member of the mediation advocacy task force of the International Mediation Institute (IMI). She is a civil, commercial and family mediator, negotiation consultant, dispute resolution systems designer and an advanced mediation trainer. Website: www.DtotheE.com Email: [email protected] Name: Hayyan ul Haq

Country: Indonesia

Hayyan ul Haq is a lecturer and researcher in intellectual property, and alternative dispute resolution at Mataram Law School, Lombok, Indonesia, and Utrecht University, the Netherlands. He has been involved in various academic activities in private law, particularly in intellectual property, investment, corporate, contract law and alternative dispute resolution, and teaches at 21 universities in Indonesia, at the University of Washington in the US, as well as in the Netherlands at the Summer Institute for Global Justice, Utrecht University, and Roosevelt Academy, Utrecht University, Zeeland. He completed a first law degree (Sarjana Hukum) in private law from the Mataram University Law School, Indonesia, and Master of Laws (LL.M.) in intellectual property from the University of Technology Sydney and a Ph.D. in intellectual property at Utrecht University, the Netherlands. His academic works have been broadly published in a number of national publication (Kompas, Koran Tempo, Republika, Media Indonesia, Tempointeraktif, Jurnal Sosial Budaya, Elcendekia, Advocaat, Jatiswara, Jurnal Hukum Internasional, University of Indonesia, Jakarta and so forth) and international journal publications, such as Molengrafica Series, Utrecht, the Netherlands; Legal Security and Privacy

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Issues in IT (LSPI), Centrum fuur Reetsinformatiik, University of Oslo, Norway; International Journal of Technology Transfer and Commercialisation (IJTTC), Inderscience, International Journal of Intellectual Property Management (IJIPM); International Review of Intellectual Property and Copyright (IIC) of the Max Planck Institute for Intellectual Property, Competition and Tax Law, and the International Journal of Commercial Law and Technology. Email: [email protected]; [email protected] Name: Eric Van Ginkel

Country: United States of America, California

Eric is a mediator and arbitrator specialising in international business, hi-tech, oil and gas, commercial real estate, and intellectual property related dispute resolution. Since 2004 he has been an adjunct professor of law at the Straus Institute for Dispute Resolution of Pepperdine University School of Law. Currently, he is teaching international commercial arbitration and coaching a team of students at the Straus Institute for participation in the 21st Vis Moot Competition in Vienna in April 2014. Eric is a fellow of the College of Commercial Arbitrators (CCA), and a member of the International Council for Commercial Arbitration (ICCA). In 2007, 2008 and 2009, Eric taught courses in advanced mediation at the Law School of City University of Hong Kong, and in 2010 at the Mediation Centre of the Walisongo Islamic University, in Semarang, Indonesia. In addition, he is one of the trainers in the ‘Mediating the Litigated Case’ seminar offered by the Straus Institute. Being a former assistant director of the Straus Institute for Dispute Resolution, he is a member of the Executive Committee and the Board of the California Dispute Resolution Council (CDRC). He is a former member of the Arbitration and Mediation Committees (co-editor of the Mediation Newsletter, 2009-2010), and a past senior vice-chair of the Committee on Intellectual Property and Entertainment Law, of the International Bar Association. He is also a member and former chair of the litigation section’s ADR Committee of the State Bar of California. Eric is a frequent speaker and trainer on subjects involving arbitration and mediation. He has written extensively on a variety of dispute resolution related subjects. Among others, Eric is an arbitrator and/or mediator for the International Institute for Conflict Prevention and Resolution (CPR – international and banking, accounting and financial services panels of distinguished neutrals), the International Chamber of Commerce (ICC Netherlands), the International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), the World Intellectual Property Organisation (WIPO), and the American Arbitration Association (AAA – large complex cases and intellectual property panels). Being a citizen of the Netherlands living in California, Mr Van Ginkel is sensitive to crosscultural issues. He is fluent in Dutch, English, French and German, and somewhat proficient in Italian and Spanish. Website: www.BusinessADR.com Email: [email protected] Name: Lyubka Georgieva Vasileva-Karapanova

Country: Bulgaria

Lyubka Vasileva-Karapanova is co-founder and vice president of the Professional Association of Mediators in Bulgaria (PAMB) – an organisation of registered mediators and mediation trainers that delivers mediation service and courses, as well as promotes mediation through numerous projects and awareness raising events. Lyubka Vasileva-Karapanova is a practicing mediator, entered into the Uniform Register of Mediators at the Ministry of Justice and on the lists of mediators of PAMB and the Bulgarian Chamber of Commerce and Industry. She is also on the list of mediators and arbitrators at WIPO Arbitration and Mediation Centre. Having participated

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in the establishment of the first successful Court Settlement Centre at Sofia Regional Court, she also delivers mediation service as a volunteer mediator at this Centre. As a certified mediation trainer since 2009, Lyubka has acted as a trainer in numerous courses on domestic and cross-border mediation for various stakeholders: mediators, lawyers, judges, etc. She has been a speaker at different events and panellist at the 4th conference of European Mediation Network Initiative (EMNI). She is the author of a comparative study on the mediation legislation of several EU Member States which has been used in the courses on cross-border mediation delivered by PAMB. She is also co-author of the Bulgarian chapter of the book International commercial arbitration practice and procedure – enforcement of foreign awards, published by Universal Law Publishing Co. Pvt. Ltd., India. Lyubka is a member of the Chartered Institute of Arbitrators in London. In addition to this, Lyubka is a lawyer with experience in different areas of law, including civil and commercial law, protection of intellectual property rights (mainly trademarks), litigation and ADR. She holds Masters of Laws degree from Sofia University and further specialisations in intellectual property rights, international commercial arbitration and mediation. As a lawyer she has been an in-house legal advisor at the Ministry of Defence of the Republic of Bulgaria, TSBank, UniCredit Bulbank and she currently works for Sopharma Pharmaceuticals PLC. Websites: www.pamb.info; www.mediation-net.eu; www.mediationservises.blogspot.com; www.mediationbg.com Email: [email protected] Name: Mladen Vukmir

Country: Croatia

In 1991 Mladen Vukmir founded Vukmir & Associates, a law firm in Zagreb, Croatia. Since 2010, Mladen Vukmir has been an IMI (International Mediation Institute) certified mediator and since 2011 he has been a certified mediator with the Croatian Ministry of Justice. Over the last decade, Mladen has mediated over thirty commercial disputes and has frequently used ADR communication and mediation techniques as a counsel. Mladen is listed with the international Institute for Conflict Prevention and Resolution (CPR, NYC, NY, US) and Croatian Chamber of Commerce (HGK) Permanent Arbitration Court and Mediation Centre, WIPO and other mediation centres worldwide. He currently serves as a member of the International Trademark Association (INTA) Board of Directors, and is immediate past INTA ADR committee chairman. He serves on the INTA panel of neutrals (recently renamed as Trademark Mediators’ Network, TMN). Mladen is a frequent ADR and mediation topics international speaker and has spoken at the Union Internationalle des Avocats (UIA) World Mediation Centre Forum events, International Centre for Conflict Prevention and Resolution (CPR) events, Pharmaceutical Trademark Association (PTMG), International Trademark Association (INTA), Association Internationalle pour la Protection de la Propriete Intellectuelle (AIPPI) and Croatian arbitration and conciliation days ADR programmes. As the current AIPPI Croatian president, Mladen Vukmir is proposing further introduction of ADR methods in the intellectual property field. Mladen Vukmir is trained as a mediator trainer by CEDR and regularly acts as mediator trainer in Croatian Ministry of Justice Mediator’s Certification Programme. He recently taught a negotiations and dispute management course as an adjunct professor at the American College of Management and Technology (ACMT) in Dubrovnik, a Rochester Institute of Technology (RIT) graduate school. His most recent training experience was in 2012 during an event on the financial benefits of mediation held by the American Chamber of Commerce and the Croatian Mediation Association (HUM), ‘Mediate, Don’t Litigate’, where he presented the advantages of using mediation in

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business. Mladen Vukmir also serves as the honorary consul general for Denmark in Zagreb, Croatia. Website: www.vukmir.net Email: [email protected] Name: Andrew Wei-Min Lee

Country: China

Andrew Wei-Min Lee is founder and president of the Leading Negotiation Institute, a Beijingbased organisation whose mission is to promote the theory, practice and teaching of Chinese dispute resolution techniques. He is also a fellow of Harvard Law School’s Program on Negotiation, Stanford Law School’s Gould Center and a Weinstein Fellow. Website: www.leadingnegotiation.com; www.negotiationchina.com Email: [email protected] Name: Victoria Wilson

Country: England and Wales

Victoria Wilson is a family mediator based at Goldsmith Chambers, in the Temple, London. She successfully completed her mediation training with the ADR Group, a member organisation of the Family Mediation Council which is dedicated to working to promote best practice in family mediation in the United Kingdom. As well as being a family mediator, Victoria is a very experienced family law barrister: she has spent the last ten years practising exclusively in family law, with a particular emphasis on financial and private child law cases. She is an approved pupil supervisor, and is therefore able to oversee the training of pupil barristers. Website: http://goldsmithchambers.com/victoria-wilson Email: [email protected]; [email protected] Name: Galyna Yeremenko

Country: Ukraine

Galyna is a founding director and a trainer at Ukrainian Mediation Centre at Kyiv-Mohyla Business School and a senior researcher at the Koretsky Institute of State and Law, National Academy of Sciences of Ukraine. She is a CEDR accredited mediator; she mediates commercial, worked-based, and family disputes. Galyna is a member of an international network of trainers in mediation (CEDR trainers network) and has experience of teaching mediation for the School of Senior Civil Service of Ukraine, UNDP, ABACEELI and others in Ukraine, Kazakhstan, Kyrgyzstan, and Belarus. Galyna is a co-author of the draft law on mediation in Ukraine, textbooks and manuals on civil law, legal encyclopaedias, scientific monographs and articles. In 2004 she became the winner of the award after Yaroslav the Wise, granted by the Academy of Legal Sciences. In 2010 Galyna was recognised as Weinstein Fellow at JAMS Foundation (USA). In April 2012 Galyna was appointed as Chairman of the Commission for Mediation and Advisor to the President of ICC Ukraine. Website: http://ukrmediation.com.ua/en/ Email: [email protected]

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794

The Variegated Landscape of Mediation

Name: Takeshi Yoshida

Country: Japan

Mr Takeshi Yoshida is a member of the Baker & McKenzie’s Dispute Resolution Group in Tokyo and focuses his practice on international and domestic dispute resolution. Mr Yoshida earned his LL.B. from Tokyo University and his LL.M. from Northwestern University School of Law. Mr Yoshida is a member of the Tokyo Bar Association, ICC’s Young Arbitrators Forum, LCIA’s Young International Arbitration Group (YIAG), ICDR’s Young & International (Y&I), Young ICCA and Young ICSID. Websites: http://www.bakermckenzie.co.jp/e/people/takeshi_yoshida.html http://www.bakermckenzie.com/TakeshiYoshida/ Email: [email protected] Name: Giulio Zanolla

Country: United States of America, New York

Giulio Zanolla is an associate mediator at Weinstein Melnick LLC in New York and a panellist with the International CPR Institute. Giulio is a lawyer and mediator trained in Italy and the US, with substantial experience in mediation and ADR and a legal background in international business transactions, insurance law, securities law and litigation. Giulio has participated in over a hundred mediation cases as mediator, co-mediator and assistant mediator with pre-eminent national and international neutrals, in cases involving contractual disputes, intellectual property, securities actions, partnership dissolution, antitrust lawsuits, insurance coverage disputes, accounting fraud actions as well as professional malpractice, personal injuries and wrongful death cases. Giulio also mentors the students of the Brooklyn Law School Mediation Clinic Program. He frequently participates in ADR panel discussions in seminars and conferences internationally, and trains new mediators in practical mediation and negotiation skills development. Giulio is actively involved in the NYC Startup community to help emerging entrepreneurs, counsels and investors to prevent, manage and resolve disputes efficiently to preserve new companies, business relationships and venture investments. Website: http://www.linkedin.com/pub/giulio-zanolla/3/b87/5a1 Email: [email protected] Name: Julia Zhu Yi

Country: China

Julia Zhu Yi is a graduate of Peking University and a research assistant for the Leading Negotiation Institute of China. She is the national champion for the China University English Language Negotiation Competition and has a certificate of International Business Negotiation from Hamlin University Law School. Name: Daiga Zivtina

Country: Latvia

Daiga Zivtina is a partner and head of the Baltic dispute resolution practice group at LAWIN. With a primary specialisation in dispute resolution, Daiga Zivtina represents corporate clients in litigation cases in public courts, negotiations in out-of-court settlements and arbitration cases. Daiga also acts as an arbitrator at the Arbitration Court of Latvian Chamber of Commerce and Industry. Daiga has extensive experience in civil and administrative matters representing clients in all kinds of disputes, including recognition of foreign court rulings and awards and representation of clients at the government agencies. She is also counsel to clients on matters involving transfers of undertaking, employment law issues, corporate governance, general

The variegated landscape_1.indb 794

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Country contributors in Alphabetical order

795

corporate and insolvency matters. From1997 till 1999, Daiga represented the first asylum seekers in Latvia in cooperation with the United Nations High Commissioner for Refugees (UNHCR), therefore gaining a broad practice also in human rights area. Due to her broad experience in numerous fields of law, Daiga has been continuously recognised as a leading lawyer in dispute resolution and employment law in Latvia by top international legal directories (Chambers Global and Europe, Dispute Resolution, 2012; Chambers Europe, Employment law, 2012; Legal 500 EMEA, Dispute Resolution, 2012; PLC Which Lawyer?, 2012). Daiga has commented on the draft of the Mediation Act of the Republic of Latvia and suggested necessary amendments. She has also been actively involved in several initiatives to improve the dispute resolution field in Latvia. For example, she is an active member of the working groups established by the FICIL (the Foreign Investors’ Council in Latvia), which analyses and prepares proposals on amendments to the existing legal regulation and its improvements. Currently Daiga is involved in the court system efficiency and energy issues practice group of the FICIL. In addition, from 2002 to date Daiga has worked as a legal consultant, at the Legal Practice and Help Centre (Legal Clinic) of the University of Latvia, helping prepare new talents in the legal field and provide pro bono legal assistance to persons in need. Website: www.lawin.com Email: [email protected]

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Outside EU

Russia

Serbia

Switzerland

Turkey

Ukraine

Tsisiana Shamlikashvili

Blazo Nedic

Jeremy Lack, Alexis Lafranchi

Seçkin Arikan

Galyna Yeromenko, Tatiana Kyselova

Yes No Yes No No No No Yes No (Yes) No No (Yes) Yes Yes No F F/E F F N/GA Mix Mix (Yes) (No) (Yes) 120 hrs No Yes Yes Yes No No No No Yes No No NA NA NA 2011 No Yes

Yes/(Yes) 2013 draft law No Yes No No No No/(Yes) 2013 draft law Yes/(Yes) 2013 draft law No Yes (Yes) No/(Yes) 2013 draft law (Yes) Yes (Yes)/No 2013 draft law No F/(E) F/D F/T/E F/D N/GA/O Mix Mix No/Yes 2013 draft law No/(No) 2013 draft law No/Yes 2013 draft law 5 days/40 hrs No/Yes 2013 draft law Yes No No No No No No Yes No No NA NA NA 2005 NA Yes

Yes (No) (No) No No No No Yes No (Yes) (Yes) (No) (No) Yes (Yes) (Yes) All All All All N Mix Mix (Yes) Yes (No) 12-200 hrs 0-60 hrs/3 yrs (Yes) (No) No No Yes (No) Yes (No) No No NA NA NA 2011 (Yes) Yes

Yes No Yes No No No No (Yes) No (Yes) (No) (No) Yes Yes Yes No F/E/O F/D F/E/O F/D NA Joint/caucus/mix Joint/caucus/mix Yes (No) Yes 48 hrs No Yes Yes Yes No (Yes) No (No) Yes (Yes) No No No Yes 2012 No Yes

Yes No Yes No No No No Yes No Yes Yes No No Yes (Yes) No F/E F/E F/E F/E N/G Mix Mix Yes Yes No 2x24/40 hrs No No No No No Yes No Yes No No No NA NA NA (No) 2012 Yes

Yes

Yes

Yes

Yes

Yes

No Yes No €300-400

No Yes Yes €50-900/case (est.)

No Yes (Yes) CHF200-700/hour (est.)

No (Yes) (No) 120TL-190/hr or 0.1-9.0% amount

No Yes No € 90-250

m

€50-150

€50-900/case (est.)

CHF150-500/hr (est.)

120TL-190/hr or 0.1-9.0% amount

€ 20-250

m

No No No No Yes

No No No/(Yes) 2013 draft law (No)/Yes 2013 draft law (No)

(Yes) NA (CHF300-350/hour) NA (CHF350/hr) No (No)

No No No (No) (No)

No No No No No

Yes Yes No Yes No Yes

No/Yes 2013 draft law Yes No Yes No Yes

(No) Yes (No) Yes Yes Yes

Yes (Yes) No No Yes Yes

No Yes No No (No) No

Yes

Yes

(Yes)

[Yes]

No

No No

(No) No

(No) (No)

No No

No No

OM_The_variegated_landscape_compleet.indd 15

Country

12-6-2014 12:06:54

Argentina

Australia

The Bahamas

Bahrain

Barbados

Brazil

Cambodia

Cameroon

Canada

Savath Meas

Enga Kamein, Mfor Divine Afuba

Clifford M. Hendler, Alicia K. Kuin

Miguel Bernardo O’Farrell

Lorraine Lopich

Koschina L. Marshall

Yasmin Sebah

Kumar Hathiramani

Gabriela Asmar, Humberto Dalla Bernadina de Pinho, Michele Paumgarten

(No) Yes Yes No No Yes No Yes Yes Yes No No Yes No No No F F F F N Mix Mix Yes Yes Yes 100 hrs Yes Yes Yes Yes Yes No Yes No Yes Yes Yes NA NA NA 1995/2009

No Yes Yes Yes Yes (Yes) Yes Yes No Yes Yes No No Yes Yes Yes F/(E/D) F/E/D F/(T/E) F N/GA/(L)O Mix (Joint) Mix (Joint) Yes Yes Yes/No >38 hrs Yes Yes No No No Yes No Yes No No No NA NA NA 1974

Yes No Yes No Yes No Yes Yes No Yes No No No Yes Yes No F/E/D F/E/D F/E/D F/E/D NA Mix Mix (Yes) No No 40 hrs No No No No No Yes No No No No No NA NA NA No

(Yes) (No) (No) No No No No Yes No No No Yes No Yes Yes Yes F F F F All Mix Mix Yes Yes No 20-100 hrs No Yes No Yes No No No Yes No No No NA NA NA No

Yes (No) Yes No No No No Yes No Yes Yes (No) No Yes No No F F F F NA Mix Mix Yes Yes No 40-80 hrs No No No Yes No No No Yes No No No NA NA NA No

Yes No Yes No No No No Yes No (No) (No) (Yes) No Yes Yes No F F F F GA Mix Mix (Yes) Yes No 110 hrs No/Yes (court mediators) No No No No No No Yes No/Yes (court mediators) No No NA NA NA No

No (No) Yes No No No No Yes No Yes Yes No No Yes Yes No F F F F GA Mix Mix (No) Yes No 40 hrs No No No Yes No No No Yes No No No NA NA NA No

Yes No No No Yes No Yes Yes No Yes (Yes) No No Yes Yes No F F F F/D NA Mix Mix No Yes No 40 hrs No No No (No) No No No Yes No No No NA NA NA No

(Yes) Yes Yes Yes (Yes) No Yes Yes No No No Yes No Yes Yes No F/E F F/E F NA (Mix) (Mix) Yes Yes No 40 hrs Yes Yes (Yes) Yes No Yes No Yes No No No NA NA NA 1990

No

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

(Yes)

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes (No) (Yes) min. arg.$ 300-2.000 per mediation min. arg.$ 300-2.000 per mediation No No No No Yes

No Yes No $250-500/hr (est.)

NA Yes No $500-800

No Yes No $200-400

No Yes No $500-1.000 per 3 hrs

No Yes No US$450/hr

No Yes No US$ 500-1.000

No Yes No €100-300 hr

No (Yes) Yes CAD$400-750

$250-500/hr (est.)

$500-800

$200-400

$500-1.000 per 3 hrs

US$225/hr

US$ 100-200

€100-300 hr

CAD$400-750

Yes No Yes No Yes

No No No No (Yes)

No No No No No

No No No No (No)

No No Yes No (Yes)

No No No No Yes

Yes No No No Yes

No No No No Yes

Yes Yes Yes No No Yes

No Yes Yes Yes Yes Yes

No Yes Yes No No No

No Yes Yes Yes No No

… Yes Yes Yes No No

(No) Yes/No (court mediation) (No)/Yes (court mediation) Yes (No)/Yes (court mediation) No

No Yes No No No No

No Yes No No No No

No Yes No No No Yes

Yes

Yes

Yes

No

Yes

Yes

No

No

Yes

(No) No

Yes No

Yes No

No No

Yes No

No No

No No

(No) No

Yes (Yes)

OM_The_variegated_landscape_compleet.indd 16

12-6-2014 12:07:25

An F

Y

Y

,

The Republic of China

Ecuador

Egypt

India

Indonesia

Israel

Japan

Andrew Wei Min Lee, Vivian Feng Ying Yu, Julia Zhu Yi

Juan Montalvo Perero, Adriana Lasso

Ehab Elsonbaty

Prathamesh D. Popat

Hayyan ul Haq, Zainal Asikin, Zainul Daulay

Mordehai (Moti) Mironi, Hagit Shaked

Haig Oghigian, Takeshi Yoshida, Mami Ohara

Yes No Yes No No No No Yes No Yes Yes No No Yes Yes No E D E/Mix D All Mix Joint/Mix No No/(Yes) No (No) Yes No/NA No Yes No Yes No Yes No No/Yes Yes NA NA NA No

(Yes) (Yes) Yes (Yes) No No No Yes No (No) (No) (Yes) No Yes Yes No E F E D GA/LO Joint Joint Yes No (Yes) 80 hrs No Yes No Yes No No No (Yes) Yes No No NA NA NA 1997

Yes Yes (No) No No No No Yes No Yes Yes No No Yes Yes Yes F F F/E F All Mix Mix Yes Yes (Yes) 20 hrs No (Yes) (Yes) (Yes) No Yes No Yes No No No NA NA NA No

(Yes) Yes Yes Yes No No No Yes No Yes Yes No No (Yes) Yes No F/(E) F F F N/GA Mix Mix (Yes) (Yes) (Yes) 40 hrs (No) Yes No No No No No Yes (No) No No NA NA NA No

(Yes) (Yes) Yes Yes (No) No No Yes Yes No (No) Yes Yes Yes Yes Yes F/E F F/E F N/GA Joint Joint (No) (No) Yes NA No No No No No No No No Yes No No NA NA NA 1999

(Yes) (Yes) Yes No (No) No No Yes No Yes Yes No (Yes) (in court)/No (out-of-court) (Yes) (in court)/No (out-of-court) No No E D Mix Mix GA/LO/O Mix Mix Yes Yes No 60 hrs No (No) No (Yes) (No) Yes No Yes (No) No No NA NA NA No

No Yes Yes Yes No No No Yes No No Yes Yes No Yes Yes No F/(E in-court mediation) F/(D in-court mediation) F/(E/D) F/(D) All Mix Mix Yes Yes No NA No No No Yes No Yes No Yes No No No NA NA NA No

Yes (people’s)/No (judicial/ arbitral)/Yes (commercial) Yes (people’s/commercial)/ No (judicial/arbitral) Yes No (No) NA

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

(No) No (Yes) $150/hr (est.)

No Yes Yes $300 (est.)

No Yes No Rs.0-10.000

(No) Yes No Rp. 1.000.000

No Yes (Yes) $200-500

Yes Yes No JPY20.000-60.000

NA

$0-250/hr (est.)

$300 (est.)

Rs.0-10.000

Rp. 700.000-1.000.000

$200-500

JPY20.000-60.000

No No No Yes Yes (Judicial)/No (people’s/ arbitral/commercial) … Yes (No) Yes No No (people’s)/Yes

(Yes) No Yes (Yes) Yes

No (Yes) No No (Yes)

Yes No Yes No Yes

Yes No No Yes Yes

Yes (No) (No) No Yes

No No No No Yes

(Yes) No Yes No Yes Yes

No Yes No Yes No (No)

No Yes (out-of-court)/(No) (in court) No (No) (out-of-court)/(Yes) (in court) Yes Yes

No Yes Yes No Yes No

Yes Yes Yes No Yes in-court mediation No

No

Yes

(Yes)

(No)

No

No

No

No No

(No) No

No No

(Yes) (out-of-court)/Yes (in court) Yes No

No Yes No (Yes) No (Yes) (in court-referred mediation)/(No) (in out-of-court mediation) Yes

Yes No

No No

(Yes) No

OM_The_variegated_landscape_compleet.indd 17

12-6-2014 12:07:36

No

No

No