1. Definition of mediation
Mediation is a procedure based on the voluntary participation of the parties, in which an intermediary without adjudicatory powers systematically facilitates communication between the parties with the aim of enabling the parties themselves to take responsibility for resolving their dispute. Additional characteristics, albeit not part of the core definition, are the confidentiality of the procedure and the neutrality of the mediator.
Mediation is one of several procedures to solve social conflicts. While court proceedings are authoritative, legally formalized and claim-oriented, mediation offers a flexible, self-determined approach that may consider all circumstances of the conflict, independent of their legal relevance. For these reasons, mediation as opposed to a judicial proceeding is generally categorized as an ‘alternative dispute resolution’ mechanism.
As regards the relationship between court proceedings and mediation, three types of mediation can be distinguished: ‘private mediation’ that is entirely independent from court proceedings; ‘court-annexed mediation’ that is, on the one hand, institutionally coordinated with a judicial proceeding but, on the other hand, procedurally detached from the court as an institution; and ‘judicial mediation’ that is connected with the court and court proceedings in terms of venue and personnel.
It is not always easy to differentiate mediation from other types of alternative dispute resolution, among them arbitration (arbitration law (national)), conciliation, negotiation and ombudsman procedures (ombudsman). This is partly due to lack of a generally accepted definition and partly due to the fact that alternative dispute resolution mechanisms and especially mediation elude static differentiation criteria owing to their procedural flexibility. Guidelines for classification are the voluntary nature of mediation and the mediator’s lack of adjudicatory powers. Such adjudicatory powers are given to the arbitrator; a conciliator also exerts greater influence on the outcome than a mediator by, for example, announcing a (non-binding) conciliation decision.
2. Purposes of mediation
A central purpose of mediation is to allow the parties to resolve their conflict in a sustainable and self-determined way. The constructive method of conflict resolution carries the chance of personal development and social growth for those involved in the conflict. The voluntary nature and the acceptance of the solution by the parties brings with it—in principle—the expectation of substantive justice and results that benefit the parties or at least do not lead to anyone coming off worse (Pareto improvement and, ideally, Pareto optimum). From this perspective, mediation is the procedural counterpart of the contract.
Besides, both the parties on the micro level and the legislatures on the macro level aim to achieve a cost-efficient dispute resolution through mediation—especially compared to judicial proceedings but also in comparison with other methods of dispute resolution. By mediation, the parties expect a faster solution with smaller costs than judicial proceedings would entail. In addition, mediation helps lighten the heavy case loads of the judiciary and reduces the expenses for the judiciary through a privatization of dispute resolution.
3. Development of mediation law in Europe
a) Institutionalization process in recent times
In Europe, mediation law is in flux and has seen fundamental change in many Member States in view of the implementation deadline of 21 May 2011 of the Mediation Directive (Dir 2008/52 of 21 May 2008 on certain aspects of mediation in civil and commercial matters). The vivid legal development must be seen in light of the short history of mediation as an institutionalized alternative to judicial proceedings in the European Member States. Although ad hoc mediation has a long history in Europe, witnessed for example by mention in the preamble of the Peace of Westphalia, the Member States began to regulate mediation only in recent times. In Germany, interest for institutionally integrating mediation into the catalogue of dispute resolution mechanisms arose only in the 1980s—inspired by accounts of the use of mediation in the United States.
Dynamic regulatory activities related to mediation can be observed in the legislative history of the European Member States in recent years. In France, mediation in civil and commercial matters was introduced into the Code of Civil Procedure (Code de procédure civil) in 1996; in England, mediation was first laid down in the Civil Procedure Rules in 1998; the German Law for the Promotion of Alternative Dispute Resolution (Gesetz zur Förderung der außergerichtlichen Streitbeilegung) stems from 1999; the relevant Portuguese rules were issued in 2001; in Austria, the Civil Mediation Law (Zivilrechts-Mediations-Gesetz) came into force in 2004; the Bulgarian mediation law also originates from 2004 and mediation in civil matters was universally regulated in Poland in 2005.
b) Multifaceted regulatory approaches and rules
The young regulatory history of mediation in Europe and the flexible and partly extra-legal nature of mediation explain why public (laws, regulations) and private (model contracts, self-regulation of associations, codes) regulation feature an immense diversity in regulatory concepts and details. Also from a functional point of view, the various rules often lead to different practical outcomes.
Differences start with the fundamental question whether mediation requires regulation in the first place. In Austria, a relatively high regulatory intensity was chosen in order to protect consumers, promote mediation, provide legal certainty and differentiate mediation from legal advice. The Austrian Civil Mediation Law contains detailed rules concerning an advisory board for mediation, a register of mediators, rights and duties of registered mediators, suspension of limitation and prescription periods, educational institutions and the education of mediators. In contrast, other countries—notably England and the Netherlands—limit themselves to just a few legislative interventions in order to avoid hindering the creativity of practitioners by imposing premature laws and thus constraining the flexibility of mediation without urgent need. Therefore, the English Civil Procedure Rules contain only selected rules governing, for example, the law of costs and leave the design of mediation, the education and regulation of mediators to private associations and the self-regulating forces of the market. A third group of countries tries to resolve the conflict between the voluntary nature of mediation and the protection of citizens from malpractice through a balanced degree of regulatory activity.
c) Regulatory models in professional law
The different regulatory approaches become noticeable in professional law, which is in the focus of regulatory discussions in all legal systems. The European and non-European legal systems can be classified into three regulatory models.
(1) The admission model is based on an official admission to practise as a mediator. In its classical form this approach can be observed in Hungary where admission to practise as a mediator requires an application to be listed in the register of mediators and the meeting of certain minimum requirements (such as a university degree or five years of related professional experience). Portugal opted for a version of the admission model in which the courts keep mediator lists in which only persons are enlisted who demonstrate certain skills and knowledge (expertise, negotiation skills etc).
(2) The incentive model, in contrast, allows anyone to practise as a mediator and, particularly, does not require admission. However, favourable rules for the parties—concerning, for example, the confidentiality and the quality of mediation—only apply if the mediation is carried out by a mediator who is listed in a register. This results in incentives for the parties to mandate a registered mediator which in turn creates an incentive for the mediators to fulfil the quality requirements necessary to be enlisted in such registers. According to the Austrian Civil Mediation Law (Zivilrechts-Mediations-Gesetz), the duty of neutrality of the mediator, the confidentiality rules and the suspension of limitation and prescription periods only apply if a mediator is instructed who is enlisted in the mediators’ register kept by the Ministry of Justice.
(3) The market model generally refrains from public interventions in the professional law of mediators and trusts in the rational and self-regulating behaviour of market participants who supply and demand mediation. From a comparative perspective, it can be observed that after the early stages of little organized market development, structures may appear that have a similar regulatory effect as the admission and incentive models. In England some mediation associations have developed standardized mediator categories (eg, exclusive mediator, mediator and distinguished neutral) that allow parties to make an informed quality assessment when choosing a mediator. Additionally, the free National Mediation Helpline has been introduced in 2006 to inform about mediation and bring together mediators and clients.
4. Mediation Directive
a) Harmonizing effect of the directive
National regulatory concepts and rules might differ considerably. Nevertheless, the legal development has advanced to a degree that topics can be identified which are discussed in almost every European Member State and have triggered governmental or at least private regulation. These issues are to a large extent reflected by the Mediation Directive which forms—unless otherwise noted—the basis for the following remarks. The scope of application of the directive is limited in three ways. It only affects civil and commercial matters, only cross-border disputes and does not cover certain issues such as the liability of mediators. Still, the directive has had effect beyond its directly binding rules since it has caused some Member States, eg Germany, to implement the directive beyond its scope of application in order to achieve a synchronization of national and cross-border mediation. Other Member States, however, eg Austria and England, have implemented the mediation directive only for cross-border mediations.
b) Invitation by a court to use mediation
Article 5(1) regulates the relationship between judicial proceedings and mediation. Accordingly, the court can invite parties to use mediation to settle their dispute and to attend an information session on the use of mediation. Here, the Mediation Directive respects the voluntary nature of mediation and opts for a cautious integration of judicial proceedings and mediation. A more interventionist alternative would have been to establish a duty of the court to assess the suitability of conflicts for mediation and to provide it with a binding right to order mediation.
c) Enforceability of agreements resulting from mediation
Article 6 of the Mediation Directive deals with the enforceability of agreements resulting from mediation, hence, further anchoring mediation within the procedural laws of the Member States. Article 6(2) stipulates that the agreement may be made enforceable by a court or other competent authority in a judgment, decision or authentic instrument. It remains up to the Member States to create additional ways to enforce agreements, especially at the national level.
One approach could be to separate the declaration of enforceability from the intervention of a public authority by allowing for enforceable mediation settlements supervised by lawyers or notaries. However, such rules are rare in Europe. One exception can be found in Portuguese labour law, where agreements between the parties can be enforced without confirmation by the justice of the peace, which is otherwise generally required. One important reason for the intervention of a public authority as a prerequisite for making a claim, resulting from mediation, legally enforceable is the possibility to control the substance of the agreement—albeit in only a limited way.
d) Confidentiality of mediation
Article 7 of the Mediation Directive is supposed to ensure the confidentiality of information disclosed in the course of the mediation. The power of mediation to solve disputes rests on the parties’ willingness to disclose information that forms the basis for a solution favourable for all involved. The caucus—the discussion between just one party and the mediator—is supposed to offer an opportunity to convey sensitive information which the mediator may use to develop a possible solution. Confidentiality rules intend to avoid that the parties are overly reluctant to reveal information out of fear that this information may be used against them in subsequent court proceedings or arbitration.
Article 7(1) requires Member States to ensure that neither mediators nor those involved in the administration of the mediation process (translators, legal counsel, experts, etc) shall be compelled to give evidence in judicial proceedings or arbitration regarding information arising out of or in connection with a mediation process. This shall not apply if the parties agree otherwise, if a testimony is necessary for overriding ordre public considerations or if the implementation or enforcement of the agreement resulting from mediation requires disclosure. Article 7(2) allows for the enactment of stricter confidentiality rules. Such rules could limit the rights of the parties to testify and to introduce evidence in court proceedings.
e) Suspension of limitation and prescription periods
Article 8 of the Mediation Directive ensures that the parties are not running the risk of being prevented from judicially pursuing their claims because limitation and prescription periods expire during a mediation attempt that eventually fails. This corresponds to the respective suspension of the running of the period of prescription according to Art III.–7:302(3) Draft Common Frame of Reference (DCFR) (outline edn).
Currently, mediation is not living up to its potential in Europe because relevant players—especially judges, lawyers, in-house counsel and the parties themselves—are not adequately informed about its requirements, its characteristics, its possibilities and its practical implementations. For this reason, Arts 9 and 10 Mediation Directive stipulate that the general public is to be informed about how to contact mediators and which courts and authorities are competent to make agreements resulting from mediation enforceable. In particular, it is intended that the internet should be used as a source of information.
5. Empirical research on mediation
Empirical research on mediation is constantly increasing. However, currently reliable results are only available in selected areas. Bearing this limitation in mind, statistical research supports the expectations connected with mediation as a sustainable, fast and cost-efficient mechanism for dispute resolution.
In its 2007 study ‘Legal aid and mediation for people involved in family breakdown’ for the period of October 2004 to March 2006 the English National Audit Office indicates average costs of £1,682 and a duration of 435 days for judicial proceedings while mediation averaged costs of only £752 and a duration of 110 days. Similarly, empirical research completed in 2010 which looked at family conflicts in Germany between 2005 and 2009 confirms the relative cost effectiveness of mediation compared with judicial proceedings.
Studies from the Netherlands show that conciliation resulting from mediation leads to higher compliance rates when compared to judicial proceedings. Analysis from 2002 and 2003 came to the conclusion that about two-thirds of the mediation agreements were completely, and an additional 20 per cent at least partially, fulfilled within three months. A study of the compliance patterns for judicial proceedings in the 1990s revealed considerably lower compliance patterns for judgments. After three months, granted claims were actually paid in only 18 per cent of the cases. After one year, this rate rose to just 20 per cent, while after three years the compliance rate stood at only 43 per cent fully performed and an additional 22 per cent partially fulfilled. The discrepancy with the compliance of mediation agreements cannot be explained exclusively by the insolvency of the debtors.
However, statistical country comparisons as regards mediation need to take into account differences in legal institutions and legal cultures. The study of the European Commission for the Efficiency of Justice (CEPEJ) from 2010, for example, evidences the following durations of contradictory civil proceedings at first instance for the year 2008: 129 days in Austria, 286 days in France and 533 days in Italy. For the same year the German Federal Statistical Office (Statistisches Bundesamt) reports an average duration of civil proceedings of 4.5 months at the county courts (Amtsgericht) and 8 months at the district courts (Landgericht) at first instance. Against this backdrop, different incentives arise with regard to expected time savings through the use of mediation.
6. Harmonization projects
In addition to the Mediation Directive, notably the following rules with directly or indirectly binding effect exist in the field of mediation: the Legal Aid Directive (Dir 2003/8 of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; legal aid extended to extrajudicial procedures under certain conditions according to Art 10); the Brussels IIbis Regulation (Reg 2201/2003) of the Council concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (facilitation of agreements through mediation according to Art 55(e)); the directive on electronic commerce (Dir 2000/31 of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; Art 17 concerning out-of-court dispute settlements in e-commerce); the Universal Service Directive of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Dir 2002/22; Art 34(1) provides for out-of-court dispute resolution; considered in ECJ Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08) and the Framework Directive of 20 March 2003 (Dir 2002/21) on a common regulatory framework for electronic communications networks and services (Art 20(2) and Art 21(3) referring to alternative dispute resolution mechanisms, especially mediation, as the primary conflict resolution procedure to be used). Additionally, the following non-binding rules on mediation are of relevance from a harmonization perspective: Commission Recommendation 2001/310 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes; Commission Recommendation 1998/257 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes; the European Code of Conduct for Mediators (according to recital 17 of the Mediation Directive, mediators should be made aware of this code, which should also be made available to the general public on the internet); Recommendation R (98) 1 of the Council of Europe (Committee of Ministers) to Member States on family mediation (recommendation on the promotion and legal implementation of family mediation); Recommendation Rec (2002) 10 of the Council of Europe (Committee of Ministers) to Member States on mediation in civil matters (recommendation on the promotion and legal implementation of mediation in civil matters); Art III.–7:302 (3) DCFR, outline edn (concerning the suspension of prescription periods through mediation). Finally, the UNCITRAL Model Law on International Commercial Conciliation, adopted in 2002, deserves to be mentioned.
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