Strasbourg, 11 January 2006                                                                        CEPEJ-GT-MED (2006) 1

European commission for the efficiency of justice

 (CEPEJ)

Working Group on Mediation (CEPEJ-GT-MED)

                                                                                                                

Recommendation No. R (98)1 on family mediation

(Adopted by the Committee of Ministers on 21 January 1998
at the 616th meeting of the Ministers' Deputies)

1. The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

2. Recognising the growing number of family disputes, particularly those resulting from separation or divorce, and noting the detrimental consequences of conflict for families and the high social and economic cost to States;

3. Considering the need to ensure the protection of the best interests and welfare of the child as enshrined in international instruments, especially taking into account problems concerning custody and access arising as a result of a separation or divorce;

4. Having regard to the development of ways of resolving disputes in a consensual manner and the recognition of the necessity to reduce conflict in the interest of all the members of the family;

5. Acknowledging the special characteristics of family disputes, namely:

- the fact that family disputes involve persons who, by definition, will have interdependent and continued relationships;

- the fact that family disputes arise in a context of distressing emotions and increase them;

- the fact that separation and divorce impact on all the members of the family, especially children;

6. Referring to the European Convention on the Exercise of Children's Rights, and in particular to Article 13 of this convention, which deals with the provision of mediation or other processes to resolve disputes affecting children;

7. Taking into account the results of research into the use of mediation and experiences in this area in several countries, which show that the use of family mediation has the potential to:

- improve communication between members of the family;

- reduce conflict between parties in dispute;

- produce amicable settlements;

- provide continuity of personal contacts between parents and children;

- lower the social and economic costs of separation and divorce for the parties themselves and States;

- reduce the length of time otherwise required to settle conflict;

8. Emphasising the increasing internationalisation of family relationships and the very particular problems associated with this phenomenon;

9. Realising that a number of States are considering the introduction of family mediation;

10. Convinced of the need to make greater use of family mediation, a process in which a third party, the mediator, impartial and neutral, assists the parties themselves to negotiate over the issues in dispute and reach their own joint agreements,

11. Recommends the governments of member States:

i. to introduce or promote family mediation or, where necessary, strengthen existing family mediation;

ii. to take or reinforce all measures they consider necessary with a view to the implementation of the following principles for the promotion and use of family mediation as an appropriate means of resolving family disputes.

PRINCIPLES OF FAMILY MEDIATION

I. Scope of mediation

a. Family mediation may be applied to all disputes between members of the same family, whether related by blood or marriage, and to those who are living or have lived in family relationships as defined by national law.

b. However, states are free to determine the specific issues or cases covered by family mediation.

II. Organisation of mediation

a. Mediation should not, in principle, be compulsory.

b. States are free to organise and deliver mediation as they see fit, whether through the public or private sector.

c. Irrespective of how mediation is organised and delivered, States should see to it that there are appropriate mechanisms to ensure the existence of:

- procedures for the selection, training and qualification of mediators;

- standards to be achieved and maintained by mediators.

III. Process of mediation

States should ensure that there are appropriate mechanisms to enable the process of mediation to be conducted according to the following principles:

i. the mediator is impartial between the parties;

ii. the mediator is neutral as to the outcome of the mediation process;

iii. the mediator respects the point of view of the parties and preserves the equality of their bargaining positions;

iv. the mediator has no power to impose a solution on the parties;

v. the conditions in which family mediation takes place should guarantee privacy;

vi. discussions in mediation are confidential and may not be used subsequently, except with the agreement of the parties or in those cases allowed by national law;

vii. the mediator should, in appropriate cases, inform the parties of the possibility for them to use marriage counselling or other forms of counselling as a means of resolving their marital or family problems;

viii. the mediator should have a special concern for the welfare and best interests of the children, should encourage parents to focus on the needs of children and should remind parents of their prime responsibility relating to the welfare of their children and the need for them to inform and consult their children;

ix. the mediator should pay particular regard to whether violence has occurred in the past or may occur in the future between the parties and the effect this may have on the parties' bargaining positions, and should consider whether in these circumstances the mediation process is appropriate;

x. the mediator may give legal information but should not give legal advice. He or she should, in appropriate cases, inform the parties of the possibility for them to consult a lawyer or any other relevant professional person.

IV. The status of mediated agreements

States should facilitate the approval of mediated agreements by a judicial authority or other competent authority where parties request it, and provide mechanisms for enforcement of such approved agreements, according to national law.

 V. Relationship between mediation and proceedings before the judicial or other competent authority

a. States should recognise the autonomy of mediation and the possibility that mediation may take place before, during or after legal proceedings.

b. States should set up mechanisms which would:

i. enable legal proceedings to be interrupted for mediation to take place;

ii. ensure that in such a case the judicial or other competent authority retains the power to make urgent decisions in order to protect the parties or their children, or their property;

iii. inform the judicial or other competent authority whether or not the parties are continuing with mediation and whether the parties have reached an agreement.

VI. Promotion of and access to mediation

a. States should promote the development of family mediation, in particular through information programmes given to the public to enable better understanding about this way of resolving disputes in a consensual manner.

b. States are free to establish methods in individual cases to provide relevant information on mediation as an alternative process to resolve family disputes (for example, by making it compulsory for parties to meet with a mediator), and by this enable the parties to consider whether it is possible and appropriate to mediate the matters in dispute.

c. States should also endeavour to take the necessary measures to allow access to family mediation, including international mediation, in order to contribute to the development of this way of resolving family disputes in a consensual manner.

VII. Other means of resolving disputes

States may examine the desirability of applying, in an appropriate manner, the principles for mediation contained in this recommendation, to other means of resolving disputes.

VIII. International matters

a. States should consider setting up mechanisms for the use of mediation in cases with an international element when appropriate, especially in all matters relating to children, and particularly those concerning custody and access when the parents are living or expect to live in different States.

b. International mediation should be considered as an appropriate process in order to enable parents to organise or reorganise custody and access, or to resolve disputes arising following decisions having been made in relation to those matters. However, in the event of an improper removal or retention of the child, international mediation should not be used if it would delay the prompt return of the child.

c. All the principles outlined above are applicable to international mediation.

d. States should, as far as possible, promote co-operation between existing services dealing with family mediation with a view to facilitating the use of international mediation.

e. Taking into account the particular nature of international mediation, international mediators should be required to undergo specific training.

Recommendation No. R (99) 19

concerning mediation in penal matters

(Adopted by the Committee of Ministers on 15 September 1999

at the 679^th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Noting the developments in member States in the use of mediation in penal matters as a flexible, comprehensive, problem-solving, participatory option complementary or alternative to traditional criminal proceedings;

Considering the need to enhance active personal participation in criminal proceedings of the victim and the offender and others who may be affected as parties as well as the involvement of the community;

Recognising the legitimate interest of victims to have a stronger voice in dealing with the consequences of their victimisation, to communicate with the offender and to obtain apology and reparation;

Considering the importance of encouraging the offenders’ sense of responsibility and offering them practical opportunities to make amends, which may further their reintegration and rehabilitation;

Recognising that mediation may increase awareness of the important role of the individual and the community in preventing and handling crime and resolving its associated conflicts, thus encouraging more constructive and less repressive criminal justice outcomes;

Recognising that mediation requires specific skills and calls for codes of practice and accredited training;

Considering the potentially substantial contribution to be made by non-governmental organisations and local communities in the field of mediation in penal matters and the need to combine and to co-ordinate the efforts of public and private initiatives;

Having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Bearing in mind the European Convention on the Exercise of Children's Rights as well as Recommendations No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, No. R (87) 18 concerning the simplification of criminal justice, No. R (87) 21 on assistance to victims and the prevention of victimisation, No. R (87) 20 on social reactions to juvenile delinquency, No. R (88) 6 on social reactions to juvenile delinquency among young people coming from migrant families, No. R (92) 16 on the European Rules on community sanctions and measures, No. R (95) 12 on the management of criminal justice and No. R (98) 1 on family mediation; 

Recommends that the governments of member States consider the principles set out in the appendix to this Recommendation when developing mediation in penal matters, and give the widest possible circulation to this text.

Appendix to Recommendation No. R (99) 19

I.         Definition

            These guidelines apply to any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator).

II.       General principles

1.         Mediation in penal matters should only take place if the parties freely consent. The parties should be able to withdraw such consent at any time during the mediation.

2.         Discussions in mediation are confidential and may not be used subsequently, except with the agreement of the parties.

3.         Mediation in penal matters should be a generally available service.

4.         Mediation in penal matters should be available at all stages of the criminal justice process.

5.         Mediation services should be given sufficient autonomy within the criminal justice system.

III.     Legal basis

6.         Legislation should facilitate mediation in penal matters.

7.         There should be guidelines defining the use of mediation in penal matters. Such guidelines should in particular address the conditions for the referral of cases to the mediation service and the handling of cases following mediation.

8.         Fundamental procedural safeguards should be applied to mediation; in particular, the parties should have the right to legal assistance and, where necessary, to translation/interpretation.  Minors should, in addition, have the right to parental assistance.

IV.      The operation of criminal justice in relation to mediation

9.         A decision to refer a criminal case to mediation, as well as the assessment of the outcome of a mediation procedure, should be reserved to the criminal justice authorities.

10.       Before agreeing to mediation, the parties should be fully informed of their rights, the nature of the mediation process and the possible consequences of their decision.

11.        Neither the victim nor the offender should be induced by unfair means to accept mediation.

12.       Special regulations and legal safeguards governing minors' participation in legal proceedings should also be applied to their participation in mediation in penal matters. 

13.       Mediation should not proceed if any of the main parties involved is not capable of understanding the meaning of the process.

14.       The basic facts of a case should normally be acknowledged by both parties as a basis for mediation. Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings.

15.       Obvious disparities with respect to factors such as the parties' age, maturity or  intellectual capacity should be taken into consideration before a case is referred to mediation.

16.       A decision to refer a criminal case to mediation should be accompanied by a reasonable time-limit within which the competent criminal justice authorities should be informed of the state of the mediation procedure.

17.       Discharges based on mediated agreements should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts (ne bis in idem).

18.       When a case is referred back to the criminal justice authorities without an agreement between the parties or after failure to implement such an agreement, the decision as to how to proceed should be taken without delay.

V.        The operation of mediation services

V.1.      Standards

 

19.       Mediation services should be governed by recognised standards. 

20.       Mediation services should have sufficient autonomy in performing their duties. Standards of competence and ethical rules, as well as procedures for the selection, training and assessment of mediators should be developed.

21.       Mediation services should be monitored by a competent body.

V.2.     Qualifications and training of mediators

22.       Mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities.

23.       Mediators should be able to demonstrate sound judgment and interpersonal skills necessary to mediation.

24.       Mediators should receive initial training before taking up mediation duties as well as in-service training. Their training should aim at providing for a high level of competence, taking into account conflict resolution skills, the specific requirements of working with victims and offenders and basic knowledge of the criminal justice system.

V.3.     Handling of individual cases

25.       Before mediation starts, the mediator should be informed of all relevant facts of the case and be provided with the necessary documents by the competent criminal justice authorities. 

26.       Mediation should be performed in an impartial manner, based on the facts of the case and on the needs and wishes of the parties. The mediator should always respect the dignity of the parties and ensure that the parties act with respect towards each other.

27.       The mediator should be responsible for providing a safe and comfortable environment for the mediation.  The mediator should be sensitive to the vulnerability of the parties.

28.       Mediation should be carried out efficiently, but at a pace that is manageable for the parties.

29.       Mediation should be performed in camera.

30.       Notwithstanding the principle of confidentiality, the mediator should convey any information about imminent serious crimes, which may come to light in the course of mediation, to the appropriate authorities or to the persons concerned.

V.4.     Outcome of mediation

31.       Agreements should be arrived at voluntarily by the parties. They should contain only reasonable and proportionate obligations.

32.       The mediator should report to the criminal justice authorities on the steps taken and on the outcome of the mediation. The mediator's report should not reveal the contents of mediation sessions, nor express any judgment on the parties' behaviour during mediation.

VI.       Continuing development of mediation

33.       There should be regular consultation between criminal justice authorities and mediation services to develop common understanding.

34.       Member States should promote research on, and evaluation of, mediation in penal matters.

Recommendation Rec(2001)9

on alternatives to litigation

between administrative authorities and private parties

(Adopted by the Committee of Ministers on 5 September 2001

at the 762^nd meeting of the Ministers’ Deputies)

1.          The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

2.         Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

3.         Recalling Recommendation No. R (81) 7 on measures facilitating access to justice, which in its appendix called for measures to encourage the use of conciliation and mediation;

4.         Recalling Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts, which calls for encouraging, in appropriate cases, the use of friendly settlement of disputes, either outside the judicial system altogether or before or during legal proceedings;

5.         Considering, on the one hand, that the large amount of cases and, in certain states, its constant increase can impair the ability of courts competent for administrative cases to hear cases in a reasonable time, within the meaning of Article 6.1 of the European Convention on Human Rights;

6.         Considering, on the other hand, that the courts' procedures in practice may not always be the most appropriate to resolve administrative disputes;

7.         Considering that the widespread use of alternative means of resolving administrative disputes can allow these problems to be dealt with and can bring administrative authorities closer to the public;

8.         Considering that the principal advantages of alternative means of resolving administrative disputes may be, depending on the case, simpler and more flexible procedures, allowing for a speedier and less expensive resolution, friendly settlement, expert dispute resolution, resolving of disputes according to equitable principles and not just according to strict legal rules, and greater discretion;

9.         Considering, therefore, that in appropriate cases it should be possible to resolve administrative disputes by means other than the use of courts;

10.       Considering that the use of alternative means should not serve administrative authorities or private parties as a means of avoiding their obligations or the rule of law;

11.        Considering that, in all cases, alternative means should allow judicial review, as this constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration;

12.        Considering that alternative means to litigation must respect the principles of equality and impartiality and the rights of the parties;

13.        Recommends that the governments of member states promote the use of alternative means for resolving disputes between administrative authorities and private parties by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.

Appendix to Recommendation Rec(2001)9

I.          General provisions

1.          Subject of the recommendation

i.          This recommendation deals with alternative means for resolving disputes between administrative authorities and private parties.

ii.         This recommendation deals with the following alternative means: internal reviews, conciliation, mediation, negotiated settlement and arbitration.

iii.        Although the recommendation deals with resolving disputes between administrative authorities and private parties, some alternative means may also serve to prevent disputes before they arise; this is particularly the case in respect of conciliation, mediation and negotiated settlement.

2.         Scope of alternative means

i.          Alternative means to litigation should be either generally permitted or permitted in certain types of cases deemed appropriate, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money.

3.         Regulating alternative means

i.          The regulation of alternative means should provide either for their institutionalisation or their use on a case-by-case basis, according to the decision of the parties involved.

ii.         The regulation of alternative means should:

a.         ensure that parties receive appropriate information about the possible use of alternative means;

b.         ensure the independence and impartiality of conciliators, mediators and arbitrators;

c.         guarantee fair proceedings allowing in particular for the respect of the rights of the parties and the principle of equality;

d.         guarantee, as far as possible, transparency in the use of alternative means and a certain level of discretion;

e.         ensure the execution of the solutions reached using alternative means.

iii.        The regulation should promote the conclusion of alternative procedures within a reasonable time by setting time-limits or otherwise.

iv.        The regulation may provide that the use of some alternative means to litigation will in certain cases result in the suspension of the execution of an act, either automatically or following a decision by the competent authority.

II.        Relationship with courts

i.          Some alternative means, such as internal reviews, conciliation, mediation and the search for a negotiated settlement, may be used prior to legal proceedings. The use of these means could be made compulsory as a prerequisite to the commencement of legal proceedings.

ii.         Some alternative means, such as conciliation, mediation and negotiated settlement, may be used during legal proceedings, possibly following a recommendation by the judge.

iii.        The use of arbitration should, in principle, exclude legal proceedings.

iv.        In all cases, the use of alternative means should allow for appropriate judicial review which constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration.

v.         Judicial review will depend upon the alternative means chosen. Depending on the case, the types and extent of this review will cover the procedure, in particular the respect for the principles stated under section I.3.ii.a, b, c, and d, and/or the merits.

vi.        In principle and subject to the law, the use of alternative means should result in the suspension or interruption of the time-limits for legal proceedings.

III.       Special features of each alternative means

1.          Internal reviews

i.          In principle, internal reviews should be possible in relation to any act. They may concern the expediency and/or legality of an administrative act.

ii.         Internal reviews may, in some cases, be compulsory, as a prerequisite to legal proceedings.

iii.        Internal reviews should be examined and decided upon by the competent authorities.

2.         Conciliation and mediation

i.          Conciliation and mediation can be initiated by the parties concerned, by a judge or be made compulsory by law.

ii.         Conciliators and mediators should arrange meetings with each party individually or simultaneously in order to reach a solution.

iii.        Conciliators and mediators can invite an administrative authority to repeal, withdraw or modify an act on grounds of expediency or legality.

3.         Negotiated Settlement

i.          Unless otherwise provided by law, administrative authorities shall not use a negotiated settlement to disregard their obligations.

ii.         In accordance with the law, public officials participating in a procedure aimed at reaching a negotiated settlement shall be provided with sufficient powers to be able to compromise.

4.         Arbitration

i.          The parties should be able to choose the law and procedure for the arbitration within the limits prescribed by law. Subject to the law and the wishes of the parties, the arbitrators’ decisions can be based upon equitable principles.

ii.         Arbitrators should be able to review the legality of an act as a preliminary issue with a view to reaching a decision on the merits even if they are not authorised to rule on the legality of an act with a view to it being quashed.

Recommendation Rec (2002) 10 on mediation in civil matters

(adopted by the Committee of Ministers on 18 September 2002,
at the 808^th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Welcoming the development of means of resolving disputes alternative to judicial decisions and agreeing on the desirability of rules providing guarantees when using such means;

Underlining the need to make continuous efforts to improve the methods of resolving disputes, while taking into account the special features of each jurisdiction;

Convinced of the advantages of providing specific rules for mediation, a process where a “mediator” assists the parties to negotiate over the issues in dispute and reach their own joint agreement;

Recognising the advantages of mediation in civil matters in appropriate cases;

Conscious of the necessity to organise mediation in other branches of the law;

Having in mind Recommendation No. R(98)1 on family mediation, Recommendation No. R(99)19 on mediation in penal matters and Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties, as well as the results of other activities and research carried out by the Council of Europe and at a national level;

Having regard more particularly to Resolution No. 1 on “Delivering justice in the 21^st century” adopted by the European Ministers of Justice at their 23^rd Conference in London on 8-9 June 2000 and in particular to the invitation addressed by the European Ministers of Justice to the Committee of Ministers of the Council of Europe to draw up, in co-operation in particular with the European Union, a programme of work aimed at encouraging the use, where appropriate, of extra-judicial dispute resolution procedures;

Aware of the important role of courts in promoting mediation;

Noting that, although mediation may help to reduce conflicts and the workload of courts, it cannot be a substitute for an efficient, fair and easily accessible judicial system;

A. Recommends the governments of member States:

i. to facilitate mediation in civil matters whenever appropriate;

ii. to take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the “Guiding Principles concerning mediation in civil matters” set out below.

Guiding Principles concerning mediation in civil matters

I. Definition of mediation

1. For the purposes of this Recommendation, “mediation” refers to a dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators.

II. Scope of application

2. This Recommendation applies to civil matters. For the purpose of this Recommendation, the term “civil matters” refers to matters involving civil rights and obligations including matters of a commercial, consumer and labour law nature, but excluding administrative or penal matters. This Recommendation is without prejudice to the provisions of Recommendation No. R(98)1 on family mediation.

III. Organisation of mediation

3. States are free to organise and set up mediation in civil matters in the most appropriate way, either through the public or the private sector.

4. Mediation may take place within or outside court procedures.

5. Even if parties make use of mediation, access to the court should be available as it constitutes the ultimate guarantee for the protection of the rights of the parties.

6. When organising mediation, States should strike a balance between the needs for and the effects of limitation periods and the promotion of speedy and easily accessible mediation procedures.

7. When organising mediation, States should pay attention to the need to avoid (i) unnecessary delay and (ii) the use of mediation as a delaying tactic.

8. Mediation may be particularly useful where judicial procedures alone are less appropriate for the parties, especially owing to the costs, the formal nature of judicial procedures, or where there is a need to maintain dialogue or contacts between the parties.

9. States should take into consideration the opportunity of setting up and providing wholly or partly free mediation or providing legal aid for mediation in particular if the interests of one of the parties require special protection.

10. Where mediation gives rise to costs, they should be reasonable and proportionate to the importance of the issue at stake and to the amount of work carried out by the mediator.

IV. Mediation process

11. States should consider the extent, if any, to which agreements to submit a dispute to mediation may restrict the parties’ rights of action.

12. Mediators should act independently and impartially and should ensure that the principle of equality of arms be respected during the mediation process. The mediator has no power to impose a solution on the parties.

13. Information on the mediation process is confidential and may not be used subsequently, unless agreed by the parties or allowed by national law.

14. Mediation processes should ensure that the parties be given sufficient time to consider the issues at stake and any other possible settlement of the dispute.

V. Training and responsibility of mediators

15. States should consider taking measures to promote the adoption of appropriate standards for the selection, responsibilities, training and qualification of mediators, including mediators dealing with international issues.

VI. Agreements reached in mediation

16. In order to define the subject-matter, the scope and the conclusions of the agreement, a written document should usually be drawn up at the end of every mediation procedure, and the parties should be allowed a limited time for reflection, which is agreed by the parties, after the document has been drawn up and before signing it.

17. Mediators should inform the parties of the effect of agreements reached and of the steps which have to be taken if one or both parties wish to enforce their agreement. Such agreements should not run counter to public order.

VII. Information on mediation

18. States should provide the public and the persons with civil disputes with general information on mediation.

19. States should collect and distribute detailed information on mediation in civil matters including, inter alia, the costs and efficiency of mediation.

20. Steps should be taken to set up, in accordance with national law and practice, a network of regional and/or local centres where individuals can obtain impartial advice and information on mediation, including by telephone, correspondence or e-mail.

21. States should provide information on mediation in civil matters to professionals involved in the functioning of justice.

VIII. International aspects

22. States should encourage the setting up of mechanisms to promote the use of mediation to resolve issues with an international element.

23. States should promote co-operation between existing services dealing with mediation in civil matters with a view to facilitating the use of international mediation.

B. Instructs the Secretary General of the Council of Europe to transmit this Recommendation to the competent authorities of the European Union, with a view to:

- promoting co-operation between the Council of Europe and the European Union in any follow-up to this Recommendation and, in particular, to disseminate information on the laws and procedures in States on the matters mentioned in this Recommendation through an Internet web site;

and
- encouraging the European Union, when preparing rules at the European Community level, to draw up provisions aiming at supplementing or strengthening the provisions of this Recommendation or facilitating the application of the principles embodied in it.