14 June  2019

CEPEJ(2019)9

European Commission for the Efficiency of Justice

(CEPEJ)

European Handbook for Mediation Lawmaking

As adopted at the 32th plenary meeting of the CEPEJ

Strasbourg, 13 and 14 June 2019


List of Abbreviations

ADR

Alternative dispute resolution

CEPEJ

The European Commission for the Efficiency of Justice

CJEU

The Court of Justice of European Union

Guidelines on Mediation (altogether or specifically: Penal / Family & Civil / Administrative)

Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters CEPEJ(2007)13 (Penal);

Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters CEPEJ(2007)14 (Family & Civil);

Guidelines for a better implementation of the existing recommendation on alternatives to litigation between administrative authorities and private parties CEPEJ(2007)15 (Administrative)

ECHR

The European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950

EU

The European Union

Mediation Directive

European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008

Recommendation concerning restorative justice

Council of Europe Committee of Ministers, Recommendation CM/Rec(2018)8 concerning restorative justice in criminal matters

Recommendations on Mediation

(altogether or specifically: Penal / Family / Civil / Administrative)

Council of Europe Committee of Ministers, Recommendation (98) 1 on family mediation; (Family)

Council of Europe Committee of Ministers, Recommendation (99) 19 concerning mediation in penal matters; (Penal)

Council of Europe Committee of Ministers, Recommendation (2001) 9 on alternatives to litigation between administrative authorities and private parties; (Administrative)

Council of Europe Committee of Ministers, Recommendation (2002) 10 on mediation in civil matters (Civil)

Singapore Mediation Convention

United Nations Convention on International Settlement Agreements Resulting from Mediation, yet to be signed

UNCITRAL

The United Nations Commission on International Trade Law

UNCITRAL Model Law (2018)

UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002),

UNCITRAL Model Law (2002)

UNCITRAL Model Law on International Commercial Conciliation, 2002


Table of Contents

List of Abbreviations. 2

Preface. 5

Introduction. 6

Recommendations on drafting the law on mediation. 8

1.    Scope. 9

2.    Definitions. 9

3.    Mediator. 10

3.1.    Requirements for mediators. 10

3.2.    Obligations, permissions, liability. 14

3.3.    Mediation providers. 17

3.4.    Other legal professions. 18

4.    Initiation of mediation. 19

4.1.    Voluntary basis. 19

4.2.    Mandatory basis. 20

5.    Mediation process. 22

5.1.    Before mediation. 22

5.2.    Commencement. 23

5.3.    During mediation. 24

5.4.    Procedural guarantees. 24

5.5.    Termination. 28

6.    Mediation settlement. 29

6.1.    Form and content. 29

6.2.    Enforcement. 30

7.    Means to incentivise. 31

7.1.    Obligation to inform. 31

7.2.    Monetary incentives. 32

8.    Information on mediation. 34

8.1.    Dissemination and promotion. 34

8.2.    Statistical data. 34

9.    Transitional provisions. 35

Explanatory note. 37

1.    Scope. 37

1.1.    Out of court and court-related mediation. 37

1.2.    Mediation in international disputes. 39

1.3.    Different fields of law.. 41

2.    Definitions. 44

3.    Mediator. 46

3.1.    Requirements for mediators. 46

3.2.    Obligations, permissions, liability. 49

3.3.    Mediation providers. 51

3.4.    Other legal professions. 52

4.    Initiation of mediation. 53

4.1.    Voluntary basis. 54

4.2.    Mandatory basis. 55

5.    Mediation process. 58

5.1.    Before mediation. 58

5.2.    Commencement. 60

5.3.    During mediation. 61

5.4.    Procedural guarantees. 63

5.5.    Termination. 68

6.    Mediation settlement. 69

6.1.    Form and content. 69

6.2.    Enforcement. 70

7.    Means to incentivise. 71

7.1.    Obligation to inform. 71

7.2.    Monetary incentives. 73

8.    Information on mediation. 76

8.1.    Dissemination and promotion. 76

8.2.    Statistical data. 77

9.    Transitional provisions. 78

Checklist. 81

Bibliography. 87


Preface

          In December 2016, the Working Group on Mediation[1] (CEPEJ-GT-MED) was authorised to start its second mandate. Among other tasks, the CEPEJ has assigned CEPEJ-GT-MED to draft further tools in a set of various documents named Mediation Development Toolkit[2] aimed at ensuring effective implementation of Recommendations and Guidelines on mediation.

          While implementing its mandate, the working group developed the Road Map of the CEPEJ-GT-MED, based on its report on “The Impact of CEPEJ Guidelines on Civil, Family, Penal and Administrative Mediation”, prepared by Mr. Leonardo D’Urso, scientific expert of the working group. The CEPEJ adopted the document in June 2018. The need for a new legal framework to develop the effective recourse to mediation in civil, family, penal, and administrative matters was identified as one of the main conclusions drawn up in the Road Map. It was therefore recommended for CEPEJ and CEPEJ-GT-MED to develop Guidelines for the preparation of legal framework that could be taken as a methodological and reference basis for future legislative reforms and could include recommendations to improve the effectiveness of existing national legislations on mediation. For this reason, during the CEPEJ-GT-MED meeting in November 2018, Ms. Miglė Žukauskaitė was appointed as a scientific expert of the working group and assigned with a task to develop the Handbook for Mediation Lawmaking. Several members of the working group, namely, Mr. Rimantas Simaitis, Ms. Nina Betetto, and Mr. Leonardo d’Urso have volunteered to contribute to the text with their suggestions and expertise during the preparation of the document.

          National legislations of 18 countries were at the disposal of CEPEJ-GT-MED and formed the scope of the research conducted to prepare the Handbook. The set of these 18 countries goes as follows: Austria, Azerbaijan, Belgium, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Ireland, Italy, Lithuania, Poland, Serbia, Slovenia, Spain, Switzerland, Turkey. However, it has to be noted, that in the majority of cases, only the main laws on mediation or only the relevant extracts of the codes where provided. Thus, a possibility exists[3] that certain aspects of mediation are regulated in other national laws or executive acts and, consequentially, were not included in the research.

          Finally, it should be noted that the translations proposed here are not official and are presented for methodological purposes.

         


Introduction

          The Handbook outlines the good practices used by the member states of the Council of Europe and demonstrates how the provisions of the Recommendations on mediation, the Guidelines on mediation and other practical tools of the Mediation Development Toolkit can be efficiently implemented in practice. In the light of the document prepared, national legislators are encouraged to introduce laws on mediation or amend the existing regulation to meet the international standards and to ensure the high quality of mediation in their respective countries. While a systematic approach towards recommendations is encouraged, drafters shall take into account three preconditions before using the Handbook. First, national legal systems are not homogeneous; hence, there is no ‘one-fits-all’ solution. Therefore, careful evaluation of the national legal environment and, most importantly, mandatory law is crucial. Second, the Handbook is a set of recommendations rather than a coherent model law. Thus, while regulation shall remain consistent, drafters are free to choose recommendations that suit national needs and leave out those, that do not go in accordance with the respective legal system. Third, proper regulation of certain aspects of mediation can ensure better quality; however, overregulation shall also be avoided as it might hinder the natural development of the mediation process. It is encouraged to allow mediators and parties to shape the process themselves and suggest regulatory solutions only in the absence of the agreement by the parties or where such measures are adequate, proportionate, and reasonable.

          The Handbook is divided into two parts. The first one contains recommendations on the drafting of the law on mediation, reflecting the good practices on mediation in the 18 countries under the scope of this research and developments of international standards. Each recommendation is accompanied by a real-life example – an extract of the legislation of one of these 18 countries or an international document. These examples shall help illustrate how recommendations could be implemented in practice. However, the extracts remained authentic and were not amended to fit the recommendation in question better[4]. As a result, in some cases, multiple examples are provided to illustrate the recommendation better, while in others an extract from national legislation might not reflect the recommendation in its entirety. Therefore, recommendations shall remain the primary and more comprehensive source of guidance, rather than the examples that follow.

          The Explanatory note (the second part of the Handbook) provides a comparative analysis of the national legislation on mediation, including a detailed explanation of the practical meaning and importance of certain provisions and recommendations. The chapters of the second part mirror those of the first part of the document; hence, the users of the Handbook are encouraged to consult the Explanatory note after reading each set of recommendations for more information on the practice applied in other countries and for the detailed reasoning behind the suggestions made in the first part. The Explanatory note also includes references to the various documents adopted by the CEPEJ in the framework of Mediation Development toolkit and to the provisions of international documents, such as the Singapore Mediation Convention, UNCITRAL Model Law (2018) and the Mediation Directive. References are also made to relevant decisions of the CJEU, as well as aspects of mediation in countries which did not form the direct basis of this research. Naturally, both parts of the Handbook shall be read and applied in the light of the Recommendations and Guidelines on mediation.

         

Content of the document consists of the chapters outlined below. Drafters of the national law on mediation can either follow the structure provided or rearrange it according to national drafting standards, addressing the recommendations provided below.

I. Scope

The chapter provides recommendations on the consolidated form of the legal act and explains the practical importance of leaving the scope of the law relatively broad.

II. Definitions

The chapter provides examples of terminology harmonized with the CEPEJ standards in the field of mediation needed to avoid possible multiple interpretations.

III. Mediator

The chapter concerning mediators consists of the basic requirement for individuals willing to become mediators, the requirements for mediation training providers and the training itself, as well as legal entities acting as mediation providers. The main goals of this chapter are to ensure the high quality of mediations and to introduce a systematic approach towards the profession of mediators.

IV. Initiation of mediation

The chapter defines the possible voluntary and mandatory means of recourse to mediation, including mediation ordered by a judge and a mandatory first mediation session as a condition precedent to legal proceedings.

V. Mediation process

The chapter provides a systematic approach in line with the CEPEJ, EU, and UNICITRAL standards towards the procedural aspects of mediation, including preparation, commencement, and termination of mediation, as well as procedural guarantees and other aspects of the process. 

VI. Mediation settlement

The chapter covers the requirements for mediation settlements and recommendations on the enforcement of such agreements to comply with the standards of the CEPEJ, EU, and UNICITRAL.

VII. Means to incentivise

The chapter describes models of economic incentives for parties to attempt mediation and possible sanctions for not acting in good faith during the mediation process. It also emphasises the importance of the role of judges, lawyers, and other officials.

VIII. Information on mediation

The chapter defines the possible means and benefits of the dissemination of information on mediation, as well as the importance of gathering statistical data on mediation.

IX. Transitional provisions

The chapter explains the possibilities of a step-by-step approach towards implementation of new legislation on mediation, including the temporary experimental application of certain provisions and pilot projects.


Recommendations on drafting the law on mediation

In order to promote a high degree of harmonization among domestic laws on mediation, it is highly recommended that any new law or amendments of an existing law comply with:

1.         Council of Europe Committee of Ministers, Recommendation (98) 1 on family mediation;

2.         Council of Europe Committee of Ministers, Recommendation (2001) 9 on alternatives to litigation between administrative authorities and private parties;

3.         Council of Europe Committee of Ministers, Recommendation (2002) 10 on mediation in civil matters;

4.         Council of Europe Committee of Ministers, Recommendation CM/Rec(2018) 8 concerning restorative justice in criminal matters;

5.         the 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;

6.         the Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR);

7.         the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002).

Further, the drafter(s) should take in consideration:

1.         the Mediation Development Toolkit and all the tools developed by the Working Group on Mediation of the CEPEJ at the Council of Europe;

2.         CEPEJ, Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters CEPEJ(2007)13;

3.         CEPEJ, Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters CEPEJ(2007)14;

4.         CEPEJ, Guidelines for a better implementation of the existing recommendation on alternatives to litigation between administrative authorities and private parties CEPEJ(2007)15;

5.         The Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation, 2012. Available at: https://assets.hcch.net/upload/guide28mediation_en.pdf.

6.         United Nations Convention on International Settlement Agreements Resulting from Mediation, yet to be signed, Singapore. Available at: http://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf;

7.         a careful assessment of the concrete results of any existing law on mediation in the given jurisdiction.


1.     Scope

a)     Allow the application of mediation to disputes where a settlement is legally possible under the national law, avoid artificial restrictions on the scope of use of mediation.

b)    Explicitly include under the scope of the law mediations conducted in international disputes.

c)     Consolidate main principles of mediation into one law to incorporate mediation conducted in disputes emerging from different fields of law (e.g., civil, family, labour, administrative and criminal disputes) as well as out of court and court-related mediation. Make exceptions or references to other legal acts in the text where it is necessary to take into account the peculiarities of mediation in different types of disputes or specific procedures.

d)    Define if legal bodies, governed by public law, can act as parties at a dispute in mediation, especially, in the light of mediation in administrative matters.

e)     Do not exclude disputes of sensitive nature (such as family mediation in cases of domestic violence or victim-offender mediation) in their entirety. Introduce safeguards instead (via duties of a mediator or criteria based on which a judge can recommend or order parties to try mediation) to protect the weaker party.

Examples:

1.    This act governs the requirements for mediation in civil disputes, functions of the authorities operating in the field of mediation, requirements to persons willing to provide mediation services, the procedure of the mediation, modalities of the court-related mediation, mediator’s disciplinary liability.

2.    The provisions of this act shall apply to out of court and court-related mediation, except as regards disputes emerging from rights and obligations settlement of which would be void under the national law. This act shall not apply to attempts made by the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question.

3.    The types of mediation are out of court mediation and court-related mediation. The provisions of this act regulating mediation shall apply to both out of court mediation and court-related mediation, unless this act states otherwise. The provisions of this act regulating the activities of a mediator shall also apply to judges acting as mediators, unless this act states otherwise.

4.    This act shall apply to mediation of national and international disputes.

5.    This act implements the legislation of the European Union, specified in the annex of this act.

6.    Other legal acts governing the resolution of civil disputes can establish peculiarities concerning different types of disputes[5]

Mediation shall apply in disputed relations which the parties may freely dispose of their claims, unless another law prescribes exclusive jurisdiction of a court or another authority, regardless of whether mediation is carried out before or after the initiation of judicial or other proceedings.

Mediation is possible especially in property-related disputes, the subject of which is the fulfilment of the obligation to act, in other property disputes, in family, commercial disputes, administrative matters, disputes relating to environmental protection issues, consumer disputes, as well as in all other disputes in which mediation is appropriate to the nature of the contentious relations and can aid in their resolution.

The provisions of this act shall also apply to mediation in criminal and misdemeanour matters with regard to property claims and claims for damages, as well as in labour disputes unless otherwise provided by a special law.

The provisions of this act shall not apply to dispute resolution pertaining to valuation and collection of public revenue[6]

2.     Definitions

a)     Provide definitions for (at least) the terms ‘mediation’ and ‘mediator’. Consider including definitions for ‘mediation provider’, ‘agreement to mediate’ (for the initial contract before mediation), ‘mediation settlement’ (for the final contract resulting from the process), ‘parties’ and ‘participants’.

b)    Include in the definition of mediation: confidential; structured process; aimed at an amicable resolution of a dispute; two or more parties to a dispute; assistance by one or several mediators – neutral third party.

c)     Include in the definition of a mediator: independent, neutral third party; conducts mediation; without decision making power.

d)    Do not include in the definition of a mediator or mediation: prohibition for a mediator to make proposals to the parties during mediation.

Examples:

M[ediation] - structured and confidential process in which an impartial third person, known as a mediator, assists the parties by facilitating the communication between them for the purpose of resolving issues in dispute[7].

A mediator is an independent and impartial person without any decision-making power who guides the parties through the mediation [8].

“Mediation Provider” means any public or private entity (including court-related mediation schemes) which manages or administers a mediation process conducted by a third-party neutral mediator of whatever denomination or profession, (hereafter “mediator”) who provides service under its auspices in assisting parties to amicably resolve their dispute[9].

[c]ontract on the performance of mediation [agreement to mediate] as a written contract between the Parties of the Conflict and at least one Mediator on the performance of mediation[10].

[S]ettlement agreement [mediation settlement] – written agreement concluded between parties as a result of mediation process[11].

“[P]arties” means natural persons or legal entities who use mediation[12].

[O]ther parties that engage in mediation – lawyers, representatives, translators, experts and specialists, employees of mediation organization and others engaged in on the basis of parties’ mutual consent[13].

3.     Mediator

3.1.   Requirements for mediators

3.1.1. List

a)     Establish a list/register of mediators run by a public authority or a professional association.

Example:

The Register [of mediators] is a public administration information system which is administered by the Ministry.

Only a person registered in the Register shall be authorised to provide the services of a Mediator if his authorisation to perform the activities of Mediator have not been suspended, unless this Act states otherwise[14].

b)    Designate an examination (both practical and theoretical) for potential candidates willing to enter the list.

Example:

1. Persons, willing to be included on the List of Mediators of the Republic of Lithuania have to meet the following requirements: <…> 3) pass an aptitude test for mediators <…>;

<…> 3. During the aptitude test for mediators, persons, who are willing to enter the List of Mediators of the Republic of Lithuania, are scrutinized under the light of their ability to provide mediation services; their ability to apply theoretical knowledge and skills in practice; as well as their knowledge on professional ethics <…>[15].

c)     Discourage/forbid practicing mediation unless on the list.

Example:

In so far as the deed does not amount to an offence of a criminal nature, which falls within the jurisdiction of the courts, a breach of administration is committed, and is to be punished with a fine of up to EUR 3,500,

1.    in the case where a person refers to himself as a registered mediator or uses a similar title which may confuse <…>[16].

d)    Establish a disciplinary body within a public authority or professional association in charge that has a power to suspend/remove mediators from the list if they no longer meet established criteria.

Example:

<…> The Ministry shall decide to strike a Mediator off the Register if

a) the Mediator whose authorisation to perform the activities of Mediator was suspended under Section 21 (1) a), shall not submit an application for the renewal of authorisation within 5 years since the suspension of authorisation to perform the activities of Mediator, b) the Mediator submits to the Ministry an application for being struck off the Register; the Mediator shall be struck off the Register on the last day of the calendar month following the month in which the application was delivered, c) the visiting Mediator had his authorisation taken away by the other member state to perform the activities comparable with the activities of a Mediator; the visiting Mediator shall be struck off the Register as of the day that this decision comes into force, or, or d) he was registered in the Register, although he did not meet some of the conditions for registration in the Register. <…> The Ministry shall decide about striking a Mediator off the Register if the Mediator has seriously or repeatedly breached the obligations of Mediator laid down by this Act despite receiving written warnings from the Ministry[17].

3.1.2. Requirements

a)     Establish basic criteria for candidates willing to become mediators, including age/education, good repute/no criminal record.

Example:

Any person who meets the following criteria may be listed:

-      has the capacity to contract;

-      has not been convicted res iudicata of a deliberate criminal offence being prosecuted ex officio;

-      has at least the first level of post-secondary education;

-      has had mediation training according to the programme determined by the Minister of Justice <…>[18].

b)    Establish an obligation for mediators to adhere to a code of conduct.

Example:

The Ministry of Justice and the competent public administrations, in cooperation with the mediation institutions, shall encourage and require the appropriate initial and continuous training of mediators, the development of voluntary codes of conduct, as well as the accession of mediators and mediation institutions to such codes[19].

c)     Use a reference to the European Code of Conduct for Mediators as a minimum standard[20].

Example:

A mediator has to adhere to the European Code of Conduct for Mediators[21].

3.1.3. Training

a)     Require adequate basic and specific training for mediators as a precondition of entering the list. Set the training requirements for judges, lawyers, notaries, police, prosecutors and other professionals willing to become mediators, taking into consideration background, the initial level of knowledge and practical expertise of the trainees (if different from general requirements).

Example:

Training for mediators is an organised acquisition and development of practical knowledge and skills necessary for independent, efficient and successful performance of mediation tasks. Training for mediators may be basic and specialised. Completed basic training is a requirement for obtaining the status of mediator. Specialised training is organised for particular areas of types of disputes[22].

b)    Establish a system of accreditation and monitoring of national mediation training institutions.

Example:

The training programme referred to in Article 44 herein shall be implemented by state authorities, other authorities and organisations, and legal persons, based on Ministry's approval. The conditions and procedure for giving the approval to in paragraph 1 of this Article, as well as monitoring of the implementation of the training shall be more closely regulated by an act of the Minister. The Ministry shall keep records of issued approvals referred to in paragraph 1 of this Article[23].

c)     Require practical and theoretical parts to be included in the training and clearly define minimal requirements for the topics that shall be included in the course. Use a reference to the Basic Mediator Training Curriculum[24] as a minimum standard.

Example:

(1) The Federal Minister of Justice shall by Regulation stipulate the specific conditions for the training of mediators after consultation with the Advisory Council for Mediation. In the Regulation the training requirements may be differently defined dependant on the areas of professional expertise.

(2) The theoretical part, divided into specific training areas, shall contain 200–300 training units, the practical part shall contain 100–200 training units.

1. The theoretical part:

a) An introduction to the history of problems and the development of mediation including their basic assumption and models;

b) Procedural development, methods and phases of mediation with special regard to dispute-oriented and solution-oriented approaches;

c) Basis of communication, in particular of communication-, problem- and negotiation techniques, the conduct of meetings and moderation with special regard to conflict situations;

d) Conflict analysis;

e) Practice areas of mediation;

f) Theories of personality and psycho-social forms of intervention;

g) Ethical problems in mediation, in particular the position of the mediator;

h) Legal problems in mediation, in particular relating to civil law, as well as

legal problems in conflicts which are to be particularly considered for a mediation;

2. The practical part:

a) Individual self-awareness and practical experience seminars to practise techniques of mediation through the use of role play, simulation and reflection;

b) Peer group work;

c) Case work and participation in practice supervision in the area of mediation.

(3) The training necessary for a professional group and the practical experience which has been acquired by its exercise shall be considered appropriately (article 10)[25].

d)    Foresee continuous professional development and a certain number of mediations conducted as a mandatory condition to stay on the list.

Example:

A person who – (a) is registered in the Register of Mediators <…> must continue his training in mediation matters, attending at least twenty-four (24) hours of education every three (3) years from the date of his registration to the Register of Mediators, and submit a relevant certification to the Minister <…>[26].

e)     Establish a system for recognition of training or qualifications received abroad.

Example:
The minister shall register a natural person in the Register upon application that:

<…>

has passed a Mediator’s examination or his/her qualification has been recognised according to a different legal regulation2 <…>

2 Act No. 18/2004 Coll. on the recognition of professional qualifications and other qualifications of the state members of the European Union member states and some members of other states, and of the change to some laws (Act on the Recognition of a Professional Qualification), as amended. [27]

f)     Consider including mediation related training in universities’ curriculum in certain fields, such as law, psychology, and others.

3.2.   Obligations, permissions, liability

3.2.1. Obligations

a)     Oblige mediators to adhere to the standards of independence, neutrality, and impartiality.

Example:

The Commission mentioned in Article 1727 may certify mediators who satisfy at least the following conditions:

<…>

3° present guarantees of independence, neutrality and impartiality necessary for exercise of the profession of certified mediator[28];

b)    Oblige mediators to adhere to the rule of confidentiality, with well-defined exceptions.

Example:

The mediator and the persons involved in conducting the mediation process shall be subject to a duty of confidentiality unless otherwise provided by law. This duty shall relate to all information of which they have become aware in the course of performing their activity. Notwithstanding other legal provisions regarding the duty of confidentiality, this duty shall not apply where

1. disclosure of the content of the agreement reached in the mediation process is necessary in order to implement or enforce that agreement,

2. disclosure is necessary for overriding considerations of public policy (ordre public), in particular when required to avert a risk posed to a child’s well-being or to prevent serious harm to the physical or mental integrity of a person, or

3. facts are concerned that are common knowledge or that are not sufficiently significant to warrant confidential treatment.

The mediator shall inform the parties about the extent of his duty of confidentiality[29].

c)     Oblige mediators to disclose any concerns that might affect independence and impartiality and discontinue mediation if they remain.

Example:

The mediator shall disclose all circumstances to the parties which could impede his independence or impartiality. If such circumstances exist, he shall be permitted to act as a mediator only if the parties explicitly agree thereto[30].

d)    Oblige mediators to provide parties with all the necessary information about mediator’s professional background, mediation process, parties’ rights and obligations’, and legal effect of possible outcome scenarios.

Example:

Before initiating mediation the Mediator shall instruct the parties of the conflict of his position during mediation, of the purpose and principles of mediation, of the effects of the contract on the performance of mediation (mediation contract[31]) and the mediation agreement, of the possibility to end the mediation at any time, of the fee of the Mediator for performing mediation and of the mediation expenses. The Mediator shall explicitly instruct the parties of the conflict of the fact that the initiation of mediation does not affect the right of the parties of the conflict to demand protection of their rights and authorised interests through legal proceedings, and that only the parties of the conflict are responsible for the contents of the mediation agreement[32].

3.2.2. Permissions

a)     Do not prohibit mediators from holding individual separate meetings (caucus) with each party.

         

Example:

The mediator’s obligations shall be equal vis-à-vis all parties. He shall promote communication between the parties and shall ensure that the parties are integrated into the mediation process in an appropriate and fair manner. He can conduct separate discussions with the parties, subject to agreement thereto by all the parties[33].

         

b)    Do not prohibit mediators from making proposals for settlement on request or with the consent of the parties.

Example:

On the request or with the consent of the parties, the mediator may make a proposal for an amicable resolution. The proposal may be based on what the mediator deems appropriate in view of what the parties have brought forward in the mediation[34].

c)     Permit mediators to receive a fee or compensation.

Example:

A mediator shall be entitled to a fee and reimbursement of expenses incurred in connection with mediation unless he has agreed to mediate without fee. The fee and expenses shall be charged to the parties[35].

d)    Allow mediators to participate in the drafting of the mediation settlement unless, for serious reasons, this would be non-compatible with the national mandatory law.

Example:

<…>The mediator shall participate in the preparation and drafting of the agreement, if the parties to the procedure agree <…>[36].

e)     Allow mediators to terminate the mediation if the settlement is not likely, without having the duty to motivate it.

Example:

The parties can terminate mediation at any time. The mediator can terminate the mediation, especially when he is of the opinion that autonomous communication or settlement between the parties is not to be anticipated[37].

3.2.3. Liability

a)     Subject mediators and mediation providers to civil liability.

Example:

A mediator shall be held accountable for any damage caused to the parties by his failure to comply with the Code of Ethics, by his unlawful conduct, intentionally or with gross negligence, in accordance with the general rules on liability for damages[38].

b)    Subject mediators and mediation providers to administrative or disciplinary liability in accordance with the misconduct in place. Consider making depersonalised decisions of the disciplinary body public in the same manner as court decisions.

Example:

The functions of the [Federal] Commission [for Mediation] are the following:

<…>

Handle the claims against mediators or training providers, advise in case of disputes over the compensation for mediators and impose sanctions on mediators who no longer satisfy the conditions laid down in Article 1726 or provisions of the code of conduct adopted by the Commission[39].

c)     Clearly define the sanctions that can be applied.

Example:

The Disciplinary and Complaints Commission <…> can impose the following sanctions on an accredited mediator:

-   a warning;

-   a reprimand;

-   an obligation to complete an internship for the duration and according to the criteria set by the Disciplinary and Complaints Commission;

-   the obligation to practice his / her profession exclusively in co-mediation during the duration and according to the criteria set by the disciplinary and complaints commission;

-   a suspension for a period that cannot exceed one year;

-   withdrawal of the accreditation[40].

d)    Require indemnity insurance.

Example:

(1) The mediator shall conclude professional liability insurance with an insurer who is entitled to carry on business operations in Austria to cover any claims for damages which result from his activity and shall maintain it during the period of his registration in the List of Mediators.

(2) For the insurance contract the following must apply:

1. Austrian law must be applicable;

2. A minimum insurance cover for each insurable matter shall be EUR 400,000;

3. The exclusion or a time limitation of the continuing liability of the insurer is

not permissible.

(3) The insurers are obliged to notify the Federal Minister of Justice unbidden and immediately of any circumstance which means/or may mean a termination or restraint of the insurance cover or an aberration from the original insurance

certificate, and they shall provide information about such circumstances on demand of the Federal Minister of Justice. The mediator shall at all times be capable of evidencing the existence of the liability insurance[41].

3.3.   Mediation providers

a)     Establish a register of mediator service providers and set clear criteria with regard to enrolment, suspension, and removal from the register.

Example:

The public or private entities, that provide a guarantee of reliability and efficiency, are permitted to establish mediation providers, and, at the request of any interested party, to manage the mediation procedure in the fields referred to in Article 2 of this Decree. The providers shall be enrolled in the registry.

The formation of the registry and its review, enrolment, suspension and cancellation of registration, the establishment of separate sections of the registry for the matters which require specific expertise in consumer and international affairs, as well as determination of fees due to the mediation providers are regulated by special decree of the Minister of Justice, in consultation with the Minister of Economic Development, in the field of consumer affairs <…>[42].

1. The mediation providers established by public and private entities are enrolled in the registry, by simple request.

2. The director verifies the professionalism and efficiency of the applicants and, in particular:

a) the financial and organizational capacity of the applicant and the compatibility of mediation with the business purpose; in order to demonstrate financial capacity, the applicant must have capital of not less than EUR 10,000; in order to demonstrate organizational capacity, the applicant must certify that they are able to carry out the mediation activity in at least two Italian regions or in at least two provinces of the same region, even through the agreements referred to in Article 7, paragraph 2, letter c );

b) the possession by the applicant of an insurance policy for an amount of not less than EUR 500.000,00 for liability arising, in any way, from the conduct of mediation;

c) the requirements of good standing for members, associates, directors or representatives of the aforementioned providers, consistent with those set out in Article 13 of Legislative Decree 24 February 1998 n. 58;

d) administrative and accounting transparency of the mediation provider, including the legal and economic relationship between the mediation provider and the entity if it is an internal division of the entity, in order to demonstrate the necessary financial and operational independence;

e) the guarantees of independence, impartiality and confidentiality in the execution of the mediation service, and the compliance of the regulation with the law and with this decree, and also with regard to the legal relationship between the provider and the mediators;

f) the number of mediators, no less than five, who have declared their availability to conduct mediations for the applicant;

g) the offices of the provider[43]

b)    Encourage the establishment of the rules of procedure and adherence to a code of conduct for mediation service providers. Use a reference to the European Code of Conduct for Mediation Providers[44] as a minimum ethical standard.

Example:

The mediation provider, along with the request for enrolment in the registry, shall submit to the Ministry of Justice, its regulation and code of ethics, communicating any subsequent changes. The regulations must provide for, in accordance with this decree, the online procedures that may possibly be used by the mediation provider, so as to guarantee the security of communications and the confidentiality of data. The tables of the fees paid to those mediation providers established by private entities must be attached to the regulation and must be submitted for approval <…>[45].

c)     Subject mediation service providers to the obligation of confidentiality with regards to the administered mediation process.

Example:

Unless otherwise agreed by the parties, parties to a dispute, mediators and mediation service providers shall keep confidential all information obtained in the course of mediation or related to it <…>[46].

3.4.   Other legal professions

a)     Allow the judiciary to conduct mediations (subject to national mandatory law).

Example:

The Judicial council:

(1)   determines the procedure for organisation and execution of court-related mediation in courts;

(2)   determines the requirements for judges willing to carry out the activities of mediators, the procedure for granting and withdrawing mediator status from judges;

(3)   determines the procedure for establishment and administration of the list for judges who have been granted the status of a court mediator <…>[47].

<…> Judges may conduct mediation solely outside working hours and free of charge[48].

b)    Allow other legal professions (e.g., lawyers[49], notaries, enforcement officers) conduct mediation subject to adequate training and examination, if applicable.

Example:

(1) The Bar arranged the training of lawyers in the area of mediation and arranges examinations of mediators for them under the Mediation Act.

(2) Unless stated otherwise, the provisions of the Mediation Act shall apply to the contents of the text and its requirements likewise <...>[50].

c)     Define the boundaries of a mediator acting as a judge, an arbitrator, a lawyer (legal counsel), a notary, an enforcement officer, a police officer or a prosecutor in a dispute involving the same parties.

Example:

A person who himself is or has been party, party representative, counsellor or decision-making body in a conflict between the parties, may not act as a mediator in the same conflict. Likewise, a mediator may not represent, advise or decide in a conflict which makes reference to the mediation. However, after the end of the mediation with the approval of all affected parties he may act within the scope of his other professional competences to implement the result of the mediation[51].

4.     Initiation of mediation

4.1.   Voluntary basis

a)     Allow the parties to initiate mediation at any stage before (in a mediation clause) or after the dispute arise.

Example:

All parties can propose to the other parties, regardless of all the other judicial or arbitral proceedings, before, during or after the initiation of the judicial proceedings, a recourse to mediation process. <…>[52]

b)    Ensure adherence to the mediation clause stating that a claim in a court or an application to an arbitration institution shall be inadmissible unless mediation was attempted, or the period of time, specified in the mediation clause, has come to an end.

Example:

If the parties have agreed on mediation and have expressly undertaken not to institute or continue judicial, arbitral or other proceedings during a specified period of time, or until the fulfilment of precisely determined conditions, such an agreement shall have a binding effect. In that case, the court, arbitrators or other bodies before which the proceedings are initiated regarding the same subject matter, shall reject, at the request of the other party, any submission by which the proceedings are instituted or continued[53];

c)     Precisely set the procedure of the initiation of mediation by one party, clearly stating the form of the proposal, as well as the time limits for the other party to reply to the proposal.

Example:

When one party puts forward a proposal for concluding a mediation agreement the other party shall declare itself about the said proposal within 15 days in writing.

When the initiation of a mediation procedure is prescribed by a special statute as a condition for the conduct of judicial or other proceedings, or if the parties have agreed when concluding the agreement to try to resolve the dispute through mediation before resorting judicial or other proceedings, the party concerned shall propose to the other party, in writing, the conclusion of a mediation agreement[54].

d)    Encourage judges and other officials in charge of a dispute in front of them to recommend mediation and provide the parties with the necessary information.

Example:

(1) During judicial, administrative or other proceedings, the body conducting the proceedings may, in disputes referred to in Article 1 of this Act, recommend to the parties to resolve their dispute in mediation proceedings in accordance with the provisions of this Act if it assesses that there exists the possibility of resolving the dispute by mediation.

(2) The body referred to in paragraph 1 of this Article may invite the parties to an informative meeting to acquaint them with the use of mediation[55].

4.2.   Mandatory basis

4.2.1.Attendance of an initial mediation session as a condition precedent to legal proceedings

a)     Consider introducing an obligation for the parties to participate in an introductory first mediation session or in a mediation information session with a mediator and ensure a possibility to continue with mediation in the same session if parties so decide.

b)    Allow parties to opt-out after the initial session without requiring them to provide reasoning for their decision.

c)     Emphasise that parties cannot be forced into a settlement.

d)    Consider making participation in such an initial mediation session a condition precedent to legal proceedings in certain types of dispute. Consider including at least disputes arising from family law, labour law issues as well as arising from joint ownership and relations between neighbours.

e)     Ensure that the participation in the initial session does not give rise to significant costs for the parties nor cause substantial delay for bringing legal proceedings.

f)     Ensure procedural guarantees, as outlined in chapter 5.4.

g)    Clearly state when the requirement to participate in the initial mediation session is met and when parties are allowed to submit a claim in court.

h)     Consider implementing pilot projects to test the application of mandatory attempt to mediate in practice prior to scaling such practices to the whole system as will be described in chapter 9.

Examples:

Prior to the initiation of legal proceedings and with the assistance of legal counsel, those who intend to commence legal proceedings in a court of law in an action related to a dispute concerning a matter of joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, damages for medical and/or paramedical malpractice or defamation via the press or any other means of publicity, insurance, bank and financial contracts, are required to participate in the mediation procedure foreseen in this decree or the conciliation procedure <…>. The attempt at mediation is a condition precedent for legal proceedings. <…> When mediation is a condition precedent for legal proceedings, the condition is considered satisfied even where the initial meeting with the mediator ends without an agreement[56].

The mediation procedure will last no longer than three months[57].

<…> During the first meeting the mediator will clarify for the parties the function of and the process for conducting the mediation. The mediator, in the same first meeting, will then invite the parties and their lawyers to comment on the possibility of starting a mediation and, if affirmative, will proceed with the mediation <…>[58].

Subject to the provisions of paragraphs 5 bis and 5 ter of this Article, with the order referred to in section 16, paragraph 2, the following shall be determined: <…> d) the reduction of the minimum amount of fees paid in cases in which mediation is a condition precedent under Article 5, paragraph 1-bis, or is ordered by the court under Article 5, paragraph 2. <…>

In the absence of an agreement at the conclusion of the first meeting, no compensation is due to the mediation provider[59].

29.1. Mediator explains the essence, advantages and rules of the mediation process to the parties attend the initial mediation session, jointly and separately. On the same day or at the request of the parties, the other day designated by the mediator, the parties should decide whether they want to attend the subsequent mediation sessions.

29.2. If after submitting the information provided by article 22 of this Law (excluding article 22.1.1) and the notification stating the date, time and the place of initial mediation session, the parties or one of them have rejected to attend the initial mediation process in a written form or are not present during the session, the mediation organization will issue a certificate of “Failure of attendance at the initial mediation session” that states the name of the persons present and introduce them to the parties. Unless otherwise agreed between the parties the notification, provided by the first sentence of this article, must be introduced to the parties 5 days before holding the initial mediation session.

29.3. If one or both parties do not agree to continue the mediation process, as well as mediator refuses to proceed the mediation process under Articles 3.3 and 26.4 of this Law, the mediator shall terminate the mediation process and issue a certificate of “Failure to proceed after the initial mediation” and introduce it to the parties.

29.4. The failure of a party to attend the initial mediation session without valid excuse shall entail the liability as prescribed by law.

29.5. If the parties decide to continue the mediation process, agreement on application of mediation process shall be concluded between the parties and mediation process shall be carried out in accordance with Article 24 of this Law.

29.6. If the parties fail to conclude a settlement agreement at the end of the mediation process, as well as mediator refuses to proceed the mediation process under Articles 3.3 and 26.4 of this Law, the mediator shall terminate the mediation process and issue the relevant protocol and introduce it to the parties.

29.7. Upon receipt of the report or protocol referred to in Articles 29.2, 29.3 and 29.6 of this Law, the party may apply to the court or arbitration (jury). The relevant report or protocol should be attached to the application[60].

4.2.2.Referral to mediation by a judge

a)     Allow judges, after assessing the nature of the case and where they see it fit, to refer the parties to the initial mediation session before going further with the judicial proceedings.

Example:

If expedient and appropriate, the chairman of the senate may order the parties to the first meeting with a registered mediator (hereinafter referred to as the “mediator”) within 3 hours and interrupt the proceedings for a maximum of 3 months. If the mediator is not agreed upon by the participants without undue delay, the chairman of the senate shall select him/her from the list kept by the Ministry. After 3 months, the court continues the proceedings. The first meeting cannot be ordered for the duration of the interim measure on protection against domestic violence[61].

b)    Define the content of the court order referring parties to the initial mediation session; specify, at least, the time limits and the mediator chosen by the parties or, in the absence of such a choice, appointed by a judge.

Example:

The parties, or, in their absence, their advocates, can jointly request the judge to appoint the mediator or the mediators that they indicate. The judge grants this request unless the mediator or mediators indicated by the parties do not meet the conditions set out in article 1726.

If the parties do not agree on which mediator or mediators to appoint, the judge, preferably, in turn, appoints an accredited mediator or mediators as specified in article 1727 from the list of mediators established by the Federal Commission for Mediation. As far as possible, the judge should choose a mediator having the place of business near the place where the parties are domiciled.

The decision ordering parties to try to settle their dispute through mediation referred to in the first paragraph shall include the surname and the status of an accredited mediator or mediators, determine the duration of the procedure, which cannot exceed six months, and set the case on the first convenient date following the expiration of the term determined[62].

c)     Do not subject to appeal the order to try mediation.

Example:

The decision ordering, prolonging or terminating the mediation is not subject to appeal[63].

5.     Mediation process

5.1.   Before mediation

5.1.1. Appointment of a mediator

a)     Allow parties to decide on the mediator themselves and foresee a procedure of appointment if they are not able to find a consensus: the mediator can be appointed by a court, by the authority in charge of the list, mediation provider or another third party.

b)    Allow parties to appoint several mediators, acting as co-mediators, if they prefer.

Example:

The mediation procedure shall be conducted by one or more mediators, designated by the mutual agreement of the parties. If the parties are unable to agree on the mediator, they may request that the mediator be designated by the court or other authority conducting the proceedings[64].

5.1.2. Decision on costs

a)     Allow parties to decide on the division of mediation costs themselves. In the absence of such an agreement, set a general rule that parties bear their own costs and share the costs of mediation in equal parts.

Example:

Unless otherwise agreed by the parties, each party shall bear his or her own costs, and as to the costs of mediation, each party shall cover them in equal shares, or in accordance with a separate Act or rules of mediation organisations[65].

b)    Define what mediation costs consist of in case the parties and the mediation provider do not specify otherwise in their agreement. Consider including mediator’s fee, travel, and organisational expenses.

Example:

The Mediator shall be entitled to the negotiated fee for performing mediation and to reimbursement of the negotiated cash expenses. Cash expenses shall be travel expenses, postal charges and production of transcripts and copies. The Mediator may request an appropriate advance for his fee for mediation and reimbursement of the negotiated cash expenses from the Parties of the Conflict[66].

5.1.3. Agreement to mediate

a)     Require parties and the mediator to sign a written agreement to mediate before mediation.

Example:

The parties define between themselves and with the help of a mediator the modalities of the organisation of mediation and the duration of the process. This agreement is confirmed in writing in a mediation protocol signed by the parties and by the mediator. The costs and fees of mediation are born by the parties equally, unless they decide otherwise[67].

b)    Require parties to specify in their agreement to mediate at least: the names of the parties; the name of the mediator and mediation provider, if relevant; brief description of the conflict; the duration of mediation, if it is planned to subject it to time limits; mediators fee or the method of determination; division of costs of mediation.

c)     Introduce a model form for the agreement to mediate. Provide a reference to Model Agreement to Mediate[68] adopted by CEPEJ as a minimum standard.

d)    Allow subsequent changes to the agreement.

Example:

22.1. Agreement on application to mediation process shall be made in writing, and such agreement shall specify the followings:

22.1.1. date, time and the place in which the agreement has been concluded;

22.1.2. names and details of the parties;

22.1.3. subject of the dispute;

22.1.4. information about mediator (mediators) or mediation organization;

22.1.5. rules and conditions of payments concerning mediation process;

22.1.6. unless otherwise agreed between the parties, obligation of the parties on confidentiality of mediation process and liabilities for breaching that obligation;

22.1.7. duration of mediation process;

22.1.8. the manner of holding mediation process;

22.1.9. other terms under Civil Code of the Republic of Azerbaijan, this Law and other legislative acts.

22.2. On the basis of mutual consent of the parties amendments and revisions can be made to the agreement on the application to mediation process[69].

5.2.   Commencement

a)     Clearly define the moment of the commencement of mediation.

b)    If the parties are required to sign the agreement to mediate, specify that the mediation should be considered as commenced on the day when it was signed.

c)     In case of court-related mediation, link the day of commencement of mediation to the day when the court issues a decision or order referring parties to court mediation. Incentivise actual implementation of such an order or decision.

d)    Only if the parties are not obliged to sign the agreement to mediate, link the commencement to another easily definable moment, such as the acceptance of the proposal to mediate; the date of the first meeting; the submission of an application to a mediation provider[70].

Examples:

The date of commencement of the mediation process shall be the date that the agreement to mediate was signed, where this is drawn up in writing, or, in case section 15 applies [reference to mediation by court], the date of the issue of the decision referred to in subsection (3) of the said section, or, in any other case, on the date when the mediator took specific actions to start the mediation process[71].

Mediation commences by the acceptance of an application for mediation [by the opposing party], unless it is prescribed or agreed otherwise for disputes where the initiation of mediation process is obligatory[72].

5.3.   During mediation

a)       Allow and encourage the use of electronic means during mediation and online mediation if the parties consent to it, provided that the principals of mediation and procedural guarantees are respected.

Example:

1.   The parties may agree that all or any of the mediation measures, including the constituent session, which they deem appropriate, are to be carried out by electronic means, by videoconference or other similar means of transmission of the voice or image, provided that the identity of the parties concerned is ensured and compliance with the principles of mediation laid down in this Law.                                        

2.   Mediation as a matter of a claim of a quantity not exceeding EUR 600 shall be carried out preferably by electronic means, unless the use of such a complaint is not possible for any of the parties[73].

b)    Encourage the participation of lawyers.

Example:

A party may —

<…>

(b) be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or

(c) obtain independent legal advice at any time during the mediation[74].

c)     Allow involvement of third parties (including experts) upon request or consent of the parties to the dispute; subject any third party to confidentiality.

Example:

In carrying out his or her duties and for the purpose of it, the mediator can, with the agreement of the parties, hear the third parties who consent to it or, if the complexity of the matter so requires, use the services of an expert or a specialist in the field of the matter of a dispute. The third parties are bound by the obligation of confidentiality foreseen in the paragraph 1, line 1. Paragraph 2 [the prohibition to testify in court and reveal the facts of mediation] is also applied to an expert[75].

5.4.   Procedural guarantees

5.4.1. Confidentiality

a)     Declare that the mediation process shall be confidential unless otherwise agreed by the parties.

Example:

All information, proposals and statements relating to mediation procedure shall be confidential, unless the parties have agreed otherwise <…>[76].

b)    State that the obligation of confidentiality shall apply to all the declarations and proposals made in relation with or in the course of mediation, including oral and written communications prepared for or in the course of mediation as well as documentation and notes prepared for or in the course of mediation.

Example:

Subject to subsection (2) and section 17, all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise[77].

c)     Bind all participants of mediation, regardless of the basis of their involvement in the process, with the obligation of confidentiality and subject them to liability for the breach of it.

Example:

The parties, their legal representatives and attorneys, the mediator, third parties attending the mediation procedure, as well as the persons performing administrative duties for the needs of mediation, shall keep all the information, proposals and statements relating to the mediation procedure secret and shall be accountable for damage caused by the breach of this obligation[78].

d)    Define exceptions to the confidentiality rule. Information which is needed for the implementation or enforcement of mediation settlement; for protection of physical or psychological integrity of a person; to ensure the protection of the best interests of children; to prevent or reveal a crime; for proceedings against mediator concerning his or her misconduct with regards to the mediation in question shall fall outside the scope of the obligation of confidentiality.

Example:

Subsection (1) shall not apply to a communication or records or notes, or both, where disclosure—

(a) is necessary in order to implement or enforce a mediation settlement,

(b) is necessary to prevent physical or psychological injury to a party,

(c) is required by law,

(d) is necessary in the interests of preventing or revealing—

(i) the commission of a crime (including an attempt to commit a crime),

(ii) the concealment of a crime, or

(iii) a threat to a party, or

(e) is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct[79].

e)     Extend the obligation of confidentiality to the separate meetings (caucus) between a mediator and one party, declaring that such information shall not be revealed to the other party without the explicit consent of the first party.

Example:

The mediator may, if he considers it appropriate, communicate and hold meetings with the parties separately, and any information disclosed to mediators by any of the parties shall be confidential and shall not be disclosed to the other party, or to any third party without prior permission of the party giving the said information[80].

5.4.2. Voluntariness

a)     Establish that the mediation process is voluntary where the free will of the parties is a predominant principle. This is not in contradiction with the mandatory participation in an initial mediation session, as the latter cannot imply mandatory requirement to settle.

b)    Prohibit mediators or public authorities from forcing parties into a settlement or adopting a binding decision on the parties as to the outcome of the mediation.

c)     Clearly establish which provisions are non-mandatory and will only apply in the absence of an agreement to the contrary by the parties.

d)    Require parties to agree in writing if willing to derogate from non-mandatory procedural provisions.

Example:

5.1. Mediation is voluntary (in accordance with the article 28 and 29 [compulsory referral to mediation] of this law) in nature and the parties are free on assignment of mediators.

5.2. Mediation shall be implemented on the basis of a contract on “application of mediation process” concluded with the mutual consent of the parties.

5.3. During the mediation process the parties may at their discretion use their substantial and procedural rights, to increase or decrease the amount of their claims and to refuse mediation at any of its stages in accordance with articles 28 and 29 of this law

5.4. Mediation is based on the cooperation of parties in the settlement of the dispute, as well as on communication and negotiation[81]

5.4.3. Evidence and testimonies

a)     Declare inadmissible in any arbitral, judicial or similar proceedings all the declarations and proposals made for or during the mediation process, including written and oral elements made for or prepared during mediation or with regards to it, regardless of whether the proceedings are connected or not to the dispute that was mediated.

b)    Declare that offers, admissions or concessions made in the course of the mediation shall not be used during arbitral, judicial or similar proceedings by other parties.

c)     Note that the sole fact that a piece of evidence, which would have been admissible on other grounds, was used during mediation, shall not render that piece of evidence inadmissible. Emphasise that the parties shall be allowed to provide their own evidence, regardless if they were or were not used during a mediation process.

d)    State that mediators, parties, or any other participants of mediation shall not be obliged to testify in arbitral, judicial or similar proceedings with regard to information acquired in the course of mediation.

e)     Define the exceptions to abovementioned rules. The same exceptions as to the general obligation of confidentiality might apply.

Example:

(1) In arbitral, judicial or any other proceedings it is not permitted to make statements, propose evidence or submit any other proof in whatever form regarding any of the following:

- the fact that a party had proposed or accepted mediation;

- the parties’ statements of facts or proposals made during mediation proceedings;

- 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;

- 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;

- the parties’ willingness to accept the proposals made during mediation

proceedings;

- other proposals made during mediation proceedings.

(2) Unless otherwise agreed by the parties, the mediator and the persons participating in mediation proceedings in any capacity may not be forced to testify in arbitral, judicial or any other proceedings in relation to information and data resulting from mediation proceedings or connected therewith.

(3) In judicial, arbitral or other proceedings, evidence referred to in paragraph 1 shall be rejected as not admissible. Exceptionally, the data or information referred to in paragraph 1 of this Article may be disclosed or used for evidential purposes in proceedings before arbitral tribunals, courts of law or other state bodies where:

- it is necessary for the protection of public order, but only under the conditions and in the scope prescribed by law, or

- it is necessary for the implementation or enforcement of the settlement agreement.

(4) Persons who act contrary to paragraphs 1 and 2 of this Article are liable for the damage caused thereby.

(5) The provisions of paragraphs 1 through 4 of this Article apply regardless of whether arbitral, judicial or other similar proceedings are connected with the dispute that is or was the subject matter of mediation proceedings.

(6) Except in the case referred to in paragraph 1 of this Article, evidence that is otherwise considered admissible in arbitral, judicial or other similar proceedings shall not be inadmissible solely because they were used in mediation proceedings.[82].

5.4.4. Prescription and limitation periods

a)     Suspend prescription and limitation periods during the course of mediation.

Example:

Commencement of mediation in accordance with the provisions of section 17 implies suspension of the limitation and prescription period during the mediation process.

If mediation fails, the limitation or prescription period which was suspended, continues to run on the date the mediation process ends[83].

b)    Suspend court proceedings for the duration of court-related mediation.

Example:

1 The court may recommend mediation to the parties at any time.

2 The parties may at any time make a joint request for mediation.

3 The court proceedings remain suspended until the request is withdrawn by one of the parties or until the court is notified of the end of the mediation[84].

c)     Specify when the suspension commences and terminates with reference to the commencement and termination of the mediation. Alternatively, set another reference point avoiding ambiguities. The commencement and termination shall be confirmed by written documents to minimise risks of disputes as to the duration of the mediation process.

Example:

The signing of the agreement to mediate suspends the limitation period for the duration of mediation.

Unless expressly agreed by the parties, the suspension of the limitation period shall end one month after one of the parties or the mediator has notified the other party or parties of their intention to terminate the mediation. This notification shall be made by a  registered letter[85].

5.4.5. Interim measures

a)     Allow parties to request the application of interim measures during the course of mediation.

Example:

The mediation procedure does not prevent, in any case, the granting of interim measures, including protective measures, or the publication of the claim and pleas[86].

5.5.   Termination

a)     Define grounds for termination of mediation. Include at least: conclusion of mediation settlement, a declaration by a party or parties requesting to terminate mediation; declaration by a mediator or mediation provider stating that the mediation is terminated; expiration of the term allocated for mediation, if any. 

b)    Require all declarations to be concluded in writing to be able to define the exact date of termination.

Example:

Mediation is terminated when:

- one party sends a written statement of withdrawal from the mediation proceedings to the other party and to the mediator, except when upon the withdrawal of one party, there are still two or more parties participating in the proceedings and willing to proceed with mediation;

- the parties have sent a written statement to the mediator on the termination of the proceedings;

- the mediator decides to terminate the mediation proceedings, on the grounds that, having given the parties an opportunity to state their positions, it is clear that any further effort to reach an amicable resolution of the dispute is no longer purposeful;

- if no settlement is reached within 60 days from the date of the commencement of mediation proceedings or within any other time limit in accordance with the agreement made between the parties;

- a settlement agreement is concluded[87].

c)     Require a mediator to prepare a note of termination when official authorities or the court has to be informed about the outcome of mediation or when the proof is needed to demonstrate that mediation has taken place with regard to mediation clause, mandatory mediation, and other cases in accordance with the national law. A note of termination shall also be prepared upon the request of the parties.

d)    Do not require including confidential data as described in section 5.4.1 above in a note of termination.

Example:

§ 1. Minutes of mediation shall be prepared by the mediator.

§ 2. The minutes of mediation shall specify:

1) the time and place of mediation;

2) the forenames and surnames (business names) and addresses (registered offices) of the participants in mediation;

3) the forename and surname and address of the mediator;

4) the determinations made as to the disposal of the matter; and

5) the signatures of the mediator and the participants in mediation, and if any of the participants is not able to sign the minutes, a note shall be made on the reasons for the absence of signature.

§ 3. The mediator shall immediately submit the minutes of mediation to the public administration authority in order for them to be entered in the records and he shall deliver a copy of the minutes to the participants in mediation.[88]

6.     Mediation settlement

6.1.   Form and content

a)     Require the mediation settlement to be drawn up in writing, to be signed by the parties and attested by the signature of the mediator, indicating the mediation provider, if applicable, and the date and the place of conclusion.

Example:

The mediation agreement may cover some or all of the matters subject to mediation. The mediation agreement shall state the identity and address of the parties, the place and date on which it is taken, the obligations which each party assumes and that a mediation procedure in accordance with the provisions of this Law has been followed, indicating the mediator or mediators involved and, where appropriate, of the mediation institution in which the mediation procedure was conducted[89].

b)    Allow settlement on the facts if a settlement on the merits was not reached.

Example:

<…> If the parties fail to reach an agreement due to disagreement over legal issues, they may reach written consent on factual matters. The factual matters covered by mutual consent of the parties shall be considered indisputable in judicial or other proceedings[90].

c)     In court-related mediation allow settlements on a part of a dispute in court as well as settlements covering more issues than the scope of a claim or counter-claim.

Examples:

The provisions on a settlement in pending court proceedings apply correspondingly to a settlement in court mediation and to confirmation of such a settlement. However, a settlement confirmed in court mediation may cover also issues not mentioned in the original claims of the parties[91].

The mediation may concern a part or the entirety of the dispute[92].

6.2.   Enforcement

a)     Ensure that the content of the mediation settlement can be made enforceable via a court decision, a notarial deed or authorisation by another official (e.g., magistrate, enforcement officer, or other) upon request of all parties or one party with the consent of the other(s).

Example:

Request for enforceability of agreement resulting from mediation may be made in Court –

(a) jointly by all parties; or

(b) by one of the parties with the explicit consent of the others, unless this explicit consent is provided for under the settlement agreement[93].

b)    Encourage parties to indicate in the mediation settlement if its provisions shall be rendered enforceable.

Example:

The parties shall determine—

(a)  if and when a mediation settlement has been reached between them, and

(b)  whether the mediation settlement is to be enforceable between them[94].

c)     Allow direct enforceability of mediation settlements only if parties so agree therein and provided that the parties are represented by lawyers who can assure that the provisions of the settlement agreement are not contrary to mandatory law.

Example:

Where all the parties to the mediation are accompanied by a lawyer, the agreement that has been signed by the parties and by their lawyers, constitutes an enforceable title for compulsory expropriation, enforcement for satisfaction and release, the satisfaction of obligations, as well as the registration of a judicial mortgage or lien. In signing the agreement, the lawyers attest and certify that the agreement complies with the mandatory rules and public order <...>[95].

d)    Clearly define the grounds on which enforcement may be refused. Include at least the agreement being contrary to mandatory law or public order.

Example:

<…> Enforcement of the agreement on dispute resolution through mediation shall not be allowed if the conclusion of this agreement is not allowed, if the agreement is contrary to public order, if the agreement is unsuitable for enforcement of if the object of enforcement is impossible to enforce[96].

e)     Ensure that regulation on mediation settlement is in line with the provisions of international documents on enforcement in place, such as Singapore mediation convention and the Guide to Good Practice under the Hague Convention of 25 October 1980.

Example:

A party relying on a settlement agreement under this Convention shall supply to the competent authority of the Party to the Convention where relief is sought:

 (a) The settlement agreement signed by the parties;

 (b) Evidence that the settlement agreement resulted from mediation, such as:

 (i) The mediator’s signature on the settlement agreement;

 (ii) A document signed by the mediator indicating that the mediation was carried out;

 (iii) An attestation by the institution that administered the mediation; or

 (iv) In the absence of (i), (ii) or (iii), any other evidence acceptable to the competent authority[97].

f)     Consider ratifying the Singapore mediation convention to ensure efficient recognition of international mediation settlements and other conventions ensuring simplified recognition and enforcement, such as the 1996 Hague Child Protection Convention[98]. Consider developing a system for the recognition of international mediation settlements originating from countries that are non-members of Singapore mediation convention.

7.     Means to incentivise

7.1.   Obligation to inform

7.1.1. Lawyers

a)     Oblige lawyers to inform their clients about mediation in writing.

b)    Clearly state what information has to be communicated to the client, including at least: an explanation of the mediation process, procedural guarantees applied during mediation, cost incentives (if applicable), requirements of compulsory mediation (if applicable), the average length of the judicial proceedings.

c)     Require clients to confirm by signature that they have read and understood the information provided.

d)    Clearly establish the consequences of not following the obligation to inform.

Example:

When a claim or dispute is brought to a lawyer, the lawyer is bound to inform the client of the possibility of availing himself of the mediation procedure governed by this Decree and the tax incentives provided for in Articles 17 and 20. The lawyer will also inform the client when mediation is a condition precedent for legal proceedings. The information must be provided to the client clearly and in writing.

In the case of violation of the disclosure requirements, the contract between the lawyer and the client is void.

The document containing the above information is undersigned by the client and shall be attached to the complaint or initial application of any legal proceedings. If the court confirms that the document is not attached, and does not take action under Article 5, paragraph 1-bis, the court will then inform the party of the right to request a mediation[99].

7.1.2. Judges and other officials

a)     Allow and encourage judges and other officials resolving disputes to provide all necessary information with regard to mediation to the parties to a dispute or to direct the parties to an information session conducted by another person when they deem that an amicable settlement is likely.

b)    Consider introducing obligatory initial mediation awareness training for judges, as well as ensuring continuous awareness raising;

Example:

The presiding judge may invite the parties to attend an information meeting about amicable dispute resolution methods, in particular mediation. Such information meeting may be conducted by a judge, judicial clerk, judicial officer, assistant judge or permanent mediator[100].

c)     Require officials providing legal aid to inform the person in question about the possibility of using mediation and its benefits. Establish priority of trying mediation before litigation of particular dispute when parties or one of them is supported by legal aid.

Example:

Persons providing primary legal aid shall look for possibilities to help the applicants solve their disputes amicably. Possibilities of resolving their dispute through mediation shall also be explained to the applicants[101].

7.2.   Monetary incentives

7.2.1. Sanctions

a)     Allow judges to disregard ‘loser pays’ principle (if applicable) and distribute the costs of the judicial proceedings and (or) mediation taking into account parties behaviour in bad faith with regard to or during mediation.

Example:

In awarding costs in respect of proceedings referred to in section 16 [court inviting parties to consider mediation], a court may, where it considers it just, have regard to—

(a) any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and

(b) any unreasonable refusal or failure by a party to the proceedings to attend mediation,

following an invitation to do so under section 16(1)[102].

b)    Provide a non-exhaustive list of what could be constituted as behaviour in bad faith. Include at least (unless inapplicable): rejecting a recommendation or invitation to try mediation without a good reason; not being present at a mandatory mediation or information session. Leave evaluation of other instances to the discretion of a judge on a case by case basis.

Example:

<…> If a court has established that a party has refused to participate in a compulsory mediation without a good cause or that it submitted the application for mandatory mediation in bad faith, used mediation in bad faith or made requests in bad faith during mediation, it can also derogate form the rules on the distribution of costs laid down in paragraphs 1, 2 and 3 of this Article[103].

7.2.2. Stamp duties and court fees

a)     Alleviate (at least in part) the burden of stamp duties or other fees to parties who have used mediation before turning to judicial proceedings.

Example:

If before bringing a case to court parties attempted to settle their dispute through mediation, the stamp duty, as calculated under paragraph 1 of this Article, shall be reduced to 75 percent but to no less than 5 euros. In case indicated in this paragraph, written evidence shall be submitted proving the attempt to settle the dispute through mediation. The reduction of stamp duty provided in this paragraph is not applicable in cases where it is established that the party submitted the application for mediation in bad faith, used mediation in bad faith or made requests in bad faith during mediation. The reduction is not applied in cases where compulsory mediation is conducted under the Law on Mediation of the Republic of Lithuania[104].

b)    Alleviate (at least in part) the burden of stamp duties or other fees to parties who have reached the agreement during the judicial or administrative proceedings.

Example:

In case of reaching an agreement to resolve the dispute through mediation after the judicial or other proceedings have been initiated and before the conclusions of the first hearing for the main trial, the parties may be exempt from court or administrative fees, in accordance with the law which regulates court and administrative fees[105].

7.2.3. Subsidies

a)     Provide free of charge mediation for those who objectively cannot afford it or reduce the cost significantly through legal aid or other mechanisms.

Example:

State guaranteed legal aid – primary legal aid, secondary legal aid and state guaranteed out of court mediation provided under the provisions of this law.

The costs of mediation consist of preparation of the documents concerning mediation, mediator’s fee and costs related to the preparation of mediation settlement. State guarantees and covers 100 percent of the costs of primary legal aid and mediation.[106]

b)    Consider introducing other types of subsidies or tax exemptions for those resorting to mediation.

Example:

In the case of a successful mediation for the parties who pay a fee to mediation providers authorized to carry out the mediation procedure, a tax credit will be granted in proportion to the fee itself, up to the amount of five hundred euro as determined by the provisions of paragraphs 2 and 3. In the event of the failure of mediation, the tax credit is reduced by half[107].

c)     Establish national systems for subsidising mediators' training; training on efficient use of mediation for judges, arbitrators, lawyers, notaries, police officers, prosecutors, enforcement officers and social workers; mediation pilot and other schemes; other mediation R&D and innovations; development and promotion of mediation best practices and best practices of efficient use of mediation by judges, arbitrators, lawyers, notaries, police officers, prosecutors, enforcement officers and social workers.

Example:

The duties of the Department are as follows:

a) Ensuring that mediation services are carried out regularly and efficiently.

b) Making publications related to mediation, encouraging and supporting the scientific studies on this matter.

c) Carrying out any kind of decisions or proceedings related to the functioning of the Board, and cooperating with the relevant ministry, other public institutions and organizations, universities, professional organizations with public institution status, public interest foundations and associations and appropriate voluntary real and legal persons in relation with its duties.

ç) Publicizing the mediation institution, informing the public on this matter, organizing or supporting the scientific organizations such as national and international congresses, symposiums and seminars. <…>

ğ) Conducting examinations and researches on laws and regulatory acts, which fall within its area of responsibility, and making recommendations to the Directorate General <…>[108].

8.     Information on mediation

8.1.   Dissemination and promotion

a)     Oblige public bodies or authorities in charge of mediation to disseminate information on mediation; provide the details of mediators or mediation providers and their contacts.

b)    Oblige public bodies or authorities in charge of mediation to promote mediation through various means, including the Internet.

c)     Include into the competence of mediation governmental or self-regulation institutions or bodies development, implementation, and monitoring of national mediation awareness strategies.

d)    Consider introducing a requirement to appoint a person responsible for mediation in each court to carry out projects related to mediation, organise monitoring of mediation-related programmes, coordinate mediation awareness raising, and collection of statistical data.

e)     Allow and encourage developments in education on mediation in schools (in particular, peer mediation programmes at schools), universities, and higher education institutions.

Example:

The Ministry of Justice ensures <…> the promotion to the public through special advertising campaigns, particularly via Internet, of information about the mediation procedure and about the providers authorized to carry it out[109].

8.2.   Statistical data

a)     Collect and aggregate statistical data from individual mediators or mediation providers, court-related, and other mediation schemes on a national level respecting the principle of confidentiality.

b)    Integrate Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics)[110] adopted by CEPEJ into statistics system to allow the collection and comparison of such data between the Council of Europe members states. As a minimum standard, require providing the information stated therein.

Example:

Types of cases and other indicators might be adapted considering national legislation and practice. However, in order to enable comparative analysis among different Council of Europe Member States, it is advisable to keep statistics in such a way that it allows the extraction of main indicators in accordance with the grid provided below.

The grid represents only baseline statistics. Mediation providers, associations, institutes and/or federations, individual mediators and Member States may collect and assess data reflecting other indicators of performance that are reasonable and useful for their specific purposes.

If possible, collection and evaluation of statistical data shall be performed more frequently than once per year.

It is advisable to use information and electronic communication technologies and specialized software to expedite and increase efficiency in keeping statistical records on mediation and their analysis.

In any case, collection of statistical data and its analytics shall not interfere with the confidentiality principle which is fundamental in mediation[111].

The mediator shall be obliged to:

<…> submit to the Ministry of Justice an annual report on conducted mediations, containing the information on the type of dispute, the place where the mediation procedure was conducted and the manner in which the mediation procedure was completed, whereby respecting the principle of data confidentiality[112].

 

c)     Make statistical data publicly available, including on the Internet.

Example:

The duties of the Department are as follows:

<…> Monitoring the country-wide mediation practices, keeping and publishing the relevant statistics[113].

9.     Transitional provisions

a)     Consider introducing innovations on mediation through pilot projects to be able to thoroughly test, monitor, analyse, adapt and final tune methods that prove to be the most suitable and effective in the national context before scaling them on the national level.

b)    As pilot experiences, consider introducing provisions for a limited duration, on a limited scope (for only certain types of disputes) or in a targeted territory (in certain districts or specific courts).

Example:

Prior to the initiation of legal proceedings and with the assistance of legal counsel, those who intend to commence legal proceedings in a court of law in an action related to a dispute concerning a matter of joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, damages for medical and/or paramedical malpractice or defamation via the press or any other means of publicity, insurance, bank and financial contracts, are required to participate in the mediation procedure foreseen in this decree or the conciliation procedure provided for by legislative decree on October 8, 2007, n. 179, or the procedure established pursuant to Article 128- bis of the Consolidated Law on banking and credit of the legislative decree September 1, 1993 n. 385, as amended, for the matters therein regulated. The attempt at mediation is a condition precedent for legal proceedings. This provision will be effective for four years following the date of its entry into force. At the end of two years from the date of entry into force, the Ministry of Justice will commence to monitor the results of the mediation experiment <…>[114].

In four years, the provision was amended accordingly:

Prior to the initiation of legal proceedings and with the assistance of legal counsel, those who intend to commence legal proceedings in a court of law in an action related to a dispute concerning a matter of joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, damages for medical and/or paramedical malpractice or defamation via the press or any other means of publicity, insurance, bank and financial contracts, are required to participate in the mediation procedure foreseen in this decree or the conciliation procedure provided for by legislative decree on October 8, 2007, n. 179, or the procedure established pursuant to Article 128- bis of the Consolidated Law on banking and credit of the legislative decree September 1, 1993 n. 385, as amended, for the matters therein regulated. The attempt at mediation is a condition precedent for legal proceedings. As of 2018, the Minister of Justice reports annually to the Parliament on the effects produced and the results achieved under the provisions of this paragraph. <…>[115].


Explanatory note

1.     Scope

 

The mediation process indeed has its distinctive features depending on the field of law where it is applied. The same is true to the different types of application, varying from private dispute settlements to court mediation schemes or international and domestic disputes. However, there are even more characteristics that are alike in the mediation process, regardless of the type of dispute where it is applied. This suggests that the best approach towards the scope of law on mediation is consolidation of the provisions in one legal act, making exceptions and references to other legal acts where it is necessary to take into account the peculiarities or where certain aspects have to be regulated in the act of different legal value under the national law.

A consistent approach towards the profession of mediators as well as the procedure itself allows setting a basic standard of quality, while not precluding the legislators from implementing higher standards where necessary. The adoption of basic standards applicable to every type of mediation ensures that the probability of negative user experience is reduced to a minimum. This allows building the confidence of the general public, subsequently improving the availability of the procedure. Moreover, it helps avoid discrepancies, when parts of the procedure are regulated differently in separate legal acts without good practical reason. It can also help develop mediation infrastructure, including the authorities in charge and disciplinary bodies, responsible for monitoring the overall quality of the mediation process. It brings clarity to the public, consequently making the procedure easy to access. Hence, it is in line with the Availability / Accessibility / Awareness (AAA) methodology developed in the Guidelines on mediation.

Therefore, the scope of the law on mediation shall remain broad and be limited solely to the disputes which are capable of settlement under the national law, including at least out of court and court-related mediation, mediation in international disputes, as well as different fields of law (e.g., mediation in civil, labour, administrative and criminal disputes), with due respect to the modalities outlined in the subchapters 1.1. to 1.3.

1.1.   Out of court and court-related mediation

The same general principles apply to out of court as well as court-related mediation. However, there are some apparent differences, as the latter is conducted when the dispute has already been introduced in court. This adds a certain level of formalisation, especially with regard to the initiation, duration of mediation, and the suspension of court proceedings. This suggests that the main legal act on mediation can be applicable to both out of court and court-related mediation, while the procedural differences can be addressed in the same or another legal act where such distinction is needed. Note should be taken that court-related mediation does not necessarily have to be conducted by a judge or a court clerk as this is only one of the possible models. In court-related mediation, the dispute can also be referred to an independent mediator outside the judiciary. In Slovenia, for example, ‘[t]he court may adopt and implement the alternative dispute settlement programme as an activity organised directly in court (court-annexed programme) or on the basis of a contract with a suitable provider of alternative dispute settlements (court-connected programme)’[116].

          The majority of countries subject to this research follow the recommendation provided above and explicitly state that the act shall apply to out of court and court-related mediation or, at least, do not expressively exclude court mediation out of the scope of the national law on mediation (e.g., Belgium, Croatia, Cyprus, the Czech Republic, France, Ireland, Lithuania, Poland, Serbia, Switzerland, Turkey). However, there still are countries which regulate solely court-related mediation, leaving out of court mediation unregulated. For example, the Finnish Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts only applies to court mediation, merely touching on the homologation and enforcement of settlements mediated out of court.

            The first approach of the ones mentioned above, namely, consolidating the provisions in one legal act is encouraged. The good practice shall be considered Belgian and Lithuanian models explicitly stating that the act applies to out of court and court-related mediation unless indicated otherwise. Both Belgian Judicial Code and Lithuanian Law on Mediation dedicate a separate chapter to court-related mediation, where modalities are outlined. A similar approach is implemented in Azerbaijan. Other legal acts, which do not include a separate chapter on court-related mediation, incorporate these modalities in the provisions of other chapters. However, as mentioned above, the modalities of court-related mediation can also be regulated in a separate legal act, if that brings more clarity to the process.

            While all the procedural requirements will be discussed in detail in the other chapters of the Explanatory note, the sole intention of the list provided below is to attract attention to possible differences and peculiarities of court-related mediation. The explanations provided herein are, thus, brief and include references to the other parts of the document.

a)   the timing of the referral

     As stated in the Guide to the Judicial Referral to Mediation[117] adopted by CEPEJ, parties shall be referred to mediation at the earliest possible time when they are able to make an informed decision on the participation in mediation. However, at certain cases, referring parties to mediation already further into litigation might be more effective, as they have a chance to vent their emotions and get a taste of the possible hurdles of the judicial proceedings. Even late referral to mediation can still save resources of the court and the parties. It is, thus, recommended to allow referral of a dispute to mediation at any phase of the proceedings (as is the case in, e.g., Azerbaijan, Belgium, France, Poland, Serbia, Switzerland) in all instances. Some countries, however, limit the timing to the conclusion of the preparation of a case (e.g., Finland) or to the first hearing (in Ireland, for example, it is no ‘later than 14 days before the date on which the proceedings are first listed for hearing[118]).

b)   requirements for mediators in court-related mediation, if different

     As will be discussed in chapter 3.4., some countries allow judges to act as mediators in court-related mediation along with other mediators from the register, while the requirements for them to enter the list slightly differ. For example, in Lithuania, a separate register for judges acting as mediators is maintained by the National Court Administration. However, in that case, judges who act as mediators can only conduct court-related mediation[119]. Such an approach is encouraged as judges, trained and acting as mediators, might be more willing to recommend parties to refer their dispute to mediation. Having conducted mediations themselves, the judges will also be better able to tell which parties might be likely to settle when ordering to mediate their dispute, as will be explained in chapter 4.

     On the other hand, there are countries, for example, Finland, which do not allow other mediators, who are not judges, to conduct court-related mediations. Such an approach is not recommended as an external mediator at some cases might be a better fit to conduct a mediation. If national legislators are cautious not to raise the costs of the proceedings, external mediators, if chosen by the parties, can be remunerated on their part.

c)   costs of court-related mediation

     National legislators shall be careful not to commercialise court-related mediation as a costly service can create opposition among the members of the general public and increase the reluctance to using it. To avoid such a scenario, several countries have had the exact amount payable to a mediator set by means of hourly rates or otherwise (e.g., Lithuania, Poland, Slovenia). Setting maximum rates in court-related mediation can ensure that it is accessible to the parties. On the other hand, regard also has to be paid to guarantee that mediators are dully remunerated for their work.

     Moreover, the fee for court-related mediation can also be covered by the state. There are countries where court-related mediation is provided free of charge for the parties for a set number of hours. In Slovenia, for example, the court fully reimburses the fee of a mediator only in disputes arising in relations between parents and children and labour disputes due to termination of an employment contract, while in other disputes only the first 3 hours are reimbursed (except for commercial disputes, which are not reimbursed at all)[120]. In Lithuania, the first 4 hours of every court-related mediation are reimbursed or the whole mediation might be conducted free of charge if a judge is serving as a mediator[121]. Such an approach is also encouraged as it works as an additional incentive to mediate, as will be discussed in chapter 7.2.

     With regard to the division of costs, in most of the countries the same provisions as will be outlined in chapter 5.1.2. apply (namely, that every party bears its own costs and shares the fee of the mediator equally). However, some countries include the costs of court-related mediation in the overall costs of the proceedings and the judge takes them into account when adopting the decision on costs (for example, France).

d)   initiation of mediation

     Court-related mediation, like out of court mediation, can be initiated upon request by one party with the consent of the other or upon request of both parties. National legislators are encouraged to define the steps of how such a request should be made. For example, a request can be submitted in writing or orally, provided that it was included in the protocol of the hearing. Mediation can also be suggested by a third person (for instance, a bank or an insurer) if the parties to a dispute consent to it. However, unlike out of court mediation, court-related mediation can also be initiated by a recommendation or an order from a judge. As will be discussed in detail in chapter 4., allowing both methods of initiation by a judge is highly recommended.

e)   documentation of the referral

     After parties express their consent to mediate a dispute or after mediation is ordered by a judge, it is recommended to document the referral through a decision, an order by a judge or other document in accordance with the provisions of national legal acts regulating court proceedings. As will be discussed in more detail in chapter 4.2.2., it shall include, at least, the ruling on suspension of the judicial proceedings for the duration of mediation[122], indicate the mediator and the date of the next hearing after the termination of mediation.

f)    the maximum duration of the mediation and the possibility to prolong it

     Justice delayed is justice denied; thus, in order not to hinder the right of effective judicial protection, the maximum duration of court-related mediation shall be set by national legislators. As will be explained in chapter 4.2.2., most countries allow dedicating up to 3 months for court-related mediation. However, the possibility of prolonging such a period in certain cases should also be considered, especially taking into account the number of the parties, the complexity of the case, and the nature of the dispute. For example, some countries allow prolongation of the duration upon the request of a mediator (e.g., France) or parties (e.g., Cyprus, Poland, Turkey).

g)   the termination of court-related mediation.

     Upon the termination of mediation, the judge shall receive information on the course or the outcome of the mediation. Hence, national legislators shall foresee such a procedure, preferably by requiring the mediator to provide a note of termination of the mediation, as will be explained in chapter 5.5. In Belgium, for example, ‘[a]t the end of his mandate, the mediator shall inform by writing if the parties have managed or not to settle’.

1.2.   Mediation in international disputes

          Commercial, family, labour, and other social relations have long passed the national borders opening the floodgates to the disputes where parties are domiciled in different countries. The Recommendation on Mediation (family) has long ago recognized the need for necessary measures with regard to international mediation[123]. Since then a number of harmonisation initiatives have been introduced to accommodate the changing needs of the potential users of mediation.

          First started the UNCITRAL Model Law (2002) which set the base or influenced several legislations in Europe (e.g., Belgium, Croatia, Slovenia) and all over the world[124]. While the primary focus of the Model Law (2002) was international commercial mediation, countries took the legacy to broaden its scope to make it applicable to domestic matters in a broader array of disputes (usually, still within the civil domain[125]).

 

          Second came the EU Mediation Directive, which has introduced the minimum legal framework on mediation in cross-border disputes for the member states to adhere to, including a requirement to render mediation settlements emerging from these disputes enforceable. In many cases, the Directive was the reason why the member states started regulating mediation in the first place. More frequently than not, the standards provided therein where also applied to national disputes, especially in cases were no or only vague regulation was in place[126]. Many countries subject to this research have chosen to broaden the scope to all international disputes instead of limiting it to cross-border disputes emerging from the relations within the EU (e.g., Belgium, Croatia, Cyprus, Lithuania, Spain). However, some were more formalistic and apply their law following the letter of the Directive to the disputes within the EU, or European Economic Area at most (e.g., the Czech Republic, Finland, Serbia).

          The third was the UNCITRAL Singapore Mediation Convention. Adopted in 2018, it introduced the regime on the enforcement of international mediation settlements. Along came the revised Model law (2018), also offering the mechanism for enforcement. A long time will have to pass before the convention is ratified in a significant amount of countries for it to be used in practice. Nonetheless, national legislators are encouraged to take into account the provisions of the convention when drafting their national laws to adhere to the international standards set therein.

          The list provided above is not exhaustive, nor does it suggest by any means that these are the sole international documents with regard to mediation. The Hague Conference of International Private Law tends to include a provision on mediation in the conventions it adopts[127]; the EU has adopted several other legal acts concerning alternative dispute resolution[128]; in the United States (hereinafter – the US) a Uniform Mediation Act was adopted for the use of the states within the US. However, the three documents outlined in the previous paragraphs are the most relevant for the member states of the Council of Europe and, therefore, they will remain the key source of international standards referred to further in the Explanatory note.

          In the light of the harmonisation, national legislators cannot be forced to remove the diversity completely and mirror every provision stated in the international documents. However, they are strongly encouraged (and will be throughout the Explanatory note) to adhere to the standards set therein. First, this can help attract international contractors and foster the economic growth of the country itself. Second, setting common standards on the international level improves the availability of mediation for users coming from different parts of the world. In that regard, it is recommended not to block the internalisation and broaden the scope of application to include disputes where parties to the dispute are domiciled or habitually resident in different states.

1.3.   Different fields of law

The majority of the national legal acts on mediation that formed basis for this research has developed laws on mediation only in the civil domain (e.g., Cyprus, the Czech Republic, Ireland, Italy, Lithuania, Slovenia, Spain), excluding mediation in criminal or administrative matters from the scope of the main legal act on mediation. These national legislators have chosen to either leave mediation in criminal or administrative disputes unregulated and, thus, inapplicable, or to regulate it in executive acts or as a component of other laws (for example, mediation in criminal cases is regulated in separate legal acts in the Czech Republic and Lithuania). Some countries do not have a single comprehensive law on mediation at all and have chosen to integrate provisions on mediation in, mainly, procedural codes (e.g., Belgium, Poland, France, Switzerland) or introduce separate legal acts on civil, penal and administrative mediation.

However, there are some good examples of consolidation. The Azerbaijanian model shall be considered the most comprehensive so far, as it not only lists different types of disputes falling under the scope of the law (including disputes arising out of civil and economical, family, labour, administrative law relations, as well as criminal cases and administrative offenses[129]) but also provides separate articles addressing features of these different types.  Mediation in criminal and administrative matters also falls under the scope of the Serbian Act on Mediation in Dispute Resolution. In Germany, mediation can be applied in every dispute where settlement is legally possible, including criminal cases concerning misdemeanour.

A general overview of mediation in other than civil disputes cannot be provided due to the fact that, as rightly stated by Hopt and Steffek, ‘their structures have frequently developed organically, they are less the result of systematically planned legislation and are also understandable in the context of the respective legal system’[130]. However, as highlighted in the Recommendations and Guidelines on Mediation (administrative) and Recommendation concerning restorative justice, attention could be drawn to certain aspects concerning mediation in administrative and penal matters. These aspects shall be taken into account when drafting a law on mediation.

a)     Mediation in matters concerning administrative authorities

     As rightly emphasised in the Guidelines on Mediation, ‘[a]lternatives to litigation between administrative authorities and private parties will only become established in member States if a policy that addresses the use of these means of dispute resolution is adopted[131]. Even though Recommendations and Guidelines on Mediation encourage countries to introduce a possibility to use alternative means for resolving a dispute between these parties[132], only three countries subject to this research expressively regulate mediation in administrative matters, namely France, Poland, and Switzerland. All three of them have incorporated the provisions in their respective codes of administrative proceedings. However, the procedure foreseen for administrative disputes in France or Switzerland is not in substance different from the one applied in civil disputes, nor it introduces some important peculiarities characteristic to administrative relations. Poland, on the other hand, includes several provisions distinguishing the administrative procedure from the civil one. However, the majority of the provisions are common to mediation, regardless of the dispute in question. In Germany, as mentioned above, the national law on mediation also comprises other fields, including administrative law[133] and the Code of Administrative Court Procedure allows mutatis mutandis application of the provisions on mediation foreseen in the Code of Civil Procedure[134]. In Serbia, the Act on Mediation in Dispute Resolution also applies to administrative matters[135]. These examples support the recommendation of consolidated legal act, as the majority of principles are shared in all types of mediation.

     The main differences between mediation in the civil domain and the public domain arise from the status of the parties. While mediation can be conducted between the parties to the same administrative procedure, it can also be applied in disputes between the authority conducting administrative procedure and a person subject to that procedure (in Poland, for example, ‘[t]he parties to mediation may be: 1) the authority conducting the proceedings and the party or parties to these proceedings; or 2) the parties to the proceedings[136]). Hence, in the latter case, the relationship between parties to a mediation is clearly subordinate. In this regard, additional provisions concerning mediator’s neutrality and impartiality might come in handy. First, as will be discussed in chapter 3.1., only a certified and properly trained mediator shall be allowed to conduct mediations. Specificities of the training for mediators conducting mediations in administrative matters are outlined in the Basic Mediator Training Curriculum[137] adopted by CEPEJ. Second, employees of the authority, which is a party to the dispute, shall not be allowed to conduct mediations in such disputes[138] (in Poland, for example, ‘[a]n employee of the public administration authority before which the proceedings have been pending may not serve as a mediator’[139]).

     Moreover, the status of the authority governed by public law implies that the authoritative party only has the discretion to act within the limits explicitly defined to it by the law. It also implies that mediation can only be possible in cases where national law unambiguously allows settlement, which raises the question of the eligibility of the case for mediation. For example, in the Netherlands, disputes between the tax authorities and taxpayers can be resolved by mediation[140]; mediation also has potential in competition law disputes with regard to commitments in mergers, private actions for damages following infringements of competition law and settlement proceedings allowing reductions in fine for breaches of competition law.

     The mediation process itself has to be more formalised as it may be subject to subsequent judicial review (in Poland, for example, ‘[o]n the basis of the arrangements made in mediation proceedings, the authority repeals or amends the contested act or performs or takes another action according to the circumstances of the case within its scope of competence[141], however, a person can lodge a complaint with the voivodship administrative court with regard to such an action[142]). Therefore, national legislators are especially encouraged to specify in detail the necessary procedural steps before and after mediation, as outlined in chapter 5. Moreover, it is recommended to reflect the involvement of the third parties, as their interests might also be affected by the outcome of the mediation.

    

b)    Mediation in penal matters

     The Recommendations on Mediation (Penal) has already emphasised ‘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’. However, in the Guidelines on Mediation (Penal) several obstacles towards the use of mediation in criminal matters, including among others a lack of awareness of restorative justice and mediation, a lack of availability of victim-offender mediation, a lack of specialised training[143], were still identified. Yet, not all the countries subject to this research offer or regulate victim-offender mediation in probation services and other institutions to tackle the aforementioned problems. However, there are several that do. As mentioned above, Azerbaijan has included mediation in penal matters under the scope of the main legal act on mediation; the Czech Republic and Lithuania have implemented separate legal acts offering a framework for mediation at probation authorities. France, Poland, Switzerland (with regard to minors[144]) and Turkey have introduced several provisions concerning mediation in their respective criminal codes or codes of criminal procedure. Serbia has extended the scope of application of their main legal act on mediation to also include mediation in criminal matters, while Germany limits the application of the main legal act to the cases of misdemeanour.

     As outlined in the Recommendation concerning restorative justice, recently adopted by the Council of Europe Committee of Ministers, victim-offender mediation in penal matters is an essential tool of restorative justice – a ‘process which enables those harmed by crime, and those responsible for that harm, if they freely consent, to participate actively in the resolution of matters arising from the offence, through the help of a trained and impartial third party[145]. If used effectively, restorative justice can increase safety as the offenders can better understand the consequences of their actions. Moreover, it can establish or rebuilt relations between the victims and offenders, reducing recidivism. It can also help reduce the psychological harm and compensate the monetary damage inflicted by an offense or a crime. With the right safeguards in place, the society can highly benefit from restorative methods as, instead of eliminating certain individuals from it, these methods are capable of positively transforming the behaviour and re-introducing them back to the society. While restorative justice itself is not the main subject of this research, the further paragraphs of this subchapter will solely outline the details that shall be taken into account when introducing mediation in the criminal law domain. These details are based on the Recommendation concerning restorative justice[146], which highlights the most important aspects of victim-offender mediation, as well as national provisions, which, at certain instances, provide a more in-depth regulation.

      The distinctive features of mediation in penal matters, yet again, primarily lay on the status of the parties. The victim-offender relation implies the need for safeguards with regard to the weaker party. Accordingly, mediation shall not be conducted without the explicit and informed consent of the victim (such a provision exists in Czech, French, German, Lithuania, Polish legal acts) and the offender[147]. National legislators are also encouraged to introduce additional safeguards with regards to domestic violence cases (in France, for example, in case of domestic violence, mediation cannot be conducted unless the victim explicitly demands; if the domestic violence occurs again after the mediation was started, no further mediation sessions can be initiated[148]). Lastly, probation services are frequently applied in juvenile delinquency cases. Therefore, as emphasised in Recommendations concerning restorative justice[149], national legislators shall ensure that children participating in mediation can be accompanied by their legal representatives as well as the availability of social workers or representatives of the responsible official bodies if such a need arises during mediation. In the Czech Republic, for example, ‘[t]he Probation and Mediation Service, when carrying out their mission, cooperates closely with bodies which are empowered by the special law with the execution of socio-legal protection of children and providing benefits in material need to inadaptable citizens with social care’[150].

     Additional safeguards shall also be introduced with regard to the procedure itself. First, the selection of cases suitable for mediation shall guarantee that the secondary victimisation will be prevented, as well as ensure that the offender is not aggressive or dangerous in any other way. In that regard, a two-tier selection procedure applied in Lithuania[151] can be introduced. Such a procedure not only allows conducting the primary theoretical evaluation based on a set of criteria but also meet parties individually before deciding if the case should be subjected to mediation. Second, if the risk of secondary victimisation remains high, mediators shall also be allowed and encouraged to conduct entire mediation in individual sessions, without parties meeting one another[152]. Third, mediators willing to conduct victim-offender mediations shall also be required to undergo specialised training[153] including basic knowledge of the criminal justice system and other distinctive topics, as outlined in the Basic Mediator Training Curriculum[154].  In Serbia, for example, such training can be required under a general provision, stating that a ‘[s]pecialized training is organised for particular areas or types of disputes[155].

     Moreover, certain procedural guarantees should be introduced with regard to the offender as well. First, the mediator or authorities in charge shall be obliged to unambiguously explain the legal effects of mediation and a settlement reached therein, as well as the process itself and the rights and obligations of the users[156]. Second, mediation in criminal matters shall remain confidential and should not be used to extract additional evidence or admission of guilt from the alleged perpetrator[157], as it would hinder the restorative purpose of mediation. Thus, mediation in penal matters shall take place when there is at least a basic consensus on facts between the parties and the authorities in charge[158]. However, if another crime is revealed during mediation or there is a threat for physical or psychological integrity of a person, general exceptions to confidentiality, as explained in chapter 5.4.1., shall apply[159].

     Lastly, regard shall be had to the inclusion of different organisations in the process of restorative justice, varying from the police and prosecutor offices and the judiciary, to community organisations. First, proper communication and system for exchange of information shall be established among official authorities and members of the judiciary[160] (in Lithuania mediators have to establish such a communication with the official authorities as well as social organisation throughout different stages of the procedure, including case evaluation, mediation process, provision of information on the results of mediation and others[161]). Second, social organisations shall be involved and encouraged to participate in the process by, for example, referring potential cases to mediation[162]. Good practice can be seen in the Czech Republic, where ‘[t]he Probation and Mediation Services proceed, if useful, in cooperation with the bodies of the social security, schools and educational facilities, providers of health services institutes, registered churches and religious communities, civil associations, foundations and other institutions pursuing humanitarian goals and if need be coordinate such cooperation from the perspective of using probation and mediation in a criminal proceeding’[163].

2.     Definitions

          There is no uniform mediation definition that could be found in every national legal act. However, these various definitions are more often than not built on the minimum requirements applied for the mediation process[164] and thus are relatively similar. It indicates that there exists a rather consistent understanding of the main features of the process. The definitions mainly refer to a structured process, where two or more parties are trying to find an amicable solution to their dispute with a guidance of a neutral third party – one or several mediators – without a decision-making power. The definitions also quite often include impartiality, independence, and confidentiality of the process.

          International documents do not provide a one-fit-all approach either. Slight differences in definition are natural as every document has a particular goal, scope or audience. Some of the definitions found are more generic and their wording may also cover other types of amicable dispute resolution, such as conciliation (see, for example, the definition provided in the Mediation Directive: ‘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[165]), while others emphasise the differences that can help distinguish mediation from other amicable dispute resolution methods, such as ombudsmen services (see, for example, definition provided by the Hague Conference on Private International Law: ‘mediation can be defined as a voluntary, structured process whereby a ‘mediator’ facilitates communication between the parties to a conflict, enabling them to take responsibility for finding a solution to their conflict[166]). The definition of mediation provided in the draft CEPEJ Glossary (‘structured and confidential process in which an impartial third person, known as a mediator, assists the parties by facilitating the communication between them for the purpose of resolving issues in dispute’)[167]  is also more general in nature as the main function of the glossary is not to define a scope of applicability, but rather to inform and explain.

          The Explanatory note will not provide a copybook definition that can be used in every national law. However, since the definition of mediation can broaden or restrict the scope of application of the legal act, certain aspects, which should be taken into account when drafting a law on mediation, are emphasised. First, not to broaden the scope unwillingly, the drafters should carefully evaluate what other amicable dispute resolution procedures are applied in their countries and what distinctions should be made not to include them under the scope of the legal act on mediation. These distinctions can be made taking into account the independence of a mediator, the decision not being binding and others. Second, there exist many types of mediation (e.g., facilitative, evaluative, transformative, narrative), all used throughout the world separately or as a mixture of several of them, in accordance with the circumstances at hand, during a mediation session. Thus, the definition shall not prevent these different types from being employed, as all of them can help parties settle their dispute when used rightly. In that regard, emphasizing that mediation should be exceptionally facilitative may raise doubts whether evaluative mediation is at all allowed.

The same would be true if a definition restricted mediator’s right to make proposals. First, some countries (e.g., Azerbaijan, Croatia, Finland, Ireland, Italy, Poland) explicitly allow making such proposals, usually upon request or consent from all the parties to a dispute. For example: ‘mediator shall conduct mediation using different techniques leading to an amicable settlement of a dispute, including supporting the parties in formulating their settlement proposals. At the joint request of the parties, the mediator may indicate dispute settlement options which are not binding on the parties[168]. Italy has taken it a step forward allowing mediators to make proposals every time the parties have failed to reach a settlement: ‘<…> When an agreement is not reached, the mediator may make a settlement proposal. In every case, the Mediator formulates a settlement proposal, if the parties make a joint request to the mediator at any time during the procedure. <…>’[169]. Allowing mediators to make proposals is considered to be a good practice, as long as these proposals are not binding to the parties.

The definition of a mediator is relatively steady throughout the national laws in consideration as well. The main features emphasised are based on the role of an independent, neutral third party, the function of guiding the parties towards a settlement and absence of decision-making power. While these are the main criteria to be taken into account, drafters can also consider specifying that a person has to be enlisted in the national register to be considered as a mediator in the light of a legal act in question. For example: ‘Mediator shall mean a real person who carries out the mediation activity and is enrolled in the register of mediators regulated by the Ministry’[170]. Being on the list/register of mediators, as will be discussed in chapter 3.1, can ensure that a person conducting mediation is adequately trained, examined and continues to develop professionally. It can increase the overall quality of mediations.

3.     Mediator

3.1.    Requirements for mediators

          Guidelines on mediation echo the importance of establishing common international criteria for the accreditation of mediators, as the mobility throughout Europe has highly increased[171]. Introduction of lists/registers for mediators, training providers, and mediation providers can help achieve this goal. While the apparent function of a list/register is systemising information on mediators (or mediation providers; or training providers in the same manner) and presenting it to the interested parties when needed, it also is an extremely useful tool to ensure a high quality of mediations. The reason for this is the opportunity to set clear requirements and high standards for those willing to enter the list. Thus, an increasing number of legislators has introduced official lists of mediators to their respective national laws (e.g., Austria, Azerbaijan, Croatia, Cyprus, Lithuania, Serbia, Turkey) while other countries have chosen to maintain at least a list limited to the scope of court-related mediation (e.g., the Czech Republic, Poland, Slovenia).

          Unqualified mediators can damage the reputation of the profession in the eyes of the general public and reduce the rates of recourse to mediation. Foreseeing in the national law that only a person on the list can practice mediation, allows implementing adequate safeguards capable of preventing incompetent people from conducting mediation. Such safeguards could contain: (a) requirements set for those willing to enter the list; (b) adequate training; (c) comprehensive examination; (d) continuous professional development (CPD) and requirement to conduct a certain number of mediations; (e) disciplinary body having the authority to suspend or remove a mediator from the list; (f) sanctions for practicing mediation while not on the list.

(a)   requirements

Conducting mediation amounts to a complex mental activity. Hence, it requires a certain level of social maturity in an individual. To reduce the possibility, that a potential mediator has not yet acquired such level, legislators tend to foresee a requirement of possessing a university degree (e.g., Cyprus, Lithuania, Serbia, Slovenia, Spain). In some instances, the requirements are higher – a person has to possess a master’s degree (i.e., the Czech Republic) or graduate from the faculty of law (i.e., Turkey). Poland, for example, has introduced a requirement based on age – only a person not younger than 26 can enter the list of permanent mediators. The same is true in Austria; however, a person has to be at least 28. In Azerbaijan, the requirement is twofold and based on both higher education degree and age rating (at least 25 years old). Having a university degree or a degree in higher education can ensure a certain level of knowledge obtained and, at the same time, increase the chances of social maturity. It is therefore considered as a good practice. However, it is also recommended to allow professionals from non-legal background to practice mediation subject to fulfilment of other criteria.

    A mediator has to deal with highly sensitive issues while conducting a mediation. As moral standards of impartiality and neutrality are high, so should be the standards for mediator’s reputation. Majority of the countries in consideration hold that a person, who has a criminal record should not be eligible to act as a mediator. However, the standards slightly differ: some countries explicitly forbid to practice for persons convicted of serious crime or crime related to corruption (i.e., Lithuania), sentenced to unconditional imprisonment (i.e., Serbia), convicted of an intentional crime or offence (e.g., Slovenia). Others, on top of the intentional crimes, add crimes of negligence committed in connection with the activities performed by a mediator (e.g., the Czech Republic). Austria does not allow to practice if a person is convicted leading to ‘doubts as to reliability of practice of mediator[172]. Lithuania and France also add dismissal from the post for a breach of administrative or disciplinary duty to the list. In a similar manner, Belgium prevents from practicing mediation not only individuals who have a criminal record, but also those who have disciplinary and administrative sanctions, which are incompatible with the functions of a certified mediator.

As countries usually have long-standing national provisions in the context of other professions defining what should be considered as a good repute, it is believed that mediators can be subjected to the same national standards. However, national legislators should evaluate if such restrictions lasting for a lifetime are proportionate and absolutely necessary to reduce the risk of recidivism. Thus, restriction for a certain period could be considered. Such an approach is applied in, for example, Belgium and Lithuania. 

    Guidelines on Mediation highlight the significance of adherence to the codes of conduct, recommending the use of the European Code of Conduct for Mediators[173] in civil and commercial matters as an internationally accepted minimum standard, as well as encouraging provision of specified codes with regard to the mediation in administrative and penal matters[174]. Adherence to codes of conduct, national or international, is a relatively common requirement (or, in some instances, suggestion) for mediators in the countries subject to this research (e.g., Belgium, Croatia, Cyprus, Ireland, Lithuania, Serbia, Spain). As per good example of Serbia, adherence to such code is taken into account during the procedure of mediation licence renewal (‘In the mediation license renewal procedure, special attention shall be paid to the mediator’s compliance with the Code of Ethics in his performance of duties prescribed under this Act and bylaws.[175]’) Moreover, as will be discussed in chapter 3.2.3. disciplinary mechanisms shall be in place for the breach of a code of conduct[176].

The European Union (the EU) Directive 2008/52/EC (the Mediation Directive[177]), implemented throughout the Member States, is in part responsible for such a frequency. Art. 4 of the Directive states that ‘Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organisations providing mediation services <...>’. The Mediation Directive also draws attention to and requires awareness of the abovementioned European Code of Conduct for Mediators. Codes of Conduct, especially those recognised internationally, provide another possibility to ensure a higher quality of the services, as well as adherence to international standards and are highly recommended. 

(b)   training

High-quality comprehensive training for mediators is of crucial importance to the quality of mediation. Even though it is common to include a provision in the national law, stating that mediators have to undergo training for mediators, such a vague provision is not enough. National legislators are encouraged to ensure the quality of the training. This can be achieved via:

(1)   licencing the training providers or keeping the official list of training providers (for example: ‘[t]he Ministry of Justice shall establish, by ministerial decree, the list of mediation trainers. In order to ensure a high-level training of mediators, the decree shall establish the criteria for registration, suspension, and cancellation of enrolment, as well as for the conduct of training. The same decree shall establish the date as of which their participation in the training activities of the present paragraph fulfils the requirement for professional qualification.’[178]);

(2)   setting clear grounds for removal from the list (for example, ‘[t]he Federal Minister of Justice shall remove a training institution or course from the list by formal Decision, if necessary by obtaining an opinion from the Advisory Council, if he is notified that one of the requirements of registration has ceased to apply or has not been met, the training goals have not in principle been met, issued certificates are repeatedly grossly incorrect, a training institution despite warning violates its obligation to report or if the sustainability of its activity is not guaranteed’[179]).

(3)   authorising training programmes (for example: ‘[t]he mediation training shall refer to a training, which is received following the completion of a faculty of law and which includes fundamental information on the conduct of the mediation activity, communication techniques, negotiation and dispute resolution methods and behavioural psychology; and the other theoretical and practical information to be set forth in the regulation.’[180]). When setting the standards for training institutions and programmes, national legislators are encouraged to take into account the Basic Mediator Training Curriculum, which can be found in the Mediation Development Toolkit[181];

(4)   determining the minimal duration of the training (for example: ‘[a]ny person may be registered in the Register of Mediators, who <…> is a member of the Cyprus Chamber of Commerce and Industry or the Cyprus Scientific and Technical Chamber, is the holder of a recognized university degree and has attended a special training programme to become a mediator of total forty (40) hours, organized by the Cyprus Chamber of Commerce and Industry, or the Cyprus Scientific and Technical Chamber, or has attended an equivalent programme’[182]);

(5)   monitoring training sessions or requiring reports from training providers (for example, ‘[t]he registered training institutions in order to prove the sustainability of their activity shall in writing report to the Federal Minister of Justice <…> on the extent, the contents and the success of the training over the past year’[183]).

    Specialised training should also be considered in the light of different types of mediation, especially with regards to subtle issues, such as the best interest of a child or victim-offender mediation. For example, the Czech Republic requires further qualifications from family mediators, as well as separate extension examination, while Azerbaijan allows setting different training requirements in consumer, family, and labour disputes[184]. Serbia also foresees a possibility to require double training (basic and specific) from mediators wishing to conduct mediations in certain types of disputes. Such differentiation is a good practice, as it can positively affect the quality of mediation.

 

(c)   examination

Compulsory examination not only allows to ensure a higher level of training but can also prevent unskilled individuals from entering the list and, subsequently, conducting mediations. It is applied in Belgium, the Czech Republic, Lithuania, Turkey. However, the examination, if applied, should not become an unnecessary formality. It is recommended to form it in two parts: theoretical and practical; establish clear evaluation criteria; consider the possibilities and procedure applied for retaking or appealing the final evaluation. The fee, if applicable[185], should be intended to cover administrative fees of the organisation of the exam and not prevent individuals with a lower income level from taking it.

(d)   CPD

Even though mediators might undergo a high-quality training at the beginning of their career and pass the examination to enter the list, if they are not practicing, the knowledge obtained is quickly forgotten. Therefore, in order to ensure that mediators on the list are able to practice and are up to date with the recent developments, national legislators are encouraged to require demonstration of continuous professional development (for example, 24 hours every 3 years in Cyprus[186], 20 academic hours every 5 years in Lithuania[187], 10 hours per year in Serbia[188], 50 hours every 5 years in Austria[189], once every 2 years in Azerbaijan[190]) or to submit proof of a certain number of mediations conducted per period of time (for example, 5 mediations in 3 years in Serbia[191]). If the number of ongoing mediations is yet too low on the national level, mediators can be required to be observers in a certain number of mediations (if the parties to a dispute consent). Such a requirement is in line with the Guidelines on Mediation, recommending that the initial training ‘be followed by supervision, mentoring and continuing professional development[192].

(e)   disciplinary body

If a list or register is established, there will have to be a public authority or professional body responsible for its administration – collecting information on the candidates, continuous development of enlisted mediators, approving admission, suspension or removal from the list, collecting a yearly fee, if applicable. National legislators are also encouraged to create disciplinary bodies, which could apply disciplinary sanctions for professional misconduct, for example infringing the provisions of a code of conduct, or not performing their duties, such as neutrality or impartiality. This could also improve the quality of mediations and prevent mediators, who are not fit to perform their function, from mediating. Examples of possible sanctions of disciplinary liability are provided in part 3.2.3 of the explanatory note. Disciplinary bodies could be established separately or as a part of authority or body in charge of the administration of the list. It is crucial to ensure that the decisions of the disciplinary body could be appealed to a higher authority or a court.

(f) practicing while not on the list

The sole establishment of a list does not ensure that individuals will not conduct mediation while not being on it. Safeguards to prevent such unauthorised practice have to be established. They can amount to fines (for example: ‘(1) A natural person shall commit an offence by a) using the designation “registered Mediator” or similar expression contrary to Section 11 despite not being registered in the Register, (2) A fine of up to 100 000 CZK may be imposed for an offence committed under paragraph 1.’[193]) or be achieved in a practical way through other measures.

First, a mediation settlement signed by a mediator not included on the list, might not be transformed into an enforceable document by way of homologation in courts or by notarial deeds. For example, in Belgium, only ‘in case of settlement and only if the mediator who conducted mediation is certified in accordance to article 1727, the parties or one of them can submit the mediation settlement obtained in conformity with articles 1731 and 1732 for homologation before a competent judge[194]. As will be discussed in chapter 3.2.1., a mediator’s signature on the mediation settlement is required in many countries and recognised at an international level. Hence, not accepting such a document for homologation and subsequent enforcement could deter parties from using the services of such individuals. Second, in cases where mediation is a compulsory prerequisite before submitting a claim in court, such a requirement could not be considered as met if an individual, who attempted to mediate the dispute, was not on the list of mediators. Third, the limitation periods may not be suspended unless the mediator is registered. In Austria, for example, ‘[t]he beginning and the proper continuation of the mediation by a registered mediator suspends the application of the start and running of the statute of limitations’[195].

However, a threat exists, that such practical methods could prevent parties not only from using the services of that particular individual but from using mediation in general. Hence, fine should be the preferred method of sanctioning and deterring individuals from conducting mediations without entering the list.

3.2.   Obligations, permissions, liability

3.2.1. Obligations

    Many duties of a mediator have already become traditional and, directly or indirectly, can be found in every national law on mediation or, at least, in the code of conduct to which mediators adhere. These obligations include independence, impartiality, confidentiality (both general and with regards to private meetings with one party), the disclosure of any concerns with regard to mediator’s impartiality and providing the information to the parties concerning mediation process and professional background of the mediator. 

    Nevertheless, more recent duties emerge, generally procedural in nature. Many countries require a mediator to sign the mediation settlement reached (e.g., Cyprus, Czech Republic, Finland, Serbia, Turkey). This requirement is in line with the international documents, such as UNCITRAL Singapore Mediation Convention[196], which recognises mediator’s signature on the mediation settlement as evidence, that the agreement has indeed resulted from mediation and, thus, falls under the scope of the convention.

    Moreover, as will be discussed in more depth in chapter 5.5., national legislators (e.g., Cyprus, Ireland, Poland, Spain, Turkey) are asking mediators to prepare a note of termination of the mediation. Some countries allow parties to decide themselves what should be encompassed in such a note, apart from the conclusion of the activity, (for example, Turkey[197]) while others define more precisely what should be included (for example, Ireland[198], Poland[199], Spain[200]). A note of termination could be useful for statistical purposes and as a mean of proof that mediation has taken place. However, mediators preparing the note of termination, as well as legislators defining what should be included in such a note, have to be careful not to infringe the confidentiality of mediation.

    Other obligations (or permissions) are only relevant in the context of court-related mediation. These include the obligation to notify the court or other authority about the outcome of the case or the permission to access the files of the case. 

3.2.2. Permissions

    In the same manner as some obligations of a mediator, certain permissions have also become a given. For example, a mediator’s right to meet separately with the parties, especially with the consent of the parties and subject to provisions of confidentiality, is well established in many national laws (e.g., Azerbaijan, Croatia, Finland, Germany, Spain, Turkey).

    Another example could be the right of a mediator to receive a fee (as long as the mediator is not a judge). While it is generally accepted that mediator should be compensated for the work and other expenses related to mediation (e.g., Azerbaijan, the Czech Republic, Italy, France, Poland, Spain, Turkey), the question of the size of the compensation remains. On the one hand, the market economy can answer this question and, thus, the national laws in some countries do not provide any information on the calculation of the fee. On the other hand, mediation services have to be accessible and affordable (especially in case of mandatory or court-related mediation, as explained in chapter 1.1.). Some countries simply indicate that the costs should be proportionate (for example, in Ireland it is stated that ‘the fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator’[201]). Others have adopted fee tables for mediators or sometimes, more specifically, for court mediators (e.g., Italy, Lithuania, Poland, Serbia, Turkey). However, if chosen to introduce such tables, the national legislator should pay attention not to infringe competition law, and while making mediation affordable to the public, keep professionals rightly compensated and motivated to work.

    Other rights, such as drafting the settlement agreement, are more controversial as they rely heavily on the national provisions of mandatory law. In Croatia[202], Serbia[203], Slovenia[204] a mediator is allowed to participate in the preparation and drafting of the agreement if the parties to the procedure agree. Having extensive experience with various settlement agreements the mediator could be of great help for the parties, especially when they are not accompanied by lawyers. However, mediators without a legal background should not give legal advice as in some jurisdictions it could amount to practicing law without a license. In Turkey, for example, mediators are not allowed to give legal advice[205], even though, having a law degree is a precondition for entering the list of mediators[206]. Moreover, as discussed in chapter 2., mediators should be allowed to make proposals as long as they are not binding on the parties.

3.2.3. Liability

    The issues of mediator’s liability, other than disciplinary, are not widely discussed in the national laws on mediation. Apart from disciplinary sanctions, mediators are usually subjected to civil liability. For example, in Serbia ‘[a] mediator shall be held accountable for any damage caused to the parties by his failure to comply with the Code of Ethics, by his unlawful conduct, intentionally or with gross negligence, in accordance with the general rules on liability for damages[207]’; in Croatia ‘[t]he mediator shall be liable for the damage caused by his or her violation of the obligation referred to in paragraph 1 of this Article [confidentiality][208]’.The strictest sanctions for breach of mediator’s duties could be found in Austria, Belgium, and Turkey. In Turkey, mediators, as well as the parties, may face imprisonment of up to 6 months for breaches of confidentiality[209], the same duration is foreseen in the Austrian law[210]. Austrian mediators or parties can also face a fine. In Belgium, mediators may be subject to imprisonment from 1 to 3 years or a fine varying from 100 to 1000 EUR for the infringement of confidentiality[211].

    The most common sanctions with regards to disciplinary liability are a warning; a reprimand (public or private); a suspension of the license or temporary removal from the list; a permanent removal from the list (e.g., Azerbaijan, Belgium, Lithuania). The Belgian legislator was even more creative and added such sanctions as mandatory co-mediation and an obligation to complete an internship in the scope of mediation for a certain period of time. Both of them are intended to fix the behaviour of a mediator and teach additional skills instead of preventing them from practice and, thus, should be encouraged.

    It is considered that civil and disciplinary liability, as well as an obligation to compensate for the damage caused if properly implemented, should be sufficient to deter mediators from infringing their obligations. However, whatever the sanction, the decision of a disciplinary body should be subject to appeal before a higher authority or a court (for example, in Belgium the section of the Council of State for administrative litigation, upon application, can suspend or annul decisions adopted by The Disciplinary and Complaints Commission[212]). Moreover, potential users of mediation, as well as mediators themselves, shall have a better understanding of what behaviour might cause the application of disciplinary liability. Therefore, it is recommended to make the depersonalised decisions of a disciplinary body public, in a similar way to court decisions.

3.3.   Mediation providers

     While the strongest emphasis with regard to the quality of mediation is put on the mediators, activities of the mediation providers are not less important. User satisfaction and come-back rate of the parties to a dispute in huge part lay directly on the smooth administration of their mediation. This includes the initial communication between the parties and the mediator, transparent assignment of a qualified mediator, the arrangement of the payment and allocation of a suitable venue. Moreover, mediation providers shall also disseminate the initial information on mediation and gather aggregated statistical data (as will be discussed in chapter 8.2.). Mediation providers can also ensure the high quality of mediations as they are responsible for hiring competent mediators along with properly trained personnel administering the disputes, as well as monitoring their performance to make sure that it is adequate. Model Mediation Feedback Questionnaire adopted by CEPEJ can be used for the latter[213].

     Even though good (as well as bad) performance of mediation providers can have a significant effect on how the general public perceives mediation, the activities of mediation providers, with rare exceptions, are not well (or at all) regulated in the national laws. National legislators are encouraged to change that. First, mediation providers are free to introduce their rules of procedure as not all of the procedural aspects are or should be addressed in the national laws on mediation, as will be discussed in chapter 5.4.2. However, it shall be verified that the provisions of the rules of procedure are in line with the national law. Second, like mediators and the codes of conducts for mediators, mediation service providers could also benefit from adherence to the codes of conduct for mediation providers. It is of crucial importance in countries where the activities of mediation providers remain unregulated. Either way, national legislators are strongly encouraged to offer a model code to which providers can adhere. An example of such a code was also adopted by the CEPEJ and could be used as a well-established standard[214].

     With regard to the regulation of the activities of mediation providers, Italian model is an example of good practice. The Ministry of Justice of the Republic of Italy maintains a register of mediation providers. In order to enter the register, providers shall submit to the Ministry their rules of procedure (including the online procedures that may be used by the provider), the code of conduct to which they adhere along with a table of fees applied. Before registration, the Ministry of Justice assesses the suitability of these documents[215]. A rather similar model is also implemented in Azerbaijan[216]. Such a model can ensure that the quality standards are met and verify that the rules of procedure and other documents go in accordance with the national laws on mediation. Moreover, it brings transparency to the parties, who are later able to get acquainted with the documents outlined above and familiarise themselves with what to expect from mediation. Therefore, the implementation of such a model is highly recommended.

3.4.   Other legal professions

     A legal background is seen neither as a mandatory prerequisite nor as an obstacle for practicing mediation. However, some hurdles can be found in the national legislation, especially with regards to the judiciary. For example, in Poland only judges who have already retired can serve as mediators[217]; in Belgium judges cannot be remunerated for acting as mediators[218]; in Serbia on top of conducting mediations free of charge judges are also obliged to do it solely outside working hours[219]; in Lithuania active members of the judiciary, who are included on the list of mediators, can only serve as mediators in court mediation[220], while in Finnish court mediation schemes only judges can serve as mediators[221].

     Lawyers, on the other hand, are encouraged to practice mediation in some countries. For example, in Italy all the lawyers registered with the Bar Association are mediators by right, however, lawyers registered with mediation providers must be adequately trained and maintain their competence[222]; in Cyprus, every advocate who holds an annual licence can be registered in the Register of Mediators and conduct mediation in commercial disputed without any additional training (however, training is obligatory if an advocate wishes to serve as a mediator in disputes other than commercial)[223].

     The training (and examination, where applicable) for the representatives of other legal professions should be either arranged in a general manner together with other candidates or ensured by the respective authority or professional body in charge. The latter model is implemented in, for example, the Czech Republic (the Bar arranges the training of lawyers in the area of mediation[224]) or Lithuania (the Judicial Council is in charge of the training of judges willing to become mediators[225]). The knowledge already acquired by a professional can also be taken into account. For example, in Austria, ‘[t]he assessment of the professional qualification shall take into account the knowledge gained by and the level of completion of qualification of the members of specified professions <…> in the course of their own training and their professional practice and which may assist in their practice of Mediation’[226].

     Certain restrictions apply for such individuals willing to take dual responsibilities. Such restrictions are usually related to the subsequent power to impose decisions or use the information obtained during mediation. In Slovenia, a mediator cannot ‘act as an arbitrator in respect of a dispute that was or is the subject of the mediation, or in respect of another dispute that has arisen from the same legal relationship or is related to it’[227], unless otherwise agreed by the parties. The same is true for arbitrators and judges in Croatia; however, ‘the parties may authorise the mediator to render an award based on the settlement in the capacity of an arbitrator[228]’. In Serbia ‘[a] judge acting in the case relating to the dispute, and an official deciding on the parties claim relating to the dispute in administrative or other proceedings, may not act as mediators[229]. In Turkey[230] and the Czech Republic[231] mediators are forbidden to act as lawyers for the parties or provide legal services with regard to the dispute that he or she mediated. In Azerbaijan ‘[m]ediator cannot provide legal or other services to the parties and cannot represent any of the parties at court procedure or arbitration and act as an arbitrator on the subject of mediation process[232]. Such restrictions are reasonable as mediators obtain insider information which was shared with them in private. However, parties shall be free to decide otherwise and allow mediator to act in another role as is the case in Austria (‘after the end of the mediation with the approval of all affected parties he [the mediator] may act within the scope of his other professional competencies to implement the result of the mediation[233]).

     To sum up, individuals acting as lawyers, judges, notaries, or enforcement officers should be allowed to serve as mediators as long as: it in is not contrary to mandatory national provisions; they are not acting in another role in the same dispute without an informed consent of the parties; they are adequately trained. 

4.     Initiationof mediation

 

          Mediation can be initiated either voluntary or through a mandatory referral to attempt mediation. The first one is the most common and could be found in every jurisdiction. Voluntary mediation can take three main forms, namely, mediation clause, initiation by one or both of the parties, and recommendation by an official. All of these voluntary initiation models can function together and, therefore, should be allowed and further encouraged. Mandatory referral to the initial mediation session or the first meeting with a mediator is also gaining momentum as it is introduced as an additional mean to incentivise the parties to mediate in a growing number of countries. Azerbaijan, the Czech Republic, France, Italy, Lithuania, Poland, Serbia, Slovenia, Spain, Turkey have already introduced mandatory referral to the initial mediation session in one or another form on the national level.

4.1.   Voluntary basis

4.1.1.Mediation clause

    Mediation clause is included in a contract between the parties even before the dispute arise. Model contract clause on mediation[234] was adopted by CEPEJ and can be used as a reference. The examples of such clauses can also be found in the rules or websites of mediation providers, which frequently indicate several different options for the parties to a contract to choose from. For example, International Chamber of Commerce (ICC) offers four different wordings of a mediation clause, varying from an optional choice of mediation to an obligation to use mediation, which, unless successful, shall be followed by arbitration[235]. Regardless of the exact wording of the clause, in cases where parties have obliged themselves to attempt mediation before turning to other proceedings, national legislators should ensure that the dispute is not admissible in court or an arbitration institution unless parties have fulfilled the condition. Such an approach is shared and used in many countries. The proceedings are usually suspended only upon request of the opposing party (e.g., Spain, Hungary, Belgium).

    National legislators are also encouraged to define what should be considered as a proper proof showing that mediation has indeed taken place, and the mediation clause is therefore no longer relevant. As will be discussed in chapter 5.5., a note of termination prepared by a mediator after the meditation was concluded could serve this purpose.

4.1.2.Initiation by one or both of the parties

    Initiation procedure is not as important in comparison to the moment of commencement of mediation. However, it is recommended to define the procedure clearly, as it might make a difference in the later stages. It is mostly true when parties have to prove that they have fulfilled their obligations to resort to mediation (for example, in case of a mediation clause in the contract or compulsory mediation). Countries that regulate the initiation procedure require the proposal and rejection or acceptance to be made in writing (e.g., Serbia) and prescribe the period of time in which the other party should reply. It varies from 10 days in Azerbaijan[236], 15 days in Serbia[237] to 30 days in Turkey[238]. A period of 15 days is foreseen in the Model contract clause on mediation[239] adopted by CEPEJ and is, therefore, recommended as a non-mandatory point of reference for the parties. After the termination of the prescribed period, no answer is treated as a de facto rejection. It is also in line with the provisions of the UNCITRAL Model Law (2018)[240]. Note should be taken that a proposal made by electronic means shall amount to a written proposal.

4.1.3.Recommendation by an official

    Recommendation by a judge or other official is the least intrusive (however effective) way to inform and encourage the parties to try mediating their case. First, parties might be more willing to accept such a proposal from a neutral party as opposed to a proposal coming from another party. Second, parties are aware that the official offering mediation will later have to adopt a binding decision in their dispute. Thus, they are less willing to reject such a recommendation without a good reason in order not to be seen as uncooperative. 

    Many countries included in the research have such provisions (e.g., Belgium, the Czech Republic, France, Germany, Ireland, Lithuania, Switzerland, Turkey). Some of them even oblige the judges to make such proposal or provide information on mediation to the parties. In Slovenia, ‘the courts shall be obliged to provide the parties with the option of mediation and may also provide other forms of alternative dispute settlement’ in the framework of the alternative dispute settlement programme[241]; in Serbia ‘[t]he court or other authority that is required by a special statute to instruct the parties about the possibility of using mediation shall provide all necessary information to the parties with a view to fully informing them about the possibility of using mediation or by referring the parties to a mediator[242]. Naturally, following a non-binding recommendation, mediation shall only be commenced upon the consent of both parties to a dispute.

4.2.   Mandatory basis

4.2.1.Attendance of an initial mediation session as a condition precedent to legal proceedings

          One of the possible means to promote the recourse to mediation is requiring parties to participate in an introductory mediation meeting with a professional mediator as a condition precedent to judicial proceedings. During this initial session, provided free of charge or at a low cost, litigants and their lawyers can make a voluntary decision to either opt-out from mediation or enter in full. It has to be emphasised, to avoid any ambiguities, that requiring mandatory participation in the first meeting with a mediator, which, unless parties decide otherwise, can be continued to a full mediation process, does not oblige parties to settle. Quite to the contrary, parties are merely obliged to participate in an introductory session and are free to leave at any moment, without having to provide reasons for their decision. Such a model has proved to be an effective way to foster the use of mediation in several countries. For example, in Italy, it has significantly raised the numbers of mediations conducted to approximately 150 000 a year while managing to keep the success rate as high as almost 50 percent in cases where parties have decided to continue with mediation after the first meeting. In Turkey, where Italian model of the requirement to participate in the first meeting with a mediator was introduced in January 2018 (for employment disputes), preliminary numbers indicate an increase from 13 000 to 600 000 mediations per year with a success rate at 68 percent[243]. Moreover, in Italy, it reduced the number of incoming litigious cases from 28 to 49 percent in certain types of disputes in which initial mediation session is a condition precedent to court proceedings when compared to the period prior to the introduction of these provisions. It is also believed that requiring parties to participate in the introductory mediation session can reduce the amount of time needed to solve a case in court as a consequence of a lower number of claims reaching it in the first place[244].

          Not surprisingly, more countries are choosing to require parties to attend an introductory mediation session as a condition precedent to judicial proceedings to promote the use of mediation in their national jurisdictions. While Italy[245] could be called the pioneer in the field, other countries, such as Azerbaijan (economic, family and labour disputes[246]), Lithuania (family disputes)[247]; Spain (labour disputes), Turkey (employment disputes, commercial disputes regarding receivables and compensation claims; extension planned to family and consumer disputes in 2020) have chosen to introduce the requirement to attend an initial mediation session as a condition precedent to legal proceedings as well. In the Act on Mediation in Dispute Resolution, Serbia has also opened the doors for implementation of such a requirement, stating that ‘[t]he mediation procedure shall be carried out voluntarily, based on explicit consent of the parties, except in the disputes where a special statute has envisaged the instigation of a mediation procedure as a condition for the conduct of judicial or other proceedings’[248]. In the UK, in most family cases, a MIAM (mediation information and assessment meeting) is also a legal requirement before taking the case to court.

          Nonetheless, the models outlined above slightly differ. In Italy, the requirement is fulfilled when the parties participate in the first meeting with a mediator, which can be transformed into a full mediation process if the parties so agree[249] (in other words, an opt-out model). In Azerbaijan, the model is similar, however, parties can participate in the initial mediation session (where the mediator explains the essence, advantages and rules of the mediation process) jointly or separately and decide whether they wish to continue with mediation the same day or, at the request of the parties, the other day designated by the mediator[250]. In the UK attending a mediation information and assessment meeting is also a legal requirement before making a relevant family application in the United Kingdom[251]. These meetings can also be attended individually or together. If both parties agree, an appointment is made for a subsequent mediation session (in other words, an opt-in model). Both opt-in and opt-out models can be effective; however, when parties are not obliged to participate in the initial information session together, they are not able to continue with the full mediation process on the same day as further arrangements have to be made. This might slightly diminish the rate of actual engagement in the full mediation process.

          Requiring parties to participate in the first meeting with a mediator still retains a certain level of compulsion with regard to the initiation of the process. Therefore, national legislators shall be careful not to infringe the principle of effective judicial protection ‘stemming from the constitutional traditions common to the Member States[252], which has been enshrined in Articles 6 and 13 of the ECHR[253] and which has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union’[254]. Therefore, they are encouraged to pay attention to specific criteria established below to be able to ensure effective judicial protection while reaching the primary goals of such a requirement, i.e., an increased amount of (successful) mediations conducted and reduced number of cases pending in court.

          The CJEU has adopted two separate decisions concerning the requirement to attempt mediation in the light of the principle of effective judicial protection, namely the judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others and the judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa. In neither one of them did the CJEU come to a conclusion that a requirement to attempt mediation infringes the principle of effective judicial protection, the principles of equivalence and effectiveness or the EU law in question[255]. However, it is true only ‘provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires[256]. The CJEU also stated that the EU law in question ‘does not preclude national legislation which entitles a consumer to refuse to participate in a prior mediation procedure only on the basis of a valid reason, to the extent that he may bring it to an end without restriction immediately after the first meeting with the mediator[257]. National legislators, regardless if inside or outside the EU, are encouraged to take these criteria into account when implementing a requirement to attempt mediation in their respective national law.

          Furthermore, to better protect the rights of the parties, exceptions to a requirement to participate in the first meeting with a mediator can be established. For example, in the UK, several exceptions are outlined when a party to a family dispute shall not be obliged to participate in a MIAM. These exceptions include, for example, urgency, bankruptcy, domestic violence cases, child protection concerns, and others[258]. Several documents adopted by the CEPEJ, namely Guide to the Judicial Referral to Mediation[259] and Frequently Asked Questions (FAQ) on Mediation[260] also outlines situations where mediation might be inappropriate. These situations can also be taken into account when forming the list of exceptions. However, since the aim of these documents was different, not all the situations provided therein are relevant. Moreover, exceptions, if introduced, shall be formulated clearly and unambiguously. 

          A requirement to attend an introductory first meeting with a mediator where parties can receive first-hand information and understand the essence of the process allows parties to make an educated decision whether mediation is a suitable way to resolve their dispute. Such a model, especially, implemented as an opt-out, can encourage parties to stay and try mediation without restricting their right to effective judicial protection as they can leave without having to provide reasons for not being willing to continue. If implemented correctly, it might be a powerful tool to increase recourse to mediation, as seen from the successful examples in certain countries described above. However, for such a model to work, national legislators shall ensure that the provisions clearly state when such a requirement is met, foresee exceptions where necessary and respect the criteria regarding the right to fair trial outlined above.

4.2.2.Referral to mediation by a judge

            The best feature of such an approach towards the requirement to attempt mediation is that it gives the judge a possibility to evaluate the situation before subjecting parties to the first meeting with a mediator. It increases the likelihood of parties settling. However, two common misconceptions surround mediation ordered by a judge which diminishes the credibility of such a referral in the eyes of the general public. First, it has to be noted that the sole fact that mediation was ordered by a judge does not imply that only legal issues of the dispute can be discussed or taken into account during mediation. Parties shall remain free to find a creative solution and take into account their interests and needs when looking for a settlement. Second, it is worth clarifying that judges shall not order the parties to settle, but merely to try mediating their dispute. If the solution is not found during mediation, parties shall retain a possibility to seek for a decision by a judge.

          Usually, judges are encouraged to refer parties to mediation in the early stages of judicial proceedings (e.g., Belgium[261], Lithuania). For example, in Belgium ‘a judge, if he considers that a reconciliation between the parties is possible, can by his own initiative or on request by one of the parties order mediation after hearing the parties during the introductory hearing, reinstatement hearing at an early date or a hearing scheduled no later than the last day of the month following the filing of the defendant's first submissions[262]. However, in that early phase, a judge might not be completely familiarised with the parties and the case at hand. Moreover, parties’ positions and willingness to settle might alter during the course of judicial proceedings. It is, thus, recommended to allow the judge to issue an order requiring parties to try mediation at any stage of the proceedings before the adoption of the decision. For example, in Italy ‘the judge, even in the appellate division, after assessing the nature of the case, the stage of the trial, and the conduct of the parties, can order the parties to attempt mediation; in this case mediation is a condition of admission to those proceedings even in cases of appeal. It may take place at any time before the closing arguments, or, otherwise, if a hearing is not expected, before the oral discussion of the pleadings[263].

          Judges shall set further procedural steps in the order or decision obliging the parties to try mediation and explain the procedure to the parties. These steps should include the term in which mediation has to be conducted with the possibility to prolong the term upon request of a mediator or parties. For example, in Lithuania, the order subjecting a dispute to court-related mediation ‘shall also postpone the proceedings and set the exact time for the next hearing. Court-related mediation shall be terminated no later than the date of the next hearing. Upon request of a mediator, the duration of such postponement can be prolonged in an order issued by the judge (or college) seised.[264]’ The time limit for conducting court-related mediation (not necessarily compulsory) is, with rare exceptions[265], set to 3 months (e.g., Cyprus, the Czech Republic, France, Italy, Poland, Slovenia, Turkey), however, it can also be left to the discretion of a judge.

          Provisions with regard to the possibility to appeal such order vary across countries. For example, in Belgium[266] or the Czech Republic[267], it is not subject to appeal, while in Slovenia[268] it is. Obliging parties to attend the first meeting with a mediator do not violate parties’ rights provided that the conditions stated in the previous chapter are met[269]. Hence, as long as these conditions are ensured in the national legislation, the appeal procedure might not be necessary.

5.     Mediation process

5.1.   Before mediation

5.1.1. Appointment of a mediator

          As a general rule, parties are free to choose a mediator or co-mediators if they so prefer (e.g., Azerbaijan, Belgium, Croatia, Germany, France, Lithuania, Poland, Serbia, Turkey). However, in practice, parties have constraints towards a mediator proposed by another party and are not always able to reach a consensus on who should mediate their dispute. National legal acts usually redirect conflicting parties to another third party that could appoint or recommend a mediator. Slovenia, as recommended by the UNCITRAL Model Law[270], went even further to dispel the constraints of the parties and ensure the impartiality and neutrality of mediators: ‘[t]he person or institution may, where appropriate, recommend or appoint a mediator who is of a nationality other than the nationality of the party so as to provide independence and impartiality of mediation, or for other justified reasons’[271].

          Depending on the national provisions, the third party appointing or recommending a mediator could be a public authority in charge of mediation (for example, in Lithuania, in the scope of compulsory mediation parties can either choose a mediator themselves or a mediator can be appointed by the Public legal aid office, which is in charge of the list of mediators[272]); it could also be a mediation provider, if parties agree on it (for example, in Italy ‘[u]pon receipt of the application for mediation, the director of the mediation provider shall appoint a mediator and schedule a first meeting between the parties not more than thirty days from the filing of the application’[273]).

          With regards to court-related mediation, parties are generally free to propose a mediator they prefer, which is usually taken into account by the judge (unless the mediator does not meet the established criteria). If the parties are not able to decide themselves, then it is the judge appointing the mediator. For example, in Belgium ‘[t]he parties, or, in their absence, their advocates, can jointly request the judge to appoint the mediator or the mediators that they indicate. The judge grants this request unless the mediator or mediators indicated by the parties do not meet the conditions set out in article 1726. If the parties do not agree on which mediator or mediators to appoint, the judge, preferably, in turn, appoints an accredited mediator or mediators as specified in article 1727 from the list of mediators <…>[274].

5.1.2. Decision on costs

          While the decision on the division of costs should lay primarily on the parties and should be indicated in the agreement among them and the mediator, it is useful to introduce a rule for situations where a consensus is not reached, especially, with regard to court-related mediation. In the majority of the national laws regulating the division of costs, it is indicated that the parties should bear their own costs, while the cost of mediation shall be born equally (e.g., Croatia, the Czech Republic, Ireland, Serbia, Slovenia, Turkey). It should be also noted that in some cases, especially with regards to court-related mediation, the judge can distribute the costs in a different proportion, with regards to the economic situation of the parties[275]. In other cases, the costs of (unsuccessful) mediation can be included in the costs of the court proceedings that follow (for example, in Poland ‘[w]here civil proceedings are initiated within three months of the end of mediation which did not result in a settlement agreement or within three months after a court order refusing to approve a settlement agreement becomes final and non-revisable, the necessary costs of proceedings shall include the costs of mediation in an amount not exceeding a quarter of the fee’[276]). The deviation from the principle of sharing the costs equally imposed by a judge should not be seen in a negative light. However, national legislators should clearly establish in which cases and under which criteria judges have the discretion to oblige one party to bear a bigger part of costs stemming from mediation, as will be discussed in chapter 7.2.1.

5.1.3. Agreement to mediate

          The agreement to mediate is of crucial importance in the countries where mediation is unregulated, or the regulation is scarce. While the parties do not have the discretion to agree on some issues related to mediation, such as suspension of limitation periods, they still can set at least the basic standards to their process. These standards can lay on confidentiality, an understanding that mediation settlement becomes binding solely from the moment it is put in writing and signed, and others.

          Countries where mediation process is regulated in detail also choose to require parties to sign an agreement to mediate before mediation (e.g., Azerbaijan, Belgium, the Czech Republic, Cyprus, Ireland, Poland, Spain). They define what should be identified in the agreement to mediate as well. Such an approach is encouraged for three main reasons. First, it brings clarity to the parties and helps avoid disputes over the process and, especially, the fees later. In Lithuania, for example, ‘when mediation is provided for a fee <…> mediation can start only after parties and the mediator agree in writing on the size of the fee and the procedure of payment’[277]. Second, it can be used as a proof where, for example, there is a need to demonstrate that a particular mediator has mediated the dispute and cannot, therefore, be obliged to testify in court. Third, many provisions allow parties to agree other than stated in the legal act or require their explicit consent. For example, parties can:

a) opt for co-mediation instead of mediation (for example, in Croatia ‘[t]he parties shall agree whether mediation is to be carried out by one or several mediators and who shall be appointed as mediator’[278]);

b) diverge from the common rule that the costs of mediation are shared equally while parties bear their own (for example, in Serbia ‘[i]n the mediation procedure each party shall bear its own costs and common costs shall be born in equal shares by the parties, unless they have agreed otherwise[279]);

c) foresee the participation of third parties or experts (for example, in Germany ‘[o]nly with the consent of all parties can third parties become involved in mediation’[280]);

d) give consent to a mediator to make proposals (for example, in Ireland ‘[t]he mediator may, at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals[281]);

e) abide themselves by the rules of the process established by certain mediation provider (for example, in Serbia ‘[t]he parties shall be free to negotiate the rules of mediation procedure by references to certain rules of procedure or otherwise[282]) and others;

f)  permit the mediator to use separate sessions (caucus) and to define the modalities of their use.

It should also be noted that agreements to mediate shall be subject to amendments in the course of mediation if they are needed.

          While parties are free to include into the agreement to mediate what they see fit, the provisions shall not be contrary to the mandatory law. It is thus recommended to approve a model form for such an agreement. An example of a model form could also be found in the Mediation Development Toolkit[283] adopted by CEPEJ. Introducing a recommended model form, especially recognised internationally, can ease the agreeing on mediation for the parties and smooth the start of it. National legislators are, thus, encouraged to use Model Agreement to Mediate as a minimum standard.

5.2.   Commencement

          As a rule, parties in mediation are granted procedural guarantees such as confidentiality or suspension of prescription and limitation periods. Moreover, some countries set time limits for the mediation process (e.g., Cyprus, the Czech Republic, France, Italy, Serbia, Slovenia, Turkey). Thus, clarity with regards to when these guarantees start to apply, or terms begin to run is needed. It is, therefore, highly recommended to define the exact moment when mediation should be considered as started (and terminated, as will be discussed in chapter 5.5.).

          Some national laws are in line with such recommendations (e.g., Croatia, Cyprus, the Czech Republic, Slovenia, Turkey), while others have taken a slightly different path and define the commencement of mediation only with regards to certain term or specific procedural guarantee. For example, in Ireland ‘[i]n reckoning a period of time for the purposes of a limitation period specified by the Statutes of Limitations, the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after either—(a) a mediation settlement is signed by the parties, and the mediator or (b) the mediation is terminated, whichever first occurs, shall be disregarded’[284]; in Italy: ‘1. The mediation procedure will last no longer than three months. 2. The period referred to in paragraph 1 shall begin from the date of the filing of the application for mediation, or after the expiration of the date set by the court for the filing of the same <…>’[285].

          The commencement itself can be linked to several different moments. The following examples were found in the countries in scope of this research:

a)                when the agreement to mediate was signed (e.g., the Czech Republic[286]);

b)                the first meeting with a mediator where an agreement is reached to continue the mediation and it is documented through minutes (e.g., Turkey [287]);

c)                the receival of a proposal for the commencement of mediation from the opposing party (e.g., Slovenia[288]);

d)                the acceptance of a proposal for mediation (e.g., Croatia[289]);

e)                the application to the mediation provider (e.g., Italy[290]) or mediator (e.g., Turkey);

f)                the date of the issue of the decision, in the scope of court-related mediation (e.g., Cyprus[291]).

          With regard to court-related mediation, the national provisions regulating the moment of commencement of mediation are relatively similar. The majority of them connect the day of commencement to the day when a judge issues and order or a decision indicating that parties have decided to attempt mediation or were referred to it. However, in this case national legislators shall ensure the actual implementation of such a decision. For example, a judge can indicate the time limits to start mediation in the decision. Sanctions can also be foreseen if mediation was not actually started to avoid abuse of the suspension of judicial proceedings or other procedural guarantees.

          When it comes to an out of court mediation, the regulations and possibilities are more diverse in comparison to court-related mediation. Among the possible reference points listed above, it is recommended to use the date when the agreement to mediate was signed as a moment of the commencement of mediation. First, unlike the submission of a proposal or even acceptance of one, after the agreement to mediate is signed by both parties and the mediator, it is definite that the mediation will take place. Second, the exact date of the signature of agreement to mediate is easier to define than in the case of a proposal or an acceptance of mediation, especially if they were not made in writing. Third, an agreement to mediate indicates the mediator who is also subject to the procedural guarantees, such as confidentiality or dismissal from having to testify with regards to information acquired in the course of the mediation. Thus, it brings both clarity and certainty not only to the parties but also to a mediator.

          It is recommended to use a consistent approach, obliging the parties to sign an agreement to mediate and anchoring the commencement of mediation to the day indicated in the agreement. However, if such model is not possible, other dates named above could also be used interchangeably, provided that this date is prior to the beginning of any discussions on the substance of the dispute and that the exact date of the commencement of a mediation can be easily and unambiguously defined by the parties and the mediator.

5.3.   During mediation

The mediation process and the structure of it depends on the will of a mediator and the rules of a mediation provider. As long as procedural guarantees (which will be discussed in more detail in chapter 5.4.) are in place and mediators fulfil their duties while adhering to the standards of impartiality and neutrality (as discussed in chapter 3.2.1.), national legislators shall not interfere with the process too much. It is primarily recommended to allow mediators to arrange the process in the manner they deem appropriate for as much as the parties consent to it. However, there are several issues with regards to the mediation process itself that can and should be tackled in the national laws, namely the use of electronic means, the participation of lawyers and involvement of third parties.

a)    Use of electronic means

Traditionally mediation is conducted face to face. Nonetheless, parties can benefit from the inclusion of electronic means to the process. Therefore, international documents encourage the use of electronic and online tools[292]. Several national laws also refer to the possibility of using them (e.g., Cyprus, Italy, Lithuania). In Spain, parties are even encouraged directly to apply electronic means (‘Mediation as a matter of a claim of a quantity not exceeding EUR 600 shall be carried out preferably by electronic means unless the use of such a complaint is not possible for any of the parties[293]). The use of electronic means can increase the accessibility of the process. The reasons for that are the following: first, using various types of video and teleconferencing solutions reduces the need to travel and, subsequently, the costs of mediation; second, negotiation tools can help the mediator and the parties to prioritise and find better-adjusted solutions in a shorter period. Hence, it is considered a good practice.

    However, mediation providers offering such possibility shall ensure that procedural requirements for mediation and the conduct of mediator are met regardless of the form of mediation chosen. A reference to that can be made in the rules of mediation provider (In Italy, for example, ‘[t]he mediation can be carried out using electronic methods as provided for in the regulation of the provider’[294]) or in a legal act itself (in Spain mediation can only be carried out ‘provided that the identity of the parties concerned is ensured and compliance with the principles of mediation laid down in this Law’[295]). Moreover, not every person has access to the Internet and not all those who do are comfortable with using it. Hence, it shall not remain the sole way of settling disputes and parties shall remain free to choose which method to apply during mediation. It is especially important if parties are required to participate in the first meeting with a mediator as a condition precedent to judicial proceedings or if they are referred to it by a judge[296].

b)    Participation of lawyers

    Parties of the dispute shall be free to decide whether and to what extent they are willing to be represented by their lawyers. Nonetheless, the presence of the lawyers of the parties in the course of mediation is viewed in a positive light. Even though some practicing mediators notice that in certain instances lawyers are to blame for redirecting mediation to a deadlock while parties themselves would have been willing to settle, it cannot be disregarded that lawyers at the same time ensure that the interests of the parties are protected. This is particularly important when a power imbalance exists between the positions of the parties, as is, for example, in domestic violence cases. In Austria, for example, the mediator even has an obligation to ‘refer the parties to counselling needs, particularly in respect of legal issues which result in the context of the Mediation[297].

    Moreover, when assisting the parties, the lawyers[298] draft the mediation settlement agreement, ensuring that it is not contrary to mandatory law or public order and, consequently, increase the probability that it will be implemented or transformed into an enforceable title if need be. This can raise the overall quality of mediation and its outcome. On a different note, having first-hand experience in mediation and seeing satisfied clients can encourage lawyers to instruct subsequent clients to try mediation as well, which can also lead to bar associations joining the promotion of mediation.

    While there is no question whether lawyers shall be allowed to participate in mediation, an obligation to be represented by a lawyer in mediation raises several concerns. First, the CJEU has issued a decision stating that ‘national legislation may not require a consumer taking part in an ADR procedure to be assisted by a lawyer.[299] However, it has to be taken into account that such a conclusion was reached exclusively in the light of the European Union Directive on Consumer ADR[300] and compulsory mediation. Second, a mandatory requirement to be represented by a lawyer during mediation can give rise to additional costs and diminish accessibility.

    Nonetheless, among all the national laws subject to this research, such obligation was found only in Italian legislation, which states that ‘[a]t the first meeting and at subsequent meetings, until the conclusion of the proceedings, the parties must participate with the assistance of a lawyer.’[301] Outside the scope of this research, Greece has introduced a similar requirement as well.[302] However, the Greek Supreme Court has also voiced criticism over it, mainly with regards to the increased costs of first meeting with a mediators, required as a condition precedent to legal proceedings[303]. Hence, it is recommended to encourage parties to be represented by lawyers during mediation while not to making it mandatory.

c)    Participation of third parties

    None of the national legal acts under consideration prohibit the participation of the third parties in mediation if the parties to a dispute request or consent to it. There is no necessity for such a prohibition, however, all the participants, regardless of their status in mediation, shall be bound by the obligation of confidentiality and shall not be required to testify in court or arbitration proceedings with regards to the information acquired during mediation. For example, in Croatia ‘[u]nless otherwise agreed by the parties, the mediator and the persons participating in mediation proceedings in any capacity may not be forced to testify in arbitral, judicial or any other proceedings in relation to information and data resulting from mediation proceedings or connected therewith’[304].

    Moreover, mediations in the family law domain (and sometimes others) can directly or indirectly affect the interests of children. For example, in the Czech Republic, ‘[t]he court may, if expedient, refer a person (a) who fails to comply voluntarily with a court decision or with a court-approved agreement on the care of a minor or, where applicable, with regard to contact with a minor, or a decision to return the child, to a first meeting with a mediator in extension of 3 hours’[305]. Therefore, lawmakers are encouraged to ensure, when it is appropriate, the participation rights of children in family disputes and other cases where the dispute or the outcome can affect them, in order to better protect childrens’ rights and interests.

    More elaborated provisions might also be needed with regard to the participation of experts. Firstly, experts, with certain exceptions, have to be remunerated. It is thus recommended to agree on the division and calculation methods of these costs in advance, when possible. For example, in Italy ‘[t]he mediation provider’s rules of procedure must include the methods for calculation and payment of fees of the experts’[306]. Secondly, in some cases, experts have to adhere to professional standards or stricter liability for breach of obligations. For example, in Belgium, an expert might face the same sentence as a mediator for the breach of confidentiality – imprisonment from 1 to 3 years[307]. Nonetheless, these standards vastly depend on the status of an expert in the national law; therefore, it is impossible to establish common provisions concerning experts other than those applied to any third party participating in mediation.

5.4.   Procedural guarantees

5.4.1. Confidentiality

          Guidelines on Mediation[308] reiterate the importance of ensuring confidentiality in mediation and outlining clear exceptions of this principle. It cannot be stated that mediation is available if parties do not have confidence in the process and therefore are reluctant to use it. Confidentiality of mediation is an indispensable component for building parties’ trust in mediation. It is thus critical to ensure that national laws establish the minimum standards for the implementation of the obligation of confidentiality, while parties are free to elaborate this obligation further in their agreement to mediate. The minimum standards should include requiring all participants and persons involved in mediation to adhere to this obligation, sanctioning those who breach it and limiting the exceptions of confidentiality to the cases of crucial importance. Mediators, as discussed in chapter 3.2.1. shall adhere to higher standards, which include the second layer of confidentiality in the private meetings (caucuses) with the parties. They shall also face stricter sanctions for the breach of their duty. Parties, on the other hand, shall be free to agree otherwise or waive such an obligation in writing in their agreement to mediate.

          On the bright side, every country, which fell under the scope of this research, in one or another manner anchors the confidentiality of mediation in the national law. However, some still see it primarily as a duty of a mediator and not as a general obligation for participants of mediation (for example, in Finland the openness of court-related mediation is subject to the provisions of the Act on Publicity of Court Proceedings in General Courts while the confidentiality of mediation is only discussed with regard to mediator and his or her auxiliary[309]; the Mediation act of Czech Republic is also not making a reference to the obligation of the parties to maintain confidentiality – solely the duty of confidentiality of a mediator is established[310]). Others state in general terms that the process of mediation is confidential without identifying precisely to whom this obligation applies (e.g., Belgium, Ireland, Slovenia). Nonetheless, national legislators are encouraged to state clearly, that the obligation of confidentiality should apply to all the people involved in the proceedings, preferably, indicating that it includes a mediator, parties, any persons administering mediation and all third parties participating in mediation. Such an approach is implemented in Austria, Croatia, Germany, Lithuania, Poland, Serbia, Spain, Turkey.

          Moreover, it is recommended to establish what forms the object of the obligation of confidentiality. As a general rule, only communication happening in the course of mediation shall benefit from confidentiality. It is, therefore, crucial to establish in a precise manner the moments of commencement and termination of mediation, as discussed in chapters 5.2 and 5.5. However, parties shall also be free to agree otherwise. For example, in Belgium ‘[t]he parties may agree in writing to render confidential the communication and documentation established prior to the commencement of the mediation procedure[311]. When it comes to the confidential communication itself, some countries make a relatively vague reference to information or facts acquired in the course of mediation (e.g., Germany, Lithuania, Poland), while others make a more explicit reference to documentation, notes or data obtained or created in the course of mediation (e.g., Belgium, Croatia, Ireland, Turkey, Spain) or provide an exemplary non-exhaustive list of what fall under the scope of information that shall be held confidential (Azerbaijan[312]). The latter approach should be encouraged for the purpose of clarity. Moreover, in Belgium, for example, it is stated what documents should fall outside the scope of the obligation of confidentiality (unless, of course, parties agree otherwise). Namely, it is the agreement to mediate, the mediation settlement, and the final protocol prepared by a mediator stating that the mediation was not successful[313].  Such clarity is also encouraged.

          As mentioned above, the exceptions to the principle of confidentiality, shall be clearly defined and based only on substantial grounds. These exceptions usually rely on two bases. The first one is related to the public order and mandatory law. These include threats to the physical or psychological integrity of a person, prevention of a crime and the interests of a child. The second regards implementation and enforcement of mediation settlement. Such an approach is applied in Croatia, Cyprus, France, Ireland, Lithuania, Serbia, Slovenia. Czech Republic has also included in their national law a provision, stating that ‘[t]he 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 activities performed by the Mediator between him and the Party of the Conflict or its legal representative and also to the extent necessary for his protection as part of the performance of supervision over the Mediator’s activities or in disciplinary proceedings[314]. A similar provision can also be found in the Irish Mediation Act[315]. While the exceptions enlisted above are indeed necessary, national legislators are encouraged not to overextend the list, as the principle of confidentiality might lose its purpose.

          The last aspect worth mentioning with regard to confidentiality is the so-called second layer of it or insider-insider confidentiality in the separate sessions (caucus). In other words, it is mediator’s duty not to disclose the information received during a private meeting with one party to the other party without explicit permission. There might be two different approaches to this duty – the first one is to hold that everything is confidential, unless party gives permission to disclose (for example, in Italy ‘[w]ith respect to the statements made and information acquired during separate sessions, unless consent of the declarant or of the person from which the information originated is obtained, the mediator is also required to maintain confidentiality with respect to the other parties’[316]); the second one is to hold that everything can be disclosed to  another party unless said otherwise (such an approach is recommended in the UNCITRAL Model Law (2018)[317] and implemented in some countries; for example, in Slovenia ‘[w]hen the mediator receives information concerning the dispute from a party, the mediator may disclose the substance of the information to any other party to mediation, unless a party has disclosed the information to the mediator subject to a specific condition that it be kept confidential[318]). The first approach is preferred primarily because mediator is a professional; therefore, the burden of enquiring whether information can be shared or not should lay with him or her, instead of with the party. Moreover, parties might be more willing to open up knowing that nothing can be shared with the other party without their explicit permission.

5.4.2. Voluntariness

          Many countries emphasise the voluntary nature of mediation (e.g., Austria, Azerbaijan, Belgium, Croatia, Cyprus, Germany, Ireland, Poland, Slovenia, Spain, Turkey). The principle of voluntariness is one of the main factors of what makes mediation exclusive in comparison to judicial proceedings and arbitration. First, parties shall be free to agree on the content of mediation settlement and to terminate mediation at any point. Second, parties shall also be free to choose a mediator or mediators and decide on other organisational details of the process of mediation or simply refer to the rules of mediation provider that they prefer. Giving the freedom to the parties to decide on the procedural aspects that fit their needs the most can increase the likelihood of a settlement. While national legislators shall define the basic lines of the procedure, as parties might not even be able to reach an agreement on procedural aspects, they are also encouraged to allow parties agree otherwise. For the sake of clarity, national legislators shall explicitly state which procedural provisions are not mandatory and can be subjected to the agreement of the parties. In order to prevent possible disputes in the future, agreements on the changes of non-mandatory provisions shall be concluded in writing.

          While the principle of voluntariness is one of the core principles of mediation, it still raises some confusion and misunderstandings, especially in the light of a requirement for the parties to participate in the first meeting with a mediator as a condition precedent to the judicial proceedings or following the referral by a judge. However, it shall be noted that this question was put to rest by the CJEU in one of its decisions. The court has drawn a clear distinction between the voluntary nature of the process of mediation and referral to mediation. It stated that ‘the voluntary nature of the mediation lies, therefore, not in the freedom of the parties to choose whether or not to use that process but in the fact that ‘the parties are themselves in charge of the process and may organise it as they wish and terminate it at any time’[319]. Such an interpretation of the CJEU clarifies that respecting the principle of voluntariness shall not preclude national legislators from requiring parties to participate in the first meeting with a mediator; however, such a referral shall not affect the right of the parties to freely decide whether or not to settle their dispute in mediation or choose other means of dispute resolution, including courts.

5.4.3. Evidence and testimonies

          The primary purpose of the prohibition to introduce evidence acquired in the course of mediation to judicial, arbitral or similar proceedings is to prevent ‘fishing expeditions’ or, in other words, situations when parties are only interested in mediation as a possibility to acquire valuable information, and, later on, terminate the mediation without a settlement just to use that information in court. The same purpose can be attributed to the prohibition to force a mediator, parties or other participants involved in the mediation to testify in other proceedings. Very much like the effects of obligation of confidentiality, absence of the abovementioned prohibitions can also reduce the accessibility of mediation, as parties will be afraid that everything they say will be used against them in court and, thus, the full potential of mediation will be untapped. However, unlike confidentiality, introducing these prohibitions in an agreement to mediate might not suffice, as they may be subject to mandatory requirements of procedural law. Hence, it would not be for the parties to change them. National legislators are encouraged to introduce these prohibitions in the national laws on mediation or respective procedural codes.

          Two main approaches can be found with regard to these prohibitions. Some countries (e.g., Azerbaijan, Belgium, France, Ireland, Spain, Switzerland) see this prohibition as an extension of the obligation of confidentiality (for example, in Belgium ‘[t]he documents prepared and the communications taking place in the course of mediation and for the needs of it are confidential. They cannot be used in any other judicial, administrative or arbitral proceedings nor in any other dispute resolution procedure. They shall never be admissible as evidence or as an extra-judicial confession’[320].) Others (e.g., Croatia, Lithuania, Slovenia, Turkey) introduce this prohibition as a separate procedural guarantee (for example, in Slovenia ‘[t]he parties, mediators or third persons who participated in mediation shall not in arbitral, judicial or other similar proceedings rely on, introduce as evidence or give testimony or evidence 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 the 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; f) documents drawn up solely for purposes of the mediation proceedings’[321]). Both approaches can be effective and fit for purpose, provided that they are established in a detailed manner. The Slovenian model outlined above would, in that regard, be preferred over Belgian example.

          On the other hand, an introduction of a prohibition to present information or documents acquired during mediation might give a way for parties to cheat, for they could bring various documents to mediation just to make sure, that they will become inadmissible in subsequent proceedings. Therefore, provision shall be introduced stating that, following the Slovenian example, ‘evidence that is otherwise admissible in arbitral, judicial or similar proceedings does not become inadmissible solely because it has been used in a mediation proceeding.’[322] This could be applied for documents which had already been public or had been acquired by the opposite party prior to the mediation. Moreover, parties shall also remain free to introduce their own pieces of evidence, regardless of whether or not they were used during mediation. However, it is not possible to tackle every situation a priori and some questions with regards to admissibility of evidence might be left in the grey zone. Thus, the question whether or not the document was public, acquired before mediation or should be admissible on other grounds in accordance with the national law might be left for the national jurisprudence to clarify on a case by case basis.

 

          When it comes to testifying, not all countries make an explicit reference to such a prohibition. However, it is not self-evident that testifying falls under the scope of the prohibition to introduce evidence. It is thus recommended to include a direct reference to this prohibition as is the case in, for example, Belgium, Poland, Croatia, Italy, Lithuania, Slovenia, Switzerland, and Turkey. Some countries providing such procedural guarantee limits it to a mediator (e.g., Belgium, Lithuania, Poland, Switzerland), while others extend it to all the participants of mediation (e.g., Croatia, Slovenia, Turkey) or at least to the parties (for example, in Italy). National legislators are encouraged to resort on the broadest application of this procedural guarantee, namely, extend it to all participants of mediation.

         

5.4.4. Prescription and limitation periods

          Parties to a dispute will not resort to a mediation knowing that in case they are unsuccessful, they might lose the possibility to defend their rights in court. However, such a situation is likely if prescription and limitation periods do not cease to run during mediation. Guidelines on mediation clearly states that parties should not be prevented from using mediation by the expiry of limitation terms[323]. National legislators are therefore encouraged to introduce such guarantees in order not to reduce the accessibility of mediation in both out of court and court-related mediations. This is of crucial importance when the first meeting with a mediator is a condition precedent to legal proceedings, as national legislators should be careful not to restrict the right to fair trial as guaranteed in the Art. 6 of the ECHR. It is also in line with the CJEU decision in the case C-75/16 Menini and Rampanelli v. Banco Popolare Societŕ Cooperativa[324].

          The vast majority of the countries subject to this research makes a reference in respective national laws to the suspension of prescription or limitation periods during the course of mediation (i.e., Austria, Azerbaijan, Belgium, Croatia, Cyprus, Czech Republic, France, Ireland, Italy, Lithuania, Poland, Serbia, Slovenia, Spain, Switzerland (only in court-related mediation), Turkey). Most often these provisions define the exact moment of the suspension, declare the suspension itself and state from which moment the limitation or prescription period resume to run (for example, in Lithuania ‘[u]pon commencement of mediation the limitation periods are suspended. The moment of commencement for the purpose of the suspension of limitation period shall be the day when a party to a dispute directly or through another person (a representative, a mediator, a person administering the provision of mediation or another entitled person) sends out a written proposal to solve the dispute through mediation. If parties do not settle, the limitation periods resume to run’[325]).

          However, some countries add certain modalities. For example, in Serbia limitation periods are only suspended for 60 days[326], while in Croatia, ‘[i]f mediation terminates without settlement, it is considered that no suspension of limitation occurred’[327], unless ‘parties file a claim, or undertake other procedural activity before the court or other competent authority in order to determine, secure or assert a claim’ in no more than 15 days after the termination of mediation’[328]. On the one hand, such provisions encourage parties to act quicker; on the other hand, especially concerning complex disputes, such periods might be too short. Moreover, parties shall not be punished for not being able to settle. For example, Austria, allows parties to broaden the scope of provisions on limitation periods and to agree in writing that ‘the suspension also includes other claims which exist between them and which are not affected by the mediation’[329].

          For the sake of clarity, it is essential to establish the exact moments when the limitation period was suspended and resumed. One way to define it is to link these to the moments of commencement and termination of mediation, as provided in chapters 5.2. and 5.5. However, some countries suspend the limitation periods from the date one party proposes to another (usually in writing) to resort their dispute to mediation (e.g., Lithuania) or files an application to a mediation provider (e.g., Italy), while other resume the limitation period only after a certain period of time have passed after termination (for example, a month in Belgium[330] or 30 days in Ireland[331]). All of the approaches outlined above can be used as long as the exact date can be easily defined.

5.4.5. Interim measures

          Allowing parties to request interim measures in the course of mediation is not a standard provision among national laws in consideration (an explicit reference to such guarantee was only found in Belgian[332], Italian[333], and Lithuanian[334] legal acts). However, the CJEU has emphasised in several judgements the importance of granting the possibility for the parties to request interim measures in the light of the methods of alternative dispute resolution requested as a condition precedent to the judicial proceedings[335]. It stated that ‘the requirement for a mediation procedure as a condition for the admissibility of proceedings before the courts may prove compatible with the principle of effective judicial protection, provided that <…> interim measures are possible in exceptional cases where the urgency of the situation so requires’[336]. While the members of the European Union are obliged to adhere to the decision of the CJEU, national legislators in other countries are also encouraged to introduce the application of interim measures in the course of the mediation process, especially, when the first meeting with a mediator is a condition precedent to the judicial proceedings or when such a referral is made by a judge.

5.5.   Termination

          To begin with, setting clear rules which define when mediation should be considered terminated puts the finishing touch on the structured, clear-cut and, therefore, easy to comprehend and rely on process of mediation. The moment of termination is also critical with regard to the procedural guarantees, as participants of mediation shall be able to define precisely from which moment, for example, communication between the parties is no longer confidential or the condition precedent to the judicial proceedings is fulfilled. Therefore, national legislators are expected to specify in the law when mediation is terminated.

          Majority of the national laws subject to the research outline grounds for termination of mediation (e.g., Azerbaijan, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Lithuania, Poland, Serbia, Slovenia, Spain, Turkey). Three of these grounds could be called general, as they are echoed in a similar phrasing throughout every national law on mediation in the countries mentioned above. It is, namely, (1) conclusion of a mediation settlement; (2) declaration by a mediator terminating mediation, usually, when he or she deems the settlement between the parties highly unlikely; (3) declaration by the parties or one party (provided that there are only two parties to mediation) announcing their withdrawal from mediation. Corresponding grounds are also foreseen in the UNCITRAL Model Law (2018)[337]. The fourth ground not so frequently indicated, however, logical, is the expiration of the time allocated to mediation if it was defined in a prior agreement or prescribed by law.

          Some countries provide more specific grounds. For example, in the Czech Republic grounds related to the mediator’s ability to serve are extensively described. There ‘(1) The Mediator shall end the initiated mediation if a) a reason arises under Section 5 (1) of his impartiality, or b) the Parties of the Conflict have not met with the Mediator for more than 1 year.

(2) The Mediator may end the already initiated mediation for the reason stated in Section 5 (2)[338], or if one of the Parties of the Conflict has not made the negotiated advance payment.

(4)   Mediation ends with <…> f) suspending authorisation to perform the activities of Mediator or striking the Mediator off the Register; g) death, declaration of death or termination of one of the Parties of the Conflict; or h) death of the Mediator or his declaration of death’[339]; in Cyprus it is explicitly stated that ‘[t]he mediation process ends <…> if a settlement is being reached that for the mediator appears illegal; if the mediator considers that the settlement of the dispute may not be admitted to Court.[340] As long as the general grounds of termination are ensured in the legislation, such  clarifications are not viewed negatively, yet again, provided that the moment of termination can be easily defined.

          After the termination of the mediation, some countries oblige mediators to prepare a note to briefly indicate the outcome of mediation. The list of such countries is not long (an explicit reference was only found in Austria (only upon request of the parties), Azerbaijan[341], Cyprus, Ireland, Lithuania, Poland, Spain, Turkey, while the name of such a note varies from ‘a minute’ to ‘a report’[342]. In practice, it serves different purposes.  It can be used as:

a)    a proof indicating when the mediation was terminated for it to be easier to define the exact date for the continuation of the suspended limitation periods. For example, in Cyprus ‘[w]here no agreement is reached during the mediation process, the mediator shall prepare a minute, stating that no agreement is reached, and which is signed by himself and if they desire so, by the parties[343]’.

b)    a justification that the parties have resorted to mediation in cases where mediation is a condition precedent to the judicial proceedings; where mediation clause was included in a contract; where parties can benefit from reduced registration duty for trying to mediate their dispute before resorting to the court; where parties are subject to other monetary incentives as well as in other cases when parties so request. For example, in Lithuania in order for the court registration duty to be reduced, parties are obliged to provide written evidence proving that mediation took place[344]. In such a case, a note of termination of mediation could serve as a written evidence.

c)    as a report for the court in the course of court-related mediation, or mediation in penal and administrative matters, as well as in other cases where authorities have to be informed. In Ireland, for example, ‘when the parties to the proceedings concerned engage in mediation and subsequently apply to the court to re-enter the proceedings, the mediator shall prepare and submit to the court a written report which shall set out — (a) where the mediation did not take place, a statement of the reasons as to why it did not take place, or (b) where the mediation took place— (i) a statement as to whether or not a mediation settlement has been reached between the parties in respect of the dispute the subject of the proceedings, and (ii) if a mediation settlement has been reached on all or some only of the matters concerning that dispute, a statement of the terms of the mediation settlement.[345]

     As explained above, a note of termination of the mediation might serve as a sort of proof and, thus, is likely to be disclosed to the third parties. It is, therefore, of crucial importance not to infringe the principle of confidentiality and other obligations of the mediator as stated in the respective national law and the code of conduct. Hence, it is not recommended to require including information that could be considered confidential. While information on the parties, mediator and mediation provider (where applicable) along with the date and place shall not raise concerns with regard to the principle of confidentiality, requiring to ‘reflect the agreements reached in a clear and understandable way[346]’, as is the case in Spain, might raise some doubts. National legislators are, thus, encouraged to limit information indicated in the note of termination to a general description of the dispute and an indication whether the mediation was successful or not.

6.     Mediation settlement

6.1.   Form and content

          With rare exceptions[347], mediation settlement, unless homologated in court or transformed into a notarial deed, has a status of a contract. Hence, the parties are free to agree on everything they deem fit as long as the subject matter of the dispute is capable of settlement under the national law (in France, for example ‘[t]he agreement reached by the parties shall not affect the rights, which parties cannot freely dispose[348]). However, the scope of the agreement can raise more questions after the judicial proceedings concerning the dispute in question have already been initiated. First, agreement on only a part of a dispute can also alleviate the burden on the court and reduce the duration of the court proceedings and should, therefore, be allowed. Second, following the same line of thought, an agreement on more issues than were introduced in a claim or a counter-claim should be encouraged to avoid litigation in the future. It is recommended for the national legislators to directly address the scope of a mediation settlement, especially emerging from court-related mediation, in their national laws as is the case in, for example, Belgium, Finland, France, or Spain.

   As long as mediation settlement has a status of a contract, national provisions regulating the form of a contract apply. However, in order to accommodate international standards, basic requirements shall be met. The Singapore Mediation Convention[349], UNCITRAL Model Law (2018)[350] and the Mediation Directive[351] all require mediation settlement to be concluded in writing with regard to rendering such agreement enforceable. UNCITRAL documents also require the mediation settlement to be signed by the parties and, preferably, by the mediator. Majority of the countries in this research already adhere to these standards, requiring the mediation settlement to be signed by the parties and the mediator and, hence, to be concluded in writing (e.g., Azerbaijan, Belgium, Cyprus, the Czech Republic, Finland, Italy, Serbia, Spain). In Serbia[352] and Italy[353] in some instances, mediation settlement shall be signed by the attorneys as well. A model mediation settlement can be found in the Mediation Development Toolkit[354] adopted by CEPEJ. Stricter standards can be foreseen under respective national law.

6.2.   Enforcement

          As a rule, parties to mediation reach a consensus on every provision that they include in the mediation settlement. Hence, voluntary adherence to the obligations foreseen therein is more likely than in cases where a decision is imposed on the parties. However, even in such circumstances, people tend to change their minds and become reluctant to abide by their promises. Thus, national legislators shall ensure that parties, who have participated in mediation in good faith and spent their money and time to resolve the dispute, would not be left empty handed. Otherwise, the credibility of mediation in the eyes of the general public and, subsequently, its availability would be diminished.

     The member states of the EU are obliged by the Mediation Directive[355] to have a mechanism for the enforcement of cross-border disputes in place. Other countries willing to become a part of international enforcement regime shall also implement a national enforcement mechanism as the recent international documents, such as the Singapore Mediation Convention[356], are also based on national provisions. Not surprisingly, all the countries subject to this research provide a way to render mediation settlements enforceable. While the majority of countries offer a solution for enforcement of both out of court and court-related mediation settlements, some (for example, Switzerland) limits the possibility of enforcement to court-related mediation. The former approach is recommended.

     A mediation settlements can be made enforceable by submitting it to a court for summary proceedings (e.g., Azerbaijan, Belgium, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Lithuania, Poland in civil proceedings, Serbia, Spain, and Switzerland for court-related mediation); submitting it for homologation to other public body (e.g., Poland in administrative proceedings); enacting it as a notarial deed (e.g., Azerbaijan, Croatia, Serbia, Spain); transferring its provisions to an arbitral award (e.g., Croatia, Germany), or making a mediation settlement directly enforceable (e.g., Croatia, Italy). In some countries these methods can be used interchangeably.

          Homologation trough a court is the preferred method for two reasons. First, parties are rarely obliged to be represented by lawyers during mediation (as explained in chapter 5.3., it is only true in Italy). Mediators are not necessarily required to be lawyers as well (such a requirement was only found in Turkey’s national law). Hence, the court can ensure that the provisions of a mediation settlement go in accordance with the national mandatory law and public order, including the best interests of a child. The court is also the most suitable to verify that there are no other grounds based on which enforcement should be rejected. Second, mediation settlement, when made enforceable via a court order, can obtain the same legal value as a court decision, including res judicata, and help prevent future litigation. For example, in Lithuania, ‘[a] settlement agreement, confirmed by final court order, has a power of a final court decision to the parties (res judicata) and can be enforced.[357]

          Homologation by a notary or other public authority can also ensure compliance with the national mandatory law and public order and, therefore, can be used as well. Direct enforcement, on the other hand, shall only be possible provided that the compliance with the mandatory law is guaranteed in other ways during the process of drafting (in Italy, for example, ‘[i]n signing the agreement, the lawyers attest and certify that the agreement complies with the mandatory rules and public order[358]).

          In many countries rendering a mediation settlement enforceable is only possible upon request of both parties or upon request by one party with the explicit consent of the other (e.g., Cyprus, Finland, France, Lithuania). It is also the wording of Article 6 of the Mediation Directive. However, to protect the interests of a party acting in good faith and overall credibility of the outcome of mediation process, it is recommended to encourage the parties to include an enforceability clause in their mediation settlements (for example, in Poland ‘[b]y signing the settlement agreement, the parties agree to move the court to approve the same, of which the mediator shall advise the parties[359]; in Croatia ‘[a] settlement reached by way of mediation is an enforceable document if it contains an obligation due for performance in respect of which the parties may reach a compromise, and if it contains a statement of direct permission to enforce (enforceability clause)[360]). Requiring including information on possible enforcement of the mediation settlement is a good practice as it can foster the process of homologation and help avoid future disputes.

    

7.     Means to incentivise

          Three main channels of motivation were found in the national laws used to incentivise potential users of mediation to actually resort to it. First, people can be motivated by receiving information on mediation and its benefits when they are already facing a dispute, which makes them more attentive to proposals; second, people can be positively or negatively motivated through monetary subsidies or sanctions; and third, they can be required to attend the first meeting with a mediator, instead of making an uninformed decision not to try mediation. While the latter was already extensively discussed in chapter 4.2., only the former two will be addressed in more detail in this chapter.

7.1.   Obligation to inform

          Guidelines on mediation clearly emphasise the importance of the role of judges and lawyers when it comes to the availability of mediation[361]. The obligation to inform potential users of mediation, such as clients of lawyers or parties to a dispute at court, cannot alone result in significantly raised numbers of mediation[362]. However, as rightly stated in the Guidelines[363], information disseminated by various officials can help educate the general public and raise awareness, while judges and lawyers can help potential users to make early informed decisions on preferred dispute resolution method. Therefore, national legislators are encouraged to introduce such an obligation. While it is not very common across countries, there are several examples of good practice in this regard.

7.1.1. Lawyers

          Explicit requirements for lawyers to inform their clients about the possibility of using mediation was only found in Cyprus, Ireland, and Italy. While Cypriot legislators have chosen to introduce only a general obligation for lawyers to ‘inform their clients of the possibility of mediation, as provided in the present Law, for the settlement of their disputes that fall within the scope of this Law[364]’, Ireland and Italy have introduce more elaborated provisions, tackling not only what information should be provided and how but as well the possible consequences of not complying with the obligation. In Ireland, for example, ‘[a] A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11.’[365]

         Both Ireland and Italy require to provide a proof that the obligation has been met when instituting judicial proceedings. In Ireland, a statutory declaration by the solicitor suffices[366]. Italian legislators require a document undersigned by the parties, which would contain the information on mediation[367]. The latter is considered to be a better practice, as requiring proactive behaviour from the client is more likely to bring awareness to his or her actions.

         Moreover, both countries have also foreseen the aftermath of ignoring the obligation. In Ireland, for example, ‘the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration[368]. In Italy, the sanctions are stricter. In case of absence of a written document undersigned by the parties not only will the court ‘inform the party of the right to request a mediation[369], but also such an absence will make the contract between the lawyer and the client void.

         Models of implementing the obligation for lawyers to inform their clients offered by Irish and Italian legislators slightly differ as the former is softer on the lawyers. However, both are elaborated enough and clearly define what information should be conveyed, the type of proof to be provided for the court and the consequences of not acting that way. Hence, both can be recommended as a good practice.

7.1.2. Judges and other officials

          Judges are rarely obliged to inform parties about mediation (only in Serbia a reference to a requirement is made: ‘[t]he court or other authority that is required by a special statute to instruct the parties about the possibility of using mediation shall provide all necessary information to the parties with a view to fully informing them about the possibility of using mediation[370]’). More frequently national laws on mediation provide a possibility for judges to inform disputants (e.g., Croatia, Cyprus, the Czech Republic, Ireland, Poland, Turkey). It is usually applied along with their right to recommend mediation to the parties, as discussed in chapter 4.1. (for example, in Ireland ‘[a] court may, on the application of a party involved in proceedings, or of its own motion where it considers it appropriate having regard to all the circumstances of the case: (a) invite the parties to the proceedings to consider mediation as a means of attempting to resolve the dispute the subject of the proceedings; (b) provide the parties to the proceedings with information about the benefits of mediation to settle the dispute the subject of the proceedings[371]).

         After the legal proceedings have started, judges have a more detailed view of the situation and are able to make better-informed decisions on the possibility of an amicable resolution between the parties. Hence, an obligation for judges to inform parties to every dispute is not necessary, especially, if such a blanket obligation is already laid on the lawyers. However, national legislators are encouraged to make a direct reference giving judges a possibility to provide information on mediation when they deem necessary, preferably, stating what information should be conveyed (see examples provided in chapter 7.1.1.). It is also recommended to allow judges to redirect parties to another person or persons who could provide that information to save the time of the judiciary. For example, in Poland ‘[t]he presiding judge may invite the parties to attend an information meeting about amicable dispute resolution methods, in particular, mediation. Such information meeting may be conducted by a judge, judicial clerk, judicial officer, assistant judge or permanent mediator[372]’. However, for judges to be able to make informed decisions on the suitability of a case for mediation, it is recommended to ensure that the members of the judiciary undergo an initial and continuous mediation awareness training[373].

         The same rules outlined above shall apply to officials (not necessarily judges) who conduct other proceedings, as they also have a dispute in front of them. In Croatia, for example, ‘[d]uring judicial, administrative or other proceedings, the body conducting the proceedings may, in disputes referred to in Article 1 of this Act, recommend to the parties to resolve their dispute in mediation proceedings in accordance with the provisions of this Act if it assesses that there exists the possibility of resolving the dispute by mediation. The body referred to in paragraph 1 of this Article may invite the parties to an informative meeting to acquaint them with the use of mediation’[374]. National legislators are also encouraged to look for other possibilities in line with their national law to encourage officials who deal with disputes (however, not necessarily resolve them) to disseminate information on mediation to applicants. In penal matters, obligation to inform is relevant to the police, prosecutors and probation officers. The information on cases suitable for mediation shall also be exchanged between these authorities. In the Czech Republic, for example, ‘[t]he police body and state prosecutor notify the office of matters suitable for mediation, mainly in criminal matters of juveniles it proceeds in such a way so that mediation is used just as charges are brought against them, or instead of it’[375]. However, it can also be applied to other public bodies. For example, in Lithuania, following the recommendations in the Guidelines on Mediation[376],  officials providing legal aid face such an obligation[377]. While the general public remains widely uninformed of the benefits of mediation, seizing an opportunity to raise awareness using different channels is highly recommended.

7.2.   Monetary incentives

          As mentioned above, the general public is not well aware of mediation and its benefits. Therefore, national legislators are encouraged to introduce monetary incentives and sanctions to foster the use of mediation. Moreover, national legislators shall guarantee the accessibility of mediation by ensuring that members of the public with limited financial means can benefit from mediation by offering it free of charge or with reasonable reductions in costs[378]. Three main types of monetary incentives can be found in national laws: (1) sanctions (e.g., Ireland, Italy, Lithuania, Poland, Slovenia); (2) reductions or waivers of stamp duties and other court fees (e.g., Lithuania, Poland, Serbia); (3) subsidies to use mediation (e.g., Italy, Lithuania, Switzerland).

7.2.1. Sanctions

          Guidelines on Mediation state that ‘[p]arties could be sanctioned if they fail to actively consider the use of amicable dispute resolution’[379]. National legislators are, thus, encouraged to introduce such incentives, provided that the conditions of applications are established. When considering implementing sanctions for the parties with regard to mediation, it is essential to decide (a) what type of sanctions can be introduced and (b) for what kind of behaviour. Possible answers to these questions are provided below.

a)    Type of sanctions

    The sanctions that parties may be facing with regard to mediation can take the form of a fine or be implemented through distribution of procedural costs. The former type was only found in Italy, where ‘[f]rom the failure to participate in the mediation proceedings, the court may infer that the party who did not participate in the proceedings, did not have a justifiable reason, unless that party successfully proves a justifiable reason in subsequent proceedings <…>. The judge would then sanction the party who in the cases provided for in Article 5, has not participated in the mediation proceedings without a justifiable reason, to pay into the state budget an amount corresponding to the amount of court fees due for trial’[380]. The latter type is more common and can be found in Ireland, Slovenia, Lithuania, Poland, and Turkey.

    However, regulations in these countries also differ with regard to the costs that are incurred. In Slovenia, for example, in cases concerning referral to mediation, these are the costs of the judicial proceedings (‘[r]egardless of the result of the judicial procedure, the court may, upon request by 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 that were required for the judicial procedure and that arose from the clearly unreasonable objection[381]). Similar provisions exist in Ireland, Lithuania, and Turkey. In Poland, however, only the cost concerning mediation can be incurred by the absent party (‘[t]he presiding judge shall determine, before the first meeting scheduled for trial, whether or not the parties should be referred to mediation. To this end, the presiding judge may summon the parties to attend an in-camera hearing in person if it is necessary to hear them. If a party fails to attend a meeting or an in-camera hearing without good cause, the court may order it to pay the costs of compulsory attendance incurred by the opposing party[382]’).

    Both types of sanctions can reach the same goal of deterring parties from acting in bad faith towards mediation. However, diverging from the ‘loser pays’ principle and requiring the party acting in bad faith to cover the costs regardless of him or her winning the case, can be easier to communicate to the general public as in case of a successful mediation such costs would not have been incurred at all. With the same reasoning behind it, national legislators should consider subjecting costs of judicial proceedings to such sanctioning, not only the costs of mediation.

b)    Behaviour

    The most apparent behaviour to sanction is not attending the mandatory mediation session or rejecting the invitation by the court or another party to try mediating the dispute without a good reason. Such behaviour is sanctioned in Ireland, Italy, Poland, and Slovenia. Lithuania went even further and allows sanctioning a party who behaved in bad faith during mediation. While it is not explained further what shall be constituted as a bad faith, it is rightly left for the judge to decide on the case by case basis. Such a provision allows parties acting in good faith feel safer during the process of mediation and sure that their procedural guarantees will be respected.

    Italy has a rather uncommon approach towards the behaviour that can be sanctioned. It is related to permission for the mediator to make a settlement proposal at the end of mediation, when it was not successful, as briefly discussed in chapter 2. There ‘[w]hen the judgement is entirely equivalent to the content of the settlement proposal, the judge shall exclude the recovery of costs incurred by the winning party if that party has rejected the original settlement proposal. The costs are those incurred in the period after the formulation of the proposal. In that case, the court shall order the winning party to reimburse the expenses incurred by the losing party in the same period, as well as require a payment into the State Budget of a sum equal to the amount of court fees due. <...> The provisions referred to in this paragraph shall also apply to the compensation paid to the Mediator and the remuneration payable to the expert referred to in Article 8, paragraph 4’[383].

    Italy is the only one offering such a model and it undoubtedly encourages parties to think twice before withdrawing from mediation when a reasonable proposal is on the table, without making that proposal obligatory to the parties. However, such a provision can amount to parties feeling forced to accept the proposal out of the fear that they will be required to pay a fine afterwards. Thus, if considering introducing such a provision in the respective national law, national legislators shall be careful not to go against the voluntary nature of mediation, which lays in the right of the parties to freely choose whether to settle or not and, if yes, on what terms.

7.2.2. Stamp duties and court fees

          Potential users can be attracted to try mediation through positive incentives as well, for example through reduced or waived stamp duties or other fees. Guidelines on Mediation also suggest that national legislators may wish ‘to consider diminishing, abolishing or reimbursing court fees in specific cases if alternatives to litigation are used to try to settle the dispute either before going to court or during court proceedings’[384]. While it might cause an additional monetary burden to the state budget at a short term, in the long term reduced number of court proceedings pertaining from the raised popularity of mediation can even out or outweigh the loss incurred. Moreover, such reductions raise awareness of mediation and its accessibility. Two models can be found in this regard. First, stamp duties can be reduced to a certain percentage if parties are able to provide proof that they have attempted mediation before submission of a claim. In this case, a note of termination of the mediation yet again comes in handy. Such an incentive is foreseen in, for example, Lithuania. Second, if parties settle during the judicial proceedings, their registration duty can also be reimbursed in full or in part (it is the case in, for example, Lithuania[385], Poland[386], and Serbia[387]). National legislators are encouraged to introduce both models and apply them also to the proceedings in the appellate instance or cassation.

          The scope of the reimbursement might differ with regard to the timing of the settlement agreement. For example, in Lithuania, if a case in the appellate instance or cassation is terminated by a settlement agreement before going into the substance of the case, 100 percent of the stamp duty is reimbursed. However, if the settlement agreement was concluded at a later stage, only 75 percent will be refunded[388]. National legislators shall decide on the size of the reduction taking into account their national provisions and the size of the stamp duty itself.

7.2.3. Subsidies

          Mediation is not accessible if potential users cannot afford it. Therefore, the primary aim of national legislators should be ensuring that persons from low-income levels are able to resort to mediation. Such an approach is in line with the Guidelines on Mediation as they clearly state that ‘it is unacceptable for some categories of the population to be excluded from a service on financial grounds’[389]. Moreover, it also emphasised that ‘[a] costly mediation procedure not covered by legal aid might be an obstacle to mediation[390]. Even though countries subject to this research foresee such an aid, the modalities differ. First, mediation can either be provided entirely free of charge or subject to specific requirements (for example, in Poland, ‘[u]nless otherwise agreed upon by the parties, the costs of court-referred mediation which ended in a settlement shall be set off[391]). Second, it can also be provided free of charge to all persons on low income (for example, in Azerbaijan[392], Turkey[393] and Lithuania[394] mediation forms a part of legal aid scheme and is provided free of charge for those who cannot afford it; in Italy ‘[w]hen mediation is a condition precedent to legal proceedings under Article 5, paragraph 1- bis, or is ordered by the court under Article 5, paragraph 2, of this decree, the mediation provider is not due any compensation from a party who meets the conditions for legal aid’[395]). Third, it can be provided free of charge only in certain types of dispute (for example, in Switzerland ‘[i]n 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’[396]).

          Moreover, instances can be found where subsidies are not based on the low-income level. For example, in Italy parties can receive a tax credit reimbursing in full the fee paid to mediation provider if their settlement was successful, or partial reimbursement if mediation settlement was not reached[397]. Various types of subsidies are able to promote the use of mediation and are of course encouraged. However, if priorities have to be set, national legislators shall primarily ensure that persons who objectively cannot afford mediation would be subsidised by the state and could access mediation. Preferably, in all types of disputes, in court-related as well as out of court mediation.

8.     Information on mediation

8.1.   Dissemination and promotion

          Several international documents concerning mediation, including Guidelines on Mediation[398] and the Mediation Directive[399], emphasise the need of raising awareness of the general public about mediation through, most importantly, the Internet, as well as the media, information centres, seminars and other means of communication. Many experts coming from different European countries have also expressed concern that education for the general public is lacking[400]. With this in mind, national legislators are encouraged to introduce legislative measures obliging authorities or public bodies to disseminate information on mediation and promote mediation.

          First and foremost, public bodies or authorities shall disseminate general information about mediation, which would be easily comprehensible and accessible to the general public. Along with such information, details of mediators or mediation providers and their contacts should also be outlined and easily accessible, preferably on the Internet. For example, in Cyprus the Ministry of Justice and Public Order is responsible for ensuring ‘by any means, to provide information to the general public, in particular through the Internet, on how to contact mediators[401]. Secondly, public bodies or authorities should organise promotion of mediation. For example, in Turkey, one of the functions of the Department of Mediation is ‘[p]ublicizing the mediation institution, informing the public on this matter, organizing or supporting the scientific organizations such as national and international congresses, symposiums and seminars’[402]. Nonetheless, there is no need to provide an exhaustive list of the means of promotion in order not to limit the creativity and overall effectiveness of the publicity campaigns. 

          The functions of the authorities in charge of mediation or public bodies operating in the field of mediation are usually outlined in the national laws (see, for example, national legal acts of Belgium, Croatia, the Czech Republic, Ireland, Lithuania, Poland, Turkey). Therefore, the easiest way to incorporate such an obligation to the national law is including it among the functions of a specific public body. The function of promoting mediation and disseminating information on mediation is usually assigned to the ministries (e.g., Cyprus, Italy, Lithuania, Slovenia) or other authorities in charge (in Turkey, for example, it is the function of the Department of Mediation, in Belgium – Federal Commission for Mediation). National legislators can also encourage mediation providers to promote mediation themselves, as long as their advertisements are not misleading. For example, in Spain it is stated that ‘[m]ediation institutions may organise open information sessions for persons who may be interested in dealing with this dispute settlement system’[403]; in Azerbaijan mediation providers ‘in order to facilitate development and improvement of mediation, implements marketing of mediation services[404].

            However, the most sustainable way to promote mediation stems from education. Such a conclusion is twofold. First, it is important to teach mediation to children through the introduction of peer school mediation programmes. Such programmes can bring important advantages in both the short and long term. In the short term, peer mediation programmes at schools can reduce the use of violence in and around the school[405]. In the long term, it can create the “mediation reflex” for each future citizen in situation of misunderstanding, problem and conflict, and also to teach the people to accept the difference between individuals. Second, raising awareness of mediation is also important in the education and preparation of future judges, lawyers, and representatives of other legal professions. As indicated in the Road Map of the CEPEJ-GT-MED, ‘[w]ithout a compulsory mediation awareness/training of judges during their education or in the first year of their judiciary practice the number of cases referred to mediation in civil, family, penal (adults and juveniles) and administrative matters will remain unchanged at the actual insignificant number compared with the number of judicial proceedings in the same matters. Similarly, without compulsory ADR teaching and training for lawyers/ barristers in the law faculties and Barristers’ schools, the ancient habit to recourse - systematically, automatically and without conflict management thinking - to the adjudication systems (State and arbitration proceedings) will remain[406]. Therefore, it is recommended to allow and encourage including mediation to schools’ and universities’ curriculum.

8.2.   Statistical data

          The study[407] on the effectiveness of the Mediation Directive revealed that, back in 2014, national official statistics on the number of mediations were not available in any of the 28 member states of the EU, except for Italy. Some of the member states were able to provide partial statistics with regard to court-related mediation, government funded mediation, or a specific project. However, partial data does not represent the actual numbers of mediation. A mediation survey conducted in 2017 by the CEPEJ revealed similar results: ‘there are substantial differences between the Council of Europe Member states in keeping records and measuring key performance indicators of mediation systems. In some Members States such statistics are not collected at all at national level[408]. The research at hand cannot provide much more positive results regarding this question either. The only countries which make a direct reference to gathering or publishing statistical data in their national law on mediation are Azerbaijan, Italy, Lithuania, Serbia and Turkey[409].

          Gathering statistical data and providing systemised reports are important for the following reasons. First, it allows evaluating the effectiveness of the legislation in place and indicates if certain parts require amendments ‘enabling progress to be made in future policy-making’[410]. As established in the Guidelines on Mediation, developing quantitative criteria also enables the comparison of mediation schemes applied[411]. Second, monitoring the statistics of mediation can ensure higher quality of mediations as low success rates might signal poor training. Hence, problems can be tackled in a relatively early phase. Third, it helps promote mediation as the general public can assure themselves of its effectiveness. Fourth, it opens the doors for high quality research, which can help to further improve the legislation on mediation. Therefore, gathering nationwide statistics is highly recommended. However, attention should be paid not to infringe the principle of confidentiality. For example, when providing the data as outlined in the Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics)[412], such as the number of mediations conducted broken down by the types of disputes mediated and indicating how many of them were partially or totally settled, it is important to aggregate the figures sufficiently to avoid putting confidentiality under threat. Moreover, as indicated above, a regular collection of harmonised and precise statistical data can furnish elements able to measure the efficiency of the judicial referral to mediation on the one hand and of the mediation process in a general sense on the other.

          The approach towards gathering the data should be systematic. The information can be easily obtained directly from the mediators if a nationwide register of mediators is maintained and the mediators are required to conduct a certain number of mediations to stay on it, as explained in chapter 3.1. The obligation to prepare a note of termination of mediation indicating whether the mediation in question was successful or not, as discussed in chapter 5.5., can also come handy as a proof that the mediation was indeed conducted. In Turkey, for example, mediators are obliged to send the note of termination to the authority in charge within one month of the completion of mediation[413]. Alternatively, already aggregated data can be obtained from mediation providers, yet again, if a registry of mediation providers is established or their activities are regulated in any other way, as discussed in chapter 3.3. Lastly, in a similar manner, the authorities in charge shall be instructed to gather and provide the information if separate schemes exist for court-related mediation (as is the case in, for example, Finland, Lithuania, Slovenia) or different types of disputes (for example, criminal in the Czech Republic or labour disputes in Spain).

9.     Transitional provisions

National authorities are encouraged to take a step-by-step approach before introducing new ideas on mediation to the society and to test them on a smaller scale before implementing them on a wider level. Pilot projects can be used before adopting a law on mediation, as well as when such a law is already in place and new concepts are to be introduced. Pilot projects can be beneficial for a number of reasons. First, implementation and execution of new ideas can be monitored to identify potential pitfalls and indicate where amendments might be necessary. This can help establish a method which is the most suitable in the national context. Second, it can prove the effectiveness of certain ideas and reduce reluctance to use it if there was some unwillingness in the first place. Third, executors of a successful pilot project can transfer the knowledge obtained and lessons learned during the administration of the project.

Pilot projects can take various forms and scope and national legislators should choose a model depending on the idea they are willing to test and the results they want to achieve. Providing a comprehensive analysis of pilot projects and their implementation is not the aim of this document. Instead, several successful pilot projects and development paths of certain mediation schemes will be introduced to illustrate the models and give a rough idea how these projects can be carried out.

a)     Developments of judicial referral to mediation and court-related mediation

Instead of implementing judicial referral to mediation in one go, the Netherlands has chosen a gradual approach[414]. Even though it took 10 years to finalise, the scheme proved to be successful. The introduction was divided into three phases, namely pilot phase, implementation phase and consolidation phase. The first phase was carried out in five courts of the first tier and one appellate court under the guidance of the Netherlands Court-Connected Mediation Agency set up for this reason. The goal of the first phase was to indicate ‘whether a structural facility for referral to mediation within the judicial organization was justified and if so, how this could be organized most effectively and efficiently’[415]. The six pilot projects were followed by an evaluation, an exploration of the possibilities of a nationwide implementation and a forecast study. After pilot projects proved to be successful, time came for the second phase – implementation of the judicial referral to mediation on the national level. During the second phase the courts received manuals, training courses, information brochures, information meetings and advisory service from the Agency. The third phase, consolidation, was carried out after the referral programme was implemented in every court. It was focused on ‘embedding its organization, strengthening the support base and developing best practises[416]. It was also used to train the judges and court staff to help parties choose the most suitable method of dispute resolution. While the full implementation took a long period of time and a great deal of organisational and coordination effort from the Agency, the project lead emphasised that it not only helped to introduce a successful referral scheme but also added to a change of how the role of a judge was perceived[417].

However, a pilot project does not necessarily have to be so long or to have such a big scale to bring positive results. For example, a pilot scheme regarding referral to mediation was carried out for a year in first instance courts in Lausanne, Switzerland. It was afterwards implemented throughout all the courts of the first instance in the canton. In Slovak Republic, a pilot project in family disputes is also carried out in 4 courts. There a specialised employee of a court, having university degree and background training in psychology meets the parties and attempts to redirect them to a mediator or a psychologist if expedient. The pilot, introduced in September 2018, seems to be bringing positive preliminary results. In Lithuania, court-related mediation model was first introduced in one district court, only in 2 years extended to fourteen other courts and finally implemented on a national level afterwards

b)    Pilot projects for mandatory attempt to mediate

In 2016 the Law on modernisation of justice in 21st century[418] was passed in France. Article 7 of the law introduced on experimental basis mandatory mediation in certain family disputes as condition precedent to legal proceedings[419]. The article stipulates that the provision will be applicable for three years in jurisdictions of certain High Courts, which had to be specified by the Minister of Justice. Eleven High Courts were included in the experiment, which is supposed to last until December 31, 2019. The implementation of the model on a national level would only be considered if positive results were identified during the pilot project. The representatives of the participating High Courts and the officials of the institutions involved are meeting to discuss the progress and share the good practices as well as problems encountered.

The project is also monitored and evaluated on different levels even during its implementation. The statistics department of the Ministry of Justice collects statistical data to be able to measure the impact of the mandatory mediation. An external research is being conducted by the IDHES[420] laboratory in the Paris Nanterre University on the pilot in the High Court of Pontoise, which will later be compared with the outcomes in one other participating High Court. It takes into account not only the statistical indicators, but also, through the questioners distributed, evaluates the experiences of the main characters participating in the experiment – professionals (judges, mediators, lawyers) and litigants. The conclusive results will be presented in the end of 2020; however, interim report will also be prepared. While the final outcomes of the pilot are yet to be seen, such a model is an example of how new ideas can be tested on a limited time and only in a targeted territory before making further decisions whether they should or should not be implemented on a national level and if yes, what amendments are necessary for it to be successful.

Other countries that implemented mandatory mediation have also done it with certain experimentation. For example, in Italy the provision on mandatory attempt to mediate was first introduced for four years, while after two years the monitoring of the results was supposed to begin. The model introduced through this temporary provision is now in place on permanent basis and brings positive results[421]. In Turkey the implementation of mandatory attempt to mediate is still being introduced gradually. Starting with employment disputes in 2018 and seeing the results, the scope of application was extended to certain commercial disputes in 2019. Another extension is planned to family disputes in 2020.

These are only a few examples of possible pilot projects that could be implemented to test new ideas on mediation or ameliorate the laws already in force. National authorities are encouraged to contact foreign representatives that carried out the pilot projects to seek for guidance and good practice before adopting it to the national needs and implementing in practice. A management checklist for establishing a court mediation pilot[422] and a mediation pilot monitoring checklist[423] were also adopted by the CEPEJ to help set up and implement the scheme effectively. Regardless of the form chosen, leaders of a pilot project shall not forget the importance of statistical data, monitoring and evaluation of the project, as well as continuous education for the direct participants and those who will have to transform the pilot project into a generally used scheme. Depending on the scheme chosen these pilots can be either included in the new (or amended) legislation on mediation as transitional provisions limiting the scope, the territory or the period of application of certain parts of the law that introduce the new ideas, or implemented on a smaller scale without even having to make changes in legislation before the experimental period is over. National legislators are encouraged to take into consideration the possible use of pilot projects and gradual introduction of novelties regarding mediation to increase the likelihood of successful implementation and tangible results of the new legislation on mediation.


Checklist

1

SCOPE

Disputes where settlement is legally possible

Consolidated: including national and international disputes, out of court and court-related mediation, mediation in different fields of law

Does not exclude sensitive disputes – introduces safeguards instead

1.1

OUT OF COURT AND COURT-RELATED MEDIATION

A separate chapter on court-related mediation in a consolidated law

Referral to mediation at any time of the judicial proceedings before the decision is adopted

Trained judges and accredited mediators are allowed to conduct court-related mediations

The fee for the first 2-4 hours of mediation is reimbursed by the state / court

Procedure of the initiation and referral of the case to mediation is defined

Maximum duration of mediation is set to 3 months with a possibility to prolong

Procedure of termination of mediation and continuation of judicial proceedings is foreseen

A note of termination to the judiciary from a mediator is required; the requirements for its content are defined

1.2

MEDIATION IN INTERNATIONAL DISPUTES

Disputes with international element falls under the scope of the law

National law adheres to the international standards

1.3

DIFFERENT FIELDS OF LAW

The law is applicable to disputes arising from civil law (including family, labour, commercial, consumer, others); administrative law (between administrative authority and private party); criminal law (victim-offender)

ADMINISTRATIVE

Regulation provides which administrative disputes can be settled

Limits of the discretion of the administrative authority to settle the disputes are defined

Mediators are certified and properly trained; they are not employees of the administrative authority

Necessary procedural steps before and after mediation are established

PENAL MATTERS

Procedure for selection of cases prevents secondary victimisation and participation of aggressive or dangerous offenders

Mediators are obliged to undergo specialised training

Mediation can only take place with a consent of both parties

Additional safeguards are introduced in domestic violence cases

Minors can be accompanied by their parents or legal representatives; social workers are available

Mediation can be conducted without parties meeting each other

Exchange of information is ensured between various actors, including the police, prosecutors, courts, probation authorities, social community organisations

Social community organisations are involved in the procedure

2

DEFINITIONS

Definition of mediation does not prevent various types of mediation from being applied (facilitative, evaluative, transformative, narrative and others)

3

MEDIATOR

3.1

REQUIREMENTS FOR MEDIATORS / LIST

Mediators shall enter the list in order to practice

Authority or public body is in charge of the administration of the list, having the power to suspend or remove mediators from the list

           

Requirements to enter and stay on the list, including education, good repute, adherence to code of conduct, training, examination, CPD, are set

Persons are subject to sanctions for acting as mediators while not on the list

TRAINING

Minimum requirements for training curriculum are set along with the minimum duration

Training and examination are basic and specialised, theoretical and practical;

Training providers are accredited, register of training providers is established, the performance of the providers is monitored

Continuous professional development is required

3.2

OBLIGATIONS, PERMISSIONS, LIABILITY

3.2.1

OBLIGATIONS

Mediators are obliged to adhere to code of conducts

Mediators are required to adhere to principles of confidentiality, impartiality, neutrality, independence

Mediators are obliged to disclose any concerns with regard to impartiality, neutrality or independence

Mediators are obliged to disclose information with regard to their experience, training, professional background, as well as information concerning procedural aspects of mediation, legal effects of settling and not settling

Mediators are required to sign mediation settlement, prepare a note of termination of mediation, provide statistical data to the authorities or mediation providers

3.2.2

PERMISSIONS

Mediator is entitled to a fee and compensation of costs

Mediators are allowed to meet parties individually; make proposals upon request of the parties; help draft mediation settlement

Mediators are allowed to terminate the mediation when the settlement is not likely

Mediators can refuse to give testimony in court with regard to information

Mediators are allowed to access the case file in court-related mediation and mediation in penal matters

3.2.3

LIABILITY

Mediators are subjected to civil, as well as administrative and disciplinary liability for their misconduct

Sanctions are defined, including warning, suspension and removal from the list

The decision imposing the sanction can be appealed

           

Depersonalised decisions of the disciplinary bodies are made public

Mediators are required to acquire indemnity insurance

3.3

MEDIATION PROVIDERS

Register for mediation providers is established; criteria for enrolment, suspension and removal from the register are set

The administration of the mediation provider is also subjected to the principles of confidentiality

Mediation providers are required to adhere to the code of conduct, provide rules of procedure

Mediation providers are required to maintain quality with regard to the mediators and administration

Mediation providers are obliged to gather statistical data

3.4

OTHER LEGAL PROFESSIONS

Representatives of other legal professions are allowed to act as mediators, provided that they have received proper training, unless prohibited by mandatory law

Public bodies in charge of the legal profession are allowed to organise training and examination

Representatives of other legal professions are not allowed to act in their official capacity in disputes including the same party (-ies) after acting as mediators without explicit consent of the parties

4

INITIATION OF MEDIATION

Different types of initiation are established, including voluntary and mandatory recourse to mediation

4.1

VOLUNTARY BASIS

Parties can resort to mediation before and after the dispute arise

           

Parties are allowed to introduce a mediation clause in their contract

           

Judicial and arbitration institutions respect mediation clause and declares the claim inadmissible, unless mediation was attempted

Procedure of initiation of mediation by one party is established, including the form of proposal and standard duration for acceptance or rejection

During court-related mediation and other proceedings judges and officials in charge can recommend parties resort to mediation

4.2

MANDATORY BASIS

Parties can be required to participate in the first meeting with a mediator as a condition precedent to judicial proceedings; judges can also refer parties to such a meeting

CONDITION PRECEDENT

Parties can be required to participate in the first meeting with a mediator with the possibility to continue with mediation before submitting a claim in certain types of disputes;

Parties are free to opt out from mediation after the first meeting with a mediator without providing justification for their decision

Procedural guarantees, including the confidentiality of the process, suspension of limitation and prescription periods, application of interim measures, are in place

Mediation process does not give rise to significant costs

REFERRAL BY A JUDGE

Judges are allowed to refer parties to the first meeting with a mediator when they consider that the settlement is likely; consent of the parties is not required

Procedure of such a referral is set, which describes the appointment of a mediator, the possibility to access the file and the preparation of a note of termination of mediation

Judges are required to set time limits for mediation and foresee the date of next hearing in the order referring parties to the first meeting with a mediator

5

MEDIATION PROCESS

Mediation process is defined systematically from the commencement to termination, procedural guarantees are ensured

5.1

BEFORE MEDIATION

Parties and the mediator are obliged to sign the agreement to mediate before commencement of mediation;

The minimum information to be included in the agreement to mediate is foreseen; it includes at least the details of the parties, mediator and mediation provider; brief description of the contract, the mediator’s fee and the method of payment; division of the costs of mediation; and duration if applicable

Procedure for appointment of a mediator or mediators by a neutral party is set for situations when parties cannot reach a mutual agreement themselves

Parties can agree on the division of costs themselves together with the mediator; they bare their own costs and share the costs of mediation equally, in the absence of such an agreement

5.2

COMMENCEMENT

The day of commencement of mediation can be unambiguously defined

The day of commencement is linked to the day of signature of the mediation settlement; day of court order referring parties to mediation; other easily definable day if none of the above applies

5.3

DURING MEDIATION

Mediation can be conducted using electronic means, provided that procedural guarantees are ensured, and parties consent to it

Participation of lawyers is encouraged but not mandatory

Participation of the third persons and experts is allowed subject to consent of the parties; the principle of confidentiality, prohibition of testifying apply to the third parties as well

5.4

PROCEDURAL GUARANTEES 

Procedural guarantees are in place throughout all of the mediation process as well as after its termination

5.4.1

CONFIDENTIALITY

All participants of mediation are bound by the obligation of confidentiality, applicable to all information acquired and documents introduced or prepared during or with regard to mediation, and are subject to liability for breach of obligation

Parties are allowed to waive obligation of confidentiality by mutual written consent

Exceptions to the obligation of confidentiality are defined concisely; the list includes the implementation and enforcement of mediation settlement; best interests of the child, disclosure or prevention of a crime, threat to a physical or psychological integrity of a person; proceedings against mediator for misconduct

Second layer of confidentiality for individual meetings between a mediator and a party is foreseen

5.4.2

VOLUNTARINESS

Mediation process is defined as voluntary, without prejudice to the requirement to participate in the first meeting with a mediator

Law clearly establishes which provisions are non-mandatory and can be derogated from by a written agreement of the parties

5.4.3

EVIDENCE AND TESTIMONIES

Evidence acquired during the course of mediation are inadmissible during judicial, arbitral and other proceedings;

If a piece of evidence was admissible on other grounds, the sole use of it during mediation would not make that piece inadmissible; parties are always free to provide their own pieces of evidence

Participants of mediation cannot be obliged to testify in judicial, arbitral and other proceedings with regard to the information acquired in the course of mediation

Exceptions for this guarantee are enlisted; the same exceptions concerning the principle of confidentiality apply

5.4.4

PRESCRIPTION AND LIMITATION PERIODS

Prescription and limitation periods are suspended during the course of mediation

Court proceedings are suspended during the course of court-related mediation

The dates when the suspension commences and terminates can be defined; they are linked to the days of commencement and termination of the mediation or another day, which is easily definable

5.4.5

INTERIM MEASURES

Parties are allowed to request granting interim measures during the course of mediation if the urgency of situation so requires

5.5

TERMINATION

Grounds of termination are set

Mediation is terminated upon signature of mediation settlement; written declaration by a party, both parties or a mediator, terminating mediation; expiration of time limit allocated for mediation, whichever occurs first; all declarations are concluded in writing

Mediators prepare a note of termination of mediation when official authorities or the court has to be informed about the outcome of mediation

6

MEDIATION SETTLEMENT

Minimum standards are foreseen for the form and content of mediation settlement; mediation settlements can be made enforceable

6.1

FORM AND CONTENT           

Mediation settlements are required to be drawn up in writing, signed by the parties and attested by the signature of a mediator, indicating if parties consent that agreement would be enforced, as well as the date and place of the signature

In court-related mediation, settlements can be narrower as well as wider than the scope of the claim or counter-claim

6.2

ENFORCEMENT           

The content of mediation settlement can be made enforceable through homologation in court or by a notary on the request of both of the parties or one of them with an explicit consent of the other; legal effects of homologation are identified

Parties are required to indicate if they consent to rendering the mediation settlement enforceable in the agreement

Concise list of grounds for refusal to enforce is provided, including at least being contrary to mandatory law or public order

Direct enforceability is allowed only provided that compliance with mandatory law and public order is ensured during the process of drafting

7

MEANS TO INCENTIVISE   

Various means to incentivise potential users to resort to mediation are in place. They include at least obligation to inform, monetary incentives, compulsory mediation

7.1

OBLIGATION TO INFORM           

Lawyers, judges, and other officials are required to inform parties about the procedure and benefits of mediation

7.1.1

LAWYERS

Lawyers are required to provide the information about mediation for their clients in writing; clients are required to confirm by signature that they have received and understood the information

The information provided includes at least explanation of the mediation process, procedural guarantees applied during mediation, cost incentives (if applicable), requirements of compulsory mediation (if applicable)

Written declaration signed by the client is required by the court when instituting legal proceedings

The consequences of not acting in line with the obligation are established

7.1.2

JUDGES AND OTHER OFFICIALS

Judges are recommended to inform parties about mediation when they deem it fit or refer parties to information session with other official

Other officials, such as legal aid officers or the police, are required to inform parties about mediation when they are facing a dispute

7.2.

MONETARY INCENTIVES    

Parties to a dispute can receive negative (sanctions) and positive (subsidies and reduction of court fees and stamp duties) monetary incentives to choose mediation

7.2.1

SANCTIONS

Judges can disregard the ‘loser pays’ principle when distributing costs of the proceedings or fine party for the behaviour in bad faith towards mediation

Behaviour in bad faith involves rejecting a recommendation or invitation to try mediation without a good reason; not being present at the required first meeting with a mediator; dishonest behaviour during mediation; the final evaluation is left for the discretion of a judge

7.2.2

STAMP DUTIES AND COURT FEES

Stamp duties or court fees are reduced or waived for the parties who tried mediating their dispute before resorting to judicial proceedings

Stamp duties or court fees are reduced or waived for the parties who settled their dispute during the judicial proceedings

7.2.3

SUBSIDIES

Potential users of mediation from lower income levels are not discouraged from using mediation due to its costs as mediation forms part of legal aid scheme or is provided free of charge for the users

Other types of subsidies or tax exemptions are introduced for those resorting to mediation

8

INFORMATION ON MEDIATION     

8.1

DISSEMINATION AND PROMOTION    

Public bodies or authorities in charge of mediation are obliged to disseminate information on mediation, including details of mediators and mediation providers as well as general practical and legal information on mediation

Public bodies or authorities in charge of mediation are obliged to promote mediation through various means, including the Internet

Mediators and mediation providers are allowed to promote their services, provided that the advertisements are not misleading

8.2

STATISTICAL DATA

Statistical data is collected on the national level and available publicly; the principle of confidentiality is respected

Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics) is integrated in national statistics system

Public bodies or authorities in charge of mediation are obliged to gather statistical information

Mediators and mediation providers are obliged to provide statistical data as a condition of staying of the list; the same obligation applies to the authorities in charge of separate mediation schemes

9.

TRANSITIONAL PROVISIONS

New ideas on mediation are introduces step-by-step and tested through pilot-projects


Bibliography

International

            The Council of Europe

1.     The European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950;

2.     Council of Europe Committee of Ministers, Recommendation (98) 1 on family mediation;

3.     Council of Europe Committee of Ministers, Recommendation (99) 19 concerning mediation in penal matters;

4.     Council of Europe Committee of Ministers, Recommendation (2001) 9 on alternatives to litigation between administrative authorities and private parties;

5.     Council of Europe Committee of Ministers, Recommendation (2002) 10 on mediation in civil matters;

6.     Council of Europe Committee of Ministers, Recommendation CM/Rec(2018)8 concerning restorative justice in criminal matters;

7.     CEPEJ, Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters CEPEJ(2007)13;

8.     CEPEJ, Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters CEPEJ(2007)14;

9.     CEPEJ, Guidelines for a better implementation of the existing recommendation on alternatives to litigation between administrative authorities and private parties CEPEJ(2007)15;

10.  CEPEJ, Basic Mediator Training Curriculum. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 19-23;

11.  CEPEJ, Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics). From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 40 – 49

12.  CEPEJ, European Code of Conduct for Mediation Providers. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 24-27;

13.  CEPEJ, Establishing a Court Mediation Pilot: management checklist. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 4-6;

14.  CEPEJ, Frequently Asked Questions (FAQ) on Mediation: A Guide for judges, non-judge staff of courts, mediators, mediation services, legal and other professionals and mediation stakeholders and users of mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 50-57;

15.  CEPEJ, Guide to Mediation for Lawyers. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 58-73;

16.  CEPEJ, Guide to the Judicial Referral to Mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 14-18;

17.  CEPEJ, Mediation Pilot Monitoring Checklist. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 7-13;

18.  CEPEJ, Road Map of the CEPEJ-GT-MED, based on the CEPEJ-GT-MED report on “The Impact of CEPEJ Guidelines on Civil, Family, Penal and Administrative Mediation”, CEPEJ-GT-MED(2018)8;

19.  CEPEJ, Standard mediation forms. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 30 – 39;

20.  CEPEJ, Ad hoc CEPEJ working group entrusted with the harmonisation of the definitions used by CEPEJ, Meeting report of the 4th meeting, January 23-24, 2019, Appendix II: Document CEPEJ(2018)2PROV8. Available at: https://rm.coe.int/rapport-reunion-bologne-en-23-24-janvier-2019/1680933333.

The Hague Conference on Private International Law

21.  The Hague Conference on International Private Law, Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, 1996, the Hague. Available at: https://assets.hcch.net/docs/f16ebd3d-f398-4891-bf47-110866e171d4.pdf.

22.  The Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation, the Hague, 2012. Available at: https://assets.hcch.net/upload/guide28mediation_en.pdf.

The EU

23.  The European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008;

24.  The European Parliament and the Council of the European Union, Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ, L 165/63, 2013;

25.  The European Parliament and the Council of the European Union, Regulation on online dispute resolution for consumer disputes (EU) 524/201, OJ, L 165/1, 2013;

26.  The Commission of the European Union, Justice Directorate, European Code of Conduct for Mediators, 2004. Available at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf;

27.  The European Union, Directorate General for Internal Policies, ‘Rebooting’ the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU: study [interactive], 2014. Available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf;

UNCITRAL

28.  UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), available at: http://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_II.pdf;

29.  UNCITRAL Technical Notes on Online Dispute Resolution, New York: United Nations, 2017, available at:  http://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf;

30.  United Nations Convention on International Settlement Agreements Resulting from Mediation, yet to be signed, Singapore. Available at: http://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf;

National

31.  The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I No. 29/2003;

32.  The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019;

33.  The Kingdom of Belgium, Criminal Code. Moniteur Belge, 1867;

34.  The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967;

35.  The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11;

36.  The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law. Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012 No. L.159 (I)/2012;

37.  The Czech Republic, Civil Procedure Code. 1963 (as amended in 2012) No. 99/1963 Coll.;

38.  The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll.;

39.  The Czech Republic, Act on Specific Court Proceedings, 2013, 292/2013 Coll.;

40.  The Czech Republic, Probation and Mediation Service Act, 2000, No. 257/2000 Coll.;

41.  The Republic of Finland, Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts, No. 394/2011;

42.  The French Republic, the Code of Administrative Justice;

43.  The French Republic, the Code of Criminal Procedure;

44.  The French Republic, the Law on modernisation of justice in 21st century, 2016, No 2016-1547.

45.  The Federal Republic of Germany, the Code of Administrative Court Procedure. Bundesgesetzblatt I, page 686, 1991;

46.  The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, page 1577, 2012;

47.  The Republic of Greece, Law 4512/2018 on Arrangements for the Implementation of the Structural Reforms of the Economic Adjustment Programmes and Other Provisions;

48.  The Republic of Ireland, Mediation Act, 2017, No. 27;

49.  The Republic of Italy, Legislative Decree of March 4, 2010, n. 28;

50.  The Republic of Italy, Minister of Justice Decree, 2010, n. 180, art. 4.

51.  The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340;

52.  The Republic of Lithuania, Law on the Legal Aid Guaranteed by the State, Valstybės žinios, 2000, No. 30-827;

53.  The Republic of Lithuania, Law on Mediation. Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053;

54.  The Republic of Lithuania, the Rules on Mediation in the Probation Authorities. 2017, No V-532;

55.  The Republic of Poland, the Code of Administrative Proceedings. Dziennik Ustaw, 1960, item 1257 of 2017;

56.  The Republic of Poland, the Code of Civil Procedure. Dziennik Ustaw, 1964, item 1595 of 2015;

57.  The Republic of Poland, the Act of 30 August 2002 Law on Proceedings before Administrative Courts. Dziennik Ustaw, 2002, item 1302 of 2018;

58.  The Republic of Serbia, Act on Mediation in Dispute Resolution. Службеном гласнику, No. 55/2014;

59.  The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009;

60.  The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008;

61.  The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012;

62.  The Swiss Confederation, the Code of Civil Procedure, 2008;

63.  The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325;

64.  The Republic of Turkey, Ordinance on the Application of Mediation over the Legal Disputes. Resmî Gazete, 2018, No. 30439;

65.  The United Kingdom, Family procedure rules.

66.  The United Kingdom, Children and Families Act 2014.

Literature

67.  DE PALO, G. A Ten-Year-Long “EU Mediation Paradox” When an EU Directive Needs to Be More … Directive: Briefing requested by the JURI committee, European Parliament [interactive], 2018. Available at: http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/608847/IPOL_BRI(2018)608847_EN.pdf;

68.  HOPT, K. J. and STEFFEK, F. Mediation: Comparison of Laws, Regulatory Models, Fundamental Issues. From Mediation: Principles and Regulation in Comparative Perspective. Oxford: Oxford University Press, 2013;

69.  MIRIMANOFF, J. Médiation et Jeunesse, Partie II: Médiation en milieu scolaire. Bruxelles: Larcier, 2013;

70.  PEL, M. and COMBRINK, L. Referral to mediation by the Netherlands judiciary. The Judiciary Quarterly. Customized conflict resolution: Court-connected Mediation in The Netherlands 1999-2009. The Hague: Sdu Publishers BV, 2011. Available at: https://www.rechtspraak.nl/SiteCollectionDocuments/Customized-conflict-resolution-Court-connected-Mediation-in-The-Netherlands-1999-2009.pdf, p. 25-52.

71.  PEL, M. Foreword. The Judiciary Quarterly. Customized conflict resolution: Court-connected Mediation in The Netherlands 1999-2009. The Hague: Sdu Publishers BV, 2011. Available at: https://www.rechtspraak.nl/SiteCollectionDocuments/Customized-conflict-resolution-Court-connected-Mediation-in-The-Netherlands-1999-2009.pdf, p. 3-4.

72.  VOS, R. Mediating Tax Disputes in the Netherlands. Dutch-Flemish Magazine for Mediation and Conflict Management, 2014, vol. (18) 3;

73.  ZIMMER, D. and HÖFT, J., Mediation in Antitrust Cases. European Competition Law Review, 2013;

Case law

           

The CJEU

74.  The CJEU, judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others;

75.  The CJEU judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa;

National courts

76.  The Administrative Grand Chamber of the Supreme Court of the Republic of Greece, decision no 34/2018;

Others

77.  International Chamber of Commerce, Mediation Clauses [interactive]. Accessed: 2019-03-09. Available at: https://iccwbo.org/dispute-resolution-services/mediation/mediation-clauses/.



[1] The working group is composed of: Mr. Rimantas Simaitis (President), Lithuania, Ms. Anna Márová, Czech Republic, Ms. Maria Oliveira, Portugal, Ms. Nina Betetto, Slovenia, Mr. Jean A. Mirimanoff, Switzerland, Mr. Jeremy Tagg, United Kingdom, Mr. Leonardo D'Urso (Scientific expert), Italy.

[2] Mediation Development Toolkit and other documents in the field of mediation prepared by CEPEJ-GT-MED and the Council of Europe are available at: https://www.coe.int/en/web/cepej/cepej-work/mediation. The webpage is continuously updated.

[3] For example, penal mediation for adults was introduced in Switzerland in Friburg and Geneva, and administrative mediation was and is being introduced in several cantons, however, it is not visible from the Swiss procedural codes that where included into the research.

[4] Only information in square brackets is included by the author for clarification purposes.

[5] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 1.

[6] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 3.

[7] CEPEJ, Ad hoc CEPEJ working group entrusted with the harmonisation of the definitions used by CEPEJ, Meeting report of the 4th meeting, January 23-24, 2019, Appendix II: Document CEPEJ(2018)2PROV8. Available at: https://rm.coe.int/rapport-reunion-bologne-en-23-24-janvier-2019/1680933333.

[8] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 1 (2).

[9] CEPEJ, European Code of Conduct for Mediation Providers, from Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 25.

[10] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 2 (e).

[11] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 1.0.7.

[12] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 2.

[13] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 1.0.6.

[14] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 15 (1) and 14.

[15] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 6 and 11.

[16] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 32.

[17] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 22.

[18] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 8 (1).

[19] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 12.

[20] The Commission of the European Union, Justice Directorate, European Code of Conduct for Mediators, 2004. Available at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.

[21] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 4 (3).

[22] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 43.

[23] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 45.

[24] CEPEJ, Basic Mediator Training Curriculum. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 19-23.

[25] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 29.

[26] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 12.

[27] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 16 (1 d).

[28] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1726(1-3).

[29] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 4.

[30] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 3 (1).

[31] More commonly referred to as agreement to mediate.

[32] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 3 (4).

[33] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 2 (3).

[34] The Republic of Finland, Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts, No. 394/2011, Sec. 7(2).

[35] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1835.

[36] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 26.

[37] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 2(5).

[38] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 35.

[39] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1727(2 (6)).

[40] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1727/5 (4).

[41] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 19.

[42] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 16 (1 and 2).

[43] The Republic of Italy, Minister of Justice Decree, 2010, n. 180, art. 4.

[44] CEPEJ, European Code of Conduct for Mediation Providers. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 24-27.

[45] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 16 (3).

[46] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 17 (1).

[47] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 3 (3).

[48] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 33.

[49] In the Handbook the term 'lawyer' is used as defined as follows in Recommendation Rec(2000)21 of the Committee of Ministers of the Council of Europe, on the freedom of exercise of the profession of lawyer: 'a person qualified and authorised according to the national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters'.

[50] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Part 7, sec. 49a.

[51] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 16 (1).

[52] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1730 (1).

[53] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 18.

[54] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 17.

[55] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 19.

[56] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5 (1bis and 2bis).

[57] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 6 (1).

[58] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (1).

[59] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 17 (4 and 5ter)

[60] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 28.

[61] The Czech Republic, Civil Procedure Code. 1963 (as amended in 2012), No. 99/1963 Coll., Sec. 100 (2). 

[62] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1734 (1/1 and 2).

[63] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1737.

[64] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 20.

[65] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 20.

[66] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 10 (1).

[67] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1731 (1).

[68] CEPEJ, Standard mediation forms. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 30 – 33.

[69] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 22.1 and 22.2.

[70] NB From a practical perspective, mediation only commences after the conclusion of an agreement between the parties and the mediator who agrees to conduct the mediation. However, from the legal perspective in some countries the moment of commencement is related to a different moment in time.

[71] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 17.

[72] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 6 (2).

[73] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 24.

[74] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 6 (4).

[75] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (3)

[76] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 13.

[77] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 10 (1).

[78] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 13.

[79] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 10 (2).

[80] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 18 (2).

[81] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 5.

[82] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 15.

[83] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 27 (1 and 2).

[84] The Swiss Confederation, the Code of Civil Procedure, 2008, Art. 214.

[85] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1731 (3 and 4).

[86] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5 (3).

[87] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 12.

[88] The Republic of Poland, the Code of Administrative Proceedings, Dziennik Ustaw, 1960, item 1257 of 2017, Art. 96 m.

[89] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 23 (1).

[90] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 26.

[91] The Republic of Finland, Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts, No. 394/2011, Art. 8.

[92] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1735 (2).

[93] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 32 (1).

[94] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 11 (1).

[95] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 12 (1).

[96] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 27.

[97] United Nations Convention on International Settlement Agreements Resulting from Mediation, yet to be signed, Singapore. Available at: http://www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf, art. 4 (1).

[98] The Hague Conference on International Private Law, Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, 1996, the Hague. Available at: https://assets.hcch.net/docs/f16ebd3d-f398-4891-bf47-110866e171d4.pdf.

[99] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 4 (3).

[100] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1838 (4).

[101] The Republic of Lithuania, Law on the Legal Aid Guaranteed by the State, Valstybės žinios, 2000, No. 30-827, Art. 15 (6).

[102] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 21.

[103] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 93 (4).

[104] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 80 (8).

[105] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Article 31.

[106] The Republic of Lithuania, Law on the Legal Aid Guaranteed by the State, Valstybės žinios, 2000, No. 30-827, Art. 2 (11) and 14 (3 and 4).

[107] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 20 (1).

[108] The Republic of Turkey, Ordinance on the Application of Mediation over the Legal Disputes. Resmî Gazete, 2018, No. 30439, art. 52.

[109] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 21.

[110] CEPEJ, Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics). From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 40 – 49.

[111] CEPEJ, Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics). From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 41.

[112] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Article 34.

[113] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 30 (1d).

[114] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5 (1bis).

[115] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5 (1bis), as amended by the Law of June 21, 2017, n. 96.

[116] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 5 (1).

[117] CEPEJ, Guide to the Judicial Referral to Mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 14-18, point. 1.

[118] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 16 (4).

[119] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 23 (2).

[120] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 22.

[121] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 23 (7).

[122] The reasons for that are explained in chapter 5.4.4.

[123] Recommendation on Mediation (family), Principles of Family Mediation, para. VI (c).

[124] The full list of countries which adopted legislation based or influenced by the Model law (2002) is available at: https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_conciliation/status.

[125] This is true to all three countries subject to this research, that were influenced by the provisions of the Model Law.

[126] HOPT, K. J. and STEFFEK, F. Mediation: Comparison of Laws, Regulatory Models, Fundamental Issues from Mediation: Principles and Regulation in Comparative Perspective. Oxford: Oxford University Press, 2013, p. 6-7.

[127] See, for example, The Hague Conference on International Private Law, Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and

Measures for the Protection of Children, 1996, the Hague. Available at: https://assets.hcch.net/docs/f16ebd3d-f398-4891-bf47-110866e171d4.pdf, art. 31; The Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation, the Hague, 2012. Available at: https://assets.hcch.net/upload/guide28mediation_en.pdf.

[128] See, for example, the European Parliament and the Council of the European Union, Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ, L 165/63, 2013; the European Parliament and the Council of the European Union, Regulation on online dispute resolution for consumer disputes (EU) 524/201, OJ,  L 165/1, 2013.

[129] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 3.1.

[130] HOPT, K. J. and STEFFEK, F. Mediation: Comparison of Laws, Regulatory Models, Fundamental Issues from Mediation: Principles and Regulation in Comparative Perspective. Oxford: Oxford University Press, 2013, p. 72.

[131] Guidelines on Mediation (administrative), para. 10.

[132] Recommendation on Mediation (administrative), appendix, para. 1 (i); Guidelines on Mediation (administrative), para. 10-11.

[133] ZIMMER, D. and HÖFT, J., Mediation in Antitrust Cases. European Competition Law Review, 2013, p. 434-442.

[134] The Federal Republic of Germany, the Code of Administrative Court Procedure. Bundesgesetzblatt I, p. 686, 1991, Sec. 173.

[135] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 3.

[136] The Republic of Poland, the Code of Administrative Procedure, Art. 96a (4).

[137] CEPEJ, Basic Mediator Training Curriculum. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 19-23., point 4.

[138] Guidelines on Mediation (administrative), para. 31.

[139] The Republic of Poland, the Code of Administrative Procedure, Art. 96f (3).

[140] VOS, R. Mediating Tax Disputes in the Netherlands. Dutch-Flemish Magazine for Mediation and Conflict Management, 2014, vol. (18) 3.

[141] The Republic of Poland, the Act of 30 August 2002 Law on Proceedings before Administrative Courts, Dziennik Ustaw, 2002, item 1302 of 2018, Art. 117 (1).

[142] The Republic of Poland, the Act of 30 August 2002 Law on Proceedings before Administrative Courts, Dziennik Ustaw, 2002, item 1302 of 2018, Art. 118 (1).

[143] Guidelines on Mediation (penal), appendix, para. 7.

[144] For minors. Penal mediation for adults was only introduced in Friburg in Geneva.

[145] Recommendation concerning restorative justice, appendix, para. 3.

[146] Which was built on Recommendations on Mediation (penal) and prepared taking into account the Guidelines on Mediation (penal).

[147] Recommendation concerning restorative justice, appendix, para. 16 and 19.

[148] The French Republic, the Code of Criminal Procedure, Art, 41-1 (5).

[149] Recommendation concerning restorative justice, appendix, para. 24.

[150] The Czech Republic, Probation and Mediation Service Act, 2000, No. 257/2000 Coll., Sec. 5 (2).

[151] The Republic of Lithuania, the Rules on Mediation in the Probation Authorities, 2017, No V-532, Sec. 9.

[152] Guidelines on Mediation (penal), para. 33.; The Republic of Lithuania, the Rules on Mediation in the Probation Authorities, 2017, No V-532, Sec. 10.1.

[153] Recommendation concerning restorative justice, appendix, para. 42.

[154] CEPEJ, Basic Mediator Training Curriculum. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 22, point 4.

[155] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Ar. 43.

[156] Recommendation concerning restorative justice, appendix, para. 16.

[157] Recommendation concerning restorative justice, appendix, para. 30.

[158] Recommendation concerning restorative justice, appendix, para. 30.

[159] Recommendation concerning restorative justice, appendix, para. 49.

[160] Recommendation concerning restorative justice, appendix, para. 28.

[161] The Republic of Lithuania, the Rules on Mediation in the Probation Authorities, 2017, No V-532, Sec. 19.

[162] Recommendation concerning restorative justice, appendix, para. 56.

[163] The Czech Republic, Probation and Mediation Service Act, 2000, No. 257/2000 Coll., Sec. 5 (1).

[164] The Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation, the Hague, 2012. Available at: https://assets.hcch.net/upload/guide28mediation_en.pdf, p. 7.

[165] The European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008, art. 3 (a).

[166] The Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation, the Hague, 2012. Available at: https://assets.hcch.net/upload/guide28mediation_en.pdf, p. 7.

[167] CEPEJ, Ad hoc CEPEJ working group entrusted with the harmonisation of the definitions used by CEPEJ, Meeting report of the 4th meeting, January 23-24, 2019, Appendix II: Document CEPEJ(2018)2PROV8. Available at: https://rm.coe.int/rapport-reunion-bologne-en-23-24-janvier-2019/1680933333.

[168] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1833a.

[169] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 11 (1).

[170] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 2 (a).

[171] Guidelines on Mediation (family & civil: para. 24; penal: para. 22; administrative: para. 36).

[172] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 11 (2).

[173] The Commission of the European Union, Justice Directorate, European Code of Conduct for Mediators, 2004. Available at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf;

[174] Guidelines on Mediation (family & civil: para. 28-29; penal: para. 27-28; administrative: para. 38-39).

[175] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 38.

[176] Guidelines on Mediation (family & civil: para. 30; penal: para. 29; administrative: para. 40).

[177] The European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008, p. 3–8, art. 4.

[178] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 16 (5).

[179] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 28 (1).

[180] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 22 (1).

[181] CEPEJ, Basic Mediator Training Curriculum. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 19-23.

[182] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 7.

[183] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 27.

[184] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 25.2; 26.2; 27.2;

[185] For exampe, in the Czech Republic the fee for taking the examination amounts to 5000 CZK (approx. 200 EUR).

[186] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 12.

[187] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 8.

[188] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 38.

[189] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 20.

[190] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 12.2.2.

[191] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 38.

[192] Guidelines on Mediation, (family & civil, para. 23; penal, para. 21; administrative, para. 35).

[193] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 25.

[194] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1733.

[195] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 22 (1).

[196] United Nations Convention on International Settlement Agreements Resulting from Mediation, Art. 4 (1b (i)).

[197] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 17 (3).

[198] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 17 (1).

[199] The Republic of Poland, the Code of Administrative Procedure, Art. 96m.

[200] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 22.

[201] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 20 (2).

[202] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 10 (2).

[203] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 26.

[204] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 14.

[205] The Republic of Turkey, Ordinance on the Application of Mediation over the Legal Disputes. Resmî Gazete, 2018, No. 30439, Art. 17 (5).

[206] The Republic of Turkey, Ordinance on the Application of Mediation over the Legal Disputes. Resmî Gazete, 2018, No. 30439, Art. 30 (2b).

[207] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 35.

[208] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 14 (2).

[209] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 33.

[210] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 31 (1).

[211] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (2) and Criminal Code. Moniteur Belge, 1867, Art. 458.

[212] The Kingdom of Belgium, Criminal Code. Moniteur Belge, 1867, Art. 1727/6.

[213] CEPEJ, Model Mediation Feedback Questionnaire. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 37-38.

[214] CEPEJ, European Code of Conduct for Mediation Providers. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 24-27.

[215] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 16 (3).

[216] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 11.

[217] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Art. 1832 (2).

[218] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 298.

[219] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 33.

[220] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 23 (2).

[221] The Republic of Finland, Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts, No. 394/2011, Art. 14 (1).

[222] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 16 (4bis).

[223] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 7 (a).

[224] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., part 7.

[225] In the scope of compulsory mediation. The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 21 (5).

[226] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 10 (2).

[227] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 8.

[228] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 16.

[229] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 21.

[230] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 9 (4).

[231] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 8(2).

[232] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 12.3.

[233] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 16 (1).

[234] CEPEJ, Model contract clause on mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 39;

[235] International Chamber of Commerce, Mediation Clauses [interactive]. Accessed: 2019-03-09. Available at: https://iccwbo.org/dispute-resolution-services/mediation/mediation-clauses/.

[236] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 21.7.

[237] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 17.

[238] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 13 (2).

[239] CEPEJ, Model contract clause on mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 39;

[240] UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), Art. 5.

[241] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 4(2).

[242] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 9.

[243] Data published by DE PALO, G.

[244] DE PALO, G. A Ten-Year-Long “EU Mediation Paradox” When an EU Directive Needs to Be More … Directive: Briefing requested by the JURI committee, European Parliament [interactive], 2018. Available at: http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/608847/IPOL_BRI(2018)608847_EN.pdf, p. 6 and 9.

[245] In Italy mediation information sessions are compulsory in disputes related to the following: joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, damages for medical and/or paramedical malpractice or defamation via the press or any other means of publicity, insurance, bank and financial contracts. The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5.

[246] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 28. The provision will enter into force on July 1, 2020.

[247] The provision will enter into force on 1 January 2020. The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 21.

[248] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 9.

[249] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (1).

[250] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 29.1.

[251] The United Kingdom, Children and Families Act 2014, sec. 10 (1).

[252] Of the European Union.

[253] The European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950.

[254] The CJEU, judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others, para. 61.

[255] The CJEU judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa was adopted in the light of the Directive 2013/11/EU of the European Parliament and of the Council of the European Union on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC., OJ, L 165/63, 2013, while the CJEU judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others was adopted in the light of Directive 2002/22/EC of the European Parliament and of the Council  of the European Union of 7 March 2002 on Universal Service and users’ rights relating to electronic communications networks and services, OJ, L 108/51, 2002.

[256] The CJEU, judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others, para. 67.

[257] The CJEU, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 70.

[258] The United Kingdom, Family procedure rules, rule 3.8.

[259] CEPEJ, Guide to the Judicial Referral to Mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 16.

[260] CEPEJ, Frequently Asked Questions (FAQ) on Mediation: A Guide for judges, non-judge staff of courts, mediators, mediation services, legal and other professionals and mediation stakeholders and users of mediation. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 54.

[261] In Belgium mediation is only partially compulsory – it cannot be ordered if none of the parties consent to it - The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1734 (1).

[262] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1734 (1).

[263] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5.

[264] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 2311 (3).

[265] In the Republic of Serbia, the Act on Mediation in Dispute Resolution, Art. 18 provides for a 60 days term.

[266] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1737.

[267] The Czech Republic, Civil Procedure Code. 1963 (as amended in 2012), No. 99/1963 Coll., sec. 202.

[268] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 19 (3).

[269] The CJEU judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 61.

[270] UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), Art. 6 (5).

[271] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008. Uradni list, No. 56/2008, Art. 7 (3).

[272] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 21 (2 and 3).

[273] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (1).

[274] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1734 (1/1).

[275] The French Republic, Code of Administrative Justice, Art. L213-8.

[276] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 981 (2).

[277] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 18 (6).

[278] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 7 (2).

[279] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 29.

[280] The Federal Republic of Germany, Mediation Act. Bundesgesetzblatt I, p. 1577, 2012, Sec. 2 (4).

[281] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 8 (4).

[282] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 23.

[283] CEPEJ, Standard mediation forms. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 30 – 33.

[284] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 18.

[285] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 6.

[286] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 4.

[287] In case the lawsuit is not yet filed, The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 16 (1).

[288] In case parties are bound by the mediation clause, The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 6 (1).

[289] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 6 (2).

[290] With regards to compulsory mediation, the Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 6.

[291] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 17

[292] See for example, the European Parliament and the Council of the European Union, Regulation on online dispute resolution for consumer disputes (EU) 524/201, OJ, L 165/1, 2013 (Regulation on consumer ODR); UNCITRAL Technical Notes on Online Dispute Resolution, New York: United Nations, 2017 [accessed: 2019-03-10], available at:

http://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf.

[293] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 24 (2).

[294] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 3 (4).

[295] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 24 (1).

[296] See, for example: CJEU judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others, para. 58, stating that ‘the exercise of rights conferred by the Universal Service Directive might be rendered in practice impossible or excessively difficult for certain individuals – in particular, those without access to the Internet – if the settlement procedure could be accessed only by electronic means’.

[297] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 16 (3).

[298] An extensive Guide to Mediation for Lawyers is also included in the Mediation Development Toolkit - CEPEJ, Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 58 – 73.

[299] The Court of Justice of the European Union, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 61.

[300] European Parliament and the Council of the European Union, Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC., OJ, L 165/63, 2013, p. 63-79.

[301] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (1).

[302] The Republic of Greece, Law 4512/2018 on Arrangements for the Implementation of the Structural Reforms of the Economic Adjustment Programmes and Other Provisions.

[303] The Administrative Grand Chamber of the Supreme Court of the Republic of Greece, decision no 34/2018.

[304] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 14 (2).

[305] The Czech Republic, Act on Specific Court Proceedings, 2013, 292/2013 Coll., Sec. 503 (1-a)

[306] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (4).

[307] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (2) and Criminal Code, Art. 458.

[308] Guidelines on Mediation (family & civil: chapters para. 16.; penal: para. 17; administrative: para. 38).

[309] The Republic of Finland, Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts, No. 394/2011, Art. 12 and 13.

[310] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 9.

[311] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (1).

[312] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 8.2.

[313] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (1).

[314] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 9 (3).

[315] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 10 (2).

[316] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 9 (2).

[317] UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), Art. 9.

[318] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 10.

[319] The CJEU, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 50.

[320] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1728 (1).

[321] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 12 (1).

[322] The Republic of Slovenia, Mediation in Civil and Commercial Matters Act. Uradni list, No. 56/2008, Art. 12 (5).

[323] Guidelines on Mediation (family & civil: para. 36; penal: para. 35, administrative: para. 43). 

[324] The Court of Justice of the European Union, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 61.

[325] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 18 (1 to 3).

[326] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 25.

[327] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 17 (3).

[328] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 17 (4).

[329] The Republic of Austria, Law on Mediation in Civil Law Matters. Bundesgesetzblatt I Nr. 29/2003, Art. 22 (2).

[330] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1731 (4).

[331] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 18 (1).

[332] The Kingdom of Belgium, Judicial Code. Moniteur Belge, 1967, Art. 1725 (3).

[333] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 5 (3).

[334] The Republic of Lithuania, Code of Civil Procedure, Art. 147.

[335] See for example: The Court of Justice of the European Union, judgement of 18 March 2010 in cases C317/08 to C320/08 Alassini and Others, para. 67; The Court of Justice of the European Union, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 61.

[336] The Court of Justice of the European Union, judgement of 14 June 2017 in case C75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa, para. 61.

[337]UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), Art. 12.

[338] The Mediator may reject the conclusion of a contract on the performance of mediation if the necessary trust is broken between him and any of the Parties of the Conflict. - The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 5 (2).

[339] The Czech Republic, Act on Mediation and Change of Some Laws, 2012, No. 202/2012 Coll., Sec. 6.

[340] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 28 (1).

[341] Only when mediation is terminated by a mediator or due to reasons concerning mediation provider.

[342] In order not to mislead with regard to what shall be included in such a document, ‘a note of termination’ is the preferred way to name it.

[343] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 31 (1).

[344] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 80 (8).

[345] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 17 (1).

[346] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 22 (3).

[347] In Croatia, for example, ‘[a] settlement agreement concluded in the course of mediation proceedings shall be an enforcement title if it contains an 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)’ - The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 13 (2). It is, hence, cannot be stated that a mediation settlement agreement, including an enforcement clause, has the same legal value as a simple contract.

[348] The French Republic, Code of Administrative Justice, Art. L213-3.

[349] United Nations Convention on International Settlement Agreements Resulting from Mediation, Art. 1.

[350] UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), Art. 16 (1).

[351] European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008, p. 3–8, art. 6.

[352] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 27.

[353] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 12 (1).

[354] CEPEJ, Standard mediation forms. From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV [accessed 2019-03-10], available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 34-36.

[355] European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008, p. 3–8, art. 6.

[356] United Nations Convention on International Settlement Agreements Resulting from Mediation.

[357] The Republic of Lithuania, Law on Mediation, Valstybės žinios, 2008, No. 87-3462; Teisės aktų registras, No. 2017-12053, Art. 16 (3).

[358] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 12 (1).

[359] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Art. 18312 (21).

[360] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 13 (2).

[361] Guidelines on Mediation (family & civil: chapters 1.2. and 1.3. penal: chapters 1.2. and 1.4.; administrative: chapters 1.4. and 1.5.).

[362] The European Union, Directorate General for Internal Policies, ‘Rebooting’ the Mediation Directive:

Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU: study [interactive], 2014. Available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf, p. 136.

[363] Guidelines on Mediation (family & civil: chapters 3.1. and 3.2. penal: chapter 3.2.; administrative: para. 54).

[364] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 13 (2).

[365] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 14 (1).

[366] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 14 (2).

[367] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 4 (3).

[368] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 14 (3).

[369] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 4 (3).

[370] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Article 9.

[371] The Republic of Ireland, Mediation Act, 2017, No. 27, Art. 16 (1).

[372] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1838 (4).

[373] Mediation awareness of Judges Programme is currently under preparation in the CEPEJ-GT-MED.

[374] The Republic of Croatia, Mediation Act. Narodne Novine, 2011, No. 18/11, Art. 19 (1 and 2).

[375] The Czech Republic, Probation and Mediation Service Act, 2000, No. 257/2000 Coll., Sec. 4 (9).

[376] Guidelines on Mediation (family & civil: para. 48, administraticve: para. 56).

[377] The Republic of Lithuania, Law on the Legal Aid Guaranteed by the State, Valstybės žinios, 2000, No. 30-827, Art. 15 (6).

[378] Guidelines on Mediation (family & civil: para. 34).

[379] Guidelines on Mediation (family & civil: para. 49).

[380] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 8 (4bis).

[381] The Republic of Slovenia, Alternative Dispute Settlement Act. Uradni list, No. 97/2009, Art. 19 (5).

[382] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1838 (5 and 6).

[383] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 13 (1).

[384] Guidelines on Mediation (family & civil: para. 47; administrative: para. 55).

[385] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 87 (2).

[386] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 104.

[387] The Republic of Serbia, Act on Mediation in Dispute Resolution, Службеном гласнику, No. 55/2014, Art. 31.

[388] The Republic of Lithuania, the Code of Civil Procedure, Valstybės žinios, 2002, No. 36-1340, Art. 87 (2).

[389] Guidelines on mediation (family & civil: para: 34; administrative: para. 42).

[390] Guidelines on mediation (penal: para: 34).

[391] The Republic of Poland, the Code of Civil Procedure, Dziennik Ustaw, 1964, item 1595 of 2015, Article 1041.

[392] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art. 37.7.

[393] The Republic of Turkey, Ordinance on the Application of Mediation over the Legal Disputes. Resmî Gazete, 2018, No. 30439, Art. 15 (3).

[394] The Republic of Lithuania, Law on the Legal Aid Guaranteed by the State, Valstybės žinios, 2000, No. 30-827, Art. 2 (11) and 14 (3 and 4).

[395] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 17 (5bis).

[396] The Swiss Confederation, the Code of Civil Procedure, 2008, Art. 218 (2 and 3).

[397] The Republic of Italy, Legislative Decree of March 4, 2010, n. 28, Art. 20 (1).

[398] Guidelines on Mediation (family & civil, para. 40 – 42; penal, 39-40; administrative, 48-50).

[399] European Parliament and the Council of the European Union, Directive 2008/52/EC on certain aspects of mediation in Civil and Commercial matters, OJ, L-136, 2008, p. 3–8, art. 9.

[400] The European Union, Directorate General for Internal Policies, ‘Rebooting’ the Mediation Directive:

Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU: study [interactive], 2014. Available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf, p. 157.

[401] The Republic of Cyprus, The Certain Aspects of Mediation in Civil Matters Law, Official Gazette, Supplement 1(I): 16.11.2012, No. 4365, 2012, No. L.159 (I)/ 2012, Art. 13 (1).

[402] The Republic of Turkey, Law on Mediation in Civil Disputes (including criminal matters). Resmî Gazete, 2012, No. 6325, Art. 30 (1ç).

[403] The Kingdom of Spain, Law on Mediation in Civil and Commercial Matters. Boletín Oficial del Estado, No. 5/2012, Art. 17 (2).

[404] The Republic of Azerbaijan, Law of Republic of Azerbaijan on Mediation, 2019, art.11.1.

[405] MIRIMANOFF, J. Médiation et Jeunesse, Partie II: Médiation en milieu scolaire. Bruxelles: Larcier, 2013.

[406] CEPEJ, Road Map of the CEPEJ-GT-MED, based on the CEPEJ-GT-MED report on “The Impact of CEPEJ Guidelines on Civil, Family, Penal and Administrative Mediation”, CEPEJ-GT-MED(2018)8, p. 4.

[407] The European Union, Directorate General for Internal Policies, ‘Rebooting’ the Mediation Directive:

Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU: study [interactive], 2014. Available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf.

[408] CEPEJ, Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics). From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 40 – 49.

[409] The possibility remains that such a requirement is foreseen in other legal acts or regulations, which were not the object of this research.

[410] CEPEJ, Baseline Grid for Mediation Key Performance Indicators (Baseline Mediation Statistics). From Mediation Development Toolkit Ensuring implementation of the CEPEJ Guidelines on mediation, CEPEJ(2018)7REV, available at: https://rm.coe.int/mediation-development-toolkit-ensuring-implementation-of-the-cepej-gui/16808c3f52, p. 41.

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