26 November 2018                                                                   

CEPEJ-GT-MED(2018)10

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)

Working Group on mediation

(CEPEJ-GT-MED)

Report of the 4th meeting

Strasbourg, 15-16 November 2018

During this meeting, the CEPEJ-GT-MED:

- finalised and adopted draft documents to be included in the “Mediation Development Toolkit - Ensuring Implementation of CEPEJ Guidelines” that will be presented at the next CEPEJ Plenary meeting (3-4 December 2018) with a view of its adoption;

- decided to continue to develop additional measures and tools to ensure the effective application of the existing guidelines and, more generally, to widen the use of mediation in Europe, partly in cooperation with observer institutions;

- discussed the possible creation of a Council of Europe Convention on mediation and decided to propose to launch a feasibility study at the next CEPEJ Plenary meeting.

                                                        


Introduction

1.     The Working Group on Mediation (CEPEJ-GT-MED) of the European Commission for the Efficiency of Justice (CEPEJ) held its 4th meeting following its reactivation in 2017, on 15 and 16 November 2018 in Strasbourg. It was chaired by Mr Rimantas Simaitis (Lithuania).

2.     The agenda and the list of participants are reproduced in Appendices I and II of this report, respectively.

I. Discussion and adoption of additional tools to be included in the Mediation Development Toolkit - Ensuring Implementation of CEPEJ Guidelines on mediation

a)         Additional tools

3.     At its first meeting on 23-24 May 2017, the CEPEJ-GT-MED decided to begin the development of a toolkit comprising various tools useful for all those involved in mediation across Europe (member states, judges, court clerks, lawyers and private mediators, etc.), in order to increase and standardise the use of mediation practices in Europe. The “Mediation Development Toolkit - Ensuring Implementation of CEPEJ Guidelines on mediation” (Document CEPEJ(2018)7) was adopted at the last CEPEJ Plenary Meeting (27-28-29 June 2018).

4.     The Toolkit was conceived as a dynamic set of tools, meant to evolve and expand in the future. During its 4th meeting, the CEPEJ-GT-MED adopted three additional documents (Baseline Grid for Mediation Key Performance Indicators; European code of conduct for mediation providers; Standard mediation forms) proposed for adoption at the CEPEJ next plenary meeting.

5.     The CEPEJ-GT-MED decided to identify and develop additional tools in 2019 (see Appendix III). In particular, cooperation was envisaged with possible partner institutions on designing training curricula targeting various actors (namely judges, with European Judges Group for Mediation (GEMME) and/or European Judicial Training network (EJTN); notaries with Council of the Notariats of the European Union (CNUE), judicial officers with International Union of Judicial Officers (UIHJ). Guidelines on designing and monitoring mediators training schemes would be elaborated jointly with IMI, as well as Rules and procedures on improvement of mediation page of CEPEJ.

6.     Ms. Miglė Žukauskaitė, scientific expert,  was entrusted by the CEPEJ-GT-MED with the task to elaborate a project tool to help member states to develop and improve their own mediation legal framework (perform comparative analysis of European mediation legislation, identify best practices and deficiencies, assist in scientific research and in drafting of the tool). This new tool should be designed with participation of two members of the CEPEJ-GT-MED and another scientific expert Mr. Leonardo D’Urso.

7.     Following a presentation of the work of the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) by its Secretariat, future transversal cooperation between CEPEJ-GT-MED and GREVIO was considered, namely by a collection of data, via CEPEJ networks, on legal framework and practices of CoE member states in relation to mediation in case of violence against women. This could lead, if appropriate, to a second step in which guidelines, risks evaluation matrix or some other tool/s could be developed in order to provide member states with guidance on how to select cases where it would be appropriate to use mediation and how to use mediation in these cases, while ensuring that safeguards and efficient methodologies are in place to protect the victims and handle all other risks associated with this category of disputes.

b)         Discussion on ways to ensure the dissemination of the Toolkit

8.     The Working Group agreed that dissemination of the CEPEJ tools on mediation, and notably the Toolkit is crucial and that efforts should be made in order to ensure that the directly concerned actors within member states are reached.

9.     The Secretariat recalled the various steps taken in order to disseminate the Toolkit in the member states since its adoption. Members of the Working Group and observers were invited to share lists of contacts with the Secretariat, notably concerning private actors of mediation.

10.  It was proposed to conduct studies, on a regular basis as from 2020, in order to assess the impact of such tools on the use and practice of mediation in CoE member states. Developing a network of contact points in member states (cf. point 20) and using these tools in cooperation programs (point 24) were also mentioned as efficient ways to disseminate the CEPEJ tools on mediation and reach competent stakeholders.

II. Possible drafting of a Council of Europe convention on mediation

11.  A preliminary exchange of views took place during the last meeting of CEPEJ-GT-MED (25-26 May 2018) on the opportunity of proposing to the relevant Council of Europe Steering Committees the setting up of a Council of Europe Convention on mediation. Subsequently, a videoconference was organised between the President of the Working Group, and CEPEJ Bureau (3 September 2018) during which it proposed to launch a feasibility study, as a preliminary step.

12.  During these discussions, some members of the CEPEJ-GT-MED, as well as the CEPEJ Bureau, questioned the appropriateness of binding law to support the development of mediation in the member states; it was decided that the feasibility study would be relevant to assess the suitability of a Convention in this field. 

13.  To do so, the feasibility study should develop a comparative assessment of the existing binding and non-binding international instruments. It should also tackle the issues of the economic and sociologic impact of the use of mediation for Member States. Based on this analysis, it should assess how a new binding instrument in the field of mediation could increase the quality and quantity of mediations in civil, commercial and family matters. The feasibility study finally should also provide a preliminary design of the Convention.

14.  This proposal will be presented to the next CEPEJ Plenary meeting (3-4 December 2018).

III. Cooperation with other CEPEJ Working Groups

CEPEJ Evaluation Scheme – Mediation Part

15.  During its last meeting (24-25 May 2018), the Working Group decided to propose concrete amendments to the CEPEJ Evaluation Scheme for cycle 2018-2020 in order to improve the collection of data in this field.

16.  The CEPEJ-GT-MED was informed by the Secretariat that the CEPEJ-GT-EVAL adopted an updated version of the Scheme during its last meeting (6-7 November 2018) in which most of the amendments were adopted. Some of them however need to be adapted to the CEPEJ evaluation methodology.

CEPEJ ad hoc Group on definitions

17.  Jeremy Tagg was entrusted by the Working Group with the task to represent the CEPEJ-GT-MED in the ad hoc Group working on harmonisation of definitions contained in all CEPEJ documents during its last meeting (10-11 September 2018). He presented the results of the work of the ad hoc Working Group and the amendments proposed to the definitions related to mediation.

18.  Further discussions took place in order to improve these definitions. These will be submitted to the ad hoc Working Group during its next meeting that should take place in early 2019.

IV. Discussion on follow-up to be given to the Road Map of the CEPEJ-GT-MED

19.  During its last meeting, the CEPEJ Plenary (27-29 June 2018) adopted the Road Map of the CEPEJ-GT-MED, which includes recommendations constituting the Action Plan for CEPEJ-GT-MED over 2018 and 2019.

20.  The Working Group decided to take stock of the progress made in implementing these recommendations. It appeared that most of them have already been implemented, or are currently being dealt with through various ongoing activities of the Working Group (development and diffusion of the Toolkit, cooperation with CEPEJ-GT-EVAL, etc.).

21.  Regarding Recommendation 1.3 “Promote annual or bi-annual CoE conference on mediation with the participation of high-level policy makers from MoJs” and Recommendation 3.2 “Develop a Network of persons in charge of mediation at MoJs and of correspondents of experts in civil, family, penal and administrative mediation”, it was decided that a letter would be prepared by the Secretariat, signed by the CEPEJ-GT-MED President, and sent to CEPEJ National members in order to collect suggestions as to possible further steps and particular actions. Feedback information would be discussed at the next CEPEJ-GT-MED meeting with aim to develop detailed action plan.

22.  Regarding Recommendation 4.2 “Promote recourse to mediation within the CoE itself by suggesting to the competent department to introduce a multi-step clause (application of mediation, then arbitration) on all CoE procuremenrt contracts”, it was decided that a letter would be prepared by the Secretariat, signed by the CEPEJ-GT-MED President, and sent to the competent department.

V. Participation of CEPEJ-GT-MED members in other fora

23.  The Working Group instructed the CEPEJ Secretariat to reply to a questionnaire. received from the International Social Service (ISS), which is developing a network of international mediators in family matters, implying a certain level of cooperation between ISS and CEPEJ-GT-MED.

24.  Maria Oliveira and Rimantas Simaitis informed about of their respective involvement in CoE cooperation projects in the field of mediation, respectively in Turkey and Belarus. CEPEJ tools, including the Toolkit, are used in full in the framework of such projects.

25.  Rimantas Simaitis attended a CNUE conference closing notarial mediation methodology development project where were discussed the follow-up  with CNUE on possible cooperation with the CEPEJ-GT-MED in designing of joint tools to help with advancement in notarial mediation and other related mediation practices.


APPENDIX I: Agenda / Ordre du jour

1.         Opening of the meeting / Ouverture de la réunion

2.         Adoption of the agenda / Adoption de l’ordre du jour

3.         Information by the Secretariat / Information du Secrétariat

4.        Discussion and adoption of additional tools to be included in the Toolkit / Discussion et adoption des outils additionnels à inclure dans la boîte à outils

a)    Additional tools / Outils additionnels

§  Tools under development, to be adopted / Outils en cours de développement, à adopter

§  Remaining documents to draft in the future / Outils restants à développer

o   Discussion with possible partner institutions on Designing training curriculum for various actors (judges, lawyers, notaries, etc.)/ Discussion avec les institutions partenaires possibles sur la conception de programmes de formation pour différents acteurs (juges, avocats, notaires, etc.)

o   Discussion on the project of tool on developing mediation legal framework with the participation of scientific expert MIGLĖ ŽUKAUSKAITĖ /Discussion sur le projet d’outil de développement d’un cadre juridique relatif à la médiation avec la participation de l’expert scientifique MIGLĖ ŽUKAUSKAITĖ

o   Discussion on possible cooperation between CEPEJ-GT-MED and the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO)/ Discussion sur une possible cooperation entre le CEPEJ-GT-MED et le Groupe d’Experts sur la lutte contre la violence à l’égard des femmes et la violence domestique (GREVIO)

o   Others/Autres

b) Discussion on ways to ensure the dissemination of the Toolkit in the Member States and to the actors directly concerned / Discussion sur les moyens d’assurer la  diffusion de la Boite à outils dans les Etats membres et auprès des acteurs directement concernés  

5.        Possible drafting of a Council of Europe convention on mediation / Elaboration éventuelle d’une Convention du Conseil de l’Europe sur la médiation

6.         Cooperation with other CEPEJ Working Groups / Coopération avec les autres groupes de travail de la CEPEJ

7.         Discussion on follow-up to be given to the Road Map of the CEPEJ-GT-MED/ Discussion sur le suivi à donner à la feuille de route du CEPEJ-GT-MED

8.         Participation of CEPEJ-GT-MED members in other fora / Participation des membres du CEPEJ-GT-MED dans d’autres forums

9.         Work of member states, other institutions and/or observers concerning mediation / Travaux des Etats membres, autres institutions et/ou observateurs concernant la médiation

10.       Other business  / Questions diverses


APPENDIX II : List of participants / Liste des participants

MEMBERS / MEMBRES

Nina BETETTO, Judge, Supreme Court, SLOVENIA

Maria DA CONCEIÇAO OLIVEIRA, Lawyer and Mediator, PORTUGAL

Anna MAROVA, Lawyer and Mediator, CZECH REPUBLIC

Jean MIRIMANOFF, Magistrat honoraire, Médiateur Assermenté, SUISSE

Rimantas SIMAITIS, Partner, Cobalt law firm, LITHUANIA

Jeremy TAGG, Mediation consultant, UNITED KINGDOM

***

SCIENTIFIC EXPERTS / EXPERTS SCIENTIFIQUES

Leonardo D’URSO, Co-founder and Chief Executive Office, ADR Centre, ITALY

Miglė ŽUKAUSKAITĖ, Ph. D. Candidate, Vilnius University, Faculty of Law, LITHUANIA

***

OBSERVERS / OBSERVATEURS

Council of the Notariats of the European Union / Conseil des Notariats de l’Union Européenne (CNUE), Susanne KRAEMER, conseillère juridique

European Union of Rechtspfleger and Court Clerks / Union Européenne des Greffiers de Justice (EUR), Jean-Jacques KUSTER, Président honoraire de l'EUR, représentant auprès du Conseil de l'Europe, FRANCE

European Judges Group for Mediation / Groupement européen des magistrats pour la médiation (GEMME), Paulo de BRITO, Ph.D., University of Bristol, Faculty of Law, PORTUGAL

International Mediation Institute / Institut international de Médiation (IMI), Federico ANTICH

International Union of Judicial Officers / Union Internationale des Huissiers de Justice et Officiers Judiciaires (UIHJ), Mathieu CHARDON, Huissier de justice, Secrétaire général de l’UIHJ, FRANCE

Nicole JARNO, Première présidente, Cour d’appel de Colmar, FRANCE

Erik KOTLARIK, Legal Assistant to the Secretary of State, Ministry of Justice, SLOVAK REPUBLIC,

Emeline LLAS, Chercheuse CNRS, FRANCE

Charalambos MACHERAS, Judge to the Supreme Court, GREECE

Panagiota Eirini SIDERI, Judge, Athens Court of First Instance, GREECE

***

SECRETARIAT

DGI - Human Rights and Rule of Law, Division for the independence and efficiency of justice/

DGI - Droits de l’Homme et Etat de droit, Division pour l’indépendance et l’efficacité de la justice

E-mail: cepej@coe.int

Stéphane LEYENBERGER, Executive secretary of the CEPEJ / Secrétaire exécutif de la CEPEJ, Tel: +33 (0)3 88 41 34 12, e-mail: stephane.leyenberger@coe.int

Clémence BOUQUEMONT, Secretary of the CEPEJ-MED / Secrétaire du CEPEJ-MED,

Tel: +33 (0)3 90 21 60 83, e-mail: clemence.bouquemont@coe.int

Paul MEYER, Co-Secretary of the CEPEJ-MED / Co-Secrétaire du CEPEJ-MED,

Tel: +33 (0)3 90 21 55 22, e-mail: paul.meyer@coe.int

OLSEN Christina, Violence against Women Division “GREVIO”, e-mail : Christina.OLSEN@coe.int

JOSENHANS Valentine, Directorate of Human Dignity, Equality and Governance, Trainee, e-mail: Valentine.JOSENHANS@coe.int

 

Anna KHROMOVA, Assistant / Assistante, Tel: +33 (0)3 88 41 21 68, Fax: +33 (0)3 90 21 50 33,

e-mail: anna.khromova@coe.int

***

Interpreters / Interprètes

Grégoire DEVICTOR

Sylvie BOUX

Nicolas GUITTONNEAU


APPENDIX III : Development of the mediation toolkit

Tool

Reference/who is in charge of developing the tool

Date

Completed

On-going

At a later stage

1. Standardised training curriculum

Handbook + Maria and Rimantas

Revision with IMI

A joint document circulated to WG early 2018 and to MS Spring 2018

Finalisation during 3rd meeting for adoption at CEPEJ plenary in June 2018

2. FAQ

Court manual + Jean + Jeremy

circulated to WG early 2018 and to MS Spring 2018

Finalisation during 3rd meeting for adoption at CEPEJ plenary in June 2018

3. Judicial referral to mediation (incl. indicators to judges and clerks on suitability of cases to mediation)

Court manual + Nina

circulated to WG early 2018 and to MS Spring 2018

Finalisation during 3rd meeting for adoption at CEPEJ plenary in June 2018

4. Guidance for lawyers (indicators for cases suitable, inclusion of clauses, information of clients on possibilities of mediation, mediation-friendly fees structure, etc.)

CCBE + Anna

A joint document was jointly elaborated before 3rd meeting for adoption by CEPEJ plenary in June 2018

5. Template on how to  evaluate mediation pilots + Issues to be addressed to set up mediation pilots

Jeremy/Nina

circulated to members of the WG in January 2018 for comments

circulated to MS during Spring 2018

Finalisation during 3rd meeting for adoption at CEPEJ plenary in June 2018

6. Baseline Grid for MS to collect statistical data

Leonardo/Rimantas

Finalised during November session

To be adopted in December 2018

Possible testing afterwards

7. Guidelines / Recommendations to MS on how to develop efficient and sufficient Mediation Legal Framework, and to keep it up to date

(potential update to GL?)

Rimantas/Nina/Leonardo

+ Miglé

Secretariat/MS

A reference document, the collection of existing national laws and draft laws on mediation and related issues (settlement agreements, non-law materials, etc.) in French and English was prepared by Secretariat and shared in November 2018. Will be completed with additional info until December 18.

Working document to be proposed to the Group by 15 April, for discussion during May session

8. Code of conduct for mediation centres

Leonardo/Rimantas

Finalised during November session.

To be adopted in December 2018.

9. Action/s to improve mediation page of CEPEJ

Improving structure, selection and updating with various useful mediation related information, e.g. reference lists to selected codes of conduct, ethics, etc., good practices, videos, tools, mediation laws in place, mediation related studies conducted by the CoE, examples of mediation cooperation projects (all to be put on the mediation page of CEPEJ)

Maria / Rimantas / Leonardo / Secretariat

Editorial board

Designing rules and procedures on improvement of mediation page of CEPEJ

Selection and appointment of editorial board to discuss what to put on the webpage and how to manage the documents

Creating a network of correspondents who will be able to supply materials (might correlate with implementation of Roadmap Recommendation 3.2 “Develop a Network of persons in charge of mediation at MoJs and of correspondents of experts in civil, family, penal and administrative mediation”) .

Draft rules and procedures to be presented by 15 April

10. Standard mediation Forms

Jeremy

Finalised during November session.

To be adopted in December 2018.

11. Awareness raising tools  for various stakeholders such as Strategy principles or analogist tools

-judges

-lawyers (if not included in 4)

-users

-other stakeholders

Jean

CCBE?

Scientific expert in Public relations / communication?

Development second half of 2019

Scientific expert to be invited if possible for the 5th meeting.

12. Guidance in application of various IT tools (including artificial intelligence, ODR, etc.)

Rimantas + cooperation with GT QUAL

2019

following works with GT-QUAL

13.Guidelines on designing and monitoring mediators training schemes

Maria/Rimantas

IMI (2 members to be appointed)

A Skype call will be organised in December

A task force with 2 members of IMI and two members of the GT-MED will be in charge of drafting a first version

First draft to be presented on 15 April for discussion during May session.

14.Designing of training curriculum for various actors(group of tools) :

-       judges and prosecutors

Taskforce composed of :

- European Judicial Training Network (EJTN)

- GEMME

- Nina for first draft + Rimantas / Maria

- Offer from Greek MoJ who could help design and pilot the tool

1)     Skype conference in December with representatives from EJTN / GEMME

2)     Nina develops a  first draft

3)     The taskforce will comment and analyse

4)     Draft to be presented by 15 April for discussion during May session

14 bis. Designing of training curriculum for various actors(group of tools) :

-       notaries,

-       enforcement officers

-       lawyers

Maria/Rimantas

For Notaries, TF with CNUE

For enforcement officers, TF with UIHJ

For lawyers, TF with CCBE (TBC)

Second half of 2019

The design and modus operandi of the tools will be discussed during the 5th GT-MED meeting in May 2019.

15. Peer Mediation Checklist Guidelines – peer mediation projects in schools

Maria and Anna?

Jean can contact the Swiss federation of mediation to know more and collect about the practical experiences

Scientific expert in child education

To be discussed on 5th meeting May 2019

16.Inclusion of mediation (amicable dispute resolution) into high school curricula

Scientific expert in child education

To be discussed on 5th meeting May 2019

17. Updating the Guidelines on penal mediation – in line with adoption of Restorative Justice Recommendation

Inviting someone from CDCJ to the 5th meeting to discuss and help up update the Guidelines and design new tools.

18. Guidelines, risks evaluation matrix or some other tool/s to help reasonably and efficiently apply mediation in disputes related to violence against women

Maria and Anna + GREVIO experts

In 2019