18 October 2019

CEPEJ-GT-MED(2019)11

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)

Working group on mediation

(CEPEJ-GT-MED)

Report of the 6th meeting

Strasbourg, 17-18 October 2019

During this meeting the CEPEJ-GT-MED:

- commented, finalised and/or adopted three draft documents which aim to complement the "Mediation Development Toolkit - ensuring the implementation of the CEPEJ guidelines on mediation". The documents that could be finalised and adopted will be presented at the CEPEJ plenary meeting on 5 and 6 December 2019;

- discussed the next steps for the “feasibility study”, initially analysing the usefulness of developing a Council of Europe convention on mediation. The Secretariat undertakes to revert to the scientific experts once the outcome of the study has been clarified within the framework of the CEPEJ Plenary Meeting;

- identifies activities that could be implemented in 2020. In this context, the CEPEJ-GT-MED decided to continue to develop additional measures and tools to ensure the effective application of the existing guidelines and, more generally, to extend the use of mediation in Europe, in part in cooperation with the observer institutions.

- agreed on the organisation and presentation of the content and tools it has developed on its website.


Introduction

1.     The Working Group on Mediation (CEPEJ-GT-MED) of the European Commission for the Efficiency of Justice (CEPEJ) held its 6th meeting since its reactivation in 2017, on 17 and 18 October 2019 in Strasbourg under the chairmanship of Mr Rimantas Simaitis (Lithuania).

2.     The agenda and list of participants are contained in Annexes I and II to this report, respectively.

I.              Information by the Secretariat

3.     The CEPEJ Secretariat informed the members of the Working Group and the participants in the meeting about the improvement of the state of the Council of Europe’s budget, which had influenced some of the activities of the group in the past, as well as the new organisation of the CEPEJ Secretariat.

4.     The President of the CEPEJ-GT-MED indicated that the current mandate of the working Group expires in December 2019 and proposes to give an important focus on the agenda for the future activities and objectives of the GT-MED which could be discussed at the next plenary meeting of the CEPEJ on 5 and 6 December. 

II.            Reviewing and adoption of additional tools to be included in the Mediation Development Toolkit - ensuring the implementation of the CEPEJ guidelines on mediation

a)     Tools to be adopted

5.     The CEPEJ-GT-MED finalises three additional documents whose adoption will be proposed to the next plenary meeting of the CEPEJ on 5 and 6 December 2019:

-       the "Mediation Awareness Programme for Judges" (CEPEJ(2019)18Prov), for which the European Group of Magistrates for Mediation (GEMME) had been consulted. After discussion, the document was adopted by the Group.

-       the "Mediation Awareness and Training Programme for Notaries" (CEPEJ(2019)20Prov) which has been developed in close collaboration with the Council of Notariats of the European Union (CNUE). After discussion, the document was adopted by the Group.

-       the "Training programme for lawyers to assist clients in mediation" (CEPEJ-GT-MED(2019)21Prov) which was developed in close collaboration with the Council of the Bars and Law Societies of the European Union (CCBE). After discussion, the document was adopted by the Group.

b)    Documents to be drafted in the future

6.     Following a videoconference organised between members of the Working Group and Mr. Matthieu Chardon, representative of the International Union of Judicial Officers (UIHJ), and the agreement in principle of the UIHJ as to the idea of collaboration with the CEPEJ-GT-MED on a document to raise awareness of mediation among judicial officers, Mathieu Chardon informed the Working Group that a group of 4 or 5 experts would be made available to prepare such a document. It was decided to wait for the CEPEJ's decision on the mandates of the working groups before starting this work.

7.     The Group also decided to prioritise mediation awareness strategy and communication tools. A scientific expert in communication could be invited to a future meeting of the GT-MED in 2020. The other tools mentioned can be found in Appendix 3 of this report.

8.     It also agreed to give priority to updating the Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters (CEPEJ (2007)13E). See point IV of this report.

c)     Restructuration

9.     In accordance with the decision taken at the last meeting of the Working Group, the Secretariat presents to the members several ways of organising the different tools in the Toolkit and ways of regrouping them into separate sets for specific target groups (e.g., gathering documents developed specifically for judges). These target groups were discussed and approved by the Working Group. The Group therefore entrusted the Secretariat to design the website to present the tools in the Toolkit individually and according to the target groups defined during the meeting.

10.  The Working Group agreed upon the bibliographies presented by the Secretariat and decided to present a general bibliography and then to refine them by target group in a second phase.

11.  It was also decided to present the three Guidelines developed by the CEPEJ-GT-MED in 2007 together, and to present the new Guidelines on designing and monitoring mediation training programmes (CEPEJ (2019)8E) separately.

III.           Presentation of the results of the Feasibility study conducted by scientific experts Mr Leonardo d'Urso and Ms Mjriana Visentin, and future steps 

12.  Scientific experts Mr Leonardo d'Urso and Ms Mirjana Visentin did not present a new version of the Feasibility study, as data on mediation in the Member States that could have served as a basis for this study could not have been collected from the CEPEJ's national correspondents, due to the timing of data collection for the CEPEJ evaluation cycle.

13.  The next steps for the experts will be determined following the CEPEJ plenary meeting. This work could take different forms: a binding document setting out quantified objectives to be achieved by the signatory States, a document setting out the steps to be taken to improve the collection of data on mediation in Europe, a document establishing a mechanism for monitoring States’ performance, or encouraging the development of a Recommendation of the Committee of Ministers of the Council of Europe, etc.

IV.           Implementation of the CEPEJ-GT-MED Roadmap

14.  It had been decided at the 4th meeting of the CEPEJ-GT-MED, in accordance with the Roadmap adopted at the plenary meeting of the CEPEJ in June 2018, that the CEPEJ-GT-MED should try to set up a Network of "mediation contact points" from all member States. This network of contact points should make it possible both to ensure a better knowledge of mediation and to promote its use, in particular through the dissemination of the CEPEJ's tools in this field. The Secretariat has thus twice invited the members of the CEPEJ to communicate the contact details of a "mediation contact point" in their Member State. As of the day of the meeting, a list of 21 contact points has been established.

15.  It is proposed to organise an annual meeting of this network as well as, depending on budgetary availability, an annual Council of Europe Conference on mediation. These meetings/conferences could be held in the margins of a CEPEJ-GT-MED meeting.

V.            Updating of the Guidelines on Criminal Mediation, in accordance with the adoption of the Recommendation on Restorative Justice in Criminal Matters

16.  The Recommendation on Restorative Justice in Criminal Matters was presented to the members of the Working Group by Ms. Ilina Taneva-Nikolova, Secretary to the Council for Penological Cooperation (PC-CP).

17.  The group agreed that Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters (CEPEJ (2007)13E) should be updated following the adoption of the Recommendation on Restorative Justice in Criminal Matters. An expert who has worked on this Recommendation could be contacted by the Secretariat as part of the next mandate of the Working Group to accomplish this task.

VI.            Participation of CEPEJ-GT-MED members in other fora & Work of Member States, other institutions and/or observers concerning mediation

18. The members of the Working Group informed the group of their participation in various conferences related to mediation.

19. The Secretariat presents new CEPEJ cooperation projects, some of which include "mediation" components: Tunisia, which started in January 2019, and Latvia, which started in September 2019.

20. The representative of the Latvian Ministry of Justice, Ms Evija Timpare, reported on recent legislative changes in the field of mediation and shared her enthusiasm for the new cooperation programme with the CEPEJ.
ANNEXE 1 : 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.         Toolkit / Boite à outils

·         Restructuration / Restructuration

·         Documents under development / Outils en cours de développement

Mediation training schemes to the attention of judges, lawyers, enforcement officers and notaries / Programmes de formation à la médiation à l’attention des juges, avocats, huissiers de justice et notaires

·         Remaining documents to draft in the future / Outils restant à développer

5.            Presentation of the results of the feasibility study conducted by scientific experts, Leonardo d’Urso and Mjriana Visentin and next steps  / Présentation des résultats de l’étude de faisabilité conduite par les experts scientifiques, Leonardo d’Urso and Mjriana Visentin, et prochaines étapes 

6.            Implementation of the Road Map of the CEPEJ-GT-MED / Mise en œuvre de la Feuille de route du CEPEJ-GT-MED

·         Implementation of a network of « contact points for mediation » in all Council of Europe member States / Mise en place d’un Réseau de « points de contact médiation » dans tous les Etats membres du Conseil de l’Europe

·         Others / autres

7.            Updating the Guidelines on penal mediation, in line with adoption of Restorative Justice Recommandation / Mise à jour des Lignes directrices sur la médiation pénale, conformément à l'adoption de la Recommandation sur la justice restaurative en matière pénale

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

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


ANNEXE II – List of participants

MEMBERS / MEMBRES

Violeta BELEGANTE, Conseillère juridique, Ministère de la Justice, ROUMANIE

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

***

PRESIDENT OF CEPEJ / PRESIDENT DE LA CEPEJ

Ramin GURBANOV, Judge, Baku City Yasamal District Court, Co-ordinator of Judicial Modernisation Project, BAKU, AZERBAIJAN. Apologized / Excusé

***

SCIENTIFIC EXPERTS / EXPERTS SCIENTIFIQUES

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

Mjriana VISENTIN, General Director and legal expert at Human Rights Consulting LLC, RUSSIAN FEDERATION

***

OBSERVERS / OBSERVATEURS

COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN UNION / CONSEIL DES BARREAUX EUROPÉENS(CCBE)  

Simone CUOMO, Senior Legal Advisor, BELGIUM

COUNCIL OF THE NOTARIAT OF THE EUROPEAN UNION (CNUE) /CONSEIL DES NOTARIATS DE L’UNION EUROPEENNE (CNUE)

Danielle DUHEN, Présidente du GT Médiation du CNUE, notaire-médiateur à Bruxelles, Belgique

Susanne KRÄMER, Conseiller juridique au sein du CNUE, Belgique

EUROPEEAN JUDICIAL TRAINING NETWORK (EJTN) / RESEAU EUROPEEN DE FORMATION JUDICIAIRE (REFJ) Apologized / Excusé

EUROPEAN UNION OF RECHTSPFLEGER AND COURT CLERKS / UNION EUROPÉENNE DES GREFFIERS DE JUSTICE (EUR)

Vivien WHYTE, Président de l'EUR, FRANCE

EUROPEAN JUDGES GROUP FOR MEDIATION / GROUPEMENT EUROPEEN DES MAGISTRATS POUR LA MEDIATION (GEMME)

Paulo DE BRITO, Ph.D., Université de Bristol, Faculté de Droit, Portugal

INTERNATIONAL MEDIATION INSTITUTE / INSTITUT INTERNATIONAL DE MEDIATION (IMI)

Apologized / Excusé

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

EUROPEAN EXPERTISE AND EUROPEAN INSTITUTE (EEEI) / INSTITUT EUROPEEN DE L’EXPERTISE ET DE L’EXPERT (EEEI)

Claude DUVERNOY, Vice-president de l’EEEI et président de la fédération française des centres de médiation

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

Charalambos MACHERAS, Judge to the Supreme Court, GREECE

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

***

INVITED DELEGATIONS / DELEGATIONS INVITEES

TUNISIA / TUNISIE

Nouredine GHAZOUANI, Directeur Général, l’Institut Supérieur de la Profession d’Avocat, Tunis

Sihem OUESLATI, Secrétaire Générale, l’Institut Supérieur de la Profession d’Avocat (ISPA), Tunis

LATVIA / LETTONIE

Evija TIMPARE, Ministry of Justice, Lawyer at Department of Judiciary Policy

***

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

Hanne JUNCHER, Head of the Justice and Legal Co-operation Department / Service de la cooperation judiciaire et juridique, Tel: +33 (0)3 88 41 24 37, e-mail: hanne.juncher@coe.int

Christel SCHURRER, Secretary of the CEPEJ-MED / Secrétaire du CEPEJ-MED, Tél. : +33 (0)3 90 21 56 97, e-mail: christel.schurrer@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

Anna KHROMOVA, Assistant / Assistante, Tel: +33 (0)3 88 41 21 31, e-mail: anna.khromova@coe.int

SECRETARIAT PC-CP

Ilina TANEVA-NIKOLOVA, Secretary to the Council for Penological Co-operation (PC-CP) / Secrétaire auprès du Conseil de coopération pénologique (PC-CP), e-mail: Ilina.taneva@coe.int

***

Interpreters / Interprètes

Christopher TYCZKA

Sylvie BOUX

Nicolas GUITTONNEAU


ANNEXE III : Development of the Mediation Development 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. Handbook for mediation lawmaking

Secretariat/MS

Rimantas/Nina/Leonardo

+ Miglé

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. Completed with additional info until December 18.

Working document discussed during May session

Revision to be presented within 2 weeks by Migle for circulation to members ( one week deadline)

Polishing/translation of the document by beginning of June

Presentation for adoption of CEPEJ Plenary June 2019

8. Code of conduct for mediation centres

Leonardo/Rimantas

Finalised during November session.

Adopted in December 2018.

9. Standard mediation Forms

Jeremy

Finalised during November session.

Adopted in December 2018.

10.Guidelines on designing and monitoring mediators training schemes

Maria/Rimantas

IMI (James/Federico)

Draft presented to members during May session.

Will be sent to IMI for comments (one week deadline)

Presentation to CEPEJ Plenary in June 2019 if no major comments from IMI

11. 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)

Secretariat

Maria / Rimantas / Leonardo / Secretariat

Restructure toolkit presentation with individual tools and  separate access on the website, prepare feedback form ( to be circulated to members during summer)

Designing rules and procedures on improvement of mediation page of CEPEJ

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”).

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

Inviting representative from CDPC to the October meeting to discuss and help up update the Guidelines and design new tools.

13.Awareness raising/training curriculum for various actors involved in mediation process ( not acting as mediators) (group of tools) :

-       judges and prosecutors

Taskforce composed of :

- Nina, Jean, Anna for first draft

- GEMME

- Offer from Greek MoJ who could help pilot the tool

Secretariat will propose merging of both documents ( Nina’s document in appendix)

Nina, Jean and Anna will review the document in order to avoid any contradictions/discrepancies in the document

Revised document to be shared with GEMME for comments during summer

Final draft to be circulated with members of the group by beginning of October

Discussion during October meeting and presented to CEPEJ Plenary for adoption in December

13 bis. Awareness raising/training curriculum for various actors involved in mediation process ( not acting as mediators) (group of tools) :

-       lawyers

Maria/Rimantas

For lawyers, TF with CCBE (TBC)

Draft to be prepared by CCBE by the end of May

Will be shared within TF during summer for discussion

Final draft to be circulated with members of the group by beginning of 1st October

Discussion during October meeting and presented to CEPEJ Plenary for adoption in December

13 ter. Awareness raising/training curriculum for various actors involved in mediation process ( not acting as mediators) (group of tools) :

-       notaries

Maria/Rimantas

For Notaries, TF with CNUE

Skype call to be organised with TF before summer and first draft to be prepared by CNUE and circulated over summer

Final draft to be circulated with members of the group by beginning of 1st October

Discussion during October meeting and presented to CEPEJ Plenary for adoption in December

13 qua. Awareness raising/training curriculum for various actors involved in mediation process ( not acting as mediators) (group of tools) :

-       enforcement officers

Maria/Rimantas

For enforcement officers, TF with UIHJ

4 to 5 experts can be appointed by UIHJ.


Everyone ready.

Skype call to be organised with UIHJ to discuss modalities 

first draft to be prepared and circulated

Discussion after the meeting of October 2019

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

Maria and Anna?

Jean suggest to contact project in Canada/ Québec to know more and collect information about successful practical experiences ( + Switzerland)

Scientific expert in child education

2021

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

Scientific expert in child education

2021

16. 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

Reconsider in 2020 depending on GREVIO’s availability

17. Awareness raising tools (for users/PR)

Scientific expert in Public relations / communication?

Development 2020

Scientific expert to be invited if possible for one meeting (end of 2019/ 2020?)

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

Rimantas + cooperation with GT QUAL

or CDCJ which works on ODR, aiming at having a Recommendation from Committee of Ministers.

2021

following works within CDCJ on ODR (Rimantas will see if there are potential synergies)

19. Specific tools to administrative ADR or penal (restorative) mediation?

Nina

20. Document on the rights of parties in mediation. (document aimed at parties)

Mirjana will send a document developed by Canadians on the topic.

2020/2021