4 June 2019                                                                                       

CEPEJ-GT-MED(2019)6

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)

Working group on mediation

(CEPEJ-GT-MED)

Report of the 5th meeting

Paris, 5 and 6 May 2019

During this meeting the CEPEJ-GT-MED:

- discussed, finalised and/or adopted several draft documents to be included in the “Mediation Development Toolkit – Ensuring Implementation of the CEPEJ Guidelines on mediation”. The documents which were finalised and adopted will be presented at the CEPEJ plenary meeting in June 2019.

- examined and discussed the current state of play of the feasibility study to assess the usefulness of drafting a Council of Europe Convention on mediation. The results of this study will be presented at the working group’s next meeting in October 2019.

- decided to continue developing 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 co‑operation with observer institutions.


Introduction

1.    The Working Group on Mediation (CEPEJ-GT-MED) of the European Commission for the Efficiency of Justice (CEPEJ) held its 5th meeting following its reactivation in 2017, in Paris on 5 and 6 May 2019, with Mr Rimantas Simaitis (Lithuania) in the chair.

2.    The agenda and the list of participants appear in Appendices I and II respectively.

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

a) Tools to be adopted

3. The CEPEJ-GT-MED finalised two additional documents, which it would recommend for adoption at the next CEPEJ plenary meeting on 13 and 14 June 2019:

- the European Handbook for Mediation Law-making was presented to group members by the scientific expert Ms Miglé Zukauskaite (Lithuania) responsible for producing a first draft: the document was then revised by members of the Working Group based on the initial comments of Mr Jean Mirimanoff (Switzerland); the document was adopted by the group, on condition the feedback it had given would be incorporated into the document by the scientific expert following the meeting;

- Guidelines on designing and monitoring mediator training schemes, drawn up in conjunction with the International Mediation Institute (IMI); this document supplemented the Basic mediator training curriculum, already in the Toolkit, which now became the appendix to the Guidelines.

b) Tools under development

4. The CEPEJ-GT-MED also discussed tools whose current state of development meant that they could not be adopted at this meeting. There were two such documents, the Mediation awareness of judges programme and the Mediation training of judges programme. As the two documents dealt with similar themes, the group decided to combine them, following the structure of Guidelines on designing and monitoring mediators’ training schemes. The Secretariat and Ms Nina Betetto (Slovenia) would produce a revised draft of the document which would then be sent to the Association of European Judges for Mediation (GEMME). It was agreed to further develop the document at the GT-MED’s next meeting, with a view to its adoption by the CEPEJ in December 2019, if possible.

5. The European Judicial Training Network (EJTN), which was not present at the meeting, had also agreed to co‑operate with the CEPEJ-GT-MED in the development of this tool. The Secretariat was tasked with contacting EJTN representatives to arrange this co-operation.

c)  Documents to be drafted in the future

6. The Working Group agreed to draw up, before its next meeting, a mediation awareness-raising document for enforcement officers in collaboration with the UIHJ and a mediation awareness-raising document for notaries in collaboration with CNUE. Discussions by video conference would be held between members of the Working Group and representatives from these observer institutions. Another document, the Mediation training for lawyers programme, was currently being drafted by the CCBE. It would be submitted to the Secretariat by the end of June.

7. The group decided that when new training tools were being produced, attention should be drawn to the difference between the awareness-raising tools aimed at professions seeking involvement in mediation and the training of mediators themselves.

8. Co-operation with the European Committee on Legal Co-operation (CDCJ) was also planned: the CDCJ had set up a specialised working group for online dispute resolution (ODR), in which Mr Rimanta Simaitis (Lithuania) would be involved. It was decided that the Working Group would revisit this matter when the CDCJ’s work had progressed further, to determine whether it was possible to develop synergies and tools in this field.

II. Discussion on how best to ensure dissemination of the Toolkit

9. The Working Group considered that the dissemination of CEPEJ’s mediation tools, including the Toolkit, was a matter of crucial importance. It proposed that the Toolkit be split up into separate tools which would be made available on the CEPEJ website, all of which would have a common cover and introduction. These individual tools could then be grouped together to cater for the particular needs of specific groups (for example, grouping all the documents relevant to judges). It was also proposed that the training tools be grouped together and given a single format.

10. The President of the CEPEJ, Mr Ramin Gurbanov, told the Working Group that he would like to commence the process of translating the most important CEPEJ tools into the official languages of Council of Europe member states. The members of the Working Group suggested that the entire Toolkit be translated as it was not possible to prioritise certain tools over others. It was agreed that English would be the reference language, and that the Secretariat would draw up, within two weeks after the meeting, a table in which members of the Working Group could enter the names of translators specialising in mediation.

11. At the 4th meeting of the CEPEJ-GT-MED it had been decided that, in accordance with the Road Map adopted at the CEPEJ plenary in June 2018, the CEP-GT-MED should try to set up a Network of “mediation contact points” in all member states. This network of correspondents should make it possible to ensure a better understanding of mediation and promote its use, largely by disseminating the relevant CEPEJ tools. The Secretariat had called on each CEPEJ member to provide the contact details of the individual who could serve as his or her member state’s contact point. Due to the low level of responses, the CEPEJ-GT-MED suggested using the CEPEJ’s network of national correspondents and instructed the Secretariat to contact them to this end.

12. Such a network would, if sufficient funding was available, make it possible to organise a Council of Europe conference on mediation, which could be held on the margins of a CEPEJ-GT-MED meeting and would be tasked with officially launching the Network for mediation correspondents.

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

13. The scientific experts, Leonardo d’Urso and Mirjana Visentin, presented the state of play of the feasibility study, based on a first draft of the study which had been shared with the Secretariat and CEPEJ-GT-MED members in late April 2019.

14. The group members commented on the overall quality of the document and reminded the scientific experts of the neutrality and objectivity requirements applying to their study. In particular, they called on the experts to expand their discussion about the best tool for promoting mediation and the potential added value of a Convention in this area.

15. Leonardo d’Urso was entrusted with preparing a separate document to clarify the CEPEJ-GT-MED’s stance on mandatory mediation, and therefore removing this issue from the feasibility study.  The new document could outline the various mandatory mediation systems.

16. Leonard d’Urso proposed sending the national correspondents a questionnaire to determine the ratio between cases closed following mediation and new cases, in order to fine tune the feasibility study. The Secretariat pointed out that prior discussion with the Secretariat of the CEPEJ‑GT-MED was required to ensure, as far as possible, consistency with the data being collected in the course of the CEPEJ’s evaluation round. The CEPEJ-GT-MED instructed the Secretariat to distribute the questionnaire at the same time as the email relating to the network of mediation contact points.

17. The final draft of the feasibility study should be presented to the CEPEJ-GT-MED at its next meeting.

IV. Co-operation with other CEPEJ working groups and Council of Europe entities

18. The Secretariat informed the CEPEJ-GT-MED members that co-operation with GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence) had been suspended until further notice.

19. The Secretariat also said that the document of definitions used by the CEPEJ, drawn up by one of the CEPEJ Ad Hoc Working Groups, including definitions relating to mediation, should be presented to the CEPEJ at its meeting in June, with a view to its adoption.

20. As regards the mediation clause that the CEPEJ-GT-MED wished to include in Council of Europe contracts, the Secretariat had written a letter signed by the President of the CEPEJ and addressed to the Council of Europe’s Directorate of Legal Advice and Public International Law. The Directorate had replied saying that the points made in the letter would be taken into account, without going into any further details. The CEPEJ President suggested that the Secretariat contact this Directorate once again at a later stage.

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

21. New CEPEJ co-operation projects, some of which had a mediation component, were currently being developed.  The projects in question related to Tunisia, where a call for experts would soon be issued, Croatia and Latvia.

22. Mr Jean Mirimanoff (Switzerland) said that he had attended a meeting in Tunisia as part of this Programme. He also referred to pilot projects in Switzerland.

23. The Chair of the CEPEJ-GT-MED had participated in a pan-European project called “Mediation Training Network” with the support of the Council of Europe, which had drawn up training programmes for Latvia, Bulgaria and Lithuania. The closing conference had provided an opportunity for the Chair to present the tools developed by the CEPEJ-GT-MED.

24. He had also promoted the Toolkit in Lithuania, and said that Lithuania’s national training curriculum was based on the training curriculum appearing in the Toolkit.

25. The President of the CEPEJ stated that legislation on mediation had recently been enacted in Azerbaijan which drew heavily on the work of the CEPEJ-GT-MED. He thanked Mr Simaitis and Mr D’Urso who had contributed to the drafting of this legislation.


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.        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 restant à développer

o   Discussion with partner institutions on Designing training curriculum for various actors (judges, lawyers, notaries, enforcement officers) to be developed during second part of 2019/ Discussion avec les institutions partenaires sur la conception de programmes de formation pour différents acteurs (juges, avocats, notaires, huissiers de justice) à développer pendant la seconde partie de l’année 2019

o   Others/Autres

b) Discussion on distribution and application of the Toolkit / Discussion sur la distribution et l’application de la Boite à outils

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.         Discussion on implementation of the Road Map of the CEPEJ-GT-MED/ Discussion sur la mise en œuvre de la Feuille de route du CEPEJ-GT-MED

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

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

9.         Other business  / Questions diverses


ANNEXE II – List of 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

***

PRESIDENT OF CEPEJ / PRESIDENT DE LA CEPEJ

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

***

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

Mirjana 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

Meryem DEMIR, Conseiller juridique au sein de la Chambre internationale du notariat belge, 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)

Catherine ASSIOMA, Trésorier de l’EUR, FRANCE

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

Paulo de BRITO, Ph.D., University of Bristol, Faculty of Law, PORTUGAL

Eric BATTISTONI, magistrat belge, responsable du département formation au sein de GEMME, BELGIQUE

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) Apologized / Excusé

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

Nico KEIJSER, Vice-president de l’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

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

***

INVITED DELEGATIONS / DELEGATIONS INVITES

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUIE

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

***

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

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

Ioana VOELKEL, Assistant/Assistante, Tel : +33 (0)3 90 21 42 94 ; e-mail: ioana.voelkel@coe.int

***

Interpreters / Interprètes

Eline AITKEN

Benoit MALMONTET

Ina KANG


ANNEXE III : State of 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. 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. 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”) .

10. Standard mediation Forms

Jeremy

Finalised during November session.

Adopted in December 2018.

11. 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?)

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

Rimantas + cooperation with GT QUAL

2020

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

13.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

14.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

14 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

14 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

14 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

Skype call to be organised with UIHJ to discuss modalities 

first draft to be prepared and circulated over 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

15. 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

2020

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

Scientific expert in child education

2020

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

Inviting someone from CDPC to the October 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

Reconsider in 2020 depending on GREVIO’s availability