20 December 2017

                                                                       

CEPEJ-GT-MED(2017)9

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)

Working Group on mediation

(CEPEJ-GT-MED)

Working Group on mediation (CEPEJ-GT-MED)

Report of the 2nd meeting

Strasbourg, 16 and 17 November 2017

On the basis of the replies to the questionnaire on mediation which was drawn up during its1st meeting and sent to contact points including the 47 CEPEJ national correspondents, a draft report assessing the impact of the Council of Europe’s recommendations and guidelines on mediation in member states was prepared and submitted to the CEPEJ-GT-MED for discussion.

The CEPEJ-GET-MED decided to develop additional measures and tools to ensure the effective application of existing guidelines and, more generally, to widen the use of mediation in Europe, partly in cooperation 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 2nd meeting following its reactivation in 2017, on 16 and 17 November 2017 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.

3.     The Secretariat informed members of the CEPEJ-GT-MED that, given the cancellation of the December 2017 CEPEJ Plenary meeting, the CEPEJ programme of activity for 2018-2019, along with the mandate of the CEPEJ-GT-MED, will be adopted by written procedure.

4.     Therefore the Secretariat invited members of the CEPEJ–GT-MED willing to continue to be part of the possible working group in 2018-2019 to get in contact with their respective CEPEJ members in order for them to propose their candidature to the Bureau of the CEPEJ via an e-mail to be sent to the Secretariat.

I.              Cooperation with other CEPEJ Working Groups

5.     As discussed during the last CEPEJ plenary meeting (June 2017), the Chair of the CEPEJ-GT-MED mentioned the possible areas of cooperation with other working groups:

-        The CEPEJ-GT-EVAL is willing to receive propositions of amendments of the part concerning mediation on the cycle 2018-2020 Scheme on evaluation. Due to reasons of liability of data on non-judicial mediation, focus will have to stay on judicial mediation, which will be defined. The suggestion of the CEPEJ-GT-MED to elaborate guidance to Member States on how to collect information on mediation – which will be part of the toolkit on mediation (see appendix III) was well received, as it could be of help for the work of the CEPEJ-GT-EVAL;

-       Regarding cooperation with SATURN, the chair recalled that in some cases, mediation is used to prolong litigation. Therefore, guidance to member States to use mediation effectively and fairly could be developed in the future;

-       Regarding cooperation with CEPEJ-GT-QUAL, guidance to members States in application of various IT tools (including artificial intelligence, ODR..) will be developed jointly in the course of 2018 ( see appendix III).

II.         CEPEJ- GT-MED impact questionnaire

6.     During its first meeting, the CEPEJ-GT-MED drafted a questionnaire for collecting data and comments on mediation from member States aimed to provide an overview of the use of the existing recommendations and guidelines, as well as “food for thought” regarding any additional tools to be developed to facilitate the use of mediation in Europe. Then, the Working Group instructed its scientific expert, Mr Leonardo D’Urso, to finalise the questionnaire, collect data and draft a report analysing and presenting the main results and recommendations.

7.     The Secretariat sent the questionnaire to the points of contact designated by members of the CEPEJ-GT-MED and the 47 CEPEJ national correspondents. The level of replies was deemed satisfactory, despite the lack of verified statistics on mediation and of uniformity in the quality of data and comments. However the CEPEJ-GT-MED considered that the analysis of both quantitative data and comments give valuable information to assess if existing instruments should be updated and if further tools aimed to ensure an effective implementation of mediation in Europe should be developed.

8.     It was decided that additional time would be granted to the scientific expert in order to collect further data (with the support of the Secretariat) and amend the draft report, that will then be commented and revised by members of the working group through exchange of emails early 2018. The final report should be ready for mid February 2018. The report will include recommendations to Member States on how to develop the use of mediation, as well as a working plan for 2018-2019. Recommendations will be extracted from the report and presented for adoption to the CEPEJ Plenary in June 2018.

III.       CEPEJ- GT-MED Toolkit to complement the Guidelines

9.     At its first meeting, the CEPEJ-GT-MED decided to begin the development of a toolkit comprising various tools useful for all those involved in mediation across Europe (judges, court clerks, lawyers and private mediators) in order to increase and standardise the use of mediation practices in Europe.

10.  Members of the CEPEJ-GT-MED each prepared draft documents that were presented and discussed by the working group during the meeting. Inputs from relevant observers were also taken into account. It was decided that the documents would be revised and finalised by members of the working group by written procedure early 2018, in order to be sent by the Secretariat to the Member States, via CEPEJ national correspondents, during spring 2018. Comments and additional ideas resulting from this consultation will be compiled by the Secretariat. The various documents will be finalised during the third meeting of the CEPEJ-GT-MED and submitted for adoption to the CEPEJ at its meeting in June 2018.

11.  The CEPEJ-GT-MED underlined the importance of the involvement of the relevant professionals. It is therefore decided to elaborate joint documents:

- “Guidelines on mediation for lawyers” with the Council of the Bars and Law Societies of the European Union (CBBE),

- “Basic mediation training curriculum” with the International Mediation Institute (IMI),

- a tool still to be defined with the European Union of Rechtspfleger and Court Clerks (EUR).

12.  The first two joint documents should be made ready for finalisation during the next meeting of the CEPEJ-GT-MED and adoption at the CEPEJ plenary meeting in June 2018.

13.  Work on the toolkit continued with the identification and development of additional tools scheduled for 2018 and/or 2019 (see appendix III). In particular, the CEPEJ-GT-MED will work on the drafting of model law(s) on mediation in 2018.

14.  It was recalled at several occasions during the meeting, both by members of the Working Group and by observers, that the question of awareness-raising of different legal professionals on mediation is fundamental. Awareness-raising tools will be consequently developed. It was furthermore suggested that CEPEJ-GT-MED should organize regular awareness-raising conferences and seminars on mediation in different Member States. The Secretariat underlined that this will be subject to availability of funds in 2018-2019.

15.  Mr Jean Mirimanoff presented his report on lawyers’s and sollicitors’ practice in the field of mediation, drafted on his own initiative to the attention of the CEPEJ-GT-MED and which also strongly highlights the importance of awareness-raising and training on mediation of lawyers.

IV.        Other issues

16.  Subject to the renewal of its mandate, meetings of the CEPEJ-GT-MED in 2018 would be on 24-25 May and 15-16 November.

 


APPENDIX I: Agenda / Ordre du jour

1.         Opening of the meeting

Ouverture de la réunion

2.         Adoption of the minutes of the 1st meeting, and of the present agenda

            Adoption des notes de la première réunion et du présent ordre du jour

3.         Information by the Secretariat

            Information du Secrétariat

4.         Cooperation with other CEPEJ Working Groups

            Coopération avec les autres groupes de travail de la CEPEJ

ü  Presentation by Mr Rimantas Simaitis, President of the working group / Présentation par M. Rimantas Simaitis, Président du groupe de travail

5.         GT-MED impact questionnaire, Presentation by Mr Leonardo D’Urso

            Questionnaire d’impact du GT-MED, présentation par M. Leonardo D’Urso

ü  Methodology of the questionnaire / Méthodologie du questionnaire

ü  Analysis of its results / Analyse des résultats

ü  Propositions of the member states / Propositions des Etats membres

6.         GT-MED Toolkit to complement the Guidelines / Boite à outils GT-MED visant à compléter les Lignes Directrices

ü  Presentation of the existing documents by the members / Présentation des documents existants par les membres

ü  Discussions on the remaining documents to draft in the future. A specific point should address a potential Model Law on Mediation / Discussions sur les documents à développer à l’avenir. Un point spécifique devra être consacré au modèle de loi sur la médiation

ü  Discussion on the preparation of Guidelines on mediation for Lawyers, CCBE/ Discussions sur la préparation de Lignes Directrices sur la médiation pour les avocats, CCBE

ü  Presentation of the report on lawyers’s and sollicitors’ practice in the field of mediation by Mr Jean Mirimanoff / Présentation du rapport sur la pratique des avocats et des notaires en matière de médiation par M. Jean Mirimanoff

7.         Future works and Working Plan / Activités futures et programme de travail

ü  Calendar of work and meetings / Calendrier des travaux et réunions

ü  Round table and other proposals made by the members of the Working Group / Tour de table et autres propositions des membres du groupe de travail

8.         Work of other institutions and member states concerning mediation / Travaux des autres institutions et Etats membres concernant la médiation

9.         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

***

OBSERVERS / OBSERVATEURS

Council of Bars and Law Societies of Europe - European lawyers promoting law and justice / Conseil des barreaux  européens - Les avocats européens pour le droit et la justice (CCBE), Simone CUOMO, Senior Legal Advisor, BELGIUM

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

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

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

Emeline LLAS, Chercheur CNRS

Charalambos MACHERAS, Judge to the Supreme Court, 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

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

Annette SATTEL, Communication, Tel: +33 (0)3 88 41 39 04, e-mail: annette.sattel@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

Luke TILDEN

Lucie DE BURLET

Grégoire DEVICTOR


APPENDIX III : Development of the mediation toolkit

Tool

Reference/who is in charge  of developping the tool

Date

Ongoing

Soon to be developped

At a later stage

1. Standardised training curriculum

Handbook + Maria and Rimantas

Revision with IMI

Under revision (with IMI)

A joint document will be 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

Under revision

Will be 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

Under revision

Will be 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

Internal discussion within CCBE. Anna will be in touch

A joint document will be 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

Will be circulated to members of the WG in January 2018 for comments

Will be circulated to MS during Spring 2018

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

6. Guidance for MS to collect statistical data

Leonardo

Will be circulated to members of the WG beginning of march 2018

Discussion during may session

Possible testing afterwards

7. Specific tool on administrative mediation

Model law + possibility of amendments of GL

Maria/Jeremy

First part 2018

Discussion during may session

Second part 2018

8. Specific tool on family mediation

Model law + possibility of amendments of GL

Anna

First part 2018

Discussion during may session

Second part 2018

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

Rimantas + cooperation with GT QUAL

First part 2018


10. model law on civil mediation

collect laws from MS + amendments (database)

Rimantas/Leonardo

Secretariat/MS

2019

Second part of 2018

Will be discussed during May session

11. Specific tool for clerks ( to be determined)

EUR + expert

2018/2019

Proposition of tool by EUR at our next meeting in May 2018

12. Code of conduct for mediation centers

2018/2019

13. Reference list to selected codes of conducts, ethics, etc.

+good practices, videos, tools..

2018/9

14. Enforcement of mediation agreements

Court manual

2018/9

15. Forms (first form and agreement form)

Standard agreement form

Jeremy

2018/9

16. Feedback form from parties which went through mediation process

2018/9

17. Specific tool for penal mediation

Anna

2019

18. Awareness raising tools  for various stakeholders :

-judges

-lawyers (if not included in 6)

-users

Jean

CCBE?

Maria

2019