What makes politicians What makes politicians supportive to mediation ?supportive to mediation ?

• They perceive mediation as superior They perceive mediation as superior instrument for conflict resolution;instrument for conflict resolution;

• They subscribe it only because it is a They subscribe it only because it is a fashionable, innovative fashionable, innovative step;step;

• They hope that it will serve their own They hope that it will serve their own interest.interest.

State of mediation policies State of mediation policies in Europein Europe

• Early developmental stage (infancy);Early developmental stage (infancy);• Increasingly recognised added value of Increasingly recognised added value of

court related mediation;court related mediation;• Bottom up initiative (pilot schemes) or Bottom up initiative (pilot schemes) or

national policies (top down approach);national policies (top down approach);• Mediation supply is higher than Mediation supply is higher than

demand;demand;• Future trends depend on the attitude of Future trends depend on the attitude of

key players (governments, courts, key players (governments, courts, lawyers, end users).lawyers, end users).

To regulate mediation or To regulate mediation or not ?not ?

Advantages:Advantages:

• Educational effects;Educational effects;• Public trust and confidence;Public trust and confidence;• Minimum quality standards;Minimum quality standards;• Incentive for public fundingIncentive for public funding

To regulate or not ?To regulate or not ?

Disadvantages:Disadvantages:

• Threat to theThreat to the process process flexibility and flexibility and private autonomy;private autonomy;

• An obstacle for efficient market An obstacle for efficient market developments;developments;

• Attorneys would take over the Attorneys would take over the process;process;

• Objectives will compete rather than Objectives will compete rather than complement one another.complement one another.

What is existing regulation What is existing regulation on mediation in Europe?on mediation in Europe?

• General statutory legislation;General statutory legislation;• Court procedural laws;Court procedural laws;• Case law;Case law;• Professional codes;Professional codes;• Court rules or programs;Court rules or programs;• Private providers rules;Private providers rules;• Model laws;Model laws;• Policy papers;Policy papers;• Regulation of mediator’s fees.Regulation of mediator’s fees.

What can be regulated?What can be regulated?

• To encourage the use;To encourage the use;• To regulate the process;To regulate the process;• To regulate the profession.To regulate the profession.

Legal incentives for Legal incentives for mediation demandmediation demand

• Duty of disputants to consider Duty of disputants to consider mediation;mediation;

• Duty of courts to pay attention to Duty of courts to pay attention to mediation.mediation.

Regulatory issues of Regulatory issues of mediation processmediation process

• Definition of mediation;Definition of mediation;• Voluntary or compulsory nature;Voluntary or compulsory nature;• Confidentiality;Confidentiality;• Admissibility of evidence;Admissibility of evidence;• Limitation periods;Limitation periods;• Mediation clause;Mediation clause;• Enforcement of mediated Enforcement of mediated

settlements.settlements.

Definition of mediationDefinition of mediation

Mediation shall mean any process, Mediation shall mean any process, however named or referred to, where however named or referred to, where two or more parties to a dispute are two or more parties to a dispute are assisted by a third party to reach an assisted by a third party to reach an agreement on a settlement of the agreement on a settlement of the dispute and regardless of whether the dispute and regardless of whether the process is initiated by the parties, process is initiated by the parties, suggested or ordered by a court or suggested or ordered by a court or prescribed by the national law. prescribed by the national law.

Voluntary versus Voluntary versus compulsory mediationcompulsory mediation

• Invitation (South – East Europe);Invitation (South – East Europe);• Seduction (Netherlands, Slovenia):Seduction (Netherlands, Slovenia):• Full coercion (Malta, Norway, partly Full coercion (Malta, Norway, partly

Germany).Germany).

Get your mediation ticket Get your mediation ticket punched first!punched first!

• Higher uptake;Higher uptake;• DeclDeclinining success rate;ing success rate;• Not affordable for everyone (North Not affordable for everyone (North

Carolina example).Carolina example).

Duty of confidentialityDuty of confidentialityIt may arise:It may arise:

• From the agreement between the From the agreement between the parties and mediation provider;parties and mediation provider;

• From the code of mediation practice;From the code of mediation practice;• From the statutory law;From the statutory law;• From the courts rules.From the courts rules.

Inadmissibility of evidences Inadmissibility of evidences of judicial proceedingsof judicial proceedings

• An obligation of the parties not to An obligation of the parties not to rely on certain type of evidence;rely on certain type of evidence;

• An obligation of the courts to treat An obligation of the courts to treat such evidence as inadmissible.such evidence as inadmissible.

Limitation periodsLimitation periods

The running of any period of limitation The running of any period of limitation regarding the claim is suspended as regarding the claim is suspended as of when, after the dispute has of when, after the dispute has arisearisen:n:

• The parties agree to use mediation;The parties agree to use mediation;• The use of mediation is ordered by a The use of mediation is ordered by a

court;court;• An obligation to use an mediation An obligation to use an mediation

arises under the national law.arises under the national law.

The mediation clauseThe mediation clause

Directly enforceable in UK and Directly enforceable in UK and in in FranceFrance..

Indirect enforcability through Indirect enforcability through arbitration clause worldwide.arbitration clause worldwide.

Enforceability of mediated Enforceability of mediated settlementssettlements

• Court approved;Court approved;• Notary approved;Notary approved;• Direct enforcement;Direct enforcement;• Summary enforcement;Summary enforcement;• Arbitration award;Arbitration award;o Contractual enforcement.Contractual enforcement.

Self regulation bodiesSelf regulation bodies

• NMI (Netherlands);NMI (Netherlands);• IMI (Europe);IMI (Europe);• Civil Mediation Council (England and Civil Mediation Council (England and

Wales);Wales);• Council for ADR (Poland).Council for ADR (Poland).

Practice what you Practice what you preach!preach!

• UK Governmental pledge (2001);UK Governmental pledge (2001);• US Presidential memorandum (1998).US Presidential memorandum (1998).

Funding of mediationFunding of mediation

• Court funded (Slovenia);Court funded (Slovenia);• Government (partly) funded Government (partly) funded

(Netherlands);(Netherlands);• Low cost schemes (England and Low cost schemes (England and

Wales);Wales);• Legal aid (Finland).Legal aid (Finland).

What are objectives for What are objectives for court – related mediation ?court – related mediation ?

• Efficiency (quantity) goal prevails;Efficiency (quantity) goal prevails;• Self determination (quality) goal rare.Self determination (quality) goal rare.

Challenges for marketplace Challenges for marketplace mediation modelsmediation models

• Supply higher than demand;Supply higher than demand;• Quality of mediation provider;Quality of mediation provider;• Ethics of neutrals;Ethics of neutrals;• Appearances of corruption (post-Appearances of corruption (post-

communist societies).communist societies).

Referral criteriaReferral criteria

• Confidence enjoyed by mediation Confidence enjoyed by mediation provider;provider;

• Costs of mediation;Costs of mediation;• Expertise and enthusiasm of the Expertise and enthusiasm of the

referring judge.referring judge.

Timing of court related Timing of court related mediationmediation

• After discovery (common law After discovery (common law countries);countries);

• Earlier in litigation (civil law Earlier in litigation (civil law countries);countries);

• AppealateAppealate mediation (only in mediation (only in common law countries).common law countries).

Who shall be mediators?Who shall be mediators?

• Lawyers;Lawyers;• Cameleon judges;Cameleon judges;• Non-lawyers.Non-lawyers.

Lawyers as key playersLawyers as key players• Shall we spend energy on lost generation?Shall we spend energy on lost generation?• ADR – alarming diminished revenues:ADR – alarming diminished revenues:• Challenge of self interest;Challenge of self interest;• Smart sanctions;Smart sanctions;• Issue of satisfied client;Issue of satisfied client;• Challenge of subtle pressure;Challenge of subtle pressure;• Two different training programs for Two different training programs for

lawyers;lawyers;• Business risk and mediation;Business risk and mediation;• Litigation costs and mediation;Litigation costs and mediation;• Between turnover and profit.Between turnover and profit.

End usersEnd users• Different approaches needed;Different approaches needed;• Repeat players versus one-shooters;Repeat players versus one-shooters;• Informed consent;Informed consent;• Public awareness campaign;Public awareness campaign;• Duty to consider;Duty to consider;• Legal aid and mediation;Legal aid and mediation;• Reduced court fees for mediated Reduced court fees for mediated

settlement;settlement;• Cost sanction;Cost sanction;• Tax incentives (bizarre Italian model);Tax incentives (bizarre Italian model);• Case dismissed.Case dismissed.