A brief overview of the legal regulation of mediation in some EU jurisdictions

di Stefano Biondi

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A brief overview of the legal regulation of mediation in some EU jurisdictions

The Mediation Directive (2008/52/EC) was enacted in the context of the EU cooperation on civil and judicial matters. Its aim is to set forth a common framework for mediation in cross-border litigation, in order to reduce the costs associated with these often complex controversies and to improve access to justice; the directive also aims at ensuring the enforceability of cross-border mediation agreements, provided that the parties have given their explicit consent (art. 6).

The directive provides a broad definition of mediation, which encompasses both court-annexed and out-of-court mediation. It covers mediation in civil and commercial matters, and does not apply to those controversies arising between citizens and public authorities with regards to acta jure imperii, i.e. acts and omissions related to the exercise of state authority.

Its scope of application is relatively narrow, because it is restricted only to mediation occurring between parties domiciled or habitually resident in different EU member states. The directive has thus no effect on the legal regulation of merely domestic mediation agreements. This notwithstanding, many Member States have taken advantage of the Directive’s implementation to re-consider the regulation of mediation not only for cross-border, intra-EU controversies,

 but also for merely domestic ones.

The Directive considers mediation as a voluntary process, which the parties are in charge to organise and terminate. Nevertheless, it does not exclude the possibility for states to mandate the use of mediation in specific types of controversies; moreover, it does not preclude domestic measures to encourage or invite the parties to consider this ADR technique. The Directive also stresses the need for Member States to promote mediation with appropriate means of publicity, and the necessity for lawyers to inform their clients about its advantages. Finally, it provides that Member States should encourage mediators and mediation service providers to adhere to voluntary codes of conduct as well as to engage in continuous professional training.

Mediation in Italian Law

In 2009, the Italian Parliament enacted Law n. 69/2009, which empowered the Executive to implement Directive 2008/52/EC, as well as to regulate mediation in civil and commercial matters according to some general principles (art. 60, Law n. 69/2009). A few months later, the Executive enacted the first comprehensive legislative instrument on mediation, D. Lgs. n. 28/2010.

According to the new rules, parties can freely choose to make recourse to mediation in civil and commercial matters if the controversy has as its object a “disposable right”. In addition, D. Lgs. n. 28/2010 explicitly mentions some categories of disputes in which mediation may not be used. These include, inter alia, those pertaining to payment orders issued following a summary judgment, to the release of rented real property, to possessory rights, to oppositions to enforcement orders,  to damage actions filed within criminal proceedings and also those adjudicated by means of special proceedings held without public hearing.    

In the act’s original wording, there were some categories of controversy in which civil proceedings could not be commenced without a prior attempt to resolve the matter through mediation -such as, among others, those concerning real estate and hereditary law, condominium law, road traffic accidents, medical negligence, insurance and banking contracts. Recently, the obligation to make recourse to mediation in the types of controversy mentioned above has been found unconstitutional, because D. Lgs. n. 28/2010 had exceeded the limits set forth by Parliament in the parent legislative act (Constitutional Court, decision 6 December 2012, n. 272). Thus, at present, there is no mandatory requirement to attempt mediation (although requirements to attempt conciliation in labour litigation and in consumer contracts for the provision of telecommunication services were and remain in force since before D. Lgs. n. 28/2010).

Mediation can also be “judicial”, in the sense that the parties are invited by the judge to consider it; the judge does not, however, conduct the mediation himself. The invitation can be made until the last hearing.

Voluntary mediation is requested by one party to an accredited organism and should be completed within 4 months. If an agreement is reached, and a court certifies its conformity with ordre public, it can be judicially enforced.

If an agreement is not reached, the mediator should propose the terms for a friendly settlement; the parties’ refusal will be noted on the mediation procedure’s minute and will have adverse consequences on the judicial proceedings costs.

Mediators should belong to a public or private mediation service provider accredited by the Ministry of Justice; they should have a University Degree requiring three years of full time study or have a high school diploma and be a member of a professional organisation (such as that of Accountants, Surveyors or Agronomists); in addition, it is necessary to attend a course of no less of 50 hours to be eligible to become a mediator and also comply with continuing education requirements.

Mediation in English Law

In the Anglo-American world, mediation has long been a widespread ADR technique, especially in commercial litigation.

In England and Wales, however, the decision to make recourse to mediation was, and remains, wholly voluntary. In civil litigation, each party may require the other to consider mediation, and the judge also has a free-standing power to invite, but NOT to compel, parties to consider doing so (“duty to consider mediation”). Failure to give appropriate consideration to the proposal will have adverse consequences on costs.

CPR rules (art. 3.1(2)) state that courts should help “the parties to settle the whole or part of a case” (Sec. 1 (4)(2)(f) ); this includes an invitation to consider ADR (including mediation) in the pre-trial stage. In addition, in order to be eligible for legal aid, parties in disputes before family courts should attempt mediation first.

Enforceability of mediation agreements, which have not been declared enforceable in other EU Member States, can be obtained in England by filing a court application. If the matter is being litigated, the application should be submitted to the court where the relevant judicial proceedings are pending; otherwise, it should be submitted to the High Court or to courts marked as “civil” (for mediation agreements in civil matters) or as “family” (for mediation agreements in family matters).

Recently, a pilot scheme to automatically refer parties of small claims (up to £5,000) to mediation has been  introduced (59th Update to the Civil Procedure Rules, in force since 1 October 2012). This applies to parties that have not objected to mediation before the commencement of judicial proceedings.

Although it is not compulsory to have any special qualification to act as a mediator, several private bodies in the UK provide mediation services and establish professional codes of conduct, accreditation and continuing professional training requirements for mediators.

Mediation in Spanish Law

The Decreto-Ley 5-2012 has transposed the Mediation Directive into Spanish Law and has reformed the rules regarding mediation in that jurisdiction. The aim of the legislator was  not only that of decreasing court caseloads, but also that of promoting a mediation “culture” in Spain.

 Mediation is always voluntary, although mediation agreements must also bear the signature of the mediator (art. 23.2).

Moreover, the enforceability of a mediation agreement requires the authentication of a notary public (art. 25), who will verify that the mediation rules have been respected and will certify that the agreement’s content does not breach the law.

However, mediation for claims up to 600 euros will be conducted by electronic means, unless this is impossible for any of the parties involved (art. 24).

The Decreto-Ley also establishes that mediators should follow a specific training pathway delivered by appropriate accredited institutions.

Mediation in French Law

The Ordonnance n°2011-1540 of 16 November 2011 transposed the Directive into French Law, by amending the civil procedure code and adding a specific heading on amicable dispute resolution. However, several aspects had already been regulated by the Loi of 8th February 1995 and the Décret of 22nd July 1996.

It is possible to agree to voluntary mediation (“Médiation Conventionnelle”, Code of Civil Procedure, Arts. 1532-1535) or to be referred to it by a judge, if the parties accept (”Médiation Judiciaire”, Code of Civil Procedure, art. 131). In this case, the mediation procedure should not last over 3 months, which can be extended by a further three months.

The agreement reached in the context of both types of mediation becomes enforceable upon homologation by a court.

The Ordonnance n°2011-1540 of 16 November 2011 also set forth new requirements for professional mediators. It is sufficient to be mentally competent, to have a clean criminal record, to have an appropriate qualification in light of the controversy’s nature or to have training or experience suitable for the practice of mediation (Civil procedure Code, art. 131-5).

Mediation in German Law

 In German Law, several Länder have implemented successful court-annexed mediation plans (i.e. mediation mandated by courts, but without their direct involvement). In addition, German Law also established and promoted an efficient and highly respected form of “judicially performed mediation”, whereby judges themselves act as facilitators (“outside” of their role of judge) while the trial is pending, in order to encourage a friendly settlement of the controversy. This is also consistent with the requirement of §278(1) and 279 of the ZPO, which affirm that judges should help the parties of civil proceedings to settle the matter before taking a decision.  

The new German legislation on mediation (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung), enacted in 2011, recognises both models.  

Mediation requires the assent of all parties, with the exception of a few categories of controversies, where civil proceedings may be commenced only if an amicable solution has been sought through mediation, conciliation or other ADRs (e.g., § 135I and § 156I of the FamFG, requiring parents seeking a divorce to undergo counselling on mediation and other ADRs, or Arbeitsgesetz, §54, requiring an attempt to conciliate before labour controversies).  Moreover, mandatory attempts to mediate exist at Länder level, in matters falling within the jurisdiction of their courts (normally, small claims up to €750 or claims concerning neighbourhood or defamation disputes). Federal incentives are available to the parties that use mediation both in local and in federal courts at reduced costs.

Despite its voluntary nature, the new §253(3) of the ZPO requires the plaintiff to mention if there has been an attempt to pursue mediation or to give reasons as to why this has not been done. Failure to do so may result in the claim being inadmissible.

Enforcement of agreements is regulated by the ZPO, §§ 794-795 and 797. For out of court mediation, lawyers have the authority to draft enforceable agreements (so two parties need two lawyers to draft an enforceable mediation agreement); otherwise, it is necessary to resort to a notary public (who can also act as a facilitator in the dispute) or to an entity providing ADR dispute resolution services.

Mediators need not be accredited, but the new German statute refers to the possibility of becoming “certified mediators” upon completion of a course and by fulfilling a continuing professional training requirement.

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