dimanche 20 juillet 2008

Mediation in France

In France today, ADR is regularly promoted by the authorities and legal scholars alike as a means of relieving the burden of the courts, and resolving disputes in a faster, simpler, and cheaper manner. Moreover, recourse to ADR in France carries with it a fashionably progressive, American connotation. This impression is, however, deceptive. In fact, a long tradition of alternative dispute resolution exists in France. Indeed, the principle of optional or mandatory conciliation as a preliminary to litigation has appeared in French legislation at various intervals and in varying forms over at least the past two centuries. There is also a relatively long-standing practice in France to use mediation to resolve disputes.

Evolving Approaches to ADR

Conciliation was first institutionalized in France at the time of the French Revolution. Indeed, the thinkers of the Revolution considered conciliation to be the ideal method of dispute resolution. The Decree of August 16-- 24, 1789 thus provided for mandatory conciliation proceedings for all matters falling under the jurisdiction of the tribunaux de district (the ordinary civil courts). The juges de paix (justices of the peace, ruling in equity) attempted conciliation as a preliminary matter in practice, and by law starting in 1855. The duty of the civil judge to seek conciliation was subsequently also included in the 1906 French Code of Civil Procedure.

In the early 20th century, however, mandatory conciliation experienced a decline, and was abandoned as a legal requirement in the 1940s and 1950s, perhaps as the consequence of an increasing degree of confidence generally placed in the French judiciary. Nonetheless, in practice conciliation was still used by the French judiciary in certain contexts, so much so that optional conciliation was expressly included as one of the missions of the civil judge in the French Nouveau code de procedure civile (NCPC), at Article 21.

Despite the optional nature of this type of conciliation, certain inherent difficulties in fulfilling the dual missions of conciliation and judgment as prescribed by Article 21 NCPC were noted in France. Thus, a movement in favor of extrajudicial conciliation emerged in France in the 1970s and a number of persons were accordingly authorized to supervise conciliation attempts between the parties to a dispute, with no involvement of the judiciary. The mission of these third-party non-magistrates, known as conciliateurs de justice, was to facilitate the resolution of disputes outside of any judicial or procedural framework.'

Generally speaking, this form of extrajudicial conciliation had mixed results. There were concerns within the judiciary that such unsupervised conciliation could lead to the creation of a lower form of justice which would be prejudicial to the interests of the parties= Extrajudicial conciliation has been more successful in the particular instances where specific forms of conciliation have been institutionalized, such as collective bargaining (Article L 523-1 of the Labor Code), landlord-tenant disputes (Law # 89-462 of July 6, 1989), and insolvency of individuals (Law # 89-- 1010 of December 31, 1989, amended by Law # 95-125 of February 8, 1995) and corporations (Law # 84-148 of March 1, 1984, amended by Law # 94-175 of une 10, 1984).

As a result of the mixed reactions in France to extrajudicial conciliation performed by conciliateurs de justice, the most recent legislation has opted to revive judicial conciliation, but tempering its judicial nature by allowing the judge to delegate his or her conciliatory functions to a person or entity acting under the judge's supervision. Thus, Law # 95-125 of February 8, 1995, and the related decrees now authorize the judge to appoint a third party to attempt preliminary conciliation between the parties, under the judge's supervision. The Law of 1995 also refers, for the first time in French legislation, to mediation.' Judicial mediation under the Law of 1995 and the related Decree of July 22, 1996 is entirely optional, and requires the consent of the parties for the appointment of a third-party mediator to assist them in their attempt to resolve their dispute (for instance in proposing a settlement arrangement). Since the adoption of the Law of 1995 and related Decree of July 22, 1996, the Court of Appeals of Paris and of Grenoble have decided to systematically recommend the appointment of a mediator in disputes pending before certain chambers, while preventing any delay to the appellate procedure in the event of failure of the mediation attempt.' These courts suggest the intervention of a mediator from the time a hearing date is set.

The Decrees of July 22 and December 13, 1996, and December 28, 1998, implementing the Law of 1995 specify that the small claims judge (huge d'instance)-who is required to attempt conciliation as a preliminary step-may only delegate his or her conciliatory duties to a conciliateur de justice. The institution of conciliateurs de justice, initially designed to handle extrajudicial conciliation, has thus now been reinvented to carry out judicial conciliation under the supervision of the judge.

Impact of ADR in France

onciliation is thus optional in most cases in France today, and a detailed procedural framework has been established to firmly establish alternative dispute resolution within the French judicial institutions. As noted earlier, in French law today the mission of the civil judge expressly includes the attempted conciliation of the parties. This principle is set forth in Article 21 NCPC with further guidelines stipulated at Articles 127-- 131 NCPC. In addition, Articles 768, 863, 840 and 1074 NCPC reinforce this general principle in the context of certain specific jurisdictions such as the Family Court (huge aux affaires familiales).

Mandatory conciliation has nonetheless survived before certain jurisdictions. For example, conciliation as a preliminary step is mandatory for disputes brought before the labor court (Conseil des prud'hommes) in accordance with Article R 516-3 of the Labor Code, or before a small claims court (tribunal d'instance) under Article 840, para. 1 NCPC. Preliminary conciliation is also mandatory in divorce or legal separation proceedings before the Family Court (Article 252 of the French Civil Code), although only where the divorce or separation has been sought for misconduct or cessation of communal life. Finally, attempted conciliation before the judge of first instance is required for disputes involving attachment of an employee's pay (Article R 145-9 of the Labor Code).

ADR has thus had significant impact in the areas of labor law and family law in France. In divorce proceedings, in particular, conciliation is now mandatory prior to court proceedings in many instances.5 Other areas where conciliation and mediation have been successful are consumer disputes, landlord-tenant disputes, parental visitation and child support disputes and disputes between neighbors.' In addition, the recent emergence of the ADR movement has led to greater interest in the use of conciliation in commercial and corporate disputes.

Even in the field of criminal law, attempts have been made to promote recourse to mediation as an alternative to pressing charges. Since the enactment of Law # 93-2 of January 4, 1993, Article 41, para. 6 of the Code of Criminal Procedure stipulates that the public prosecutor (procureur de la Republique) may, prior to any decision to prosecute and with the consent of the parties, decide to attempt mediation. Mediation in criminal matters, as an alternative to prosecuting a complaint, is intended to provide reparation to the victim where appropriate, to put an end to the disturbance of the peace, and to facilitate the social reintegration of the perpetrator. The requirements to be eligible to serve as a mediator in criminal matters are defined by Decree # 96-- 305 of April 10, 1996.7

Finally, recourse to conciliation is increasingly frequent in administrative disputes, although the administrative tribunals have to date strongly resisted any attempts to make a preliminary conciliation attempt mandatory.8

Practical Considerations for ADR Users

(a) Timing Issues In practice, conciliation attempts are most frequently made as a preliminary step at the very outset of the proceedings. The parties have full freedom over the process when having recourse to extrajudicial conciliation. In cases where there is a duty of conciliation, such duty arises as a preliminary matter. Nonetheless, under the general provision of Article 21 NCPC, the judge retains the power to initiate a conciliation attempt at any time during the proceedings. Article 128 NCPC specifies that it is the judge's prerogative to identify the most advantageous time and place for a conciliation attempt, in the absence of any mandatory provisions in that regard. The judge has certain statutory guidelines to follow, furthermore, in judicial conciliation. Thus, in accordance with Article 832 NCPC, the mission of a conciliator designated by a juge d'instance cannot exceed one month, renewable once bv the judge on the request of the conciliator. Article 131-3 NCPC stipulates that the initial duration of a mediation attempt is three months, also renewable once by the judge on the request of the mediator. No time limits are set, however, for conciliation attempted directly by the judge.

(b) Sanction for Failure to Attempt Dispute Resolution

In the several instances where preliminary conciliation is mandatory in French law, this requirement is generally accompanied by the sanction of nullity if not respected. Thus, in divorce and separation proceedings as well as disputes involving the attachment of an employee's pay, the failure to attempt preliminary conciliation renders the ensuing procedure invalid.9 The decision of a small claims court-if no preliminary conciliation is attempted in accordance with Article 840, paragraph I NCPC-may be censured by the Cour de cassation.10 In all of these cases, if a party brings an action seeking a judgment in disregard of the requirement to participate in preliminary conciliation proceedings, the action may be deemed inadmissible.11

With regard to contractually agreed ADR, the practice of stipulating at the time of the conclusion of a contract that disputes will be resolved through conciliation or mediation is still relatively rare in France, although slowly increasing.12 More and more, legal professionals have been encouraging the inclusion of conciliation or mediation clauses in complex or long-term contracts such as construction contracts or shareholders agreements.13 Where the duty to attempt conciliation is contractual, the position of the French courts regarding the sanction for the failure to comply is less clear. The Cour de cassation has, in one case, said that a party's failure to comply with a contractually stipulated conciliation rendered an ensuing court action inadmissible, unless the conciliation attempt was clearly destined to fail. 14 Subsequently, the Cour de cassation upheld a decision of the Paris Court of Appeals pursuant to which the failure to respect a conciliation clause could not constitute a cause of inadmissibility of an action.15

However, more recently, the commercial chamber of the Cour de cassation shed some light on the question by characterizing the debate as an issue of whether the parties could validly waive the conciliation agreement by engaging in litigation. The court found that such a waiver could only be made in express terms, such that engaging in litigation could not deprive a party of its contractual right to attempt conciliation.16

(c) Institutions

Several institutions exist in France for the facilitation of the negotiated settlement of disputes outside of any judicial framework. The best known of these institutions is the Centre de Mediation et d'Arbitrage (CAP), recently established by the Chambre de Commerce et d'Industrie de Paris. The CMP has its own mediation rules and maintains a list of mediators who possess the qualifications required by the Decree of July 22, 1998.

ADR and Settlement

When successful, conciliation or mediation proceedings result in an agreement between the parties. Although typically a document recording the agreement is drafted, a verbal conciliation agreement is acceptable.17 The contract may also be endorsed by the courts, which enhances the enforceability of the document, whereas a conciliation agreement which has not been brought before the courts for approval is an ordinary contract subject to the general provisions of law of contract of the French Civil Code, binding only between the parties but with no effect on the rights or obligations of third parties.

In certain circumstances, the conciliation agreement may be characterized as a settlement agreement (contrat de transaction). To qualify as a contrat de transaction, the agreement must provide for a settlement of the dispute between the parties based on mutual and reciprocal concessions of the parties, and it must be in writing (Article 2044 of the Civil Code). This qualification is important given that a contrat de transaction has effects which go beyond those of an ordinary contract; it extinguishes the right of action of the parties for the particular subject matter in dispute, in accordance with Article 2052 of the Civil Code. Hence, in the presence of a contrat de transaction, if a party brings a new action on the same grounds, the admissibility of the action will be subject to challenge. As a result, the contrat de transaction has virtually the same effects as a judgment.

To enhance its enforceability, the parties to a conciliation, mediation or settlement agreement have the right to seek judicial approval of the agreement by proces-verbal de conciliation, also sometimes referred to as a judicial contract or contrat judiciaire (Article 129 of the NCPC). In so doing, the judge merely ascertains the prima facie existence of the agreement and ensures that it is in no way a violation of public policy. No appeal of the judicial approval is possible. The judge has the duty to approve any such agreement brought to his attention, in accordance with Article 384 of the NCPC. Moreover, the parties to a successful extrajudicial conciliation are empowered to request that the president of the Court of First Instance enforce their agreement, under Decree # 98-1231 of December 28, 1998.

In each of these cases, the effects of the judicial approval of the conciliation agreement are substantially the same. The approval of the conciliation agreement renders it executory, and terminates the right of action of the parties regarding the subject matter in dispute.

ADR and Arbitration

It is fairly common in France to encounter conciliation or mediation clauses as part of a comprehensive dispute resolution agreement which provides that should the conciliation attempt be unsuccessful, the parties agree to submit their dispute to arbitration. However, such provisions are not always well drafted, and sometimes confuse arbitration and conciliation or mediation. Thus, the French courts have had relatively ample opportunity to provide guidance on the distinction between the two types of dispute resolution clauses.

In deciding on the proper characterization of ambiguous dispute resolution clauses, the French courts have looked to the intent of the parties, and more particularly to the intended effect of the solution reached by the third party. Thus, if the decision of the third party is binding, the clause will typically be construed as an arbitration clause, whereas if the parties remain free to accept or reject the decision of the third party, the clause would be considered a conciliation or mediation clause.18 Other factors which may be taken into consideration to distinguish arbitration from other ADR clauses are whether the parties are called on to participate in the procedure, and whether the parties are informed of the findings of the third party prior to the final decision, both of which characterize conciliation rather than arbitration.

The distinction between the two forms of dispute resolution is not absolute, however. Indeed, the French courts have also noted that conciliation is a part of the mission of an arbitrator. For instance, in a 1984 decision, the Paris Court of Appeals held that "conciliation followed by settlement is a natural outcome of arbitration" (our translation).19

Although numerous commentators have emphasized the issues of confidentiality and impartiality that arise in cases where a third party successively assumes the roles of conciliator and arbitrator,20 no express prohibition of the combination of the two functions exists in French law. Nonetheless, it is important to note that the mediation rules of the Centre de Mediation et d'Arbitrage de Paris (CMAP), the premier institution for mediation in France, prohibit a mediator from subsequently serving as arbitrator.

The confidentiality of information produced and statements made by the parties during a conciliation or mediation process is a fundamental aspect of those dispute resolution mechanisms. Thus, the NCPC specifically prohibits the reference in subsequent proceedings to positions taken during a conciliation or mediation attempt. Most mediation or conciliation institutions, including the CAP, impose similar restrictions.

Conclusion

Conciliation and mediation play a meaningful role in the resolution of disputes in France today. Although limited statistics are available, it is apparent from the statistics issued by the French Ministry of Justice that a number of disputes are being submitted to conciliation or mediation, and that the success rate for those cases is significant.21

We conclude that conciliation and mediation in France today are neither dusty institutions of mainly historical interest, nor merely part of a passing ADR fad. Rather, these dispute resolution mechanisms are being used by parties, and in particular by the French judiciary, with reasonable frequency and success. Conciliation (or mediation) is obviously not the ideal dispute resolution mechanism for every dispute, but for certain cases and in certain circumstances it allows the swift and relatively painless settlement of disputes



Principles of Family Mediation in Europe

I. Scope of mediation

a. Family mediation may be applied to all disputes between members of the same

family, whether related by blood or marriage, and those who are living or have lived in family relationships as defined by national law.

b. However States are free to determine the specific issues or cases covered by family mediation.

II. Organisation of mediation

a. Mediation should not in principle be compulsory.

b. States are fire to organise and deliver mediation as they see fit, whether through the public or private sector.

c. .Irrespective of how mediation is organised and delivered, States should see to it that there are appropriate mechanisms to ensure the existence of procedures for the selection, training and qualification of mediators, standards to be achieved and maintained by mediators.

III. Process of mediation

States should ensure that there are appropriate mechanisms to enable the process of mediation to be conducted according to the following principles:

i. the mediator is impartial between the parties;

ii. the mediator is neutral as to the outcome of the mediation process;

iii. the mediator respects the point of view of the parties and preserves the equality of their bargaining positions;

iv. the mediator has no power to impose a solution on the parties;

v. the conditions in which family mediation takes place should guarantee privacy;

vi. discussions in mediation are confidential and may not be used subsequently, except with the agreement of the parties or in those cases allowed by national law;

vii. the mediator should, in appropriate cases, inform the parties of the possibility for them to use marriage counselling or other forms of counselling as a means of resolving their marital or family problems;

viii. the mediator should have a special concern for the welfare and best interests of the children, should encourage parents to focus on the needs of children and should remind parents of their prime responsibility relating to the welfare of their children and the need for them to inform and consult their children;

ix. the mediator should pay particular regard to whether violence has occurred in the past or may occur in the future between the parties and the effect this may have on the parties' bargaining positions, and should consider whether in these circumstances the mediation process is appropriate;

x. the mediator may give legal information but should not give legal advice. He or she should, in appropriate cases, inform the parties of the possibility for them to consult a lawyer or any other relevant professional person.

IV. The status of mediated agreements

States should facilitate the approval of mediated agreements by a judicial authority or other competent authority where parties request it and provide mechanisms for enforcement of such approved agreements, according to national law.

V. Relationship between mediation and proceedings before the judicial or other competent authority


a. States should recognise the autonomy of mediation and the possibility that mediation may take place before, during or after legal proceedings;

b. States should set up mechanisms which would:

i. enable legal proceedings to be interrupted for mediation to take place;

ii. ensure that in such a case the judicial or other competent authority retains the power to make urgent decisions in order to protect the parties or their children, or their property;

iii. inform the judicial or other competent authority whether or not the parties are continuing with mediation and whether the parties have reached an agreement.

VI. Promotion of and access to mediation

a. States should promote the development of family mediation, in particular through information programmes given to the public to enable better understanding about this way of resolving disputes in a consensual manner.

b, States are free to establish methods in individual cases to provide relevant information on mediation as an alternative process to resolve family disputes (for example by making it compulsory for parties to meet with a mediator) and by this enable the parties to consider whether it is possible and appropriate to mediate the matters in dispute.

c.. States should also endeavour to take the necessary measures to allow access to family mediation, including international mediation, in order to contribute to the development of this way of resolving family disputes in a consensual manner.

VII. . Other means of resolving disputes

States may examine the desirability of applying, in an appropriate manner, the principles for mediation contained in this Recommendation, to other means of resolving disputes.

VIII. International matters

a. States should consider setting up mechanisms for the use of mediation in cases with an international element when appropriate, especially in all matters relating to children, and particularly those concerning custody and access when the parents are living or expect to live in different States.

b. International mediation should be considered as an appropriate process in order to enable parents to organise or reorganise custody and access, or to resolve disputes arising following decisions having been made in relation to those matters. However, in the event of an improper removal or retention of the child, international mediation should not be used if it would delay the prompt return of the child.

c. All the principles outlined above are applicable to international mediation.

d. States should, as far as possible, promote co-operation between existing services dealing with family mediation with a view to facilitating the use of international mediation.

e. Taking into account the particular nature of international mediation, international mediators should be required to undergo specific training

Conciliation, mediation and arbitration in Spain

An agreement on resolving labour disputes out of court was signed in January 1996 by Spain's largest unions (UGT and CC.OO) and employers' associations (CEOE and CEPYME), covering the period until 31 December 2000. The agreement built on the experience in mediation and arbitration at a regional level that had grown on the basis of joint quasi-judicial institutions formed in the 1990s. We review the complex system which now applies in this area.

The Spanish system of mediation and arbitration

In Spain, as in other countries of the European Union, the history of labour relations has determined the structure of the system for resolving disputes.

A system of labour tribunals (Jurisdiccion del Orden Social) comprises courts of professional judges that resolve individual and collective labour disputes. These courts have an area of competence and procedure that are different from those of civil law. Their procedures lead to rulings issued by the judges that are published in an official source and are binding on all parties (though they are open to appeal).

However, before disputes reach these labour tribunals, there are two opportunities for conciliation (in which the dispute is resolved by the parties themselves) and mediation (in which the participants choose to accept a resolution proposed by a mediator). The first opportunity is offered by the Regional Mediation, Conciliation and Arbitration Units (Unidades Territoriales de Mediacion, Conciliacion y Arbitraje) that are staffed by civil servants. If this fails, the second opportunity is given on the same day as the public hearing before the judge specialising in labour law. The judge attempts mediation, which means that an interesting mixture of conciliation and mediation is involved. Most of the Regional Units come under the jurisdiction of the Autonomous Administrations, though not all have been transferred. (There are 17 Autonomous Communities in Spain - such as Catalonia, the Basque Country and Andalucia- each one of which is governed by an Autonomous Administration.)

There also exists a Spanish Public Labour Administration (Administracion Publica Laboral Espanola), with powers to rule on whether or not the economic, technical, organisational or operational reasons alleged by a company in making redundancies are justified. This administrative decision is adopted after a period of consultation between the company management and the workers' representatives, and this channel therefore also incorporates elements of mediation for resolving disputes. The Labour Inspectorate also takes part by drawing up reports. However, if there is no agreement in the consultation period then the final ruling is made by the Labour Administration by means of an administrative decision, which approves or rejects the proposed redundancies.

Given the great volume of cases processed through the different judicial channels for resolving disputes and the lack of a tradition of arbitration in the Spanish model of labour relations, in the early 1990s the social partners initiated a series of agreements at regional level involving the creation of joint organisations of unions and employers for resolving disputes out of court.

Joint quasi-judicial institutions

This scheme was pioneered in the Basque Country, and was then extended to Catalonia, Andalucia, the Canary Islands, Valencia and Galicia, that is to say, most of the Autonomous Communities with major powers and with a more autonomous approach to labour relations. The Administrations of these Autonomous Communities granted different types of aid and support to these initiatives.

By virtue of the Agreement on resolving labour disputes out of court concluded in late January 1996, a new institution - the Interconfederal Mediation and Arbitration Service- was created designed to encompass the whole of Spain. In its structure and functions, it is similar to the USA's Federal Mediation and Conciliation Service. Access to this new institution is limited to those matters that are expressly granted to its jurisdiction. It therefore does not interfere with the existing joint institutions at a regional level, and in fact is aimed mainly at Autonomous Communities that do not have organisations of this type.

The competence of all these joint institutions covers collective labour disputes and certain individual disputes where more than one worker is involved. Both the agreements reached through conciliation and mediation and the findings of the arbitrators produce defence of res judicata. This means that a person concluding his or her action with a joint institution cannot then present it to a labour tribunal, and vice versa. The interested parties may choose either one channel or the other. However, there are matters for which competence is reserved for the labour tribunals, such as social security litigation. Meanwhile, officials of the Regional Units or judges may not act as arbitrators in a joint institution.

Mediation and arbitration figures

It is still difficult to obtain a general overview of the impact of the different mediation and arbitration systems in Spain. Statistics on mediation, arbitration and conciliation are published by the Ministry of Employment and Social Affairs. The source of its figures are the Mediation, Conciliation and Arbitration Units, which sometimes come under the jurisdiction of the Ministry and sometimes under that of the Autonomous Communities. These figures must be complemented by those published in the Labour Statistics Bulletin of the Ministry of Employment and Social Affairs, which give an idea of the volume of such cases in Spain. However, the statistics still do not reflect the proceedings of the joint institutions. In order to obtain data on these, it is necessary to approach each one in each Autonomous Community. It is therefore not yet possible to establish the volume of arbitration cases that go through their procedures.

Several trends can, though, be observed with regard to the Regional Mediation, Conciliation and Arbitration Units. The volume of cases submitted to conciliation and mediation is very high, sometimes representing over 50% of the total population in paid employment, sometimes up to 30% or 40%. In other words, in 1989 over five million workers were affected by collective and individual conciliation and mediation; in 1995, this figure was 2.3 million workers. (Latest figures reveal that there are currently 9,454,000 paid employees in Spain.)

There is also a high degree of use of the administrative and judicial mechanisms for resolving disputes. As far as the system of labour tribunals is concerned, in one year it is normal for some 500,000 conciliation cases and 250,000 judicial cases to be dealt with, whilst the awards in conciliation, mediation and judicial cases in one year may amount to PTA 400 million.

Commentary

The complex Spanish system for resolving disputes is based on a varied judicial and administrative structure that has a very high level of activity and a long tradition in the labour relations system. In the 1990s the joint out-of-court system was established, first at regional level and then at state level.

Following the 1996 national agreement there are five institutions in which mediation, arbitration and conciliation may be carried out:

  • the Regional Mediation, Conciliation and Arbitration Units, in the framework of central state public administration or, in most cases, Autonomous Administration, deal with the great majority of conciliation and mediation cases, but not with arbitration;

  • the labour tribunals deal with conciliation immediately prior to public hearing. Their performance is coordinated legally with the Regional Units;

  • the Public Labour Administration carries out consultation before taking a decision on redundancies;

  • the joint institutions of unions and employers in the Basque Country, Catalonia, Valencia, Galicia and the Canary Islands, with the support of the Autonomous Administrations, perform mediation and conciliation, provide lists of arbitrators and support labour arbitration; and

  • finally, the Interconfederal Mediation and Arbitration Service, emerging from the 1996 agreement on the resolution of labour disputes out of court, is one more piece in the jigsaw. For the time being it does not replace any of the above institutions, since it only accepts requests for mediation and arbitration arising from the provisions of the agreement and its regulations.

Some legacies from the past - the Regional Units and labour tribunals - are thus combined with the new joint institutions to deal with mediation, conciliation and arbitration in Spain. At present they are all part of the industrial relations landscape and do not interfere with one other. It remains to be seen whether in the future they will remain complementary or whether the development of some will inhibit the development of others.


A boost for mediation in civil and commercial matters: European Parliament endorses new rules

As a new press release informs us, a Directive on certain aspects of mediation in civil and commercial matters was adopted yesterday 23 April 2008. The purpose of the Directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings.
The Directive is one of the follow-up actions to the Green Paper on alternative dispute resolution presented by the Commission in 2002, the other being the European Code of Conduct for Mediators established by a group of stakeholders with the assistance of the Commission and launched in July 2004.
Welcoming the adoption of this Directive, Vice-President Jacques Barrot said: “This Directive fulfils the political objective established in October 1999 by the European Council of Tampere, which - in the context of encouraging better access to justice in Europe - called for the creation of alternative, extrajudicial procedures for dispute resolution in the Member States. Mediation can provide cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and help preserve an amicable and sustainable relationship between the parties.

Directive on certain aspects of mediation in civil and commercial matters was adopted today 23 April 2008. The purpose of the Directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings. The Directive is one of the follow-up actions to the Green Paper on alternative dispute resolution presented by the Commission in 2002, the other being the European Code of Conduct for Mediators established by a group of stakeholders with the assistance of the Commission and launched in July 2004.

Welcoming the adoption of this Directive, Vice-President Jacques Barrot said: “This Directive fulfils the political objective established in October 1999 by the European Council of Tampere, which - in the context of encouraging better access to justice in Europe - called for the creation of alternative, extrajudicial procedures for dispute resolution in the Member States. Mediation can provide cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and help preserve an amicable and sustainable relationship between the parties.

The Commission proposed the Directive in October 2004 (IP/04/1288). The Directive facilitates recourse to mediation by strengthening the legal guarantees accompanying it, thus giving real added value to citizens and businesses in the European Union. The key components of the Directive are as follows:

  • The Directive obliges Member States to encourage the training of mediators and thedevelopment of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services.

  • The Directive gives every Judge in the Community, at any stage of the proceedings, the right to suggest that the parties attend an information meeting on mediation and, if the Judge deems it appropriate, to invite the parties to have recourse to mediation.

  • The Directive enables parties to give an agreement concluded following mediation a status similar to that of a Court judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules.

  • The Directive ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is essential to give parties confidence in, and to encourage them to make use of, mediation. To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.

  • The provision of the Directive on periods of limitation and prescription will ensure that parties that have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation. The Directive thus preserves the parties’ access to justice should mediation not succeed.

Following today’s adoption of the Directive, Member States will be given 36 months to convert the new rules into national law.

European Business Mediator

European Business Mediators was founded by Joseph A. de LA CUETARA, an attorney with over 25 years of experience representing both plaintiffs and defendants in complex business and employment litigation in Southern European Countries: Italy, France (Including the Principalities of Andorra and Monaco Monte Carlo), Portugal and Spain.

Having practiced as a mediator in the resolution of business and employment disputes since 1986, Mr. de LA CUETARA possesses a national reputation as an expert in the fields of negotiation and alternative dispute resolution ("ADR"), as well as on the substantive law. He has the knowledge, tenacity, and interpersonal skills to bring even the most acrimonious dispute to resolution. He also has the ability to effectively manage mediations involving multiple parties with divergent interests, Cultures and languages.

EBM which is affiliated with ADR International, helps its clients in Southern Europe avoid the high costs and burdens of litigation through the productive use of the mediation process. It provides free, neutral facilities for mediations. EBM is also pleased to render its dispute resolution and mediation services at the offices of any of the participating law firms, or such other conflict resolution center as the parties may designate.

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