by Poly Tsitsoni and businessingreece.gr, published at EURO2day
Mediation is not private justice, but rather a fast, low-cost procedure, as Poly Tsitsoni explains. Why the new provisions are a turning pointfor the equitable promotion of a complete legal system?
Mediation has been a conversation topic as a way to resolve our differences outside the courtroom. On the one hand, the ardent supporters of this institution argue that an effective and quick resolution is possible thanks to Mediation, while the intense accusers blame this process for altering the pursuance of justice into a private personal affair that hinders the free access to justice.
Mediation is a procedure quick and flexible, with specific legal rules. During this procedure the parties involved decide to reach a commonly accepted solution regarding their civil and commercial disputes, assisted by a third neutral and impartial party, the mediator.
Our country has already introduced into the Greek legal order the possibility of the citizens to choose to resolve their disputes by applying to the alternative dispute resolution process of mediation since 2010 with the law 3898/2010, which incorporated the European provisions into domestic law. However and until this day the development of this friendly settlement instrument has not been achieved, while the number of mediations procedures that took place is very small.
The improvement of its operation is an important factor in order to strengthen the citizen’s confidence towards mediation, according to the experience gained so far. The recent law 4512/2018 undertakes this task by replacing the former legislation, considering both cross-border legal disputes and domestic ones.
- Mediation is not private justice
The Mediator does not act as a judge and does not reach a verdict, but rather facilitates the dialogue between the parties in dispute by following a certain process and specialized techniques and helps the parties to move from their opposite, rigid positions to their common interests so as to reach to a solution of their own. The Mediator conducts the procedure either in shared sessions or separate meetings with each one of the parties and their lawyers.
- Mediation is a voluntary procedure for resolving a dispute
The parties involved in a dispute can apply for a mediation procedure voluntary either prior to bringing an action before the court or during the course of the trial. The parties may also quit the mediation process at any time exempted from any justification and continue their dispute before the courtroom. The law provides that the right to litigation is always protected by requiring the suspension of the limitation period and the deadlines when mediation is being conducted.
- Mediation is not compulsory
There is a controversial debate regarding the provision of the new law on article 182 title “Mandatory”, where certain civil law disputes are provided to enter under mediation before going to the courts. On the same article, lawyers are obliged to inform their clients in writing about the possibility to resolve their disputes through the mediation process, prior to bringing their case before the civil courts. This article will be enforceable from 17/10/2019. In case these two conditions are not being met, the discussion of the dispute before the court will be declared inadmissible.
The disputes that should go through this mandatory first stage concern the categories of cases that the international experience has shown that they can and should be resolved in a friendly matter, such as those regarding real estate, car damages, freelance professional’s remuneration, the majority of family disputes and those regarding alimony or disputes of compensation for medical error. Furthermore, disputes regarding trademarks and patents, where it is significant to protect the secrets of the companies from the compulsory publicity of the court procedure, are also included in this article.
Thus, what is imposed as mandatory is not the dispute resolution through mediation, but the obligation to inform the citizen and acquaint them with this procedure.
The Court of Justice of the European Union decided that it is not against the European Union law the obligation to attempt the resolution of the dispute through mediation at a first stage before going to the court. (Case C‑75/16, Livio Menini,Maria Antonia Rampanelli v Banco Popolare Società Cooperativa, 14 June 2017)
- Mediation is a time – saving process
The law provides short time limits for its conduct. The mandatory first attempt of mediation has to take place within a maximum of 30 days. Regarding most cases, the mediation agreement is reached within a day.
- Mediation is a low-cost procedure
There is no judiciary fee and the mediator’s remuneration is agreed freely by the participants.
In cases that the dispute concerns money claims up to 5.000 euros, the presence of the lawyer is not mandatory, as it is not mandatory concerning the corresponding proceeding before the courts.
In case there is breach of the aforementioned obligation by one of the parties, small fines are foreseen by the law only if the judge decides so ad hoc. Additionally, care is taken regarding the vulnerable groups of the population and their exemption from the mandatory mediation due to their financial weakness is provided.
- Mediation is effective
The agreement reached by the parties can be submitted to the Court Of First Instance and constitute an enforcement order as a court judgment does by paying a fee of 50 euros.
- Mediation makes use of contemporary tools
The new law adopts the new technologies by providing the legitimate use of email, videoconferencing, fax or registered letters in favor of a quick and economical conduct of the procedure.
- Mediation is being carried out by scientifically qualified operators
The legislator ensures a high level of education for the Mediator by lengthening the time of mandatory education and providing free access not only to the graduates of higher education but also to reputable scientists, holders of postgraduate diplomas with international prestige.
Moreover, the legislator ensures their certification by the Ministry of Justice with an exam system based on merit and substance.
- Mediation upgrades the role of the lawyer
Lawyers, as mandatory attendants of the parties during the mediation procedure, become necessary concerning its legal supervision and the drafting of the final agreement by achieving faster results and strengthening the relationship of trust with their clients.
- Mediation has a quality control system
The application of mediation is guarded by the establishment of a special supreme official instrument of control and resolution of the emerging issues and compliance with the Code of Conduct, which is strengthened and ensures the impartiality, confidentiality and the independence of the Mediator.
The Central Committee of Mediation is composed, where supreme judiciary officers, Representatives of the Ministry of Justice and reputable members of university and mediation society. For the first time the compulsory participation of the representative of the country’s professional bodies is determined.
The new provisions on the department of the out-of-court settlement of disputes through Mediation are a starting point for the balanced promotion of a complete legal system, which aids a quick, effective, economically correct and updated access to justice, fully harmonized with the European and International aspirations, but also bearing the fingerprint of the Greek practice and legislation.
*Lawyer at the Supreme Court of Greece, Legal Counsel. Accredited Mediator- Coordinator of Private Debt. Member of the Legislative Committee of the Ministry of Justice for the improvement of the provisions on the institution of Mediation.