Strasbourg, 5 December 2003

Consolidated version bilateral activity suisse 2003 CEPEJ

CEPEJ(2003)25 (D2)

(English only)

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

MEDIATION

(This draft Report has been prepared at the request of the Delegation of Switzerland in the CEPEJ, as provided by Article 2.1.d of the Statute of the CEPEJ)

I.                  INTRODUCTION

At the request of the Delegation of Switzerland in the European Commission for the efficiency of justice (CEPEJ) and in accordance with Article 2.1.d of the Statute of the CEPEJ, three experts have been requested to present their countries’ experience on questions relating to mediation, focusing in particular on the following questions :

a.      Are there legal provisions in your country (eg. The civil procedure or in the riminal procedure codes) which specifically deal with mediation ? If so, please describe them briefly. If not, on which basis is mediation functioning in your country ?

b.      Which is the practical experience of mediation in your country/jurisdiction ?

c.       How much does mediation cost (both for the State and the individuals concerned) ? Are the costs justified with respect to the result of mediation ?

d.      Which are, in your opinion, the positive and negative sides of mediation ?

e.      Would you advice a country which has not yet done so, to set up a mediation system ? Should this be based on legal provisions contained in the criminal procedure and/or civil procedure codes ?

f.        Do you consider mediation as a useful tool to deliver justice ?

The following three experts have contributed to this Report :

a.      Ms Vibeke VINDELAV, Associate Professor, University of Copenhagen, Denmark

b.      Mr Ales ZALAR, Judge, President of the District Court of Lijubljana and Ms Valerija JELEN KOSI, Specialised Staff Member Slovenia

c.       Ms Hazel GENN, Professor, University College of London, United Kingdom

This Report contains in Part II the contributions of these three experts and in Part III the proposed follow up to be considered by the CEPEJ.

 

Since 1952 the Danish Law on Civil Procedure has had a paragraph (now §268) according to which judges are obliged to try mediation in all civil cases in first instance, unless it appears to be useless from the start. For any court of appeal mediation is voluntary. If mediation in court results in a compromise the compromise will be valid as an ordinary judgment. The law doesn’t define how a mediation process in the court should be, and the activity and the level of pressure to compromise varies among judges. However mediation according to § 268 has very little to do with what we to day want to call mediation as part of ADR, as the use of pressure, focus on legal reasoning, argumentation instead of dialogue etc. is dominant in ordinary court-mediation.

The rest of this paper will deal with mediation as part of ADR. Mediation in this context is defined as: A voluntary and confidential conflict resolution method in which an impartial third party by a structured process assist the parties in reaching a solution to their problem which is satisfactory to both of them. The mediator does not decide the case.

This kind of mediation is based on values as autonomy, dignity and justice and on some assumptions, namely

1. an understanding of conflicts as either good or bad, but as conditions of life. Whether conflicts are constructive or destructive depends on how they are being dealt with,

2. a confidence in the ability of the parties to know what is best for them, which means that they are looked upon as experts on their own lives

3. a belief in the possibility to reach solutions that are satisfactory to both (all) parties,

4. a belief in dialogue as desirable in any conflict and the mean to reach the goal, and finally

5. an acceptance of different perceptions of reality.

A mediator following this kind of mediation is part of a new profession and has participated in a special kind of training.

1. Legal provisions dealing with mediation

The current status is that there is no uniform mediation law in Denmark – only a few regulations addressing specific areas of conflicts, such as mediation in labour cases and between tenants and the latter. For the past few years, however, state funded experiments with mediation have occurred in different areas of civil cases. These experiments are not based on laws but on recommendations from the Ministry of Justice: From March 1. 2003 an experiment in four civil courts and one high court started with mediation being offered in all types of civil cases and with either judges or attorneys trained in mediation as mediators. The experiment will be lasting for 1½ years before evaluation.

 The experiment in civil courts is following several years of experiments with mediation in family cases and in small crime cases. The experiments have both been successful and family mediation is already being offered now country–wise whereas the extension of victim-offender mediation is still to be decided upon.

Mediation is also carried out in private settings by practicing attorneys, though almost entirely in family cases and only rarely in business cases. A number of private organisations offer mediation of various types of conflicts some of which are inspired by the peace movement and with an explicitly ideological basis.

By summer 2003 a committee under the Danish Parliament has started to work on the possibilities of offering mediation in cases of child abduction between parents living in different countries. The committee expects to end its work by summer 2004.

2. Practical experiences of mediation in Denmark

As for mediation in family cases trained mediators are working in all counties dealing with divorce and custody cases. Usually mediation is carried out as co-mediation, with a psychologist and a lawyer together. A mediation usually runs through two sessions of 2-3 hours. A recent evaluation from the county of Copenhagen shows that the majority of agreements reached by the couples seem to be valid also up to two years after the agreement is made (the time period doesn’t permit further investigation).

During the trial period mediation has been accepted by 80% of the couples offered mediation. Only couples that are not speaking Danish, are misusing narcotics etc., with serious psychological problems or in an acute crisis are not offered mediation. Around 1/3 of the parents have felt a pressure to accept mediation. The motive for participation vary from a wish to cooperate with the former spouse, to a belief that mediation will help them win the discussion or a wish to show officials their willingness to cooperate in order to influence the authorities in a positive direction if mediation fails and the authorities will have to decide the matter.

Agreements have been reached in approximately 70% of the cases. The agreements can address questions about custody, visiting rights, communication etc. Some agreements are valued as satisfactory to both parties, others have accepted the agreement as “better than nothing”.

More than half of the couples have left mediation with a positive feeling. Approximately ¼ of the parents are expressing some kind of unsatisfaction with the mediation. In general couples who have reached agreements are more satisfied with mediation than those ending mediation with unsettled matters, and women are more satisfied than men.

As far as victim-offender mediation is concerned it should be noted that mediation in criminal cases in Denmark is only a supplement and not an alternative (as it is e.g. in Norway) to sentence, but that participation in victim/offender mediation may effect the result towards a milder sentence. In order to have mediation the offender must admit his/her crime. Mediators are non-legal persons from various professional backgrounds who have been through 7 days of training.

The first step in mediation is the police offering mediation to the offender and the victim. If they accept, the case will be transmitted to mediators who then take contact to the parties and explain more about the process. A recent evaluation report from February 2003 on the basis of the 4-years of trial period is stating that mediation is taking place in only one out of ten cases where mediation is being offered or suggested by the police. The majority of cases are crimes including violence.

Approximately 8 out of 10 participants are rating their experience with mediation as either successful or very successful, finding a slightly more positive attitude among offenders than among victims. Only very few participants have the impression of mediation as being a failure, and only one out of a total of 183 has found mediation a total failure. [1]

The benefit for the victims is reported as the possibility to express their experience directly to the offender, to work on their fear and anger, to receive an apology and experience the offender as a human being etc. For the offender the benefits are reported as the possibility to apologize, to explain, increase the understanding etc. Unfortunately so far it has not yet been possible to register any long-term effect of mediation as less backdrops etc.

 

The agreements vary from giving apologies, focusing solely on restoring the relationship, deciding conducts for future behaviour, payment of compensation, work as compensations etc.

Among the policemen who are deciding whom to offer mediation evaluation of mediation is divided into those who see mediation as a possibility to extend their field and qualifications and those who have difficulties in seeing how neither victims nor offenders can benefit from mediation.

As for the mediation in civil cases being offered in courts from March 1. 2003 the first few month of the trial period have shown a considerable interest from parties as well as attorneys to try mediation. It is too early to say much about the experiences, but certainly some cases have already been solved to great satisfaction for the parties with agreements not similar to expected court outcomes, others have not been so successful. The first experiences show that it is not the type of case that determines whether mediation is accepted and functions successfully. The success totally relies on the parties and their willingness to co-operate. So far mediation has been offered in a variety of conflicts, from simple neighbour conflicts to more complicated business conflicts.

Often the parties willingness to co-operate is limited to their need for an ongoing relationship as in family and certain business cases. But also a wish to avoid publicity, a need to reach a quick solution or a solution that will hold in the long run, adds to parties willingness to co-operate.

Both judges and attorneys who have shown interest in going through a 7–days training program are working as mediators and are highly enthusiastic about the possibilities of mediation. However discussions with critical remarks from lawyers who are not mediators are now a current part of articles in Danish legal journals.

3. The costs of mediation

All types of mediation within the public sector are free of charge for the participants. However, a pre-condition for getting an offer of meditation in the civil court is that the case is filed and the legal fee is paid. As such mediation can be seen as an extra offer from the court within the same expenses for the parties. How the costs for the legal fee and the possible costs such as fees for attorneys will be shared between the parties is however another question whish is far from solved yet. Also questions about possible legal aid, costs covered by insurance companies etc. concerning mediation is still to be solved.

Another question of money, which has been eagerly discussed prior to the start of the mediation program in civil courts, is the salary to mediators. As judges mediate within their normal working hours and as part of their ordinary caseload, judges get their usual salary whether functioning as a judge or a mediator. Attorneys however who mediate, have to volunteer without getting extra salary. The reason for this agreement is on the one hand that the aim of the program was to include attorneys, but on the other hand that it is expected that no parties will choose attorneys to mediate if their choice will add onto their expenses. In order to support the attorneys the Danish Bar Association has offered the volunteering attorneys training free of charge.

Neither in family cases nor in victim-offender cases the parties will have to pay for mediation. The officials who mediate in family cases do that as part of their ordinary job, where as mediators in victim-offender cases are so called lay persons who get a small salary paid by the government for their service.

Whether the expenses for the government are justified by a decrease in caseload, lesser set backs by criminals etc. will first of all be hard to measure and if possible is far too early to say. Undoubtedly, however, the parties will in most cases save quite an amount of resources by mediation, when taking both time, money and personal stress into consideration.

When mediation is carried out in private settings the fee will be paid by the hour and vary from 1000 Dkr. to 2000 Dkr. per hour (Euro 150 – 300). When co-mediating costs are equally raised. In Denmark there is no organisation equivalent to e.g. CEDR in UK, and so far no organisation is claiming fees according to the value of the money involved in mediation.

4. Positive and negative sides of mediation

On the positive side is first and foremost a greater satisfaction among the participants than is usually the case when conflicts are handled in an authoritarian way. The satisfaction is most often expressed in factors like having influence on the process as well as the outcome, a general feeling of having met respect and of being able to leave the conflict behind. Some parties directly express the satisfaction because of having learned something new (about conflicts, themselves and/or the other party) and then of course there are also factors as saving time and money – and often time is money.

Surveys about civil cases in court have shown that dissatisfaction often is the case even for the parties who actually won the case. The possibility to heal relationship in mediation is a great attribution to the parties, even when they haven’t been aware of the possibility in advance. However, of course not all parties are willing to address their relationship as well as the actual conflict, and certainly not all mediators are. In these cases focus is (only) on the conflict in order to reach an agreement and get the matter settled as quickly as possible.

Even in cases where the parties have to meet several times (most often because of obstacles in their relationship, whether acknowledged or not, rather than because of a complicated conflict) mediation is in general less time consuming than e.g. the court and in most instances also arbitration. The general expectation that mediation is unable to work in high-conflicts cases has even shown not to be true.

Often it is part of the conditions for mediation in a certain area that mediation can be offered within two weeks after the parties have decided to mediate. Compared to ordinary conflict handling methods and - authorities that is considered to be very fast and is received with great satisfaction by the parties.

From a mediator’s point of view satisfaction is expressed on the basis of having an opportunity to contribute to a result, which in general is felt more satisfying and positive than their usual profession. This feeling is expressed whether the mediator is a judge, an attorney or from any other professional background.

The more negative sides of mediation occur usually when an agreement is not reached. A Norwegian survey shows that the parties in conflicts where an agreement is not reached by mediation is often blaming the mediator or the process and not looking for an unwillingness for the parties themselves to be flexible, creative etc. Whether one or more factor of these mentioned are reasons for dissatisfaction of course is impossible to say.[2] It is, however, noteworthy, that a discussion of the problematic sides with mediation often is based on an assumption that e.g. conflict resolution in the court is totally free from these problems. Research shows that this is of course not the case. As possible negative consequences with mediation we also have a risk for prolonging of the conflict and even the parties choosing mediation in the first place whit the purpose to prolong the conflict. It is however not an easy matter to decide the “costs” when unsuccessful mediation, because cases unsettled by mediation often settle quickly afterwards.

Negative sides of mediation in general could be the possibility of misuse of power and a risk of the mediator to manipulate. One protection available here is for the parties to leave mediation whenever they feel insecure or in doubt of the neutrality, impartiality or competence of the mediator. As a counterargument here is, however, that parties may not always have the personal strength to leave in time.

The most efficient protection against misuse of power etc. is to ensure proper training for the mediators. As mediation is a conflict handling method which in a very basic ways differ from e.g. normal legal training, as the assumptions mentioned in the beginning of this paper shows, a few days of training with only focus on phases in mediation and a few skills, can never be sufficient. Far too often mediation is seen as a quick way of getting rid of a caseload and therefore training as well as time available for the mediation process is limited to a level which leaves little chance for mediation to show its real potential.

Also the role of lawyers (advocates)   in mediation can be seen as problematic. As the parties are meant to be the main actors in mediation it can be difficult for lawyers (and mediators) to find a proper role for their activities. Lawyers can function as assessors, advisors or counsellors in writing or assessing the final agreement. However lawyers role in mediation is not an easy issue and has to be dealt with explicitly and delicately before, during and after mediation.

Other questions that have to be discussed when deciding the usefulness of mediation is the uncertainty of what confidentiality in mediation really means: does it mean secrecy? Does it allow the parties to talk to spouses, specific colleagues, and the public? Does it allow the mediator to talk to other mediators about the case? Can the parties use information revealed in mediation if the mediation is unsuccessful and they go to court afterwards? Can the mediator be called as a witness? Etc. Some of these questions can be resolved by court decisions, others will have to be dealt with differently according to the specific case and parties.

The most problematic side with mediation seems to be the uncertainty of what mediation really means. Whether the mediator is or isn’t allowed to suggest any solutions, whether it is allowed for the mediator even to take the liberty to decide the case, whether witnesses are allowed during the process etc. We will all know what the core of arbitration means, and will agree upon dismissing the process as arbitration if the arbitrator does not decide the case, and we will call the process mediation instead. It is hard to understand the logic behind not similarly changing the name of the process from mediation to arbitration, if the mediator allows himself to suggest solutions or decide the case. Vagueness of the definition of mediation may be detrimental to mediation in the long run. Fortunately recent discussions among experienced scholars and practitioners in USA is now showing a growing concern about these aspects of mediation.[3]

5. Would you advice a country, which has not yet done so, to set up a mediation system? Should this be based on legal provisions contained in the criminal procedure and /or civil procedure codes?

As the earlier discussion has shown mediation in Denmark is a growing field and the recent experiences within civil, family as well as criminal cases primarily positive. On this basis it is undoubtedly recommendable for a country, which has not yet done so, to set up a mediation system. As we in Denmark has tried to learn from mostly Norway and USA as countries with experience in mediation of a long period of time, it is of course recommendable to gather further information about experiences which is also the reason for these papers.

The most urgent problems concerning mediation still remaining to be thoroughly discussed are how to define mediation and how to assure that mediation practice sticks to the definition. This discussion is far more important than understood until now unless we accept mediation to be a name covering everything left over from generally accepted areas such as court decisions and arbitration.

When discussing whether mediation is appropriate in a legal setting and if so what the frames etc. for mediation should be, it has however to be considered whether mediation is offered as a means to reduce the caseload in the courts or because it has the capability to offer conflict resolution methods which in its substance can be of advantage to the users.

So far it has been explicitly expressed from the Danish Minister of Justice that the aim of the experiment with mediation in civil courts is to offer Danish citizens better ways of solving their conflicts than the ordinary legal system is capable of with possible economic advantages as only a bi-benefit of the program. However the usefulness of the declaration from the minister of justice runs into problems when the productivity in courts is measured in cases divided not just settled, as is still the case in the Danish legal system.

The contradiction between the statement from the minister of justice and the activities of the court administration clearly shows the vagueness of the definition of mediation presumably linked to a contradiction between popular political statements and economics realities.

The judges involved in the program seem to be very much aware of these problems. Whether they will be able to keep up the quality of mediation when under economic pressure, only time will show.

Report by Slovenia on mediation, in particular, in civil and criminal matters (current and future regulations, practical experiences)

Mr. Aleš ZALAR

District Court Judge

1.      Introduction

Upon the letter of invitation from Secretariat General at the private law department of Council of Europe, this paper addresses the issues, pointed out in six questions concerning mediation in light of slovenian experiences with mediation in civil, family and commercial matters.

Most disputes in Slovenia are not resolved before entry into litigation procedure. Private sector (community and business) has not developed the use of mediation or other alternative dispute resolution procedures to encourage the early and effective resolution of a dispute outside the court system. Thus, the public court system in recent three years initiated several court-annexed mediation programs as a different but not inferior type of justice.

2.     Are there legal provisions in your country (eg. in the civil procedure and criminal procedure codes) which specifically deal with mediation? if so, please describe them briefly. if not, on which basis is mediation functioning in your country?

As it is explained above until year 2000 there was no tradition of mediation in Slovenia. Providers of these services on the open market barely existed.[4] There was no explicit regulatory framework, providing a legal basis for mediation. Mediation was therefore not regulated either by law or by implementing regulations. 

The lack of initiative from the private sector to develop and use participative dispute resolution procedures was the reason for the initiative in this regard being temporarily assumed by the state court. So far three district courts as a court of first instance launched court-annexed schemes.[5]

Courts interpreted general provision of  article 307 of the Civil Procedure Act which prescribes the duty of the court to assist parties to settle at all times during trial, as a sufficient procedural legal basis for offering voluntary mediation.[6]

As a substantive law basis for setting up court-annexed mediation program courts interpreted article 62 of the Court Act and article 171 of the Court Rules as an implementing regulation.[7] Both cited provisions prescribe the duty of the court to adopt a program to tackle case backlogs when statistic shows a backlog at the court over the last 12 months. A program is formally adopted by the president of the court. Court-annexed mediation was therefore introduced as a special program to tackle the excessive case backlogs at all three mentioned district courts. Basic principles, rules and ethical standards of mediation were prescribed by this program.

The main legal characteristics of court-annexed mediation in Slovenia as prescribed with the programs of the courts are the following:

-           mediation is a voluntary process for the plaintiff and the defendant;

-           the court suggests the parties to attempt mediation with a standard letter of invitation and attached brochure which describes the procedure and its advantages;

-           invitation to mediation occurs at an early stage of the litigation procedure after lawsuit and defence paper have been exchanged; a judge may also refer a case to mediation at any subsequent time during litigation if the parties request so;

-           mediators (judges, retired judges, practising lawyers, social workers) are trained, monitored and licensed by the court;

-           mediation operates within the court, is staffed and founded by the court;

-           court provides mediation free of charge for the parties;

-           in case of settlement the parties choose the form of the agreement (contract or binding and enforceable court settlement order) and are entitled to 50 percent reduce of filling fees.

In the year 2002 Civil Procedure Act was supplemented regarding ADR. This statutory law authorised the court to suspend the procedure at the request of the both parties in order to attempt (any) alternative dispute resolution process.[8]

In the year 2003 Ljubljana District Court declared its court-annexed mediation program in civil cases as a regular function of a court, no longer just a pilot program to reduce backlogs.

Other mediation programs of this court and Koper and Nova Gorica District Court kept their temporary and experimental nature.

3.     Which is the practical experience of mediation in your country and (or) jurisdiction (eg. describe the experience of the ljubljana district court)?

Apart from the main reason for introduction of a court-annexed mediation which is to diminish the burden of caseload on the judicial system there are at least three further reasons, namely providing wider access to the court for litigants, fairness of the procedure and maintenance of the broad based public law system.

The main benefits for the parties to the dispute regarding mediation are savings of time and money as well as satisfaction with the process and with the outcome. The process of court-annexed mediation is cheaper when it starts at an early stage of court procedure and the parties settle their dispute since it is free of charge. Mediation is faster than an adjudication procedure because court guarantees to start with the mediation in three months after receiving parties’ consent.[9] It is also important to note that an average mediation session lasts 1,3 hours in civil cases. And what is of utmost importance, parties are much more satisfied with received service due to flexible procedure which enables them to control the process of mediation and the outcome.

The assessment of the advantages, described above, is based on the facts and figures of the court-annexed mediation program at Ljubljana District Court. This court measures the effects of the program in two ways.

First, by analysing the various types of statistical data:

-           number of cases offered for mediation;[10]

-           number of cases in which the parties accepted the court’s offer;[11]

-           number of cases in which one or all parties did not accept the court’s offer;[12]

-           number of mediation procedures carried out;[13]

-           number of settlements concluded or suits withdrawn;[14]

-           number of cases returned to litigation after conclusion of mediation;[15]

-           number and duration of mediation meetings in each individual case.[16]

-          

An analysis of settlements concluded or suits withdrawn within the mediation procedure reveals, for example, that the proportion of cases resolved in this way in 2001 was 50.5 per cent and in 2002 it was already up to 58.1 per cent.

But the success of mediation cannot be measured solely in terms of the number of agreements reached, because even mediation which is followed by litigation has important positive effects since it focuses the dispute on the essential issues and renews communication between the parties in dispute. The court therefore also measures the success of the programme by analysing questionnaires which are filled out by parties and their attorneys following the conclusion of the mediation procedures. The court determines the extent to which the parties are satisfied with the work of the mediator and the outcome of the procedure and the parties assess the fairness and integrity of the mediation procedure. Surprisingly, an analysis of these questionnaires revealed almost 100 per cent satisfaction among parties with all three categories, irrespective of the outcome of the mediation.[17] The development and implementation of evaluation methods and techniques in this part is based in particular on US research approaches.

From the point of view of the declared operational goals of the court, perhaps the most important achievement is that in 2002 the total number of unresolved civil cases at the court fell by 3.3 per cent, which is exactly the proportion of cases resolved by the court through mediation. During 2002 there was a rise of 2.9 per cent in new civil cases filed with the court. The court managed to reduce the time required to resolve an average civil case from 21 months in 2001 to 16.5 months by the end of 2002.[18]

Statistical report for the period from January to June 2003 revealed an increase of voluntary take up by the parties which proves that the demand for the mediation is still growing. Number of conducted mediation procedures and settlements increased as well so that for instance in family disputes parties settled their cases in 70 % of cases, refered to mediation.

4.     How much does mediation cost (both for the state and individuals concerned)? are the costs justified with respect to the result of mediation?

4.1      As to the costs of the parties

-           Mediation is free of charge for the parties.

-           Filing fees as a part of litigation costs are diminished when parties reach an amicable solution since they have to pay only 50% of the fee.

-           Other litigation costs could be substantially lower if successful mediation starts at an early stage in proceedings when compared with the possible costs of the case proceeding in a full trail.

-           When parties are represented by an advocate at the mediation conference they generally take up the costs for the representatives preparing and attending the mediation according to the rules of Bar Association.

As to the costs of the state

-           Savings of the courts material expenses are likely to occur due to decreased number of pending cases regarding increasing number of successful court-annexed mediations.

-           The impact of mediations on parties focuses on relevant legal and factual issues as well as often restored communications between them could significantly reduce the number of pre-trial or (and) trail conferences, shorten the time to disposition and therefore reduce the time, judges and court staff spend on a case.

-           Additional costs for the courts registered due to the responsibility of the court to organise and provide training for prospective mediators within forty-hours training program  (honoraria and material expenses for trainers), salaries for ADR court staff, expenses for paper work and for sending notices to the parties and reimbursements for the time spent on a case for those mediators who do not serve on pro-bono basis.[19]

4.2. Are the costs justified with respect to the results of mediation?

As to the parties

-           The only costs the party has to born in a successful mediation are his or her attorneys fees for preparing and attending at mediation.

-           Per-se parties do not have any costs in mediation.

-           Unsuccessful court-annexed mediation can increase the costs for parties, but not significantly and it is up to the parties to decide whether they will participate in mediation (cost control).

-           Mandatory court-annexed mediation would raise the question of justified costs much more than voluntary mediation.

-           Analysed perceptions of the respondents to the court questionarie revealed that court settlement order as an outcome of the mediation saves costs of the litigation but it is uncertain whether any savings are likely regarding out of court settlement.

As to the courts

-           Court-annexed mediation is available through publicly founded programs. Courts costs are justified with respect to the results of mediation since near 60% of cases refered to mediation upon the consent of the parties were settled during mediation and additional percentage of them were settled latter during litigation regardless previous unsuccessful mediation.

-           Even in cases which have gone to trial, mediation assisted in a way to narrow the dispute on what is relevant and therefore shortened the trial.

-           The courts public function in significant part, is to help citizens to resolve their disputes. In doing so the courts should provide all citizens with access to whatever procedure is appropriate to the case be it a trial or mediation.

-           Litigants would be rightfully shocked if court told them to turn to private market for assistance especially, where private market doesn’t provide mediation.

-           Until a case is filed it is the parties’ business. Once it is filed it is public business. When courts dispute resolution methods include referal to mediation, the court must guarantee the quality of this methods and can best do so by establishing them as a part of its system. In order to provide training and certification requirements for neutrals, principles of procedure including protection of confidentiality and disclosure, equal power of the parties to negotiate a resolution, faith in the mediation process, court-annexed-mediation program should be publicly founded and expenses justified.

-           Public’s trust and confidence to the justice system has no price, just costs.

5.     Which are, in your opinion, the positive and negative sides of mediation?

As to the positive sides

-           Mediation provides wider access to justice for citizens, fair procedure and broad-based public sector justice system, when it is court-annexed.

-           Mediation promotes a resolution in terms of underlying needs and interests rather than legal rights or obligations (facilitative mediation), helps to reach a compromise (settlement mediation), considers underlying behaviour (therapeutic mediation) or gives risk assessment (evaluative mediation).

-           Flexibility and informality of procedure are one of the main advantages of mediation.

-           Successful mediation can save time and money especially if it occurs at an early stage of dispute or at least provides to the parties cost control.

-           The most important value of mediation is an extremely high level of parties satisfaction with the procedural integrity, with the mediators performance and with the outcome regardless court-annexed mediation has been successful or not.

-           Mediations promotes settlements, compromises, negotiations as well as dispute avoidance.

-           Mediation guarantees an active role of the parties, room for creative solutions and therefore a win-win result.

-           Mediation is particularly beneficial in continuing relationships (family cases, commercial cases).

-           Mediation in business disputes is efficiently employed to accept, transfer or mitigate risks.

-           Mediation strengthens the culture of managing and avoiding disputes rather than just fighting them.

As to the negative sides

-           Mediation could be understood by the litigants as an alternative to the litigation when it is compulsory and parties are sent to private mediation providers.

-           Mandatory mediation could encourage reluctant starters to become willing participants however without a right to opt out; parties may feel that they are under pressure to settle and they wouldn’t participate in good faith.

-           When parties are obliged to bear the costs of mediation, especially if it is mandatory, the primary objection  could be that unnecessary financial  burden is imposed on existing their right to a fair trial.

-           In countries where contingency fees (quota litis) are not allowed (eg. article 30, 31 of the Professional Rules for Attorneys, Luzern, Switzerland) cost savings in mediation regarding to litigation costs wouldn’t be necessary significant.

-           Forcing the choice of mediation increases the opportunity for a wealthy party to manipulate the process to the disadvantage of a less wealthy party.

-           Parties sometimes use (voluntary) mediation to learn about other sides strengths and weaknesses of the case.

-           Mediation programs funded by the state, demand additional resources or may divert  resources away from the traditional programs.

-           Unsuccessful mediation could delay litigation or adjudication.

-           Flexible mediation process entails danger of undesired side effects (trade-offs) like discrimination or unlawful agreements.

6.     Would you advise a country which has not yet done so, to set up a mediation system? should this be based on legal provision contained in the criminal procedure and(or) civil procedure codes?

The answer to the first question is affirmative because establishing a mediation system could be at least planned as an experiment. Although each experiment carries certain risks no one couldn’t be a peace maker until he is a risk taker. Modern society becomes more and more polycentric, therefore communication network  will play a decisive role. Mediation could significantly contribute to this cultural change since it grounds on special communication methods and techniques. Mediation represents a departure from a previous focus on dispute resolution process, it is focused on dispute system design and dispute avoidance by handling them with “do it yourself” and “in-house ” processes.

Slovenian experience shows that it is not always necessary to found mediation system on legal provisions, contained in the procedure codes. The under-inclusiveness brings with it certain advantages. If mediation is launched as an experimental pilot project it is possible for the program to be adjusted, abandoned, confirmed or extended on the basis of an analysis of the strengths and weaknesses. By introducing an experimental court-annexed mediation program court for example doesn’t guarantee success in the sense of achieving goals and gives itself greater flexibility because the program is being carried out within the framework of a “learning organisation”. In such circumstances the court itself could decide the principles and rules of mediation procedure and standards for selection, appointment, dismissal, training and evaluation of mediators. A bottom-up policy could be an advantage. Besides that the method of legal regulation, following a preliminary experiment, ensures a greater likelihood of support from the legislator because deputies are interested not merely in formal policy making but also in the implementation of what they have passed. And parliament can more easily decide on likelihood of a policy being implemented  using information about the success of experimental program. Legal action taken by public authorities, based on ad hoc amendments to the existing legislation may be also premature. The society in a country without mediation tradition has first to understand and recognise the advantage of mediation, adjust the perceptions and  aspirations of the public about mediation before any firm regulative framework allows for mediation is adopted.

On the other hand, under-inclusiveness brings with it also certain risks. The principle of confidentiality as a fundamental principle of mediation is particularly relevant with regard to the judicial procedure. It is linked with the standard of inadmissible evidence and it is so important that it should be included in the procedural rules. One can tackle this by having parties who agree with the mediation to sign a declaration on protection of the principle of confidentiality and on respect for the rules on inadmissible evidence. But there remains a question as to how the court will take into account  the principle of confidentiality in the event of a dispute over an infringement of this principle or of the rules on admissible evidence.

Another risk exists with regard to the accountability of mediators. While for example the court can prescribe the basic ethic principles that mediators are bound by, it can not give mediators the immunity it provides to judges. Furthermore, when public resources are used in mediation system, certain statutory authority is almost inevitable. This speaks in favour of minimum rules, necessary to guarantee process integrity. Possible compromise between pro et con regarding legislative approach could be the use of the “de fault” rules which allows the parties to vary or exclude certain legal provisions, contained in existing laws (see for example UNCITRAL Model Law of International Conciliation).

7.     Do you consider mediation as a useful tool to deliver justice?

As far as courts and judges are concerned Slovenian experience shows that mediation could contribute to the process of management of change within the judiciary since judges see themselves as service providers for the citizens rather than servants of the state. Delivering mediation is a way of justice with human face where court services are not merely reserved for adjudication but also for an amicable resolution of dispute. Means that the role of the judge is changing. The judge does more than simply decide a case. He or she assumes the role of problem solver. Mediation fosters the model of therapeutic justice oriented toward ensuring an appropriate judicial services and also attention which a court pays to an individual case. Providing various forms of dispute resolution by courts means that the state is encouraging the policy of multiple options. However, it is up to individuals to choose freely the procedure which best suits them (adjudication, arbitration, mediation, early neutral evaluation).

Facts and figures form Ljubljana District Court Report on Court-annexed mediation reveals a declining number of pending cases at court due to increased use of court-annexed mediation. Lessons learned from Slovenian experiment supports the opinion that mediation is a useful tool to deliver justice since justice is delivered by the parties themselves. It can not be imposed on them by a court or a neutral. The principle of self-determination by the parties is a key feature which differentiates mediation from trial. Widely recognised advantages of the mediation, compared to the traditional litigation like financial savings, improved procedures in the sense of speed and fairness, improved efficiency due to outcome, controlled by the parties and greater success and capacity because of the flexibility in the justice system, demands that mediation should be a regular and mandatory activity of the courts. As professor M. Rosenberg said: “Common sense alone suggests that meeting the standards of the ideal system will require deploying a whole battery of dispute resolution mechanisms …”. Mediation is certainly one of them. It gives incentive to self questioning of the parties whether to sue or not to sue. And it gives incentive to public authorities to explore how (not why) to offer mediation.

Report by Slovenia on statistical data of the pilot programme of alternative dispute resolution with mediation at the District Court in Ljubljana for 2001 and 2002

I.                  Introduction

at the beginning of 2001 the district court in ljubljana introduced a pilot programme of alternative dispute resolution by mediation and neutral assessment of the dispute.

mediation is a method of alternative dispute resolution with the help of the third person, who helps the parties reach agreement. due to its nature mediation procedure may, unlike the regular procedure, lead to solutions, which are quicker, cheaper, more creative and more adapted to the interests of the parties. the procedure if fast, non-binding and confidential and does not affect an eventual later litigation in any way. the only condition for mediation to be carried out is that both parties to the dispute express their consent. the court guarantees for the implementation of mediation in classical civil cases within three months after the consents expressed by both parties to the dispute have been received. the procedure is as long as the parties or the mediator agree that it is sensible. at the end of mediation parties may agree about a binding solution in the form of court or out-of-court settlement. the procedure is free of charge for the parties as the court does not charge mediation, and it is started when the court offers it or the parties suggest it in any stage of litigation at the first instance.

by the procedure of early neutral assessment of the dispute the court offers the parties the possibility to get to know the strengths and weaknesses of their legal position in civil action and the likely decision of the court. this is a non-binding, confidential procedure, in which a neutral person (specialised experts from the copyright agency) analyses the actual and legal relationships between the parties.

mediation in classical civil cases has been implemented since the beginning of 2001. in may 2002 we started to implement also mediation in family or status cases, where mediation procedure in offered in case divorce actions and questions related to the dispute.

statistical data are recorded during the entire project, which are then evaluated and taken into account in further work. we are particularly interested in the number of consents expressed,  the share of cases in which mediation was finished successfully and the duration of successfully finished mediation sessions. it is important to note that not only quantative analysis is conducted, but also a quality one which measures party satisfaction with the help of anonymous questionnaires that the parties and their plenipotentiaries receive after mediation procedure has been finished, by telephone conversations with advocates and mediators as well as by electronic communication. below is the analysis of the collected data, and data relating to mediation in classical civil cases and data on family disputes are shown separately.

a. mediation in classical civil cases

i.  data on expressed consents to participate in mediation

1.       the number of expressed consents in 2001

in 2001, when the programme was introduced, the court offered the parties mediation in 420 cases, and in 106 cases both parties expressed consent to mediation, which is 25,2 per cent or one fourth of all cases. this is a high percentage for the beginning as the results in countries which were introducing comparable court-annexed mediation procedures were worse, and were then improving gradually, which may be seen also in our project.[20]

Graph 1

2.     The number of expressed consents in 2002 and comparison by periods

In 2002 879 cases were offered for mediation. In 269 or in 30.6% of cases, both parties expressed consent to mediation. It is important to note that in 166 or 18.9% of cases the period of time for expressing consent has not expired yet and therefore the percentage of consents expressed by both parties is expected to be higher[21].

Graph 2

It is important to point to the fact that the share of consents expressed by both parties in 2002 is by 5.4 per cent higher than in 2001. It can be also concluded that the share of expressed consents has been increasing gradually since the introduction of the programme, which can be seen also in Graph 3, showing consents by quarters from the beginning of the pilot project to the end of 2002. For the last two quarters it has to be taken into account that for most cases the period to express consent has not expired yet and consequently the results for these two periods are not final.

Graph 3

3.     Comparison of the relationship of the number of cases, where consents were not expressed regarding the role the parties play

In case consent was not expressed we were trying to find out the share of defendants, plaintiffs or even both parties who do not express consent. It was found out that in most cases consent is not expressed by the defendant. Graphs 4 and 5 show that plaintiffs are more ready to participate in mediation.

It is important to note that in 2002 the share of cases in which none of the parties expressed consent decreased by 15.8% (from 45.1% to 29.3%), which implies that parties and advocates are more ready to participate in mediation.

Graph 4

Graph 5

4.     Comparison of expressed consents regarding the structure of cases

It is interesting to review consents expressed by both parties by the structure of cases. All cases offered for mediation to the end of 2002 were classified into nine groups regarding the legal nature of the dispute.

A)   Claims for damages

The first group includes cases which are the most numerous, namely cases related to payment of damages. In 2001 mediation was offered in 183 claims for damages, and the parties expressed consent in 27.9% of cases. In 2002 439 cases were offered and in 24.1% of cases consent was expressed, and in 18.7% the period of time to express consent has not expired yet. It should be pointed to the fact that in this type of cases in 2001 defendants did not express consent in 66 or 50% of cases, and in 2002 in 182 or 41.5% of cases. The most common defendants in claims for damages are insurance companies or the Republic of Slovenia.

Graph 6

In 2001 there were 29 cases in which the Republic of Slovenia was a party. Attorneys generals, who represent the Republic of Slovenia at courts, did not express consent in 21 or 72.4% of cases (consent was expressed only in 27.6% or in 8 cases), which is a rather high number.  Some discussions with attorneys general, who represent the Republic of Slovenia at courts, resulted in better information and led to a higher share of their consents for participation in mediation (in 2002 it is 33.9%), which means that the share of unexpressed consents in 2002 is substantially lower than last year and it is 50%. Out of 56 cases, in which the Republic of Slovenia was a party, attorney generals expressed consent to participate in mediation in 19 cases. Graph No. 7 shows the increase of expressed consents in 2001 and 2002.

Graph 7

B)   Cases related to various payments

This group includes civil cases related to various payments such as repayment of loans, version and unjust enrichment claims, and similar. In 2001 68 such cases were offered for mediation and consent was expressed by both parties in 8 or 11.8% of cases. In 2002 the share was much higher – out of 134 cases consent was expressed by both parties in 40 or 29.9% of cases. In 17.9 % of cases the period of time for expressing consent has not expired yet.

C)   Cases related to establishing the extent and the share in joint property

This group includes disputes in relation to establishing the extent and the share in joint property, which are particularly complicated in regular civil procedure, exhausting and emotionally tiring for the parties, and also their duration and expenses are correspondingly high. In 2001 46 such cases were offered for mediation and consent to participate in mediation was expressed by both parties in 17 or 37 % of cases. In 2002 both parties expressed consent in as much as 56.2% or 54 cases out of 96, which had been offered for mediation. In 11.6 % of cases the period of time for expressing consent has not expired yet. Such readiness to solve the dispute in another, more friendly way is possibly due to the characteristics of regular civil procedures, described above. It should be pointed out that since May 2002 we have been offering mediation regarding division of joint property within family mediation already upon divorce action, which helps the parties solve all disputable issues regarding joint property as well as awarding custody of minors and fixing the alimony already upon divorce.

D) Disputes related to contractual relationships

This group includes disputes, originating from contractual relationships in the narrower sense, regarding cancellation of a contract (gift deed, buy and sell agreement, and similar), performance of a contract, establishing nullity of a contract, repayment of earnest. The common characteristics of these disputes is that parties were in a kind of contractual relations. In 2001 13 such cases were offered for mediation and consent to participate in mediation was expressed by both parties in 4 or 30.8 % of cases. In 2002 there were 50 such cases and consent was expressed by both parties in 17 or 34% of cases. In 16% of cases the period of time for expressing consent has not expired yet.

E) Law of property disputes

The following group includes disputes from the field of law of property; e.g. establishing or acknowledging the existence of ownership – co-ownership, cancellation of entry in the land register, stopping disturbances. In 2001 33 such cases were offered for mediation and consent to participate in mediation was expressed by both parties in 14 or 42.2 % of cases. In 2002 there were 55 such cases, out of which consent was expressed in 15 or 27,3% of cases, however, in 20% of cases the period of time for expressing consent has not expired yet.

F) Disputes with inheritance elements

This group includes inheritance disputes.  These are cases when the parties are directed from the probate proceedings to civil action and there is a dispute about what belongs to decedent’s estate, who the heirs are, challenging the will, and similar. In 2001 there were 7 such cases and consent was expressed by both parties in 2 or 28.6 % of cases. In 2002 there were 29 such cases and in 11 or 37% of cases consent was expressed, and in 17.2% of cases the period of time to express consent has not expired yet.

G) Copyright disputes

This group includes disputes regarding copyright claims. In 2001 9 such cases were offered to mediation, and in 2002 3 copyright cases.  It was found out that in these cases parties were not ready to resolve the dispute in a peaceful way at all, as in none of the 12 cases consent was expressed. In most cases, that is 10, none of the parties expressed consent, and in two cases it was not expressed by the defendant. The District Court in Ljubljana has been implementing also the programme of neutral expert assessment.  It is planned for the future that mediation in copyright dispute will continue this programme, which does not solve the dispute among parties, but only assesses the parties' chances. On the contrary, mediation means a final settlement of dispute for both parties.

H) Housing cases

This group includes disputes in relation to housing cases, such as complaints about vacating a flat, purchasing flats and entering into lease contract under housing act, and similar. In 2001 5 such cases were offered for mediation, and in 2 or 40% of cases consent was expressed by both parties. In 2002 there were 6 such cases and in 3 or 50% of cases consent was not expressed, and in three cases the period of time to express consent has not expired yet.

I) Disputes in different cases, which were grouped into the group Other

This last group includes cases, which are called Other as it was not possible to classify them into any other group. This includes various disputes such as unlawfulness of execution, existence of cohabitation, challenging legal acts, violation of personal rights, establishing legal nature, authentication of signature, establishing shareholder’s share, and similar. In 2001 56 such cases were offered for mediation and consent was expressed by both parties in 7 or 12.5 % of cases. In 2002 67 such cases were offered for mediation and consent to participate in mediation was expressed by both parties in 24 or 35.8 % of cases. Regarding a great variety of cases it is difficult to establish a common denominator for such increase of expressed consents.

Graph 8

5.     Qualitative analysis of consents to participate in mediation

As it is seen the share of consents expressed by both parties is increasing proportionally, which is due to the fact that parties and their plenipotentiaries-advocates have more information about what mediation actually is and what it means for the parties. Questionnaires for parties and advocates and telephone and electronic conversations with them revealed that at first the did not trust this novelty, however, up to now they have been very satisfied with the mediation procedure and they would decide for mediation again, if needed.

Telephone conversations with advocates and legal persons’ plenipotentiaries revealed that they do not express consent in cases where the cause of action is totally or partly disputable and it makes no sense to negotiate the amount of claim; and in cases where evidence material enclosed to the suit decreases their negotiating position; in cases where on the opposite side there is a party or plenipotentiary who is generally known as someone who will not express consent, or will not make concessions during mediation. In mediators’ opinion parties still do not have enough information about mediation and its significance and this contributes to the fact that they do not express consent to participate.

On the other hand, advocates and parties are willing to express consent in cases where it is known that civil action will be long and expensive, and the parties would like a fast and cheap resolution of their dispute. From the questionnaire for attorneys it can be seen that the answer to the question whether they are considering mediation also in other disputes, was positive. This leads to the conclusion that the share of expressed consents will be increasing. Such conclusion is possible also because the parties are increasingly interested in mediation, as they often phone and ask about mediation, even if they have not brought a suit.

II. Data on finished mediation procedures

1. Data for 2001

In 2001 mediation procedure was finished in 105 cases. In 49.5 per cent or in 52 cases mediation finished successfully, that is with settlement or abandonment of action. In 53 or in 50.5% of cases mediation procedure was finished, but the case was returned to regular litigation.

 Graph 9

2. Data for 2002 and comparison by periods

In 2002 mediation was finished in 179 cases, out of which in 104 or 58.1 % mediation procedures were completed successfully, 75 or 41.9% of cases continue in litigation. It is important to note that in 90 cases mediation procedure has not finished yet and the percentage of successfully finished mediations is expected to be higher

Graph 10

It should be pointed out that only the fact that a case was not finished in mediation procedure does not mean that mediation as such was not successful, which will be explained in detail in subparagraph on quality analysis.

3. Data on the success of mediation by the structure of cases

A) Claims for damages

In claims for damages in 2001 mediation was finished in 51 cases, out of which 31 or 60.8 % were finished in this procedure, and 20 or 39.2% of cases continue in litigation. In 2002 80 cases were finished, out of which successfully 53 or 66.2%, 27 or 33.7% of cases were returned to litigation, and in 30 cases mediation has not finished yet.

Also here it can be seen that the share of  settlements or abandonment of action is much lower when a party is the Republic of Slovenia in comparison with cases where other parties to the dispute are involved. In 2001 the latter settled in claims for damages in 64.4% of cases. In cases where the Republic of Slovenia was a party to the dispute, the share of successful mediations is only 33.3%, and settlement was reached only in two cases (four cases  continue in litigation, two mediations have not finished yet). The result in 2002 is even worse, as in cases where a party to the dispute was the Republic of Slovenia, only one settlement was reached (10 mediations continue in litigation, six are still in progress), which is 9.1% of all cases, whereas the share with other parties is 75.4%. The difference is illustrated in Graph 12.

Graph 11

B) Cases related to various payments

In 2001 11 cases were finished, out of which 7 or 87.5% successfully. In 2002 23 cases were finished, out of which 11 or 47.82% successfully, 12 or 52.2% of cases were returned to litigation, and in 17 cases the procedure has not finished yet.

C) Cases related to establishing the extent and the share in joint property

In cases related to establishing the extent and the share in joint property in 2001 17 mediations were finished, out of which only 5 or 29.4 % successfully, and 70.6% of cases continue in litigation. In 2002 the share of successfully finished cases is substantially higher, from the total of 36 finished mediations settlement was reached in as many as 18 or 50% of cases, and 18 or 50 % of cases continue in litigation. 18 mediations have not finished yet and the percentage will be even higher.

D) Disputes related to contractual relationships

In 2001 three disputes related to contractual relationships were finished – one case or 33.3% finished with abandonment of action, and two or 66.6% continue in litigation. In 2002 5 cases were finished with 60% success as three settlements were reached and two cases or 40% were returned to litigation.  In 12 cases mediation has not finished yet.

E) Law of property disputes

In 2001 in disputes with law of property elements mediation was finished in 14 cases, out of which in 5 or 35.7% successfully, and nine cases or 64.3% continue in litigation.  In 2002 mediation was finished in 11 cases, and in 9 or 81.8% of cases settlement was reached, and  two or 18.2% of cases continue in litigation. In 4 cases mediation has not finished yet.

F) Disputes with inheritance elements

In 2001 in disputes related to inheritance mediation was finished in two cases with 50% success. In 2002 mediation was finished in 6 cases, out of which in 2 or 33.3% of cases settlement was reached, and 4 or 66.7% of cases continue in litigation. In 5 cases mediation has not finished yet.

G) Copyright disputes

In disputes related to copyright there were no mediations, as it has already been mentioned that the parties did not express consent.

H) Housing cases

In 2001 in disputes related to housing relationships mediation was finished in two cases, however, in both cases it was returned to litigation. In 2002 in this type of cases consent has not been expressed by both parties yet.

I) Disputes in other cases

In 2001 in disputes which were classified as Other mediation was finished in 7 cases, out of which in 4 or 57.1 % of cases successfully. In 2002 mediation was finished in 18 cases, out of which in 7 or 38.9% of cases successfully. In 7 cases mediation is still in progress.

It can be seen in Graph 12 that the success of mediation depends on the type of disputes, however, due to the short period of mediation implementation and consequently a small number of cases in groups by their legal nature, it is not possible to provide a reliable evaluation yet, which types of cases are more suitable for mediation and which are not suitable at all. This question will have to be left open for a while, and in the meantime data on expressed consents and the success of mediation by legal nature of disputes should be recorded, and  the views of parties, advocates and mediators in relation to this should be taken into account.

Graph 12

4. Quality analysis of the success of mediation

When measuring the success of mediation not only the share of settlements or abandonment of action is important, but also the satisfaction of parties. Particularly in cases when settlement is achieved, parties are enthusiastic about mediation, which can be concluded on the basis of questionnaires the parties and their plenipotentiaries submit when the procedure is finished. It should be added that filling in questionnaires is not compulsory and they are anonymous. Questionnaires are submitted on voluntary basis parties and advocates do not send them in all cases where mediation has been finished, however, the number of submitted questionnaires is sufficient to create a picture on the quality of mediation procedures and party and advocate satisfaction with them. In most cases parties and their plenipotentiaries answer the question about mediator’s expertise and the question whether they would recommend mediation, positively. Most of them think that mediation saved time and money. It is extremely important that in most cases the parties stated in the questionnaire that in spite of the fact the case was not finished in mediation, they are closer to the dispute resolution due to mediation. Therefore it may be concluded that mediation contributed for the dispute to be finished earlier in the regular procedure, or that parties reach out-of-court settlement. The probability that agreement will be achieved later as a consequence of mediation is higher. A similar influence of mediation on the future developments regarding the dispute is described also by foreign researches of court–annexed mediation[22]. The contents of the questionnaire was simplified into three categories only: very satisfied, satisfied and not satisfied. In can be seen in Graph 13 that in most cases (more than 80%) parties are very satisfied with mediation, some of them satisfied and none of the parties was dissatisfied.

Graph 13

It was found out on the basis of telephone conversations with advocates, authorised representatives of legal persons and mediators that mediators influence settlement a great deal in the sense of professionalism and impartiality, as well as the parties themselves in the sense of flexibility and readiness to abate. However, there are exceptional cases when parties decide for civil action and they insist on it irrespective of the anticipated costs and time spent on the final resolution of their case. The fact that parties are not ready for settlement is influenced also by the fact that they still do not have enough information about what mediation is and they expect the mediator to persuade the opponent for their benefit, or consider mediation as a part of regular litigation and are not able to establish a less formal relationship with the mediator and the opposing party.

Everybody answered the question about the future of mediation in our country that they think it does have a future. It was also said that it is useful to have an alternative way of dispute resolution available, and that they will participate in it also in the future and that mediation will definitely become a part of the social system of dispute resolution.

III. Data on the number and duration of sessions required for successfully finished mediation procedure

1. Introduction

For parties mediation should imply saving time and consequently also money, and therefore we checked in how many successfully finished mediations the dispute is resolved already during the first session and what the average duration is.

2. 2001

In 2001 mediation was successfully finished during the first session in 31 or in 62% of cases . For the remaining cases two or more sessions were needed.

Graph 14

3. 2002

In 2002 the case was successfully finished during the first session in 64 or 61.5 % of cases. However, it has to be taken into account that in 166 cases the period of time to express consent has not expired yet, and in 90 cases mediation is still in progress and this is not the final data.

Graph 15

Regarding the structure of cases most mediations finished after the first hearing in claims for damages. A high share of cases finished during the first session was also in disputes regarding contractual relationships and relationships under the law of property as well as disputes regarding inheritance, however, the data is not representative due to a small number of cases. It was found out that in disputes related to joint property more sessions are needed, which again shows the complexity and difficulty of these cases. Detailed analysis is based on Graph 16.

Graph 16

4. Duration of sessions

We were also interested in how long the sessions averagely take. 9 different cases, regarding the legal nature, where mediation was successful, were selected. 7 cases finished during the first sessions, which lasted for 1.3 hours in average. Two sessions were needed for settlement in two cases, which in average lasted for two hours. For one case, where the extent of the joint property was being established, three sessions were needed, which lasted 5.5 hours in total. That is an exceptional case which implies the conclusion that even very complex cases can be resolved if the mediator is persistent and parties are ready. In questionnaires advocates observed that that it should be insisted on mediation which has started and, if required, have more sessions.

B.  FAMILY–LAW MEDIATION

1. Introduction

Since May 2002 mediation in family cases has been implemented within the District Court Ljubljana pilot project, in which mediators try to help resolve the dispute about the care for children after divorce, regarding their care in support, and they help divide the joint property. Mediation is offered only in cases of dispute, that is the divorce action has been brought, whether independently or together with the motion to award the custody of children or fixing the alimony.  In case where no–fault divorce action is brought, mediation is not offered as the parties have agreed about all the issues regarding children and joint property.  In family mediation there are two types of mediation: cases with an independent matrimonial dispute and there are no joint minors, and cases related to matrimonial dispute which is being solved together with the issue of awarding custody of minors and fixing the alimony for them. In the first case mediation is offered only regarding  the division of joint property (property-family mediation–PD), and in the latter regarding the division of joint property as well as the questions about the care and support of children (family mediation –RD).

2. Expressed consents

By the end of 2002 184 cases were offered for mediation. In 44 or in 23.9% of cases both parties expressed consent to participate in mediation. In 96 or 52.2% of cases consent was not expressed, and in 44 or 23.9% of cases the period of time has not expired yet.

Graph 17

3. Successfulness of finished mediations

Mediation was finished in 27 cases, out of which in 14 or 51.9% successfully, and 13 or

48.1% of cases continue in litigation.

Graph 18

4. Comparison by type of mediation

Also analysed were the consents expressed and the successfulness of mediation regarding the questions that were being resolved – whether only the questions about dividing the joint property (property-family mediation–PD), or also the questions about awarding the custody of children and fixing the alimony (family mediation–RD).  It can be concluded that in case disputes about children and joint property were being resolved, the level of expressed consents is substantially higher (39.1%). However, the share (60%) of cases finished in mediation is higher when only questions about dividing joint property were being resolved. This can be seen in Graph 19.

Graph 19

5. Data on the number and duration of sessions required for successfully finished mediation procedure

Family mediations deal with disputes involving strong emotions and therefore more sessions are required so that the parties can express their positions and feelings and that they really "have their day at court". This is reflected also in the data on the number of sessions required for the mediation to finish with settlement and the parties to agree about all the disputable issues. Out of 14 sessions, which finished successfully, 9 or 64.3% of cases finished after the first sessions, for two cases or 14.3% two sessions were required, and for three cases or 21.4% three or more sessions.

Graph 20

6. Quality analysis

it is not possible to provide a quality analysis on the satisfaction of parties in family disputes as the number of questionnaires is not high enough for a representative sample, on the basis of which a reliable analysis could be conducted.

Conclusion

Court–annexed mediation has been implemented at the District Court in Ljubljana for two years, which is long enough to provide some evaluation. 

Both parties to the dispute expressed consent in more than one fourth of cases, which may be regarded as an outstanding success. It should be taken into account that in Slovenia mediation is something completely new in comparison with the western countries, particularly the USA and Great Britain where alternative dispute resolutions are traditional. The Court of the second instance in London had a similar mediation programme on voluntary basis and such rate of expressed consents was achieved only in the third year of the programme implementation[23].  We noted that the percentage of consents was increasing gradually as in 2001 it was 25.2%, and in 2002 it reached 29.3%.  Such increase of consents implies that parties and their plenipotentiaries are better informed about mediation. The fact that derives from the quality analysis of the satisfaction of parties that the parties and their plenipotentiaries who have already participated in mediation, were very satisfied with it and they are ready to participate again and recommend it to others, also contributes to the willingness of parties to participate in mediation.

Even more encouraging than the expressed consent to participate in mediation is the share of cases, when at the end of mediation the parties concluded a court settlement or abandoned action and the resolution of the dispute was final.  As already mentioned, this share was 50.5% in 2001, and in 2002 even 58.1%, which is a great success.  This can be concluded also due to the fact that the share of reached settlements in mediation, carried out in civil cases at the Department for alternative dispute resolution at the Superior Court in Washington D.C. was only 39% in 2000, and 37% in 2001[24]. Similar success is recorded in the field of family mediations, we have been carrying out for only six months, as the rate of reached settlements is 48.1%, whereas at the Court in Washington it is 41%. It has to be taken into account that court–annexed mediation and other ways of alternative dispute resolution at that Court started already in 1985, and that their system of referring cases to mediation, training of mediators, administrative support of the programme and similar runs smoothly.  At our Court we have just started alternative dispute resolution and we have achieved extremely good results. In my opinion this is due to enthusiastic individuals, taking part in this programme, and extreme professionalism of mediators, who attended trainings abroad and successfully transferred the experience to our country by critical assessment what is suitable in our law culture in what is not. When talking about the great success of alternative dispute resolution at the District Court in Ljubljana, we should not forget the willingness of parties and advocates to participate. They are probably glad that new opportunities are opening in the field of dispute resolution which will allow for faster and cheaper solution of conflicts, as it is well known all over the world that "mills of courts grind slowly". 

Introduction

The three most common types of mediation available in the UK are:

Civil/Commercial mediation

Family Mediation

Neighbour Mediation[25] (e.g. noise, abusive behaviour, children’s behaviour etc)

In the last five years or so specialist mediation schemes and initiatives have emerged in a wide range of other spheres[26], including, for example, planning applications, debt recovery, the provision of education for children with special needs, clinical negligence, housing disrepair, disputes with landlords and restorative justice[27]. 

Interest in mediation for civil and family disputes has increased steadily since the early 1990s.  

Question 1.  Legal Provisions dealing with mediation

Family disputes

Under matrimonial legislation introduced in 1996 (Family Law Act 1996 Part III) the use of mediation in matrimonial disputes was strongly encouraged.  Parties who sought legal aid for representation in matrimonial proceedings were required at least to consider the option of trying to resolve the dispute via mediation.  Before full implementation of the Family Law Act 1996, the Legal Aid Board (now the Legal Services Commission) ran a project called the Family Mediation Pilot in order to assess the value of mediation in family disputes and to estimate the possible cost savings that might flow from widespread use of mediation by parties in receipt of legal aid. The results of the research indicated that mediation was a suitable alternative to litigation, but only where appropriate to the family’s circumstances[28].  More important, the research did not indicate that substantial legal aid cost savings would necessarily flow from the arrangements regarding mediation.  As a result, the government repealed Part II of the Family Law Act in January 2001. In March of the same year the Lord Chancellor introduced plans to pilot a different project (the Family Information and Advice Service (FAInS) which builds on the research findings that came out of the family mediation pilot.

Civil and commercial disputes

Major reforms of English civil procedure took place in 1999 following the publication of Lord Woolf's Access to Justice Report in 1996.  This report was a watershed in the development of mediation for non-family civil disputes.  The Report asserted that ADR had the ‘obvious’ advantage of saving scarce judicial resources, and that it offered ‘a variety of benefits to litigants or potential litigants.  ADR is usually cheaper than litigation, and often produces quicker results.’   It was not proposed that ADR should be compulsory either as an alternative or as a preliminary to litigation, but Lord Woolf felt that the courts should play an important part in ‘providing information about the availability of ADR and encouraging its use in appropriate cases.’[29]  This encouragement is underpinned by the court’s power to “punish” unreasonable behaviour in litigation by denying parties their legal costs or other financial penalties:

‘[T]he court will encourage the use of ADR at case management conferences and pre-trial reviews, and will take into account whether the parties have unreasonably refused to try ADR or behaved unreasonably in the course of ADR.’

Under new Civil Procedure Rules implemented in April 1999, the courts have substantial case‑management powers, including the power to order parties to attempt mediation or another form of ADR and to interrupt (“stay”) proceedings for this to occur.  Judicial case management includes:

 “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure.”

Failure to co‑operate with a judge’s suggestion regarding ADR can result in cost penalties being imposed on the recalcitrant party.[30]

The emphasis on ADR in court rules has been strengthened by the publication of six pre-action protocols, each of which encourage attempts at settlement, including consideration of ADR, before beginning court proceedings.  The most recent update of the Civil Procedure Rules includes the requirement that parties to any dispute should follow a reasonable pre-action procedure intended to avoid litigation, before making any application to court.  This should include negotiations with a view to settling the claim and cost penalties can be applied to those who do not comply. 

The Government’s commitment to supporting the growth of ADR is shown in recent changes to the legal aid system.  Under the Access to Justice Act 1999, the cost of mediation can be paid for by legal aid.  More importantly, an application for legal aid for representation may be refused if there are ADR options which ought to be tried first.  In essence this means that citizens hoping for public funding for representation in legal actions must have attempted mediation or be able to show why it was not possible to do so.

In 2001 the Government stated that it would attempt to resolve all disputes involving government departments through ADR wherever possible, and all Government contracts now include a mediation option in the procedure for resolving disputes.

More recently, the Department for Constitutional Affairs (previously the Lord Chancellor’s Department) has established a target for reducing the proportion of disputes which are resolved by resort to the courts.  A key element in the strategy for achieving this target is the encouragement, both in and outside the court structure, of the use of ADR.  Court based ADR schemes are to be evaluated according to success criteria and a number of initiatives will be taken including, notably a pilot experiment of an “opt-out” scheme by which cases will be allocated to mediation rather than normal court proceedings, unless the parties opt-out of the scheme. 

Judicial Pressure to Mediate

Perhaps the most important development in terms of interest in mediation for civil and commercial disputes has been the strategy of the senior judiciary in seeking to create pressure to mediate through decisions in high profile court cases.  There have been a number of landmark cases in which the Court of Appeal and senior judiciary have made clear the approach taken by the courts to the role of mediation and other ADR techniques in dispute resolution.  Recent decided cases indicate that:

• There is now a duty on the parties to a dispute to consider ADR before entering the judicial process (Cowl 2002[31].) “Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money was involved, indefensible.” (Lord Woolf) 

• There is a duty on the parties to a dispute to consider seriously the possibility of trying to resolve the dispute by means of ADR (Dunnett v Railtrack plc 2002) “The parties …have a duty to consider seriously the possibility of ADR procedures being utilised for the purpose of resolving their claim..”

• The Judge will decide whether a refusal to mediate was justified (Hurst v Leeming 2002).   “..mediation is not in law compulsory, but alternative dispute resolution is at the heart of today’s civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, ..there must be anticipated as a real possibility that adverse consequences may be attracted.” (Mr Justice Lightman).    Judges will accept valid reasons for not wanting to proceed with ADR, but such reasons must be fully justifiable if the party wishes to avoid being penalised by the court. 

There have been two further recent cases in 2003 that confirm the risks for parties if they unreasonably refuse to try ADR or withdraw unreasonably withdraw from an ADR process[32]. 

QUESTION 2.           PRACTICAL EXPERIENCE OF MEDIATION

As a result of the discussion leading up to the publication of the Woolf Report and subsequent debate about mediation, several court-based ADR initiatives for non-family civil disputes have been established.  The earliest was the adoption in the Commercial Court[33] in 1994 of the practice of issuing ‘ADR Orders’ directing parties to attempt to settle commercial disputes by means of some ADR process (normally mediation or early neutral evaluation).  A second important initiative is a voluntary mediation scheme set up in 1996 in the Central London County Court (CLCC) for the resolution of non-family civil disputes.  This scheme began as a two-year pilot and following a comprehensive evaluation of the scheme published in 1998[34], the Lord Chancellor decided it should continue to operate.  A third court-based initiative is the voluntary mediation scheme established in the Court of Appeal (Civil Division) in 1997.  There are also a number of smaller court-based mediations schemes throughout England and Wales which offer applicants to local civil courts an opportunity to try mediation before continuing with the litigation process[35]. 

Evaluations have been conducted on three court-based schemes - the Central London County Court mediation scheme[36], the Court of Appeal mediation scheme, and the issuing of ADR Orders in the Commercial Court – from which the following conclusions can be drawn:

·                ADR generally results in a high level of customer satisfaction.  Mediators with excellent skills and familiarity with the subject-area of the dispute produce the highest levels of satisfaction.  The approach of mediators needs to be matched with the expectations of parties and their solicitors.

·                Voluntary take-up of invitations to enter ADR schemes remains at a modest level, even when the mediator’s services are provided free or at a nominal cost. 

·                Outside of commercial practice, the legal profession remains very cautious about the use of ADR.  Positive experience of ADR does not appear to be producing armies of converts.  Explanations may lie in the amount of work involved in preparing for mediation, the incentives and economics of mediation in low value cases, and the impact of the Woolf reforms.  More pre-issue settlements and swifter post-issue settlements may diminish the perceived need for ADR in run-of-the mill civil cases.

·                Subjective perceptions of the profession support the view that successful ADR saves the likely cost of proceeding to trial and may save expenditure by promoting earlier settlement than might otherwise have occurred.  However, unsuccessful ADR can increase the costs for parties.

·                An individualised approach to the direction of cases toward ADR is likely to be more effective than general invitations at an early stage in the litigation process. This would require the development of clearly articulated selection principles.

·                The timing of invitations or directions to mediate is crucial.  The early stages of proceedings may not be the best time, and should not be the only opportunity, to consider using ADR.

Issues arising from these evaluations are:

Lack of demand

The most important experience of English ADR experiments is a consistent lack of demand.  Even when mediation is provided at very low or no cost (as in the schemes in CLCC, and Court of Appeal) all voluntary schemes have suffered from minimal take-up.    The evaluation of the Central London County Court scheme which provided mediation at a minimal cost to parties demonstrated similar problems with no more than a 4% take up rate during the two years of the pilot.: “Even within the current climate of dissatisfaction with the cost and delay of the civil courts, the proportion of cases in which both parties volunteered to mediate was pitifully small”[37]. This was despite a relatively high level of satisfaction with the process among those who had used the scheme.  The scheme at the Court of Appeal providing mediation at no cost to the parties has also experienced a take-up rate of only 4%. 

The experience has been similar in the field of family disputes[38].  Modest demand for court-based voluntary mediation schemes is consistent with pilot mediation schemes in other areas.  For example, the Department of Health launched a pilot mediation scheme for medical negligence cases in 1995, in response to criticisms of the increased incidence of medical negligence claims, and claims management practice.  At the scheme’s inception it was anticipated that about 40 cases would be mediated over a two-year period.  The scheme was extended for an additional year when the number of referrals remained low.  By the end of the third year a total of twelve cases had been mediated, although settlement had been reached in eleven of them.[39]

Although the largest providers of commercial mediation consistently talk of substantial increases in the number of cases coming forward for mediation, what is not always made clear is the very low base from which increases are starting.  The evidence suggests that although commercial lawyers in the City of London are encouraging their clients to experiment with mediation this is, at the moment, an elite activity which is failing to establish a foothold among the vast bulk of civil claims.  A recent national study of the use of courts and ADR by private citizens concluded that “current ADR activity in the context of civil and family disputes appears to be negligible”[40].  Respondents to the survey had not tried to use ADR to deal with disputes and their advisers had not suggested it.

A number of explanations can be offered for the prevalent lack of demand for mediation.  First a dearth of knowledge about, and familiarity with, mediation and other ADR processes.  Enthusiasm for new ways of dealing with disputes cannot be created overnight and the public, legal profession and other providers of advice about disputes are only just beginning to hear about ADR. 

There is, however, also a degree of client resistance to the idea of mediation and this is to some extent linked to issues about the point at which court-annexed mediation schemes and family mediation schemes kick-in.  At the early stages of disputes – the point at which mediation is likely to yield the greatest benefits in savings of conflict, time and cost – parties are often unwilling themselves to consider the possibility of compromise.  In both civil and family cases the desire for vindication and an opportunity for public acknowledgement of a wrong suffered can be very strong.  Only when a long process of attrition has occurred, and when the reality of protracted litigation has begun to bite are some people prepared to compromise.

Compulsion

An issue, which flows directly from the evidence of meagre demand for mediation, is the question of whether or not the government should introduce a mandatory mediation stage for certain kinds of disputes.  This could be achieved by making it compulsory to attempt some form of ADR process for certain classes of cases deemed suitable, or for all cases unless they had been deemed unsuitable.  The chief advantage of such a step would be to remove the possibility of parties appearing weak by opting for mediation schemes and of ensuring that greater numbers of litigants were compelled to experience ADR processes thus, possibly, speeding up the process of public and practitioner education about ADR.

However, concerns have been raised about forcing litigants in the course of court proceedings to attempt a private resolution process over which the court has no control.  There is also the possibility that such a step would increase costs for those who fail to reach a settlement by means of ADR. 

Compulsion raises the important problem of determining which cases should be regarded as normally appropriate for resolution via mediation and which cases should be defined as normally inappropriate.  The government has yet to address this issue for civil cases.

Despite these concerns, as noted earlier, the Government is currently considering the introduction of a pilot mandatory mediation scheme in one court in which parties would be given the chance to opt-out.  This pilot will be researched and evaluated before any decision to extend compulsory mediation programmes is taken by the Government.

Quality of providers

Effective mediators and conciliators require a complex set of skills that depend on personal attributes and good quality training.  The role of mediators is currently unregulated and they are unaccountable.  The nature and extent of their responsibilities is not clearly articulated and ethical codes, where they exist, vary.  These matters are particularly important when parties attend mediation sessions without their legal advisers and when it is clear that mediators have considerable opportunity for the exercise of covert power during the course of mediations and in the design of settlement agreements[41].

Cost of mediation

Most of the mediation currently being provided through court-annexed schemes for civil cases is provided at very low or no cost to the parties in order to try and maximise the take-up rate.  Newly qualified mediators, keen to try out their skills, have, to date, been reasonably happy to operate on this basis.  Although this approach can probably continue so long as the take-up of court-annexed schemes remains low, in the long term the issue of cost will have to be addressed.  The large mediation providers who service expensive commercial litigation are not interested in the high volume, low value litigation, which is the staple diet of the courts.  But even those mediators who are prepared to take on relatively modest value claims will want to charge a commercial rate unless they regard mediation as a public service.  If commercial rates are charged it is unlikely that voluntary demand for mediation will pick-up unless it is possible to establish convincingly the cost savings of mediation over traditional approaches to dispute settlement.  Additional problems will arise if an increasing proportion of litigants are compelled to attempt mediation at commercial rates, thus possibly increasing further the cost of litigation.

Legal advice and just outcomes

There is also the tricky question of whether litigants should be encouraged to seek legal advice before becoming involved in mediation or other ADR process and whether they should be advised during a mediation session?  The answer to this question raises fundamental issues about the objectives of mediation and other ADR processes.  Is the purpose to offer outcomes that are just, or merely outcomes that are acceptable to the parties?  If there is a role for justice in ADR processes how is a just outcome to be determined and are lawyers necessary to the protection of parties’ rights and interests?  In the absence of legal advisers, what is the responsibility of third-party neutrals in seeking to facilitate settlement with regard to these issues?

QUESTION 3.          HOW MUCH DOES MEDIATION COST?

                                          

The cost of mediation is variable and difficult to state simply.  There are neighbourhood schemes that provide free mediation for neighbour disputes with the assistance of local government funding or through the efforts of local volunteers. 

Commercial mediation provided by the leading commercial mediators is offered on a sliding scale depending on the value of case and the length of the mediation.  A relatively low value claim that could be mediated in a day might cost around £2,000 for the mediation.  This cost covers the mediator’s fee but if the parties have legal representation at the mediation that cost will be in addition to the cost of the mediator.

An example of mediation charges being currently offered by a firm of solicitors is £300 (+ 17% tax) per party for the first three hours, with additional hours if required at £65.00 (+ 17% tax) per hour per party.  This charge includes any preparation work that may be required.  In addition travel time and £25 + tax per hour and travel expenses are charged.  These fees are usually divided equally between the parties that participate in the mediation or in accordance with any agreement that may be made by the parties following the mediation. 

In the court based experimental schemes, mediators are providing their services virtually free of charge in order to get experience and to try and stimulate further demand for mediation.

Are the costs justified?

The costs of mediation are justified if the mediation is successful and it saves time, stress and legal costs.  It may also result in a more imaginative settlement than could have been achieved via a court decision and the repairing of the relationship between the disputing parties.  Where mediation is unsuccessful there is evidence that it can increase the costs of resolving disputes by adding an additional layer.  On the other hand, even unsuccessful mediation can help to lead to subsequent settlement and may narrow the issues in dispute.

QUESTION 4.  POSITIVE AND NEGATIVE SIDES OF MEDIATION?

For the parties the positive benefits of mediation can be:

Informality of procedure

Opportunity for aggrieved party to be heard (equivalent to day in court)

Participation of disputing parties

Promotion of settlement

Creative settlements

Forward looking settlements

Possibility of apology

Repairing of relationships

Lack of legal technicality

Focus on issues

Quicker settlements

Potential for saving legal costs

Settlements that are more likely to be honoured (fewer enforcement problems)

For the Government the potential benefits are:

May reduce pressure on courts

Savings in judicial time

Savings in legal aid

More satisfaction with dispute resolution procedures

Social benefit of reducing rather than exacerbating conflict

The potential negative aspects of mediation for the parties are:

Compromise is inevitable

Pressure to settle

Both parties can be seen as winners or both are losers

Abandonment of concept of “right” – everything reduced to status of “problem”

Lack of accountability of mediators

Just outcomes – what constitutes a successful mediation?

Co-opting of mediator by more charming or more difficult side

Concern about confidentiality – revealing hand if case goes on to court

Cynical use of procedure to delay or find out things about other side’s case

QUESTION 5.           WOULD YOU ADVISE A COUNTRY TO SET UP A MEDIATION SYSTEM?  SHOULD IT BE BASED ON LEGAL PROVISIONS CONTAINED IN CRIMINAL OR CIVIL PROCEDURE?

I think mediation is an important supplement to traditional court proceedings.  If mediation is conducted within a framework of well-developed individual legal rights it can be a useful alternative to the inevitable disadvantages of litigation.  Mediation cannot solve the problem of overburdened court systems and should not be encouraged with that principal objective.  Offering a low-cost, speedy and consensual process for the resolution of civil and family disputes has many desirable features.

However, there will always be parties to litigation who do not want to consent to mediation - those who believe that they have a strong claim of right, those who believe they want public vindication and do not want to compromise.  States must decide as a matter of policy whether a public forum for adjudication should always be available to citizens for the legal determination of civil and family disputes.  This is a matter of policy and politics and fundamental beliefs about the role of State courts in the resolution of disputes.

Many states ration court procedure.  For example, low value claims are decided via truncated procedures, flexible rules of evidence and often without legal representation.  The problem with mediation is that if it is made compulsory, what is being compelled is compromise and a denial of legal determination.  However, it could be justified as a compulsory stage prior to use of court procedure for some, if not all, civil and family disputes.  This is, I think, the approach that the Government in England and Wales would like to take.

The experience of England and Wales, in common with many other jurisdictions, is that unless an element of compulsion is introduced – either through procedural rules or legal aid provisions – the voluntary demand for mediation will not be great.

III.           PROPOSED FOLLOW UP

This Report will form the starting point for following up this activity in 2004, on the basis of any concrete proposals to be made by Switzerland.

Moreover, the CEPEJ invited, at its meeting on 3-5 December 2003, all its members to make any comments ont this reportand to report, by 15 May 2004, on the development of mediation in their internal law and practice.

This report will also constitute a contribution to the Conference on “Advancing judicial approaches to mediation in civil and commercial matters”, which will take place in Malta on 26-27 February 2004 and to which the CEPEJ will contribute to (see the 2004 Programme of Activity of the CEPEJ).