Strasbourg, 24 November 2006
European Commission for the Efficiency of Justice (CEPEJ)
Draft guidelines for a better implementation of the existing recommendations concerning family and civil mediation - Interim Report
This document was prepared by the CEPEJ-GT-MED during its 2nd meeting (Strasbourg, 20-22 November 2006), on the basis of the report on the assessment of the impact of the Recommendations concerning mediation, as drafted by the scientific expert, Mr Julien LHUILLIER (France).
This document constitutes an interim report which has to be finalised.
The CEPEJ-GT-MED suggests to organise an additional meeting in 2007 in order to achieve its task.
1. At the Third Summit of the Council of Europe (Warsaw, May 2005), the Heads of State and Government undertook to make “full use of the Council of Europe’s standard-setting potential” and “promote implementation and further development of the Organisation’s legal instruments and mechanisms of legal co-operation”. They also decided “to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes”.
2. In the light of these decisions, the CEPEJ, one of whose aims in its Statute is “to enable a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice”, has included among its priorities a new activity directed towards facilitating effective implementation of Council of Europe instruments and standards regarding alternative dispute settlement.
3. The Working Group on Mediation (CEPEJ-GT-MED) was therefore set up to gauge the impact in member States of the relevant recommendations of the Committee of Ministers, namely:
- Recommendation Rec(98)1 on family mediation,
- Recommendation Rec(2002)10 on mediation in civil matters,
- Recommendation Rec(99)19 concerning mediation in penal matters,
- Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties,
and to recommend specific measures for facilitating their effective implementation, thus improving implementation of the mediation principles contained in these recommendations.
4. At the first meeting of the Working Group in Strasbourg (8-10 March 2006), a questionnaire was drawn up to determine member States’ awareness of the above Recommendations and the development of mediation in their countries in accordance with the principles contained therein. The questionnaires were sent to 16 representative States.
5. 52 replies were received to the questionnaire from members States and from practitioners, and a report was drawn up by Mr Julien LHUILLIER (France), scientific expert, summarising those responses.
6. As might be expected, there are considerable differences between member States in the way that mediation has advanced due to various obstacles. These include:
§ lack of awareness of mediation,
§ high relative costs of mediation for the parties and financial imbalances,
§ disparities in training and qualifications of mediators,
§ disparities in the scope and guarantees of confidentiality.
7. In the light of these obstacles, the Working Group has therefore drawn up the following guidelines to improve implementation of the mediation principles contained in the above Recommendations.
8. This document concerns Recommendations Rec(98)1 on family mediation and Rec(2002)10 on mediation in civil matters. Two other Recommendations concerning mediation in penal matters and on alternatives to litigation between administrative authorities and private parties may require specific approach. Therefore, the Working Group suggests that future work should be done in preparing separate guidelines on those two Recommendations, not covered by this paper.
9. For ease of reference, these guidelines have been grouped under three headings: availability, accessibility and awareness.
10. Mediation will only become established in member States if mediation services are available to all parties with disputes, and in order to expand their availability, measures should be taken to promote and set up workable mediation schemes.
1.1 Support of mediation projects by member States
11. It is especially important that member States support financially and/or by promotion or recognition, etc. both existing and new mediation schemes, to ensure that they provide a quality mediation service, and a balanced involvement of the various mediation stakeholders (recognised mediator associations, mediators, researchers, bar associations, judiciary, legal professionals, etc.).
1.2. Role of the judges
12. Judges have an important role in the development of mediation. They should have the power to arrange information sessions on mediation and, where applicable, have the obligation to invite parties to the dispute to go to mediation. It is important therefore that, mediation services are available, either by the establishment of court annexed mediation schemes or by directing parties to lists of mediation providers.
1.3. Role of lawyers
13. Member States, Bar associations and lawyers associations should consider including in their codes of conduct for lawyers an obligation to consider alternative means of dispute resolution including mediation before going to court in appropriate cases, and to give relevant information and advice to their clients.
14. Bar associations and lawyers associations should have lists of mediation providers and disseminate them to lawyers.
1.4. Quality of mediation schemes
15. It is important that member States continually monitor their mediation schemes and on-going pilot projects and arrange for their external and independent evaluation. Certain common criteria should be developed.
1.5. Quality of mediators
16. It is essential for judges when referring parties to mediation, for lawyers when advising clients, and for the general public’s confidence in the mediation process, that the quality of mediation is assured.
17. Taking into account the disparities in training programmes, member States should try to ensure that mediators have adequate training programmes and should set up common standards concerning the training.
18. The following items should be covered:
§ principles and aims of mediation,
§ attitude and ethics of mediator,
§ phases of mediation process,
§ traditional settlement of a dispute and mediation,
§ indication, structure and course of mediation,
§ legal framework of mediation,
§ skills and techniques of communication and negotiation,
§ skills and techniques of mediation,
§ adequate amount of role plays and other practical exercises,
§ peculiarities of family mediation and interest of the child (family mediation training) and of various types of civil mediation (civil mediation training),
§ assessment of the competences of the trainee.
19. If possible, it is strongly recommended that this training should be followed by supervision, mentoring and continuing professional development.
20. Member States should recognise the importance of common criteria for the accreditation of mediators and/or institutions which provide mediation services and/or train mediators. In the light of increased population movements across Europe, certain measures should be taken to establish common international criteria (eg. European mediator license, etc.).
21. In the light that certain member States experience difficulties with the qualitative training of mediators, it is recommended to establish links between national training institutions and/or to establish continuing programme of mediators training (eg. European mediators training centre). The Council of Europe, in possible co-operation with the European Union, could help to facilitate this.
1.6. Code of conduct
22. Member States should take measures to ensure the uniformity in the concepts, scope and guarantees of the main principles of mediation such as confidentiality, etc. within their countries.
23. Having in mind that the European Code of Conduct for Mediators is gaining general recognition by various mediation stakeholders throughout Europe, and in order to gain uniformity for the main principles of mediation, it is recommended that member States promote this Code as a minimum standard.
1.7. Breaches of codes of conducts
24. Where mediators breach a code of conduct, member States and mediation stakeholders should have in place appropriate complaints and disciplinary procedures.
1.8 International mediation
25. In response to Rec(98)1 on family mediation in particular, very few member States appear to have set up mechanisms for the use of mediation in cases with an international element. It is therefore recommended that those States that have made progress in this area facilitate an exchange of information with those that have not.
26. Bearing in mind the high cost of international mediation, States should encourage the use of new technologies, instead of face-to-face meetings such as video and telephone conferencing as well as on-line dispute resolution methods.
2.1. Cost of the mediation for the users
27. The cost of mediation for the users should be reasonable and proportionate to the issue at stake. In order to make mediation accessible for the general public, states should ensure some direct financial support to mediation services.
28. For reason of equality before the law and access to law, it is unacceptable for some categories of the population to be excluded from a service on financial grounds. For those with limited financial means, member States should ensure that legal aid is available for parties involved in the mediation in the same way that it would provide for legal aid in litigation.
29. In order to make international mediation accessible and bearing in mind the high cost and the complexity of organising international mediation, member States should take measures to establish, support and promote international mediation.
2.2. Suspension of limitation terms
30. Parties should not be prevented from using mediation by the expiry of limitation terms. In practice, replies from member States show that few States provide for suspension of limitation terms when referring cases to mediation. In order to rectify this problem, member States are strongly encouraged to implement provisions for the suspension of limitation terms.
31. Even if mediation is available and accessible for all, not everyone is aware of mediation. Responses to the questionnaire show that lack of awareness among judiciary, legal professionals, users of justice system and the general public is one of the main obstacles to the advancement of the mediation. Member States and mediation stakeholders should keep in mind that it is hard to break society’s reliance on the traditional court process, as the principal way of resolving disputes.
32. Since these Recommendations should be accessible to policy makers, academics and mediators and other mediation stakeholders, it is important that they are translated and disseminated in the languages of all member States.
33. It is further recommended that CEPEJ creates a special page on mediation in its website. This page could include: translated texts of Recommendations or other relevant texts of the Council of Europe concerning mediation, assessment of the impact in countries of the Recommendations on mediation, information on the monitoring and evaluation of mediation schemes and mediation pilot projects, list of mediation providers in member States, useful links, etc.
3.1. Awareness of general public
34. Member States and mediation stakeholders should take appropriate measures to raise awareness of the benefits of the mediation among the general public.
35. Such measures may include:
§ media campaigns,
§ dissemination of information on mediation via leaflets/booklets, internet, posters,
§ mediation telephone lines,
§ information and advice centers,
§ focused awareness campaigns such as “mediation weeks”,
§ seminars and conferences,
§ open days on mediation at courts and institutions which provide mediation services
36. Member States should also note that court annexed mediation in practice appear to be an efficient means of raising awareness of mediation for the judiciary, legal professionals and users.
37. Mediation and other forms of dispute resolution should be included in schools national curricula.
3.2. Awareness of the users
38. Members of the judiciary, prosecutors, lawyers and other legal professionals as well as other institutions involved in dispute resolution should provide early information and advice on mediation specific to the parties in their dispute.
39. In order to make mediation more attractive to users, member States may wish to consider diminishing or abolishing court fees in specific cases if mediation is used to try to settle the dispute either before going to court or during court proceedings.
40. Member States may request from the users and from the providers of legal aid, before receiving legal aid for the litigation, to consider amicable settlements of the dispute, including mediation.
41. Parties could be penalised if they fail to actively consider the use of amicable dispute resolution. For example, member States may consider establishing a rule that the party normally entitled for reimbursement of its litigation costs in the civil or family dispute resolved by court judgment or decision does not receive full reimbursement if they have refused to go to mediation or if they failed to present the evidence that they have actively consider the use of amicable dispute resolution.
3.3. Awareness of the judiciary
42. Judges pay a crucial role in fostering a culture of amicable dispute resolution culture. It is essential therefore that they have a full knowledge and understanding of the process and benefits of mediation. This may be achieved through information sessions as well as initial and in-service training programmes which include specific elements of mediation useful in day-to-day work of courts in particular jurisdictions.
43. It is important to foster both institutional and individual links between judges and mediators. This can be done by joint seminars, conferences and other means.
3.4. Awareness of the lawyers
44. Mediation should be included in the curricula for the initial training as well as further training of legal professionals.
45. Bar associations and lawyers associations should consider their possible involvement in provision of mediation services.
46. Members States and Bar associations should take measures to create legal fee structures that encourage lawyers to advise clients to use amicable dispute resolution methods, including mediation.
47. For example, fixed fees for specific cases could encourage early settlements, clients could pay the same fees to lawyers irrespective of whether a specific case is resolved by mediation or through the traditional court process, higher rate of fees for lawyers may be payable if the settlement is reached.