Strasbourg, 3 May 2007                                                                        CEPEJ (2007) 12

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

working group on mediation (CEPEJ-GT-MED)

Analysis on assessment of the impact of

Council of Europe recommendations concerning mediation

Acknowledgement

My first words naturally go to Daria SOLENIK, legal scholar at the University of Nancy Law School, member of the Centre of Private Law Studies (Nancy-Université). The ideas developed on these pages have been nourished by her counsel and scientific support in multiple discussions and debate. This study owes to her much of its value, and I’m extremely grateful for her contribution and her competence.

I would also like to thank every member of the working group for the way that they welcomed my remarks. The debate thus engendered proved to be very enriching.

At last, I would like to express my profound gratitude to Muriel DECOT, Stéphane LEYENBERGER and all the other members of the CEPEJ Secretariat. Their trust and readiness to help, despite the busy schedule and workload, are indispensable and precious to me.

Julien LHUILLIER

First part

How the questionnaire was filled in

(country-by-country study)

Objectives:        -    To find out whether the four parts of the questionnaires were invariably fully filled in, whether the quality of the answers was generally satisfactory and whether there were technical problems making it difficult to process the replies.

-    To consider, in the light of the replies received, what improvements could be introduced in any future CEPEJ-GT-MED exercise in order to make the questionnaire more effective (reply rate, quality of the replies).

Partners and project participants

To enable us to assess the impact of the recommendations concerning mediation in the various countries and use this information as food for thought, on the basis of a rigorous working paper, states were asked to reply to a questionnaire on chosen topics.  These topics are related more or less explicitly to the mediation principles that emerge from the recommendations.  This approach ensures that the specific features of each type of mediation will be taken into account and that the various states’ legal traditions will be respected.

In the light of its assessment and optimisation objectives, the Working Group on Mediation (CEPEJ‑GT‑MED) decided to involve practitioners closely in the exercise.

 

The people asked to reply to the questionnaire[1] are from diverse professional backgrounds.  These key local partners, who were contacted by the CEPEJ Secretariat or direct by the CEPEJ-GT-MED experts, work in their country as lawyers, judges, prosecutors, representatives of non-governmental organisations, senior officials in the various Ministries of Justice and, of course, mediators and representatives of associations of mediators.

In most countries, a concern for accuracy prompted the authorities to entrust the different parts of the questionnaire to different correspondents when necessary.  Where appropriate, the working group experts and the Secretariat co-ordinated the replies.

A shortcoming has, however, emerged and could usefully be remedied in future CEPEJ studies in this area: it would seem that the proportion of mediators who filled in the questionnaire could be much improved.

Some GT-MED experts drew attention to the difficulty of the exercise.  Germany provides an instructive example in this respect, since only 18 out of 118 questionnaires were returned, despite a reminder.

Moreover, the posting of the questionnaire on the CEPEJ website[2] was not a success.  The idea was to allow any mediator from a Council of Europe member state to take part spontaneously in the exercise, but the questionnaire was hardly used at all.

We should not, however, be over-hasty in concluding that mediators have no opinions to express.  There may be many reasons for the lack of response.  Many were probably unaware that a questionnaire was available, and others may not have had the time to fill it in or understood what purpose it served.  If its terms of reference are renewed, the CEPEJ-GT-MED could no doubt usefully make itself better known to practitioners.  There are three means by which this could probably be done  in the short to medium term.

Firstly, it will in future be possible to make use of the addresses of the Ministries’ main mediation partners, as provided in the returned questionnaires.

Secondly, by drawing the Ministries' attention to the need to take account of specific national features when drafting future instruments, it will be possible to encourage them to urge mediators, in the various places where they work, to contact the CEPEJ.

Thirdly, early in 2007 the CEPEJ could take advantage of any meeting of mediators drafting the code of conduct under the aegis of the European Commission to contact these practitioners and urge them to publicise the questionnaire in their own circles.

A technical difficulty inherent in the wording of certain questions

As in the case of the CEPEJ-GT-EVAL questionnaire, the CEPEJ-GT-MED questionnaire was not systematically filled in when it was a question of answering “yes” or “no”.  In the large majority of cases, only positive answers were provided.  This makes it impossible to distinguish between the lack of an answer and a negative answer.

For instance, question 3b. of the questionnaire on family mediation reads as follows:

« 3. INFORMATION ON MEDIATION

            […]

b. Do you implement any measures to raise this awareness and confidence?  If yes, what is its content?”[3]

When no reply has been provided, it is impossible to tell whether the question has not been addressed or whether the correspondent wished to indicate, by not answering, that his or her reply was negative.  It was sometimes possible to overcome these problems by asking the correspondents to elaborate on their replies afterwards.  If not, we refrained from interpreting the absence of a reply: in other words, we considered that the question had not been answered.  These technical problems considerably slow down and complicate the task of processing and analysing the data.

For this reason, it might be useful, in the case of future exercises, to reword certain questions[4] on a more systematic basis.

One could, for example, write:

“3. INFORMATION ON MEDIATION

            […]

b. Do you implement any measures to raise this awareness and confidence?  (YES/NO)

If yes, what is their content?”

Breakdown of replies by country

It should be made clear from the outset that, in our analysis, we have opted to call the answers to the questionnaire returned to the CEPEJ “replies”, whether they were complete or not, on the understanding that four replies were expected to the same questionnaire: 1) on family mediation; 2) on mediation in civil matters; 3) on mediation in penal matters; 4) on alternatives to litigation between administrative authorities and private parties.

This terminology was necessary because of the very different arrangements made in the various countries.  In some cases, several correspondents shared the job of replying.  Sometimes, for instance, they took it in turns to assess the same recommendation, even if it meant leaving the questions on other recommendations unanswered.  For the same reasons as prompted the CEPEJ-GT-MED to separate the recommendations in its questionnaire, we decided to count and assess the different assessments separately.

In short, if, in a given country, one correspondent filled in the whole questionnaire in respect of the four recommendations, four replies will be counted.  Similarly, if, in a given country, four national correspondents shared the task of replying to the questionnaire, with each correspondent assessing one of the recommendations, four replies will likewise be counted.

It should be noted, however, that in several cases (Austria, Bosnia and Herzegovina, Hungary, Portugal), the correspondents appended to their replies a draft law or a letter explaining why they had not answered the sections on one or more recommendations in the questionnaire.

This information is not counted as a reply to the questionnaire in the strict sense of the term, but will obviously be analysed with the same care.  A small number of replies from a particular country must not therefore, a priori, be interpreted as a lack of information making it impossible to do any comparative work.  The most we can do is express satisfaction when states have replied to the whole questionnaire and assess the scope for improvement open to the CEPEJ-GT-MED in any future exercises.

Table : Total number of replies (= 52 replies) broken down by country

Germany : 18 replies

The information previously supplied to the CEPEJ on mediation in Germany, both for the 2002 pilot exercise and for the CEPEJ-GT-EVAL’s 2006 report, was limited.

As no particular form of registration is required to become a mediator in Germany, no reliable statistics for the number of mediators are available.  Because of the way the justice system is organised in this federal state, it was not possible to provide any information on the total number of mediation procedures either.  There are neither statistics nor statutory rules at federal level that provide a reliable basis for calculation.  Statistical estimates have been made only on the basis of piecemeal information from certain Länder, and there is no guaranteeing that they are accurate.

For the same reason, it is not possible to indicate a federal budget for mediation.

These obstacles did not, however, prevent the German correspondents, who were contacted direct by Dr Peter Eschweiler (Chair of the CEPEJ-GT-MED working group), from providing the CEPEJ with specific information on the basis of the questionnaire.

 

The German replies represent the largest total number of replies returned (18 out of 52).  They can be broken down as follows:

Questionnaire on family mediation	6
Questionnaire on mediation in civil matters	2
Questionnaire on mediation in penal matters	4
Questionnaire on alternatives to litigation between administrative authorities and private parties	6

Before we even consider the substance of the replies, the German example is particularly instructive for the CEPEJ-GT-MED from a methodological viewpoint: some CEPEJ-GT-MED experts stressed that their task was difficult because they received very little response to their requests.  In Germany, for instance, in response to 118 requests, only 18 replies were returned, even after a reminder; this represents a reply rate of about 15%.

In anticipation of future exercises, the CEPEJ-GT-MED should consider whether it wants a larger number of replies from the same country to work with (my view is that this is desirable, as certain correspondents admit that they have limited knowledge of certain specific matters).  If so, the CEPEJ-GT-MED must consider how best to elicit more replies.  The countries in which mediation is based on a single centralised system will, of course, be more likely to be able to provide information easily.

 

Slovenia : 7 replies

Although there are official lists of mediators in Slovenia, the number of registered or accredited mediators does not seem to be accurately known. It emerged from the CEPEJ-GT-EVAL pilot exercise in 2002 that there were 22 mediators for a population of 1,964,036.  The 2006 report is less definite: the correspondent considers that no figure is available, but specifies that major reforms are in progress and that 100 mediators are currently working for the District Court of Ljubljana alone.

Even though figures for the number of mediation procedures are not compiled at national level, the Supreme Prosecution Office does, at least, provide a figure for the number of mediation procedures in criminal matters, which is estimated at 2283 for 2004 alone.

In the CEPEJ-GT-EVAL’s 2002 pilot exercise, the public mediation budget quoted by the Slovenian correspondent was 10,148 euros, the lowest figure in absolute terms of the figures that could be obtained, but one that stands comparison with the figures for other countries if it is put in perspective (if, for instance, one looks at the public mediation budget in relation to the number of inhabitants, Slovenia spends nearly twice as much per capita on mediation as France).

Over the last five years, the public have been offered a growing number of mediation procedures, particularly in civil (since 2001), family (since June 2001), penal (Article 161a of the Code of Criminal Procedure) and commercial (since 2003) cases.

The work of the CEPEJ-GT-MED will therefore receive direct attention in Slovenia, where there is a definite drive to regulate mediation.

It is probably no coincidence that mediation is flourishing, given the considerable number of replies received and the detail into which they went. The replies can be broken down as follows :

Questionnaire on family mediation	2
Questionnaire on mediation in civil matters	4
Questionnaire on mediation in penal matters	1
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Austria : 4 replies

While the CEPEJ-GT-EVAL was not informed of the exact annual number of mediation procedures in Austria, it is at least apparent from the 2006 report that 3,500 mediators are accredited in the country.

The authorities spent a total of 5,240,000 euros in 2004 on alternatives to litigation. The absence of figures for the number of procedures and the number of mediators prevents us, however, from putting this figure into proper perspective. 

The lack of data is all the more unfortunate as mediation seems, from the replies to the present questionnaire, to be a procedure that is highly regulated in Austria and widely applied: in addition to the very detailed replies to the questionnaire, we received a covering letter from the Bundesministerium für Justiz providing details of the various kinds of disputes in which alternatives to litigation between administrative authorities and private parties may be envisaged. Indeed, the Bundesministerium für Justiz stresses the growing importance of procedures of this type and refers on several occasions to the documents and work of the Council of Europe. There is no doubt that the CEPEJ-GT-MED’s contribution will be carefully followed in Austria.

The replies to the questionnaire can be broken down as follows:

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	2
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Lithuania : 4 replies

Previously, the CEPEJ had been sent very little information on mediation in Lithuania by its national correspondents.  The CEPEJ-GT-EVAL’s 2002 pilot exercise did not mention a budget, and simply reported that no mediators were registered or accredited in Lithuania, while the CEPEJ-GT-EVAL’s 2006 report did not provide any information about the number of procedures relating to the various types of mediation, as the national correspondents had been unable to obtain such information from the Ministry of Justice.

It is therefore remarkable that the CEPEJ-GT-MED’s questionnaire has been particularly well filled in.  Each part of the questionnaire was answered, and two of the replies were actually completed direct by Mr Rimantas Simaitis, an expert from the working group (mediation in family matters, mediation in civil matters).

Some sections of the questionnaire on mediation in penal matters and alternatives to litigation between administrative authorities and private parties may seem incomplete, but prudence is called for: the questionnaire on mediation in criminal matters, for instance, was filled in even though such mediation does not apply in Lithuania.  Lithuania thus provides confirmation of the fact that states have useful information to pass on to the CEPEJ-GT-MED even when mediation is not used in the field in question.

The replies can be broken down as follows:

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	1
Questionnaire on alternatives to litigation between administrative authorities and private parties	1

Romania : 4 replies

As Romania is to join the European Union on 1 January 2007, the European Commission has asked it to make special efforts in the justice field.

Previously, the only information on mediation and alternatives to litigation forwarded to the CEPEJ by the Romanian national correspondents was that there were no registered or accredited mediators in the year 2000. 

This is hardly surprising, as this is quite a new area in Romania, and regulations are just beginning to be introduced, in the wake of a very recent law passed in 2006.

The CEPEJ-GT-MED’s objectives may therefore be directly and immediately relevant to Romania, a country where consideration is being given to drafting legislation on mediation.  There are some shortcomings in the way in which the questionnaires were filled in, since the questionnaire on mediation in criminal matters was only partly completed, and the one on alternatives to litigation between administrative authorities and private parties was filled in in a very patchy fashion.

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	1 (incomplete)
Questionnaire on alternatives to litigation between administrative authorities and private parties	1 (incomplete)

United Kingdom (England and Wales) : 4 replies

As recommended in the CEPEJ-GT-EVAL 2002 pilot exercise, the results for the United Kingdom are presented separately for England/Wales, Scotland and Northern Ireland, for the three judicial systems are organised on independent, very different legal bases.  This report covers only the replies for England and Wales, which are the only ones to have been returned so far.

While the national correspondents reported, in 2002, that there were 50 registered or accredited mediators in both Scotland and Northern Ireland, there was still no system for accrediting mediators in England and Wales in 2005.

The most recent information forwarded to CEPEJ by its national correspondent revealed, however, that a pilot accreditation system was to be set up in December 2005 through a Civil Mediation Council.

 

Very little information on mediation in England and Wales had previously reached the CEPEJ.  Although there are only six civil mediation schemes for the whole of England and Wales (Central London, Birmingham, Exeter, Guildford, Cardiff, Swansea), figures for the annual number of mediation procedures are still unavailable, as is the proportion of the public budget devoted to mediation.

 

No more information was provided about the other types of mediation.

The replies to the CEPEJ-GT-MED questionnaire, which concern the whole of the questionnaire, are both complete and detailed, and therefore provide a valuable working basis.  They can be broken down as follows:

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	1
Questionnaire on alternatives to litigation between administrative authorities and private parties	1

Hungary : 3 replies

Hungary introduced regulations governing mediation relatively early (in 1998) and had a public mediation budget of 79,207 euros in 2000 (which puts it above France and Slovenia but behind Portugal in terms of the number of euros per capita spent on mediation).

The CEPEJ-GT-EVAL’s 2002 pilot exercise revealed 817 registered or accredited mediators, a relatively large number that is all the more surprising as the total annual number of instances of mediation was still only 721 in 2004 (433 in civil matters, 254 in family matters, 34 in social matters and none in criminal and administrative matters).  In short, the average number of cases dealt with by a mediator is therefore less than one a year.  According to sources at the Hungarian Ministry of Justice, this low percentage is all the more regrettable as nearly 75% of the cases dealt with through mediation in 2004 were successfully settled.  When the 2006 report was drawn up, according to the CEPEJ-GT-EVAL national correspondent, unfamiliarity with mediation procedures explained why little use was made of this procedure, effective though it was.

It would therefore be of direct advantage to Hungary to see the CEPEJ-GT-MED successfully complete its task, since mediation appears to be a  means of settling disputes of which little or no use is made, and one which is all too often unfamiliar, although extremely effective.

Hungary’s replies vary in quality, however.  The questionnaire concerning family mediation was hardly filled in at all (only questions 13 and 14 were answered), while the reply on mediation in criminal matters was subdivided in such a way that it was possible to go into matters in greater detail.  For the sake of clarity, a copy of the 2002 Mediation Act was appended to the replies.

Questionnaire on family mediation	1 (incomplete)
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	1
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Czech Republic: 2 replies

Despite references to the Probation and Mediation Service of the Czech Republic, the CEPEJ-GT-EVAL was not informed of the total annual number of mediation procedures in the country for the 2006 report.  Some piecemeal data concerning the number of criminal cases (3,250 cases involving adults and 495 involving juveniles) suggest, however, that mediation has an appreciable role in the Czech Republic.

This would seem to be borne out by the expenditure earmarked by the authorities for mediation.  According to the data CEPEJ received in 2002 during the CEPEJ-GT-EVAL pilot exercise, the Czech Republic has one of the largest public budgets for mediation in terms of euros per capita (2,500,000 euros for just over 10,000,000 inhabitants).

In the 2002 report, the national correspondents quoted the figure of 188 accredited or registered mediators.  The 2006 report does not provide total figures for each type of mediation: all that we learn is that civil mediation is carried out by non-governmental organisations, whose mediators are accredited (the Association of Mediators of the Czech Republic, which has 15 mediators accredited for civil matters, is quoted as an example).

It would therefore have been particularly worthwhile having information from the Czech Republic on mediation for the CEPEJ-GT-MED exercise.  Little information is, unfortunately, provided (only the questionnaire on family mediation has been filled in), and it is incomplete (only one of the two questionnaires on this subject was properly filled in; the other answered only question 17).

Questionnaire on family mediation	2 (incomplete)
Questionnaire on mediation in civil matters	0
Questionnaire on mediation in penal matters	0
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Portugal : 2 replies

The CEPEJ-GT-EVAL 2002 pilot exercise shows that, in terms of euros per capita, the public budget earmarked for mediation (237,570 euros) puts Portugal far ahead of France, Slovenia and even Hungary. 

The Portuguese national correspondent for the CEPEJ-GT-EVAL’s 2006 report states that in his country 82 mediators are accredited with the “Peace Courts” and that 81 others are responsible for family mediation.  He explains that 104 other mediators have the qualifications required to work in the Peace Courts.  These figures show a definite increase in the number of accredited and registered mediators, since the 2002 pilot exercise referred to only 94 mediators.

The Direcção Geral da Administração Extrajudicial (Directorate General of Extra-Judicial Administration) reports that 2,160 mediation procedures (including 694 in civil matters and 249 in family matters) took place in 2004.  No details of the other types of mediation are provided, however.  The CEPEJ-GT-MED initiative makes it possible, however, to provide two pieces of information.  A first letter appended to the replies reveals that there are no alternatives to litigation in administrative disputes.  A second letter explains why no reply to the questionnaire on penal mediation is appended: although mediation exists in criminal cases, Portugal is in the process of setting up a new scheme.  We think it is very unfortunate that the correspondents should have failed to send a reply on the pretext of forthcoming legislative reforms.  The national debates that are prompting these reforms would undoubtedly be of direct interest to the CEPEJ-GT-MED in its analysis.

It is also a pity that the replies returned were completed in a patchy fashion:

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	1 (incomplete)
Questionnaire on mediation in penal matters	0
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Sweden : 2 replies

It emerges from Swedish replies to the 2002 pilot exercise and the 2006 report of the CEPEJ-GT-EVAL that there is no system for accrediting mediators in Sweden, nor any reliable national source for calculating the total number of civil, family and administrative mediation procedures.

Nor were the national correspondents able to say what proportion of the public budget was devoted to mediation.

While the section concerning other alternatives to litigation was fairly well filled in (see the reply to question 104 of the revised CEPEJ-GT-EVAL grid), the information Sweden provided to the CEPEJ on mediation was, to say the least, sparse.

It is therefore particularly unfortunate that there should have been so few replies to the questionnaire (only the questionnaires on family mediation and mediation in criminal matters were returned) and that the replies should be so patchy (the questionnaire on family mediation is only half filled in).

Questionnaire on family mediation	1 (incomplete)
Questionnaire on mediation in civil matters	0
Questionnaire on mediation in penal matters	1
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Bosnia and Herzegovina : 1 reply

In the 2006 study by the CEPEJ-GT-EVAL, the national correspondent for Bosnia and Herzegovina used information published by the Association of Mediators in Bosnia and Herzegovina concerning the total number of mediation procedures in the country: 181 in civil matters and 38 in family matters.

This association, which has 40 to 50 permanent members, has had mediation cases referred to it under a recent law dated 29 July 2005.

The CEPEJ-GT-MED questionnaire concerning civil matters was filled in by two members of the association.  The reply came with a covering letter concerning the other areas, explaining why there were no replies concerning them.

As regards family matters, mediation is not subject to the same legislation in both parts of the territory: the first entity (Federacija Bosne i Hercegovine, Federation of Bosnia and Herzegovina) has entrusted the introduction of legislation on the subject to the Federal Ministry for Labour and Social Policy.  The second entity (Republika Srpska) does not have any regulations on the subject.

In criminal matters, mediation is possible only in the case of property claims, but there is as yet no case law. 

Lastly, alternatives to litigation between administrative authorities and private parties are beyond the association’s remit: it has no information on these alternatives and how they apply.

Despite these explanations, it would appear that most of the information requested exists, but that we were unable to obtain it because we did not find the right people to deal with.  Now that it is better informed, the CEPEJ-GT-MED will no doubt be able to remedy this shortcoming with a view to a possible future exercise.

For the time being, the replies can be broken down as follows:

Questionnaire on family mediation	0
Questionnaire on mediation in civil matters	1
Questionnaire on mediation in penal matters	0
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Poland: 1 reply

The Polish courts provide users with lists of government-approved mediators who fulfil certain criteria laid down by the law.  The CEPEJ has never, however, been informed exactly how many there are in the country.

Some figures are nevertheless available.  For instance, the national correspondent reported figures provided by the Ministry of Justice, indicating 254 family mediation procedures (solely for cases involving juveniles) and 3,894 mediation procedures in criminal matters in 2004.  No information was provided about civil and administrative matters, or about the public budget earmarked for mediation.

Here again – despite a very detailed reply concerning family mediation – much of the information requested by the CEPEJ was not provided.

Questionnaire on family mediation	1
Questionnaire on mediation in civil matters	0
Questionnaire on mediation in penal matters	0
Questionnaire on alternatives to litigation between administrative authorities and private parties	0

Conclusions

As regards the objectives set out at the beginning of this first part:

1.         It emerges that the four types of questionnaire were not systematically filled in by every member state (only four out of 12 member states systematically answered all four questionnaires).

This objective seems feasible, however:

-     some states, including federal states, in which it would seem, on the face of it, more difficult to obtain information at central government level about the various types of mediation, nevertheless systematically filled in each questionnaire (Germany);

-     some states filled in all the questionnaires even though there was currently no provision in their legislation for mediation in some of the fields covered (Lithuania).  The information provided in such cases is often useful.

2.         It would also appear that it is unusual for the same questionnaire to be filled in several times in the same county (only eight of the 48 questionnaires were filled in at least twice in the same country).

It would, however, be useful if this were the case as:

1. some correspondents admit to not knowing how to answer certain specific questions in the questionnaire.  If there are several replies, this risk is reduced.  Generally speaking, it is easier to obtain accurate information with a larger number of correspondents;
2. outright contradictory replies are rare, and usually reflect the fact that the first correspondent is unaware of a situation familiar to the second.  Having several correspondents thus avoids errors.

3.         Lastly, it emerged that some of the replies to this first exercise were more complete than others.

There are two possible reasons for this:

3. the wording of certain questions may have confused certain correspondents, in which case the problem is due to a misapprehension: the correspondents may have believed they did not need to answer certain questions;
4. some correspondents may not have wanted to devote too much time to seeking replies to certain specific questions and may not have done so, believing, rightly or wrongly, that other correspondents in their country would answer them.

In both cases, there would be fewer incomplete replies from a given state if the number of correspondents increased.

Specific proposals :

1. The proportion of systematic replies is unsatisfactory.  Each state should be in a position to reply to each questionnaire.  It is desirable that the questionnaires covering areas in which mediation is not yet applied in a particular member state should still be filled in, as far as possible.

National correspondents should be specifically informed of this.

2. In order to increase the proportion of reliable replies, steps should be taken to ensure that no question is misinterpreted by the correspondent and that no reply remains unusable for that reason.

Certain questions should be redrafted.

3. In order to increase the proportion of reliable replies, the number of correspondents for a given questionnaire in a given country should be increased.   Germany provided an interesting example. Dr Peter Eschweiler distributed the questionnaire widely, so although the proportion of the questionnaires sent out that elicited replies is relatively small, the number of replies is fully satisfactory.

It is probably a good idea to send out questionnaires on a large scale.  The addresses provided by the correspondents in the course of this first exercise should serve as a basis for future requests.

Second part

Evaluation of the questionnaire

(summary report)

Aims:                To gauge the impact in member States of the relevant recommendations of the Committee of Ministers, namely:

3      Recommendation Rec (98) 1 on family mediation,

4      Recommendation Rec(2002)10 on mediation in civil matters,

5      Recommendation Rec (99) 19 concerning mediation in penal matters,

6      Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties.

To recommend specific measures for facilitating their effective implementation, thus improving implementation of the mediation principles contained in these recommendations.

Methodological considerations in evaluating the questionnaire

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”.

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.

The Working Group on Mediation (CEPEJ-GT-MED) was set up to this end.

The questionnaire that it drew up at its first meeting in Strasbourg on 8-10 March 2006 was divided into four sections because of the disparities that existed between mediation systems in the civil, family, criminal and administrative fields. The working group noted on this occasion that although some of the problems might be common to all these fields, it would be difficult to produce a single evaluation covering all four recommendations.

These apt remarks have led us to adopt the same caution. Consequently, the summary report on the questionnaire will observe the same four divisions, considering the four recommendations one by one.

Within these divisions the various aims of the CEPEJ-GT-MED will be examined in turn in the light of the replies received from the national correspondents.

Recommendation Rec (98) 1 on family mediation

In accordance with the methodology protocol developed for the CEPEJ-GT-MED we shall first consider the recommendation’s impact in the various States before subsequently endeavouring to draft some specific measures.

1.1.      Gauging the impact in States

We shall here adopt for our own purposes the division suggested in the working document provided by the CEPEJ-GT-MED and shall in turn study knowledge and use of the recommendation in States and their actual implementation of the principles set out in the it.

        Knowledge and use of the recommendation in States

A recommendation generally familiar to mediation professionals

Most of the national correspondents stated, in answer to the CEPEJ questionnaire, that the recommendation on family mediation was known in their countries.

Although not all the States replied, nine of them did: Czech Republic, Germany, Lithuania, Poland, Portugal, Romania, Slovenia, Sweden and the United Kingdom (England and Wales).

The United Kingdom correspondent was the only person to report that the recommendation on family mediation was not known in his country.

Is Recommendation Rec (98) 1 on family mediation known in your country? (Questionnaire Med_Fam, Q.1a)
Yes	No
Czech Republic Germany Lithuania Poland Portugal Romania Slovenia Sweden	United Kingdom (England and Wales)

Some correspondents provided clarification: while the recommendation was sometimes said to be “well-known” (Portugal), most of the time it was known only within the small world of mediation to the professionals having occasion to implement it (Germany, Poland, Slovenia), and to researchers and lawmakers (Lithuania), including some who had not hesitated to release it in the State’s official language to make it more accessible (Germany).

 

As a sign of the increasing popularity of family mediation within States, university research on the subject is tending to proliferate, covering a range of disciplines (law, psychology, education) at varying levels (university courses, specialised master’s degrees, doctorate studies). Various research teams are thus investigating the meaning and effectiveness of family mediation, and publications are appearing in a number of countries: Germany, Lithuania, Poland, Portugal, Slovenia and Sweden (Questionnaire Med_Fam, Q.3f).

A recommendation with a relatively strong impact in States

Apart from Germany and Slovenia (and possibly Portugal and Sweden), the countries stating that they were familiar with the recommendation had all used it to fuel dicussion of legal doctrine, develop their legal practice and even reform their legislation.

	Impact de la Recommandation Rec(98) 1 sur la médiation familiale (Questionnaire Med_Fam, Q.1b)
Pays dans lesquels la Recommandation Rec (98) 1 sur la médiation familiale est connue (Questionnaire Med_Fam, Q.1a)	Impact faible (informatif, etc.)	Impact fort (réformes normatives, développement de la pratique judiciaire, débat doctrinal, etc.)
Allemagne	1. More in a political sense, in general, not yet in form of law. 5. Limited
Lituanie		It influences formation of the legal doctrine as well as preparation of the draft laws and other legal acts.
Pologne		It was helpful before legal regulations were implemented. It set standards of mediation then and was the basis to prepare legal regulations.
Portugal	In 1999 the Family  Mediation  Center in Lisbon enter in fonctions and even in the publicity papers in that time the Recommendation of the Council of Europe was named.
République tchèque		There is an interest among people, social workers, some lawyers, students of humanistic subjects, it changes in last year – we talk about it, presents its advantages and organize informative seminars.
Roumanie		Its main impact stays at the information level and, generally, with those working in the field of mediation or those who have contact with this field. Equally, the organization of the profession of mediator was taken into account when drafting the Law on mediation.
Slovénie	1. Very small one.	2. District Court of Ljubljana has organized the program of mediation in family disputes according to the principles of the Recommendation Rec(98).
Suède

On the basis of the States answering the questionnaire, it can therefore be affirmed that in States still lacking a widespread and well-developed mediation system but working towards one, the Council of Europe’s recommendations are familiar and are used to prepare a legal basis for or argue the expediency of certain pilot projects.

Conversely, other States have already gone further down the road of mediation, generally by launching a number of pilot projects on the initiative of the courts. These projects have taken into account the generally recognised principles laid down in the recommendation, without necessarily using it directly (Germany). It may nevertheless provide useful material for persuading justice ministries to legislate in this field.

A recommendation inadequately reflected in domestic regulation

Family mediation is the subject of the earliest of the four recommendations devoted to mediation. It would therefore seem logical that most of its aspects would be regulated by law in a majority of countries.

From the following table, however, it appears that Recommendation Rec (98) 1 is rather imperfectly reflected in domestic regulation.

La médiation familiale est-elle réglementée par la loi? (Questionnaire Med_Fam, Q.2a)
Oui	Non
Bosnia Herzegovina (Federation of Bosnia Herzegovina) Germany (answers 2 and 4) Lithuania (“Some aspects of it”) Poland Portugal Romania Sweden	Bosnia Herzegovina (Republika Srpska) Germany (answers 1, 3, 5) Slovenia (réglementation en projet) United Kingdom (Mediation itself is not; but use of it is in certain circumstances)

Firstly, federal states (Germany, Bosnia-Herzegovina) do not, it seems, regulate family mediation uniformly.

Secondly, it is not always certain that lawmakers have considered or resolved all the aspects peculiar to mediation (Lithuania, United Kingdom).

Thus there are often regulations regarding the main principles of mediation such as confidentiality, mediator training, neutrality and the impossibility of imposing a solution on the parties (Lithuania, Poland), as well as lawyers’ access to the practice of mediation (Germany), the power of the courts to break off proceedings for mediation (Germany, Lithuania), the conditions of validity of sealed agreements (Lithuania), the duration, cost and availability of mediation (Poland), and, of course, the extent to which the court’s decision is final (Lithuania, Romania), especially when measures relate to children (Portugal, Sweden). (Questionnaire Med_Fam, Q.2b)

Over and above the fact that in some States family mediation is not regulated by law at all (Slovenia, United Kingdom), even in those States that do regulate mediation the various aspects cited are sometimes regulated in one State but not in another. This is the case, for example, with confidentiality (Lithuania) and mediator training (Germany, Poland).

Family mediation services still little known among the general public, and sources of geographical disparity in terms of access to the law (Questionnaire Med_Fam, Q.3a)

The general public, for its part, seems to be suffering from a general failure to appreciate mediation services, which influences its faith in this sort of dispute resolution in family matters: there were a number of States where users of the judicial system were “not properly”, “not” or “not yet” aware of mediation services (Lithuania, Poland, Romania, Slovenia).

This is hardly surprising, since very often this type of procedure is relatively new in these States. It calls not only for time, awareness-raising and willingness on the part of judges but also for careful training of mediators that will enable them to prove their worth to the public.

This doubtless explains why mediation is not making uniform headway among the public (see the apparently contradictory replies from Germany[5]) and why it is possible to find, in the same State, unacceptable geographical disparities in terms of access to the law (in Portugal, for example, mediation was only known until recently to the public in the capital; it has only just begun to make an appearance in a few large cities).

Ignorance of family mediation services: awareness-raising conditional on financial resources (Questionnaire Med_Fam, Q.3a and b)

Recommendation Rec (98) 1 provides as follows:

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

Some national correspondents however claimed that their family mediation services lacked the funds to publicise themselves effectively (in Slovenia, for example).

To improve user awareness and confidence in family mediation services, some States offer public lectures and seminars on mediation (Lithuania, Poland, Portugal). Although useful, these measures are inevitably limited in impact.

While legal publications on family mediation may act as effective and inexpensive publicity within the judicial service as far as legal professionals are concerned, they will not, however, reach the general public satisfactorily.

As regards introducing users of the judicial system to the existence and effectiveness of family mediation services, the mass media constitute the only method of communication able to reach a broad public and change people’s attitudes irrespective of their social background. The lack of funds to promote mediation – that is, on the one hand, to publicise it and, on the other, to combat the still deep-rooted scepticism that it has bred among the public – is all the more regrettable in that, when given preference, mediation affords results that are welcomed by States and public alike (Poland,[6] Slovenia[7]) at a cost considerably lower than that of conventional proceedings (see below).

A good many States have already begun to establish public relations networks using a range of methods: radio and television (Poland, United Kingdom), Internet (Germany, United Kingdom), meetings and local press (Germany), leaflets (Poland) and brochures about how to contact a mediator (Sweden), an information centre (Germany), and a mediation council (Romania).

Ignorance of family mediation services : recognition of quality depends on judges’ confidence (Questionnaire Med_Fam, Q.9a)

Users of the judicial system cannot view family mediation as a credible alternative means of dispute settlement unless it enjoys some support from the judiciary. Judges who are aware of and trained in mediation are more inclined to have confidence in it and thus are more likely to advise parties to use it or refer a case to a mediator if the provisions allow.

The national correspondents’ replies were sometimes very harsh concerning the inadequacy of the information on mediation communicated to users by judges in the course of proceedings: in almost half the States that replied (Questionnaire Med_Fam, Q.3d) judges did not discharge this duty properly (Germany, Lithuania, Poland); sometimes they were even described as having insufficient knowledge of the mediation process, which they were not really anxious to promote. There were few States in which judges seemed to be providing the information expected of them (Slovenia, United Kingdom)[8].

To reverse this trend, a number of countries have included in judges’ training programmes certain measures introducing judges to the nature of mediation services. These measures range from mere information to full training: thus in Germany mediation has been a “key qualification” in legal training for the past two years now, and judges take an actual training course, as they do in Lithuania (since 2006) and Romania. However, most States acknowledge that such training is not always compulsory (Poland) and has yet to stand the test of time (Portugal). Some even add that judges’ training is still being developed (United Kingdom).

Instead of limiting themselves just to training, certain member States have occasionally opted for a second method, aimed at involving the judge as much as possible in the development of mediation: thus conferences are organised for judges and mediators combined, during which both have a chance to voice their expectations (Slovenia).

It is worth noting, however, that, with the exception of the United Kingdom and a few pilot projects (Germany, Lithuania), sitting judges are not allowed to act as mediators themselves (Poland, Portugal, Romania, Slovenia), even though it is possible to introduce a segregation of duties prohibiting a judge who has not succeeded in settling a dispute through mediation from then continuing to hear the case in normal proceedings (Germany, Lithuania, United Kingdom).

The judges who most often have occasion to act as mediators are retired judges, doubtless because of their expertise, and even then they must sometimes receive basic mediator training (Slovenia), betokening a European tendency to separate the two professions entirely. It is nevertheless worth asking whether the pilot projects conducted in Germany and Lithuania, giving judges the chance to act as mediators in cases passed on by colleagues, do not in fact offer an extremely attractive solution to the problem of developing judges’ confidence in mediation.

        Effective application of the recommendation’s principles in States

Scope of mediation: effectiveness dependent on type of dispute (Questionnaire Med_Fam, Q.4)

Recommendation Rec (98) 1 reads as follows:

I.a. Family mediation may be applied to all disputes between members of the same family, whether related by blood or marriage, and to those who are living or have lived in family relationships as defined by national law.

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

In order to ascertain whether the recommendation’s principles were being effectively applied to each type of dispute, the CEPEJ-GT-MED asked national correspondents to assess the effectiveness of mediation within its fields of application.

Countries	Quels types de litiges/domaines peuvent être efficacement résolus par la médiation? (Questionnaire Med_Fam, Q.4a)	Quels types de litiges/domaines sont moins bien résolus par la médiation? (Questionnaire Med_Fam, Q.4b)
Austria
Bosnia Heregovina
Czech Republic	Before, during and after divorce (children care, housing,  everything connected with a child-health, education, principles of education, respect to parents,grandparents) among generations, family business, any kind of family agreement, inheritance (houses, property, money)	It depends on motivation of participants. Maybe mostly where one member (partner) has a new relationship, new job, new property- and the second one is suddenly put in front the situation and needs a time to think about it and emotionally accept it… and to solve it by mediation
Germany	- family issues (especially, amicable actions ) - all sorts of disputes with an aspect of relationship in addition to economic and juridical problems in the foreground -  all disputes of daily life	1. cases in which the State’s interest is at stake; cases implying application of mandatory provisions. 2. cases when the law is very clear and strong for one of the parties; cases when the balance between the parties is not suitable, cases when the parties or the society in general needs a public way to resolve their case. 3. disputes about a fundamental issue or about pure juridical or economic problems. 4. The least effective: disputes about a fundamental issue or about pure juridical problems; if a prompt decision is necessary; questions of status.
Hungary	Family disputes (mediation especially effective in cases, where one of parents bewares, that the other parent hurt the child)	Cases where distrust against the previous partner is strong
Lithuania	All family disputes.	Not known yet.
Poland	Divorce disputes concerning: -physical and legal child custody, -child support, -alimony, -parental responsibility, -parenting plan, -property -financial issues, etc. Marital (non-divorce) disputes concerning: -child rearing, -sharing parental responsibilities, -sharing house responsibilities, -financial and property issues, -inheritance issues etc.	- Cases where parties are incapable to negotiate and to abide by the agreement (because of mental health problems, addictions, permanent violence or abuse, too strong emotions, etc.)   -reconciliation of spouses in divorce cases (an article of the Civil Code: “judge can refer case to mediation when reconciliation is possible”, but many a judge refer automatically to mediation cases in which one of the parties doesn’t agree to divorce).
Portugal	All sorts of family disputes relating the custody of the children, and other problems concerning the  parental role.
Romania	In the field of Family law: -marital (divorce) disputes, -exercise of parental rights, -decision on the domicile of the children, -parents’ contribution to the children’s allowance, -any other disputes that may occur in the relations between spouses as to the rights they may have according to the law. (art. 64 al. 1 of the Law)
Slovenia	1. All problems related to the children, divorce proceedings, financial agreements etc. 2. Mediation is especially suitable for disputes about the child custody after divorce and for disputes regarding childcare and support.	1. Cases where violence is involved. 2. Disputes: -if there are any signs of violence against the children or between the ex spouses, -where the emotions of the clients of the depute are too strong, -where the power (financial, intellectual..) between the parties is too unbalanced .
Sweden	Access to the children, the child’s residence, custody of the child, maintenance.	Cases involving violence and threats between the parents.
United Kingdom (England and Wales)	Matters relating to children and finances in the context of family breakdown; parent-child disputes; care of elderly relatives.	Where parties disagree and where domestic violence is at issue, family mediation may not be suitable.

It emerges from the correspondents’ answers that family cases in virtually all fields can be resolved by mediation.

Genuine obstacles seldom arise in specific areas (with the exception of mediation in cases of domestic violence).

Ultimately, obstacles to family mediation tend to arise out of circumstances unconnected to any specific area. Thus, mediation is very difficult if its outcome depends on interpretation of a point of law or entails enforcement of mandatory provisions (two situations requiring the judge to play a more active part), if the parties cannot overcome their differences or if there is a clear imbalance between them (financial imbalance, intellectual imbalance, or imbalance arising out of the very nature of one of the parties – if, for example, it is the State).

Organisation of mediation: effect of cost on users of the judicial system

A cost comparison between mediation and conventional proceedings is instructive.

	Pour un litige donné, s'il existe une procédure de médiation, quel est le coût de la médiation comparé au coût d'une procédure judiciaire? (Questionnaire Med_Fam, Q.5a)
Countries	Coût de médiation moins élevé	Coût égal	Coût de médiation plus élevé
Austria
Bosnia Heregovina
Czech Republic	It is must less expensive: one hour costs 300.-Kč per one participants.
Germany	1. If there’s much money in, mediation always is the better solution concerning the costs. 3. According to our experience mediation is nearly always less expensive. 4. If the sum of disputes is higher than 50.000 €, mediation is regular cheaper. 6. Mediation is considerably cheaper	1. For the middle-class justicial procedure is mostly the same as mediation. 2. That really depends on the case	1. For people with low income who get paid the cost for the lawyer and the judge by state, mediation is always relating to the costs of the worst solution.
Hungary
Lithuania	Cheaper, when the mediation is paid for by the state or private funds.		When the users have to pay themselves, mediation costs can be higher if compared to litigation costs, because litigation in Lithuania is quite cheap and expeditious.
Poland	It certainly is less expensive. No reliable research data available.
Portugal
Romania	The regulations on mediation aim at obtaining results at lower costs, lower amount of time and stress through mediation, compared to the usual legal procedure, the arbitration procedure or the negotiation without counsel.
Slovenia	1. The cost of one mediation meeting is around 50 EUR. 2. Mediation at the District court of Ljubljana is free of charge. The parties only have to pay the expenses of their own participation (possible expanses for a lawyer, travel expanses…)
Sweden
United Kingdom (England and Wales)	Costs vary depending on type of mediation and duration; on average cheaper than court hearing.

The national correspondents quite obviously consider mediation to be generally cheaper for the user than standard proceedings, even if – as they make clear – this claim cannot be taken as a hard-and-fast rule.

Two States call for specific comment: Germany and Lithuania.

In Germany it appears that the cost-effectiveness of mediation is in proportion to the amount involved in the case. The higher the amount at issue, the more mediation becomes a cost-effective option for users. This can create problems of access to the law, since the amount involved is usually in proportion to the social status of the user. If such is the case, it would seem that a two-tier justice system is starting to emerge in Germany, with the wealthiest people having access to a method of alternative dispute resolution that remains relatively inaccessible to the poor. Does this perhaps betoken insufficient assistance in terms of legal aid?

In Lithuania, on the other hand, it is not necessarily in the financial interests of parties not qualifying for financial assistance to depart from the conventional procedure (itself fast and inexpensive). The poorer users, who qualify for legal aid, are therefore the only people better advised, and perhaps with more opportunity than others, to use mediation.

Recommendation Rec (98) 1 provides as follows:

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

Mediation is financed from various sources :

	Dans votre pays, la médiation familiale est assurée par: (Questionnaire Med_Fam, Q.5b)
Countries	Les parties	Fonds privés	Fonds publics	Autres
Austria
Bosnia Heregovina
Czech Republic	Yes
Germany	Yes
Hungary
Lithuania	Yes	Yes
Poland	Yes	Yes (Non governemental institution of legal aid; see answer 5g)
Portugal			Yes (Ministry of Justice)
Romania			Yes (Mediation Council)
Slovenia	Yes			The court annexed mediation at the District court of Ljubljana in financed from the budget of the district court.
Sweden			Yes (The State / Public entity)
United Kingdom (England and Wales)	Yes		Yes (Legal Services Commission; CAFCASS Children and Family Advisory and Support Service)	pro bono

It is worth noting that in Germany there is no public funding, which, according to one of the German national correspondents, is the greatest obstacle to delivering mediation, as the traditional judicial system is largely state-funded. The Lithuanian reply seems to be along similar lines as well, since it explains that the only mediation procedures to have proved effective hitherto have been those financed by the State or private funds, that is, mediation for which the users did not themselves have to pay.

A minority of countries leave the costs of mediation to the parties alone.

Of the States replying, five do not publicly fund mediation: the Czech Republic, Germany, Lithuania, Poland and Slovenia. Various explanations are given for this absence of public funds (Questionnaire Med_Fam, Q 5e): contrary to received ideas, lack of resources is perhaps not the main reason, at least not immediately, and is certainly not the only one.

The replies show that, according to the national correspondents, the shortage of funds is closely connected to the unawareness of and lack of confidence in mediation. Public opinion, through its lack of interest, does not press ministries to consider the importance of alternative methods of resolving domestic conflict, and little effort is therefore made to develop public funding of mediation systems (Germany, Lithuania, Slovenia).

Countries	Dans votre pays, la médiation familiale est-elle assurée par les parties? (Questionnaire Med_Fam, Q.5b)	Les usagers de la médiation peuvent-ils bénéficier de l'aide judiciaire? Si oui, doivent-ils payer une contribution? (Questionnaire Med_Fam, Q.5g)		Coût de la médiation pour les parties (Questionnaire Med_Fam, Q.5f)
Austria
Bosnia Heregovina
Czech Republic	Yes	Yes	No; supported by Town Hall of Prague
Germany	Yes	No		1. Depends on the mediator: The rate for an hour is between € 80 and € 400. 2. Here (ÖRA):  between 25 to 130 € one session 3. In advise centers usually 2% of the net encome of each person per hour. In a mediation practice usually fee arrangements, between 50 € and 250 € per hour, depending on subject of conflict, experience of mediator and economic situation of the clients. 5. Agreement, depends on the case 6. That depends from the amount of time the mediator has to invest
Hungary
Lithuania	Yes	Yes	- In mediation pilot scheme in Vilnius city 2 district court mediation is provided free of charge. - obligation of providers of primary legal aid to take measures to conciliate parties. This is meant to provide for development of mediation through legal aid system. - several NGOs’ operated mediation schemes funded by private funds.
Poland	Yes	Yes	Usually they have to pay for it, but they can use non-governmental institutions of legal aid as well, and then it’s free.	In family  mediation it is 60 PLN (about 15 euro) for the first session and 25 PLN (about 6-7 euro) for each next session. By the way, this is the exact payment for mediator (or two if it’s co-mediation) for one session (no hourly basis) with tax included.
Portugal
Romania		No		According to the law, the mediator is entitled to honorary payment, established through negotiation with the parties, and to a refund of the mediation expenses. The amount of the honorary payment should be reasonable, and it shall take into account the nature and object of the dispute. (art. 26 of the Law)
Slovenia	Yes	Yes	it is complicated procedure. If the user doesn’t have funds to get legal counselling and he wishes to attend mediation with a lawyer, a lawyer is appointed to him through legal aid of the court free of charge.	1. 50 €. 2. Mediation at the District court of Ljubljana is free of charge. The parties only have to pay the expenses of their own participation (possible expanses for a lawyer, travel expanses…)
Sweden				Cooperative discussions are free, family counselling has to be paid to a certain extent by the users or in certain cases can be free and funded by the municipality.
United Kingdom (England and Wales)	Yes	Yes	No	Costs vary depending on the type of mediation and its duration.

A consensus seems to have emerged in those States that require users to pay for mediation: a system of legal aid has been established everywhere, with the notable exception of Germany (where mediation can be very expensive, moreover).

However, users are normally asked to make a contribution. Although they may sometimes be exempted from it thanks to assistance from non-governmental organisations (Lithuania, Poland), the procedures for obtaining it are often complicated (Slovenia). It seems more effective, whenever possible, for a public institution to support the user (Czech Republic).

It has not been possible to compare mediation costs for users in the different States on the basis of the information provided to the CEPEJ-GT-MED for this purpose: not all States supplied the data in euros – which can be a source of error owing to fluctuating exchange rates – and, more importantly, not all States estimated the cost of an hour of mediation, since some estimates used a mediation “session” as the unit.

This type of comparison between States is difficult to carry out in any case, since it must include a weighting for standard of living and average wage in each country.

Nevertheless, startling disparities of cost can be observed even within the same State (in Germany, for example, we find price ranges of €80-400/hr, €50-250/hr and €25-130/hr).

The existence of these ranges is explained by a number of variables: the subject-matter of the dispute, its duration, the mediator’s experience and the users’ economic situation.

Organisation of mediation: from self-regulation to stricter control of the profession?

Recommendation Rec (98) 1 provides as follows:

II.c. Irrespective of how mediation is organised and delivered, states should see to it that there are appropriate mechanisms to ensure the existence of:

- ...

- standards to be achieved and maintained by mediators.

At first sight, States seem to have realised the need to introduce mechanisms to guarantee the quality of mediation services. However, a closer look shows that the safeguards established may be fragile.

Most States prefer to leave the mediators themselves to lay down the standards to which they will be subject rather than guaranteeing by law the existence and maintenance of quality standards by the mediation services.

This inevitably raises some questions, including whether self-regulation is enough to guarantee the requirements of good-quality mediation.

Countries	Existe-t-il des mécanismes garantissant la qualité des services de médiation? (Questionnaire Med_Fam, Q6a)	Quels sont ces mécanismes (Questionnaire Med_Fam, Q6b)?
		Autorégulation (codes de conduite, etc.)	Accréditation des médiateurs	Accréditation des organismes fournissant des services de médiation	Autres mécanismes
Austria
Bosnia Heregovina
Czech Republic	Yes, in Association it is realized only by  mediators with an accreditation	ethical codes, professional codes and standards of organization, World mediation forum	Yes, educational ones	Yes, by Ministry of education	It is suggested in a law about mediation
Germany	Yes	Self organisation, Precise guidelines by institutions for training: BAFM requires for membership a training of 220 hours (incl. supervision) and documentation of 4 cases of mediation. All members of BAFM accept the European Code of Conduct.
Hungary
Lithuania	Not well developed yet.	Only self regulation at the moment. Due to the lack of professionals and trainers accreditation schemes are not considered yet, but may be considered in the future.
Poland	Yes	Standards of practice developed by Family Mediators Association, standards of mediation training developed by Family Mediators Association (based on standards of European Forum Training and Research in Family Mediation), code of ethics developed by Polish Center for Mediation.	Procedure of accreditation for mediators developed by FMA	mediators must be approved by professional organisations which are obligated to deliver lists of mediators to the court.	No
Portugal	Yes	After the training of Mediators, only in a voluntary basis they can attend conferences and seminars and so on.They have a portuguese Code of Conduct as wellas the European Code of Conduct.	Yes
Romania	Yes, there are.	The tasks of the Mediation Council are: - it develops the training standards in the field of mediation, based on the best international practices in the field; - it gives advice on the professional training programs for mediators according to art. 9 al. (2); - it supervises the observance of training standards in the field of mediation; - it adopts the Code of ethics and professional deontology for accredited mediators, and it takes measures for the observance of the provisions of the Code of ethics and professional deontology for accredited mediators; (art. 20 paragraph b), e), h), and j) of the Law)	- it authorizes the mediators in accordance with the provisions of this law
Slovenia	1. We are workind by the standards of European code of mediators and we also have our own code for mediation wich is very much similar to European one. We are also members of the German mediation Budesverband. 2. Yes	1. - it is a code who undertakes those who want’s to work by criterion or standards of mediation. 2. -          Self regulation (codes of conduct, etc.)? The mediators have to act according to the Code of conduct for the court annexed mediation. We also conduct the qualitative research of mediation programs. Parties are asked to fill out a questioner at the end of mediation about their satisfaction with the work of the mediator and the mediation process.	1.– it is a certificate who gives mediators the right to worh and who confirms that they went throught some qualifications for mediators or trainings. 2. -          Yes, only mediators that have finished the basic trending for mediators can conduct mediations at the District Court of Ljubljana.	1. – it is accreditation who allows organizations to do mediation. But mediation is still in a disorder in Slovenia, wich means that we still do not have this kind of accreditation.  PIC is now in a process of getting a accreditation of Bundesverband mediation in Germany, so we could work also under their licence. 2. -          No.
Sweden	For mediation provided by the state the mediators are employed by the court or by the municipality and thus have to be of a certain standard. Not only have most of them graduated from university but a considerable amount of those who work with co-operative discussions have attended extra training for this task, e.g. family therapy or network training etc.
United Kingdom (England and Wales)	Yes	Yes	Yes	Yes	Legal Services Commission franchises

In order to improve the impact of Recommendation Rec (98) 1, the draft report would perhaps be well advised to propose among its specific measures the introduction of State supervision of mediation services.

This supervision seems necessary in family cases, which have important public policy repercussions and cover particularly sensitive fields (childhood, international elements, etc.). In the absence of real safeguards, abuses are more likely to occur.

The stopgap measures introduced to control quality shortcomings of mediation services are often disappointing (which no doubt partly explains judges’ lack of confidence in mediation).

Countries	Comment palliez-vous les insuffisances de qualité des services de médiation? (Questionnaire Med_Fam, Q6e)	Existe-t-il des garanties visant à s’assurer qu'une médiation n'aura pas lieu si la personne partie à la médiation ne peut pas comprendre le sens de la procédure? (Questionnaire Med_Fam, Q6d)
Austria
Bosnia Heregovina
Czech Republic		Yes, standards-ethical and educational
Germany	In our PR work, our proposals for legislation and our training we have the approach, that only persons with qualified training are allowed to work as mediator.	2. Yes but not by law 3. Sensitization to perceive it is part of our training. 4. That’s a question of ethics of each mediator. 5. No 6. Professional ethic of the mediators
Hungary
Lithuania	No at the moment.	No
Poland	FMA is or improve existing lobbing to set up better regulations ones. Setting up and keeping professional standards within mediators associations. Informing public on standards of practice, and on institutions or mediators recommended.	Practically no. It depends on mediator’s competence.
Portugal		No, it depends entirely on the common sense of the Mediator.
Romania
Slovenia	The Alternative Dispute Resolution Department tries all the time to improve mediation process. Advance trainings for mediators are organised to improve the knowledge and skills of mediators.	1. Yes, we have questionnaires which they have to fill in and we also have very well experienced mediators who send people to other institutions if necessary. 2. The decision that the mediation should not proceed if the person is not capable of understanding the meaning of the process is left up to the mediator.  If the mediator finds this to be true, he can cancel his consent for mediation at any time.
Sweden	If the user is not content with the mediation and feels that he/she  has beent treated badly there is always the possibility to report it to the local government and ask them to look into it.	All mediation should be performed as long as the users can benefit from it. If a person can’t befit from it, it should stop.
United Kingdom (England and Wales)	Self-regulation by party complaint to mediation service and then to mediation organisation	Yes

Admittedly, States often try to improve the overall quality of mediators by licensing only those with training and prior accreditation. But once accreditation has been granted, most safeguards then depend solely on the mediator’s presumed “expertise”, “common sense” and “sensitivity”, apparently without any other form of supervision.

Organisation of mediation: diversity of mediator training (Questionnaire Med_Fam, Q7)

Recommendation Rec (98) 1 provides as follows:

II.c. Irrespective of how mediation is organised and delivered, states should see to it that there are appropriate mechanisms to ensure the existence of:

- procedures for the selection, training and qualification of mediators;

- ...

Asked about States’ requirements regarding a mediator’s professional background, national correspondents sometimes replied that there were no particular statutory requirements (Germany, Lithuania, Portugal, United Kingdom).

On the other hand, some countries did have specific requirements. Thus in Poland,

“according to the law, to become a family mediator one has to be above 26 years old; have full public rights, have good behaviour certificate, have theoretical knowledge and practical skills to conduct mediation in family cases, be approved by professional organisation,”

and in Romania,

“in order to act as a mediator one needs, to have graduated a higher education institution, and to have 3 years practice experience or to hold a master degree in the field of mediation (art. 7 paragraph b) and c) of the Law)”.

Countries	Existe-t-il une formation spéciale pour les médiateurs? (Questionnaire Med_Fam, Q7a)	Quel est le contenu et quelle est la durée de cette formation? (Questionnaire Med_Fam, Q7b)	Cette formation est-elle suffisante? (Questionnaire Med_Fam, Q7c)	Comment pourrait-on l'améliorer?
Austria
Bosnia Heregovina
Czech Republic	Yes	96 hours + supervision and possibility to get more details in law, psychology, anything needed individually	It is the longest training in our country We also co-mediate with our new mediators
Germany	Yes by formation institutions accredited by the BAFM	220 Hours, incl. Supervision, and 4 cases documented	1. Normally,  yes 2. It is sufficient to begin but not sufficient to stay and to develop the profession 3. Sufficient and necessary	1. what is missing is an obligation for supervision after the training is finished. 4. BAFM-training is sufficient. Many other german trainings in mediation are following the example set by BAFM. The “academy of lawyers” has left it and offers a training of only 90 hours. Lawyers which really are putting mediation in practice are looking for more training. 5. Participation on further training courses
Hungary
Lithuania	Training courses are organised by universities.	At the moment, they are three-four days intense mediators training courses offering development of basic knowledge and skills. Short (2-4 academic hours) seminars with overview of mediation principles and techniques are organised as well.	It corresponds to Lithuania’s needs at the moment.	Universities consider offering variety of deeper training as the need will emerge (including possible master’s degree studies).
Poland	Yes. There are few mediation training programs in Poland (6-7). Each is provided by different institution, sometimes by individual trainers. Some of these institutions are training only, some are offering training and mediation services.	80 hours interactive program on family mediation focusing on shaping practical skills in role play simulations, case studies, discussions. Training has three main parts: family mediation theory and skills, legal knowledge, family and child issues in mediation.	In our trainees’ opinion it’s one of the best training programs in  Poland currently (mainly, because it’s very practical), but of course it’s not sufficient.	We need to provide our trainees with more possibilities of co-mediating and supervision when they start to mediate by themselves. Also we need to develop supervision rules for practicing mediators.
Portugal	Yes	180 hours.	I think, it is sufficient.
Romania	Yes, there are specific training programs -within the framework of international projects implemented by the Ministry of Justice, - within the the activity of the NGOs acting in the field. The Mediation Council will approve the training curricula and will also authorize the institutions that will provide courses on this topic. The new law is meant to set up a standardized training system for mediators.	The Mediation Council will establish the curricula for the training.	Yes, it is
Slovenia	Yes, we have several trainings.	1. 100 hour basic training and 100 hour continuing training on family mediation, 50 hour continuing mediations for business and for labour mediation. 2. The basic training for mediators is at least 40 hours long.	1. Yes they are. They could only be improved with much more supervisions and permanent training programs after obtaining certificate. 2. The basic training is not sufficient, that’s way we provide advance trainings, expert meetings for mediators and joined meetings of mediators and judges.
Sweden
United Kingdom (England and Wales)	Yes	Organised by mediation organisations; 6 days classroom and continuous assessment by way of CPD (Continuing Professional Development).	Not provided by public entities

There is training for mediators in all States. This training is provided by sources which vary from State to State: universities (Lithuania), associations (Germany) and institutions (Poland).

The number of hours of training varies considerably between countries (from a few hours to some 250), but it seems impossible to make a real comparison owing to the composition of these hours, which sometimes include supervision by a more experienced colleague during the initial stages of practice and sometimes exclude it. For the purposes of comparison, in future questionnaires the CEPEJ would be well advised to draw a distinction between practical and theoretical training.

At all events, it may be observed that disparities exist even within a given country, without the content of training raising any problems of comparison. Very often the training does not entail a uniform number of hours: in Slovenia, for example, the figure ranges between 50 and 250. Similarly, in Germany the associations provide between 90 and 220 hours of tuition. Such variations (up to a fivefold difference) seem hard to justify and lack transparency for the user.

Process of mediation: confidentiality (Questionnaire Med_Fam, Q.8)

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

[…]

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

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

[…]

	Quelle est le champ d’application de la confidentialité? (Questionnaire Med_Fam, Q.8a)
	dans les relations entre le médiateur et les parties?	dans les relations entre le médiateur et les tiers/les tribunaux/les autorités?	dans les relations entre les parties et les tiers/les tribunaux/les autorités?	quand on évoque le processus de médiation (informations, propositions, arguments, etc. présentés tout au long de la médiation)?	quand on évoque les résultats de la médiation (accord de médiation)?
Austria
Bosnia Heregovina
Czech Republic
Germany	3. In principle a binding commitment for confidentality is part of the mediation contract, also a waiver of calling the mediator as a witness. 4. A waiver of calling the mediator as a witness by agreement is frequent.	Yes	3. The commitment is also effective in relationship to third parties and the court in civil actions. In criminal proceedings there is only a special protection if the mediator is a lawyer.	3. Confidentiality sometimes is very important for clients, in familiy mediation less often than in economic mediation. 4. On trial parties often have obligations to provide information. In regard to presented documents is the posibility to agree a contractual penalty.	1. Confidentiality by law. Between third parties, self contructing in the beginning of the mediation. 2. Only settled by the Mediator and the parties no law 6. Depends from the agreement between the parties and the mediator
Hungary
Lithuania	These aspects are not well developed yet.
Poland	Full.	Full - mediator is obliged to keep the whole process of mediation confidential unless both parties unanimously void the privilege.	It depends on them. Parties are informed at the beginning of mediation that they cannot refer to information obtained during mediation at court. Such information has no value as a proof at court.	As above.	Agreement is presented to the court, so it is not confidential.
Portugal	Yes
Romania	The mediator is bound to keep the confidentiality of the information he/she receives during his/her mediation activity, as well as confidentiality of the documents drawn up or that have been entrusted to him/her by the parties during mediation, or even after his/her mediator function ceased. (art. 32 of the Law) The arguments brought during mediation, by the disputing parties or by other individuals involved in the procedure, as well as by the mediator, are confidential in relation to third parties and cannot be used as evidence in a judicial or arbitration procedure, with the exception of the case where the parties decide otherwise or the law provides otherwise. The mediator shall draw the attention of the persons taking part in mediation as to their obligation to observe the confidentiality principle, and the mediator may ask them to sign a confidentiality agreement. (art. 53 of the Law) The mediator cannot be heard as a witness regarding the facts or acts he/she was informed on during the mediation procedure. In penal cases, the mediator may be heard as witness only with the prior special written consent of the parties, and, if necessary, of the other persons concerned. (art. 37 al. 1 of the Law)
Slovenia	Mediator cannot revile to the opposite party what is revelled to him as confidential in a separate meeting. Also the parties pledge in the statement of confidentiality that he/she will not call the mediator as a witness in a court proceeding if the mediation is not successful.	Mediator cannot revile to anyone what he heard during mediation meetings, except when he finds out about a criminal offence or the attempt or preparation of a criminal offence.	In the statement of confidentiality the party pledges that he/she will not revile to anyone what he/she learns in the mediation meeting.	All the information gained in the individual case is confidential.  Everything, except consents of both parties and the final agreement, if the mediation finishes successfully, is destroyed at the end of mediation.	The information about the number of settlement agreements is public, but we do not give information about which specific disputes have been resolved in mediation.
Sweden	The confidentiality is very strict.  Mediators are not allowed to speak to anyone about what is said in a session. The parties are free ton speak to anyone what is happening in a session but not the mediator. The only time he or she can say anything about what is  said and done in a session is if he or she finds out about child abuse or anything that is conflicting a child for which the punishment is two year in prison. The mediator is not allowed to give the court any other information than that of a result from the parties; they have reached a solution and what that solution may be or the negotiations have failed
United Kingdom (England and Wales)	As agreed between them except where welfare of children or person at risk of immediate harm requires disclosure.	Disclosure allowed if both parties agree.	Disclosure allowed if both parties agree.		As agreed by parties

	Le champ d’application de la confidentialité est-il différent dans la médiation en marge des tribunaux («Court annexed mediation»)  et dans les autres types de médiation spécifiques? (Questionnaire Med_Fam, Q.8b)	Existe﷓t﷓il des exceptions au principe de confidentialité? (Questionnaire Med_Fam, Q.8e)
		Oui	Non
Austria
Bosnia Heregovina
Czech Republic
Germany	2.  yes but not very clear and sure, only helping constructions 3. In court annexed mediaton clients often can hardly imagine, that the mediator judge doesn’t speak with the legal judge. 6. The judge must know whether an attempt of mediation has been made or not	1. If the paries agree. 6. In specific cases a conflict of values may arise
Hungary
Lithuania	No at the moment.	According to the rules on court annexed mediation confidentiality does not apply in such instances: 1) when it is needed to enforce settlement agreement; 2) when both parties agree on non applicability of confidentiality; 3) when it is necessary to safeguard public interest (in case of criminal offence, breach of interest of a child, etc.). Theses exceptions where adopted from the UNCITRAL model law and European Commission proposal for the directive on mediation. For justification please see travaux preparatoires of these legal instruments.
Poland	The term ‘court-annexed’ mediation is not clear to us. In court-annexed mediation centers if no agreement is reached mediators may be required to conduct family evaluation and issue recommendation to the judge (whether the role of mediator and evaluator is served by a different person depends on the center and mediator’s understanding of basic principles of mediation)		Current legislation does not specify the scope of confidentiality or the limits on confidentiality.
Portugal	We don't have mediations next to the Court for Family Mediation, so this question doesn't arise.
Romania		The role of witness has precedence over that of mediator with respect to the facts and circumstances one had knowledge of before becoming a mediator in the respective case. (art. 37 al.2 of the Law) Anyway, after being heard as witness, the mediator cannot continue his/her activity as a mediator in the respective case. (art. 37 al. 3 of the Law)
Slovenia	1. We believe that there are no big differences. 2. Yes. In court annexed mediation it is important that the mediator in a specific case can not be a judge or a lawyer in the same case. If the mediator is a  judge it is also important that he/she doesn’t talk about a specific mediation with a judge that will be judging the case if the mediation is not successful.	2. Mediator can not revile to anyone what he heard during mediation meetings, except when he is informed about a criminal offence or the attempt, preparation of a criminal offence.
Sweden	Please see above.	Please see under a.
United Kingdom (England and Wales)	No	Yes. Welfare of the child or person at risk of immediate harm must be paramount

	Quelle est la base légale pour la garantie de confidentialité? (Questionnaire Med_Fam, Q.8c)		Quelles sont les sanctions prévues en cas de violation de la confidentialité? (Questionnaire Med_Fam, Q.8d)
	Accords?	dispositions légales?
Austria
Bosnia Heregovina
Czech Republic
Germany	Agreement between the parties and the mediator	No	1. To break down the mediation. 2. For example revocation of a lawyers call to the bar. 4. Regarding the clients only by contractual penalty
Hungary
Lithuania	Agreements may not formulate efficient safeguards due to the specifics of Lithuanian legal doctrine, which is that at least basic principles on confidentiality should be provided by laws.	Rules of court annexed mediation, approved by the Court Council of Lithuania, entrench safeguards on the confidentiality as they are stipulated in the UNCITRAL model law. It may be anticipated that these rules would be applied by analogy of law (analogia legis) in case of private mediation.	No at the moment.
Poland	Yes	Yes	There are no legal sanctions for the breach of confidentiality. Mediator could be rebuke by his colleagues or be excluded from it.
Portugal	Code of Conduct	Yes, in the public Centers only	Specific rules don't exist. General Principles must apply as for any other professional secret.
Romania		Yes	In case of breach of confidentiality, there is the disciplinary liability of the mediator. (art. 38 paragraph a of the Law) Disciplinary sanctions shall be applied according to the seriousness of the breach, and they shall consist of: a written warning, a fine, the suspension of the mediator function, the canceling of the mediator function. (art. 39 paragraphs a), b), c) and d) of the Law)
Slovenia	Yes	No	No
Sweden
United Kingdom (England and Wales)	Yes		Depends on type of breach; eg, if disclosed in court without permission from parties, court will decide sanction in specific case.

An analysis of the national correspondents’ replies shows substantial agreement in their understanding of how far the duty of confidentiality applies in the judicial systems under examination.

In most countries the mediator has an almost total duty of confidentiality, which may be statutory (Romania) or contractual (Germany). It applies at all stages of the mediation process and even after its completion (Romania, Poland).

The judicial systems studied often make provision for mediators to be exempted from giving evidence in court regarding facts which they have learnt during mediation in their capacity as mediators. Exceptions are made in cases with implications for children’s health and safety (Sweden) or involving risk of immediate harm to a person (United Kingdom), or if the mediation process has uncovered a criminal offence, an attempted criminal offence or acts in preparation of such an offence (Slovenia). The question of whether a former mediator could appear as a witness in criminal proceedings also revealed appreciable differences between States. Some systems require prior consent from the parties to the mediation (Romania), while others lay down no conditions.

 

The parties themselves have a duty of confidentiality regarding the facts revealed during mediation, but this duty is often contractual: the confidentiality agreement may thus be terminated by common consent of the parties (Slovenia, Romania). The same rules governing the contractual duty of confidentiality extend to parties’ relations with third parties, the courts and the authorities: facts and documents cannot be disclosed except as otherwise agreed by the parties. 

The national correspondents whose systems included court-annexed mediation (Germany, Lithuania, Slovenia, United Kingdom) stated that there was no substantive difference between this type of mediation and other specific types of mediation regarding the extent of the duty of confidentiality.

 

An analysis of the national replies reveals the relativity of the confidentiality principle. Thus for mediators the confidentiality principle is strict (they cannot depart from it without the parties’ express consent) but all the same not absolute. All the national correspondents who replied to the question report the existence of exceptions. These exceptions cover cases in which the mediation process has incidentally revealed evidence of criminal offences, attempted offences, offences in preparation, a threat to a child’s immediate best interests or evidence involving the public interest. From the replies returned by the national correspondents it has been impossible to determine whether the mediator has a duty or has a right to reveal the above facts. As for the parties, they may terminate the prohibition on disclosing information acquired during mediation between themselves, between themselves and third parties/the court, or between themselves and the mediators, simply by mutual consent. The duty of confidentiality may also be terminated for the purposes of enforcing the agreement arising out of mediation (Germany).

Even if in some countries studied there are no statutory provisions relating to confidentiality (Germany, Slovenia), the general tendency is to provide a stable and specific legal basis for this crucial principle by means of a law, a code of practice or, failing that, simple agreement between the parties. On the other hand, there are no particular statutory penalties for breaching the duty of confidentiality. There are appreciable differences as regards determining liability if this duty is breached: for the parties, liability is determined according to existing law on civil liability in contract (Germany); for the mediator, disciplinary sanctions are sometimes laid down (Romania, Germany).

A particular feature of the family mediation process: participation of children

Under the terms of Recommendation Rec (98) 1:

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

[…]

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

[…]

The replies show that, most of the time, specific mechanisms have been provided to ensure that the children’s best interests are respected during mediation.

Apart from Lithuania and the Czech Republic (misinterpretation of the question?) and some inconsistency in the German answers (possibly due to lack of uniformity in training), all the replies mention specific provisions.

The various legislations seem to have achieved their aims to varying extents. Among the various provisions, we may note some approaches that might be worth promoting: private sessions between children and mediators, greater confidentiality, a review of the amount of maintenance agreed between the parents, etc.

Legislations differ markedly on the question of whether a mediator may hear a child.

While some countries said that hearings seldom or never occurred (Poland, Slovenia), most States explained that such a hearing “could exist” under clearly defined conditions, which themselves varied considerably according to State.

These conditions may relate to the scope of the hearing: thus in the Czech Republic a hearing is possible only if it covers matters relating to the children’s education. It is ruled out in divorce cases.

Age is another possible condition (children must be at least 12 years old in Hungary), often coupled with the children’s own wishes (Lithuania), although under some laws children must be heard once they have reached the minimum age (Hungary).

Parents’ consent often plays a dominant role, with parents being able to exercise a right of veto (Lithuania) entirely at variance with the new provisions in Sweden (1 July 2006), which has recently established a genuine “child’s right to be heard” (Sweden is one of the few countries to have ratified the United Nations Convention on the Rights of the Child, which established this right).

We may therefore find it surprising that the same best interests of the child require a Swedish mediator to hear that child whereas divorce precludes such a hearing for a Czech mediator, or that the right of expression of a Hungarian eleven-year-old is less than that of a Lithuanian eight-year-old whose parents have given permission for the hearing (it should also be pointed out that this paradox can be turned on its head, since a Hungarian twelve-year-old is certain to be heard, while a Lithuanian fourteen-year-old may encounter a parental veto).

Countries	Avez-vous des mécanismes spécifiques pour garantir le respect de l'intérêt supérieur de l'enfant? (Questionnaire Med_Fam, Q14a)	Les enfants sont-ils invités à participer aux procédures de médiation? (Questionnaire Med_Fam, Q14b)
Austria
Bosnia Heregovina
Czech Republic	Rights of children, (right to be free, have both parents, education…no violence, etc)	Only if an older child is one part of case: family rule in the house, relationships with one other member (not in divorce cases)
Germany	1. Yes: The children have one session if the parents agree within the mediation. 2. The mediator has the role to take care of third parties interest, by asking the main parties how there behaviour will be seen by the third party (children p.e.) 3. We teach in our training, how to secure interests of children in mediation. This concerns all phases of mediation by real participation of children in a session or by other techniques to include their interests and needs. 5. In court proceedings yes, in mediation no. 6. Professional training and professional ethic of mediators	2. Yes if useful 6. That possibility exists
Hungary	The whole proceeding is for the best interest of the child. Unless otherwise prescribed by law, mediators must handle any and all data and information obtained in a mediation process in strict confidentiality. This duty comprises that mediators must keep all information concerning children. The main purpose of the National Professional Federation of Contact Centre Mediators and the Contact Foundation in Hungary is to secure the best interest of the child. The Federation and the Foundation also take part in the work of contact centers in Europe, which resulted in the chart of contact centers. The best interest of the child is a determinant element of the chart.	If the children are older than 12 years, they have to be heard during the process. The children who have sufficient understanding can be heard just on the basis of the suggestion of the parties or the guardianship office. The National Professional Federation of Contact Centre Mediators prefer to save the child from the arguments of the parents. The Federation recognised that children can cause themselves because of the quarells between parents. Therefore the Federation uses the following clause: the child can meet with the other parent only if the parents made an arrangement before. The federation often propose mediation if the patient and the child have a conlflict with each other. This « adolescence » mediation is very efficient in almost every case.
Lithuania	No	If parties / mediators wish so.
Poland	-              mediator asks both parents to describe their child, its needs, etc., -              mediator uses these details to remind parents of the child best interests while they’re generating options for the agreement, -              if it is needed (e.g. there are specific problems with the child) mediator may advise parents to visit a specialist (psychologist, doctor, consultant) with or without the child, mediator can advise parents to read booklets or books about typical child problems connected with divorce or separation.	No, only a few organisations and mediators work with children in mediation.
Portugal	Yes, the Law rules that all decisions must be taken in the best interest of the children and the homologation of the settlement agreement by the judge shall check if the best interest of the children is achieved.
Romania	According to the legal provisions, the mediator shall see that the result of mediation does not prejudice the interest of the child, the mediator shall encourage the parents to concentrate mainly on the needs of the child, so that the taking into parental care, the actual separation or the divorce shall not infringe upon the upbringing and the development of the child. (art. 65 of the Law)
Slovenia	1. Yes, mediator is always underlining to the clients that they have to thing about the children. And if in any case the aliments are smaller then they should be. Centre for social work  is obliged to do the check of parents income and also the judge will not make the verdict until they have checked that is being well taken care of the children. 2. Yes. Before the court settlement in family mediation can be signed as a court settlement, a judge must examine if the agreement is in the best interest of a child.	1. Usually not. Only if they are old enough and they would like to participate. 2. Children can be a part of mediation proceedings.
Sweden	The Parental Code Chapter 6 sect. 2 a secure the best interests of the child.	Yes, as soon as it will serve its purpose children are invited, but it has until now been up to the parents and the mediators to decide if they will take the child in. From July 1 2006 the law states that in every decision concerning a child the child has a right to be heard, if the child so wishes.
United Kingdom (England and Wales)	Codes of conduct governing the whole process.	Where appropriate, yes.

Family mediation process: consideration of limitation periods

Countries	La législation de l'Etat prévoit-elle des dispositions empêchant l'expiration du délai de prescription lorsque les parties recourent à la médiation avant une procédure devant un tribunal? Veuillez préciser. (Questionnaire Med_Fam, Q 11a)	Si non, existe-t-il des projets visant à modifier la législation de l'Etat pour empêcher l'expiration du délai de prescription lorsque les parties recourent à la médiation avant une procédure devant un tribunal? (Questionnaire Med_Fam, Q 11b)
Austria
Bosnia Heregovina
Czech Republic
Germany	Yes (art. 203 BGB).
Hungary
Lithuania	No at the moment.	Yes, with the adoption of the new draft law on mediation
Poland
Portugal	No nothing there is any provisions about Mediation before prior the court of law action; so , in that case the limitation terms run, because the only way of breaking the running of limitation terms is  bringing the action before a Court of Law.	In the new project there plans to regulate the Mediation prior to court action, and of course the limitations terms.
Romania	Yes (art. 47 of the Law)
Slovenia	1. No 2. The Civil Procedure Act, Article 305b, paragraph 5, states that on the basis of the proposal by the parties, who agree that they try alternative dispute resolution, the court may interrupt the civil procedure for not longer than three months.	1. Not in our knowledge. 2. I don’t know.
Sweden
United Kingdom (England and Wales)	No limitation periods in family proceedings; delay will always be against the child's best interests.	N/a

The questionnaire replies show considerable differences between States in this field.

Firstly, there is a category of States which provide for suspension of the limitation period during mediation (Germany, Romania), sometimes limiting this suspension to three months with the parties’ consent (Slovenia). Suspension may then take effect on the date the mediation agreement is signed and end on the date when the mediation procedure is complete.

 

Secondly, there is a category of States which do not have such provisions at present but which plan to adopt them before long (Lithuania, Portugal).

Lastly, there is a third category of States which refuse to apply such provisions because they consider any suspension to be against the child’s best interests (United Kingdom).

The status of mediated agreements (Questionnaire Med_Fam, Q.12a, 12b, 12c)

Under the terms of Recommendation Rec (98) 1:

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

There are two possible approaches to the status of mediated agreements: the first presupposes that the parties’ freedom of contract will always take precedence, allowing them the option of withdrawing from the agreement as they see fit; the second presupposes that the agreement is enforceable, thus giving a court the authority to make the agreement binding on either of the parties.

Assessment of the replies show that both approaches exist within the Council of Europe.

	Accord sur le fait de recourir à la médiation dans un litige spécifique (Questionnaire Med_Fam, Q12a)		Accord résultant de la procédure de médiation
Countries	Statut juridique de l’accord	Exécution de l’accord: pouvoirs du tribunal	Statut juridique de l’accord (Questionnaire Med_Fam, Q12b)	Exécution de l’accord: procédures existantes (Questionnaire Med_Fam, Q12c)
Austria
Bosnia Heregovina
Czech Republic
Germany	1. Depends on mediation.	3. To go to mediation and to start and to continue mediation always is voluntarily. 6. As mediation is voluntary, the parties are free to give it up	3. In principle mediation agreements are effective with freedom of form. Some clauses in civil right always must be certified by a notary public: marriage contracts, contracts of inheritance and in regard of equalization of accrued gains, law of property and execution. 5. Binding on both parties. 6. The agreement is nothing more or less than a contract between autonomous parties	4. In principle mediation agreements are effective. To be enforceable the agreement must be certified by a notary public. 6. Enforceability can be achieved by notarial certification, by certification in court or by a court decision based on the agreement
Hungary
Lithuania		At the moment these agreements have are not legally enforceable. But the situation may change with the adoption of the new draft law on mediation.	According to the provisions of Civil Code and to the judicial practice written settlement agreements have power of law to the parties. If the agreement is approved by court, it has res judicata power. Oral settlement agreements formally (according to the provisions of the Civil Code) are null.	It is possible to apply to court for approval in summary proceeding of the settlement agreement which was concluded out-of-court. The application signed by both parties is needed. All settlement agreements concluded in court proceedings must be approved by court, otherwise they are not valid. When the settlement agreement is approved by court, it becomes res judicata. If the written settlement agreement is not approved by court party whishing its enforcement may launch the claim for the enforcement of the agreement.
Poland		There were cases in Poland where parties agreed to use mediation and the decision was rejected by the judge.	Agreement is binding for the parties and in matters referred from courts is included in court order and has the power of state verdict. Mediation agreement can be rejected by the judge only if it violates law, is incoherent or is contrary to the principles of social conduct.	None
Portugal	A mediation agreement reached under the Family Law after the homologation by the judge has the same force as a judicial decision	After the homologation by the judge: same enforcement  as a judicial decision	A mediation agreement reached under the Family Law,  after the homologation by the judge has the same force as a judicial decision and same enforcement  as well.	Yes. They have to bring an action before a court of Law, and ask for judicial decion.
Romania	Mediation sessions are forbidden before the signing of the mediation agreement. The agreement shall obligatorily be reached in a written form, between the mediator on the one hand, and the disputing parties on the other hand, and it shall include several clauses, under the total annulment sanction. – see art. 44.48 of the Law	The mediation agreement is an executory title concerning the obligation of the parties to pay the due fee owed to the mediator. (art. 48 of the Law)	The settlement agreement between the parties includes all the clauses the parties agreed on, and has the value of a written document under private signature. (art. 58 al. 1 of the Law)	The agreement between the parties can be submitted to: - the examination of the notary public in view of authentication (art. 59 al. 1 of the Law) or, depending on the case, - the approval of the court (in the case of a pending dispute which has been suspended at the request of the parties in view of carrying out the mediation procedure), which shall pass an order acknowledging the agreement between the parties under the provisions of the Code of civil procedure. (art. 59 al.1; art. 61 and art. 63 of the Law)
Slovenia	agreement as any other civil contract between parties	Participation in mediation is completely voluntary. Party can retract its consent for mediation at any time.	1. After clients have achieved the agreement they have to put it in a proper form (by notariat or in the court) to assure enforcement. 2. Agreement has no legal status until it is not signed in front of a judge in a form of legal settlement or as out of court settlement.	Yes, parties can sign a mediation agreement as a court or out of court settlement.
Sweden
United Kingdom (England and Wales)	None	Family mediation is a voluntary process	None	Yes - a Court order.

Accord sur le fait de recourir à la médiation dans un litige spécifique		Accord résultant de la procédure de médiation
Pays privilégiant la volonté autonome des parties	Pays privilégiant la force exécutoire de l’accord ou la volonté du juge	Pays privilégiant la volonté autonome des parties	Pays privilégiant la force exécutoire de l’accord ou la volonté du juge
Germany Lithuania (at the present) Slovenia United Kingdom	Lithuania (in the nearest future) Poland Portugal Romania		Germany Lithuania Poland Portugal Romania Slovenia United Kingdom

Relationship between mediation and standard legal proceedings (Questionnaire Med_Fam, Q.10b)

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

b. States should set up mechanisms which would:

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

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

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

In Germany, Lithuania, Poland, Romania, Sweden and the United Kingdom a judge may offer the parties mediation: he is at liberty to recommend it if he thinks that it may be successful.

In Portugal this does not fall within the judge’s competence.

The situation in Slovenia is unclear (conflicting answers).

Obligation on users to meet with a mediator (Questionnaire Med_Fam, Q.10a)

The Recommendation provides that:

            II.a. Mediation should not, in principle, be compulsory.

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

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

	Existe-t-il une disposition prévoyant l'obligation d'envisager une médiation avant d'intenter une action en justice ou/et une disposition concernant la médiation obligatoire? Veuillez préciser. (Questionnaire Med_Fam, Q 10a)
	Yes	No
Austria
Bosnia Heregovina
Czech Republic
Germany		1. – 6. No
Hungary
Lithuania		No
Poland		No
Portugal		No
Romania
Slovenia		1-2. No
Sweden		No
United Kingdom (England and Wales)	Yes. Lorsque le procès est financé par des fonds publics, il est obligatoire d’envisager une médiation.	No. Il n’existe pas de disposition rendant la médiation obligatoire.

However, it is certainly not impossible that some States may in future make mediation mandatory in certain circumstances: thus Poland is planning to require an attempt at mediation in divorce cases involving couples with non-adult children. It is refraining for the time being, perhaps because of the small number of recognised mediators and the lack of confidence in mediation shown by the Polish public and judges.

International matters: family mediation at the embryonic stage

In the actual words of Recommendation Rec (98) 1:

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

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

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

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

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

Countries	Des mécanismes permettent-ils le recours à la médiation dans des affaires comportant un élément international?	Lesquels? (Questionnaire Med_Fam, Q 13)
Austria
Bosnia Heregovina
Czech Republic
Germany	Yes	1. Some pilot projects from the Ministery of Justice in international parentships inbetween France an Germany, Germany and US, Germany and UK, etc., please look at www.bmj.bund.de. 3. BAFM participates in pilot projects.
Hungary	No special mechanisms.
Lithuania	No special mechanisms.
Poland	No special mechanisms.
Portugal	No special mechanisms.
Romania
Slovenia	No special mechanisms.
Sweden
United Kingdom (England and Wales)	Yes	Independent charity Reunite International Child abduction Centre has run a pilot project.

Correspondents were asked to indicate whether there were any procedures in their countries to facilitate family mediation when a case involving custody, access, parent’s place of residence, etc., had an international element.

This question was particularly important since the distrust that springs up between members of a family on the point of break-up is often heightened in international cases, and the effectiveness of mediation is therefore correspondingly reduced.

The findings are very disappointing.

Of the ten countries having returned the questionnaire, five had no special mechanisms, despite the mediation guidelines. Only two of them (Germany, United Kingdom) provided for specific measures, and even these were only at the pilot stage.

1.2.      Drafting specific measures

Our analysis of the questionnaire enables us now to put forward certain specific measures.

To this end, we shall follow the framework of aims laid down for the CEPEJ-GT-MED in the document on methodology for organisation of the working group.[9]

        Publicising the legal instruments adopted by the Council of Europe

Aims:                To propose approaches (in the Council of Europe and within States) for improving knowledge and effective application of non-binding instruments adopted by the Council of Europe.

First approach: Gaining the confidence of researchers, parties’ representatives and judges by involving them as closely as possible in mediation in order to ascertain their expectations.

Second approach: Gaining the public’s confidence by widely publicising the advantages of mediation in the light of States’ needs

        Revising existing instruments

Aims:                In the light of developments in the mediation systems in individual States, to consider revising the recommendation and to make proposals to this end.

First proposal : Financial imbalances between parties

Second proposal : Concept of children’s best interests

Third proposal : Closer supervision of the profession based on a code of practice

Fourth proposal : Standardisation of family mediator training in Europe (on the basis of specific guidelines) and supervision of new mediators

Fifth proposal : Provisions concerning the status of mediated agreements

Sixth proposal : Suspension of limitation periods

Seventh proposal : International family mediation

Eighth proposal : Requirement for judges to inform users of the existence of family mediation programmes

Ninth proposal : Standardising the confidentiality principle and the penalties for breaching it

1.2.3.    Developing specific tools to improve implementation of the principles

Aims:                To propose, taking into account existing national and international instruments in the field and respecting the legal traditions peculiar to each State, further study of some specific questions concerning mediation.

To propose approaches for practical follow-up to the recommendation: best practice guides, guidelines, codes of practice, etc.

First question for further study: The concept of a public budget for mediation

Second question for further study: Cost of mediation to users

Third question for further study: Appropriateness of States’ approaches to selection criteria for mediators

Fourth question for further study: Can the issues of children’s participation and children’s best interests lead to standardised responses regarding conditions for children’s hearings?

Fifth question for further study: Time-limits for enforcement of mediated agreements when the latter are binding

2. Recommendation Rec(2002)10 on mediation in civil matters

        National impact

       National awareness and use of the recommendation

Recommendation Rec (2002)10 on mediation in civil matters says:

'18.  States should provide the public and the persons with civil disputes

  with general information on mediation.

19. States should collect and distribute detailed information on mediation in civil matters including, inter alia, the costs and efficiency of mediation.

20. Steps should be taken to set up, in accordance with national law and practice, a network of regional and/or local centres where individuals can obtain impartial advice and information on mediation, including by telephone, correspondence or e-mail.'

La Recommandation Rec(2002)10 sur la médiation en matière civile est-elle connue dans votre pays ? (Questionnaire Med_Civ, Q.1a)
Oui	Non
Bosnia Herzegovina Finland Hungary Lithuania (scholars and legislator) Portugal Romania United Kingdom	Germany

Note: contradictory responses meant that Slovenia could not be included in the table.[10]

From this table it seems that there is indeed 'awareness' of the recommendation; but some comments by correspondents would indicate that where it is known, it is known only to professionals, or only to a specific category of professionals, because sometimes mediators themselves are ill-informed about it.

Some countries, however, such as Bosnia and Herzegovina, try to publicise it as broadly as possible: 'The Recommendation is known in judicial and legal circles as well as within the Association of Mediators in BiH. Some specific recommendations, principles and explanations in the document are incorporated into local legislature and as such are promoted publicly as well. '

Mediation in civil matters seems, from the responses, to be the kind which prompts the greatest amount of scholarly research: research is ongoing or planned in a number of countries (Germany, Hungary, Lithuania, Slovenia, United Kingdom), and the number of projects has risen significantly in recent years (especially in Lithuania where the study of mediation is even part of the university syllabus) (Questionnaire Med_Civ, Q.3f).

	Impact de la Recommandation Rec(2002)10 sur la médiation en matière civile (Questionnaire Med_Civ, Q.1b)
Pays dans lesquels la Recommandation Rec(2002)10 sur la médiation en matière civile est connue (Questionnaire Med_Civ, Q.1a)	Impact faible (informatif, etc.)	Impact fort (réformes normatives, développement de la pratique judiciaire, débat doctrinal, etc.)
Bosnia Herzegovina		Voir ci-dessous*
Finland		It has, to some extent, contributed to the development of mediation in Finland.
Hungary		During the codification of the Act LV. of 2002 on Mediation, the legislators of the Ministry paid attention to the Recommendation. The Act contains several regulations, which are in accordance with the Recommendation. The Recommendation has an important role in the development of mediation in Hungary.
Lithuania		It influences formation of the legal doctrine as well as preparation of the draft laws and other legal acts.
Portugal		Voir ci-dessous**
Romania	Its main impact stays at the information level and, generally, with those working in the field of mediation or those who have contact with this field. Equally, the organization of the profession of mediator was taken into account when drafting the Law on mediation.
United Kingdom		The Guiding Principles outlined in the Recommendation are considered when policy initiatives with regard to the promotion of mediation are discussed and formulated by HMCS.

* Bosnia and Herzegovina: Among other documents, the recommendation was taken into consideration when drafting the Law on Mediation Procedure, as well as the Implementing Bylaws. The Recommendation can be used as an argument and guidelines in all future developments. Mediation in BiH is just closing its pilot phase and entering fully into force and therefore it is early to mention precise impacts.

** Portugal: As the Portuguese law predates the recommendation the impact is not yet known.

In a number of countries the recommendation has had a direct impact on legislation (Hungary, Lithuania, United Kingdom); in others it has 'contributed to the development of mediation' (no further details given).

Bosnia and Herzegovina says it has used the recommendation but cannot assess its impact because the reforms carried out are so recent: however, the mere fact that account was taken of the recommendation in drafting the law is already in itself evidence of a powerful impact.

This shows that the principles embodied in the recommendation are helpful to countries which do not yet have a detailed and extensive system of civil mediation (Bosnia and Herzegovina) and to countries seeking to reform their systems.

Civil mediation services of which the general public is unaware and which require a well-defined communication strategy (Questionnaire Med_Civ, Q.3a and b)

The general public in Europe cannot at present be said to have real awareness of or confidence in penal mediation services.

The responses frequently lament the lack of public awareness of mediation: the public has heard something about mediation, true, but very few people really know what it is about (one in three Germans, according to one correspondent). There are various explanations for this lack of awareness: mediation is a recent phenomenon (Hungary, Romania), which is not being promoted for lack of funds (Slovenia). The consequences are the same across the board, however: lack of awareness means a lack of confidence and users have trouble seeing mediation as a credible alternative (Germany, Romania, Slovenia).

The United Kingdom notes optimistically that those who use mediation often obtain satisfaction, which will ultimately make mediation services more popular.

Countries	En cas de litige, quelles sont les informations fournies aux usagers concernant le principe de médiation et les procédures de médiation existantes ? Ces informations sont-elles suffisantes ? (Questionnaire Med_Civ, Q.3d)
Austria
Bosnia Herzegovina	For now, the users can request mediation in a limited number and types of cases only within pilot projects in Sarajevo and Banja Luka in the disputes already submitted to the municipal courts in these two towns. In Autumn 2006 the Association plans to launch mediation service throughout the country in full capacity, which means mediation will be accessible to the parties also before the court procedure is started. In the pilot procedure, apart from the afore mentioned awareness raising activities, the parties are suggested mediation by the court providing sometimes verbal, but mostly printed information about mediation process, its principles, benefits and logistical information. Parties can ask for additional information in the Mediation Centres.
Czech Republic
Finland	E.g. lawyers inform their clients about the possibility, when appropriate.
Germany	1. There isn’t sufficient information. 2. There is no covering the needs information. Court annexed mediation projects are informing all parties at the beginning of legal proceedings.
Hungary
Lithuania	Not sufficient.
Poland
Portugal
Romania	The mediator has the right to inform the public as to the exercise of his/her tasks, observing the confidentiality principle. (art. 25 of the Law). The mediator is obliged to offer all explanation required by the parties regarding the mediation activity so that the parties may understand the purpose, limits and effects of mediation, especially on the relationships that are subject to mediation. (art. 29 al. 1 of the Law)
Slovenia	1. In the booklet there are informations about mediation principles, about procedure and all other thigs the parties has to know. I thik this is sufficent. If they don't understand something they call me on the phone. 2. Insurance companies give their customers main information about possibilities of solution of their dispute with insurance companies (for example with mediation or court). At our mediation centre all customers get all information about principles and mediation procedure. They also get act about mediation. I think that this information are sufficient. 3. / 4. /
Sweden
United Kingdom (England and Wales)	Informative leaflets and posters available in all county courts about the Mediation process and details of the National Mediation Helpline (NMH)

The replies from national correspondents show that in all the systems studied, potential users are told about the mediation option and its procedures, principles, advantages and organisational aspects.

This information is communicated to the parties either by the judge in charge of the case or by the mediator himself. The mediator often has a statutory obligation to inform users (Romania). General information about mediation is often available (in the form of guides, posters and publicity leaflets) at courts and mediation centres.

 

Given the paucity of responses it is hard to make an overall evaluation of the quality of the information supplied. The German and Lithuanian correspondents reported that users involved in litigation were not given adequate information.

Recommendation Rec (2002)10 on mediation in civil matters says:

'21. States should provide information on mediation in civil matters to professionals involved in the functioning of justice.'

Countries	Questionnaire Med_Civ, Q.9a
	Existe-t-il des mesures spécifiques pour sensibiliser les juges à la médiation ?	La médiation fait-elle partie du programme de formation des juges ?
Austria
Bosnia Herzegovina	Mediation is sometimes a topic of other seminars dedicated to Civil Procedure as well. The Association of Mediators keeps close contacts with courts and judges and informs them on latest developments in mediation in BiH through presentations, trainings and newsletters.	Mediation is included in the official programme of the Judicial and Prosecutorial Training Centre in both Republika Srpska and Federation of Bosnia and Herzegovina.
Czech Republic
Finland
Germany	1.             There are numerous projects in court annexd mediation in Germany (Niedersachsen, LG Paderborn, VG Minden etc.)	2. Mediation is a legal “key-qualification” in the education of jurists at university (§ 5a Abs.3 DRiG). Further education isn’t intended.
Hungary	The law allows, that judges can recommend parties to turn to a mediator.	According to the plans of the National Judicial Council, mediation will be included in the training programme of judges.
Lithuania	In 2005 mediation training of Vilnius city 2 district court judges was carried out.	Subjects of mediation and judicial conciliation were included in the training programme of judges in 2006.
Poland
Portugal	Yes, there is for the Judges of Peace.	For the other Judges there are Conferences and Seminars during the training.
Romania	The awareness of judges concerning the provisions of the Law on mediation and the mediation guidelines will be raised within the framework of the Phare assistance project implemented by the Ministry of Justice.
Slovenia	1. I think that every judge knows what mediation is. 3. We try to include judges in the development of the mediation. We also conduct joined meetings of the mediators and judges.	1. there no special training, except for judges who are becoming mediators. 3. The training for judges about the referral to mediation has also been provided. 4. Judges have 40 hour trainings
Sweden
United Kingdom (England and Wales)		The Judicial Studies Board provides a civil law training programme for judges which includes an element of ADR and mediation training.

The table shows that in many countries measures are taken to make judges aware that there are alternatives to litigation in the resolution of disputes. These measures include the holding of seminars, training and presentations (Germany, Bosnia and Herzegovina, Lithuania, Slovenia). Official training programmes for judges very often include mediation (Germany, Bosnia-Herzegovina, Lithuania, Portugal, Slovenia, United Kingdom).

       National application of the recommendation's principles

To give an accurate picture of how the recommendation is actually being implemented nationally, we shall follow its guiding principles in the order in which they are set out.

I. Definition of mediation

Recommendation Rec (2002)10 on mediation in civil matters says:

'1. For the purposes of this Recommendation, “mediation” refers to a dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators.'

II. Scope

Recommendation Rec (2002)10 on mediation in civil matters says:

'2. This Recommendation applies to civil matters. For the purpose of this Recommendation, the term “civil matters” refers to matters involving civil rights and obligations including matters of a commercial, consumer and labour law nature, but excluding administrative or penal matters. This Recommendation is without prejudice to the provisions of Recommendation No. R(98)1 on family  mediation.'

The national correspondents are unanimous that all matters of a civil and commercial law nature lend themselves to mediation. Any extraneous elements in the dispute do not present an insurmountable obstacle (Bosnia and Herzegovina).

Disputes most frequently resolved by mediation include actions for debt repayment (Slovenia, United Kingdom), damages (Hungary) and all other actions involving financial claims. The success of mediation depends not so much on the matter at issue as on the parties' willingness to co-operate and maintain contact after mediation (Germany, Slovenia, Hungary).

But there are exceptions: some types of dispute are less amenable to mediation for a variety of reasons.

Actions not resolvable by mediation include all disputes in which the parties are not free to exercise their rights, actions involving the public interest, disputes entailing collective procedures, and other disputes which are by nature difficult to resolve through compromise (Bosnia and Herzegovina, Germany, Slovenia, United Kingdom).

In specific cases where the parties' interests are too polarised, where the parties are not contemplating conciliation and do not wish to maintain contact after mediation, it is better to go through the courts.

Countries	Quels types de litiges/domaines  peuvent être efficacement résolus par la médiation ? (Questionnaire Med_Civ, Q.4a)	Quels types de litiges/domaines sont moins bien résolus par la médiation ? (Questionnaire Med_Civ, Q.4b)
Austria
Bosnia Herzegovina	Generally speaking all civil cases are appropriate for mediation including the ones with the international elements. Law on Civil Procedures as well as the Law on Mediation Procedures apply to all civil, including assets division from family cases, commercial and labour cases.	There are, however, some cases in which private parties are limited in disposition (banking, public interest etc) so mediation is not possible in those cases. Bankruptcy cases are not the most appropriate for mediation in BiH, given the fact that the country is post-war one and there is an evident luck of trust amongst the people, so the bankruptcy cases are better to be dealt with in court. Ownership cases in which state or public agencies owned real estate, since the representatives usually have to have authority to negotiate ownership transfer and pass complex administrative procedures. Up to date experience suggests that the cases with the state, entity or similar legal subjects like the parties are not appropriate for mediation at this point, given the level of daily politics involvement in many decisions. There is also a concern that given the fact that the mediated agreement has a power of an enforceable decision by the law, real / immobile property ownership transfer and similar cases at this point are not appropriate since it would not be in accordance with the land registry to have mediation agreement as the title for registration. On top of this most of the mediators have no the expertise needed for those cases. Although, labour cases are very appropriate for mediation, there is however a big obstacle in implementation of those settlements with state owned companies, due to the fact that most of them are in a very bad financial situation if not bankrupt.
Czech Republic
Finland	All civil matters and contested petitionary matters before the general courts may be mediated as provided in the Act (Sec. 1).
Germany	1. All sorts of disputes with an aspect of relationship, No imbalance of power, which isn’t possible to compensate. The parties must be able to negotiate openly to result. 2. All sorts of disputes with an aspect of relationship, inner conflicts of a company, disputes in continuous business connections, disputes in continuous obligations.	1. Unique disputes (f.e. road accidents); high escalated conflicts; conflicts of interests (not positions) which are incompatible; disputes about a fundamental issue. 2. If the result of litigation is clear to foresee, if the value in dispute is very low, if a party needs legal aid.
Hungary	In Hungary, firs of all, mediation can be effective in family disputes, individual labour disputes, disputes of pecuniary claims and disputes arising in connection with property rights. Mediation is also effective in the protection of environment, disputes between local governments and private parties, and in minority cases.	Mediation can be less effective in disputes regarding the protection of estates and in disputes arising neighbourhood. The main reasons of this less effectiveness are the following: the approach of people to these kind of disputes and these disputes come to an end in courts quickly as well.
Lithuania	All civil disputes.	Not known yet.
Poland
Portugal	all the sorts of disputes refered in number 2 b), for the public sector and for the private sector all the matters that parties want to submit to Mediation but in this last case, the legal force of the settlement agreement is  a contract.
Romania
Slovenia	1. I thik that all kind of compesations matter and other matters where one of the parts is a civil society. In general I thik that it more depend on a parties that on the matter, because if the parties act emmotional ther is no hope to gain a settlement. 2. Disputes about indemnity for damages. 3. Especially the disputes about damages, cases related to various payments, cases related to establishing the extent and the share in joint property. 4. Those disputes sre: family, labor, business, civil,..	1. Like above, the main reason are the emmotions of the parties and a lot of time attorneys thar prefere a long, expecive trial. 2. For example disputes when policyholder want to terminate insurance policy, because this matter is precisely defined in insurance conditions. 3. Copyright disputes, housing cases. 4. We do not have less effective mediations.
Sweden
United Kingdom (England and Wales)	All types of civil dispute have the potential for settlement by mediation – but research shows that the most common is debt and breach of contract disputes.	Personal injury cases - where claimant lawyers and lawyers for defendants insurers have a long-established process of settlement of disputes by negotiation that does not require third party facilitation.

III. Organisation of mediation

Recommendation Rec (2002)10 on mediation in civil matters says:

'3. States are free to organise and set up mediation in civil matters in the most appropriate way, either through the public or the private sector.'

Civil mediation was the subject of the most recent of the four recommendations on mediation. From the table below it is clear that provision is often made for it in national law:

Is civil mediation regulated by law? (Questionnaire Med_Civ, Q.2a)
Yes	No
Bosnia and Herzegovina Finland (some aspects of it) Hungary Lithuania (some aspects of it) Portugal Slovenia (only the cost of attorney)	Germany United Kingdom

In contrast to the responses on family mediation, where disparate responses within one and the same country reflect the country’s federal structure, the responses on civil mediation show no such disparity.

However, as in family or penal matters, the legislator has neither fully covered nor fully excluded from his remit all aspects of mediation (Finland, Lithuania, Slovenia). Even among countries which do regulate mediation we find that some aspects are regulated in one country but not in another. (Questionnaire Med_Civ, Q.2b)

Sometimes the features of civil mediation per se are regulated: criteria for selecting mediators (Bosnia and Herzegovina), case management (Bosnia and Herzegovina), mediation costs (Slovenia), mediation training (Bosnia and Herzegovina), procedure for dealing with infringement of the rules and principles of mediation (Bosnia and Herzegovina, Lithuania), status of mediation and of mediation agreements (Hungary, Lithuania).

Sometimes the fields in which civil mediation is applicable are regulated (Portugal, Romania).

In reply to the CEPEJ-GT-MED question on which aspects of mediation are not regulated (Questionnaire Med_Civ, Q.2c) the same aspects are mentioned (confidentiality, status of agreements, mediation training) but by other countries which mostly attribute their lack of regulation to the fact that mediation is new to them.

Recommendation Rec (2002)10 on mediation in civil matters says:

'4. Mediation may take place within or outside court procedures.'

Countries	Le juge peut-il agir en tant que médiateur (en dehors de ses propres dossiers) ? (Questionnaire Med_Civ, Q.9b)
	Oui/Non	Si oui, dans quelles circonstances et à quelles conditions ?
Austria
Bosnia Herzegovina	No. Except in the District of Brčko.
Czech Republic
Finland
Germany	1.  This question is controversial in Germany. Some cinsider it to be natural (mediation = part of judicial behaviour), others contradict because the mediator has no decision-making powers. It’s also controversial wether the person of a judge is suited to be a mediator: on the one hand he has unchallenged authority and neutrality, on the other hand he may be quickly tempted to influence parties by his conception of legality and his possible solutions against to principle of self responsibility.	2. There are pilot projects in court ennexed mediation in 9 federal states. Involved judges had a training in mediation. Generally judges are allowed to act as mediator if this sideline is approved.
Hungary	It is not possible, because legal provisions prohibit this.
Lithuania	Only in court annexed mediation pilot scheme.	Principles of neutrality and impartiality apply. Judge, if he performed function of mediator not in his own case, can not act as a judge in the same case in the future.
Poland
Portugal	No, judges can not act as Mediators.
Romania	No, he/she cannot
Slovenia	3. Judge can act as mediator if he successfully finishes the basic training for mediators and is present at least 2 observations and is successfully graded in a co mediation with a mediator-trainer.	1. The judge has to do a week long (40 hours), and das to have certain years of practice.
Sweden
United Kingdom (England and Wales)	A judge cannot conduct a formal mediation but all judges have the freedom under the Civil Procedure Rules to discuss options for settlement with parties at appropriate meetings during the litigation process, such as at a Case Management Conference.

Most national correspondents replied that the judge cannot also act as mediator (Bosnia and Herzegovina, Lithuania, Portugal, Romania, United Kingdom).  But that does not stop the judge from including elements of mediation in civil proceedings (United Kingdom).

Those systems which do allow judges to exercise this function (Germany, Lithuania, Slovenia) require them to have undergone appropriate training beforehand and they cannot act as both mediator and judge in the same case.

Recommendation Rec (2002)10 on mediation in civil matters says:

'6. When organising mediation, States should strike a balance between the needs for and the effects of limitation periods and the promotion of speedy and easily accessible mediation procedures.

7. When organising mediation, States should pay attention to the need to avoid (i) unnecessary delay and (ii) the use of mediation as a delaying tactic.'

Recommendation Rec (2002)10 on mediation in civil matters alludes only indirectly to suspension of time limits for bringing proceedings. But most of the countries which replied have rules on this: for example Germany, Hungary, Romania, Slovenia, United Kingdom. They vary, however: in Germany, the limit is three months, excluding mediation time, whilst in Slovenia suspension for mediation may not exceed three months.

Some countries do not have statutory rules allowing the time limit to be suspended. In some cases they plan to introduce them (Bosnia and Herzegovina, Lithuania and possibly Finland), or they see no benefit in doing so because their existing laws render the idea unnecessary (Portugal), though this is more unusual.

The trend in civil matters is that most countries, in the medium term, want rules to prevent the time limit for proceedings from expiring whilst mediation is under way. This indicates that consideration is being given to mediation and to giving parties a chance to avoid the conventional route of litigation.

Countries	La législation de l'Etat prévoit-elle des dispositions empêchant l'expiration du délai de prescription lorsque les parties recourent à la médiation avant une procédure devant un tribunal ? (Questionnaire Med_Civ, Q.11a et 11b)
	Oui/Non	Si oui, préciser.	Si non, existe-t-il des projets visant à modifier la législation de l'Etat pour empêcher l'expiration du délai de prescription lorsque les parties recourent à la médiation avant une procédure devant un tribunal ?
Austria
Bosnia Herzegovina	No The Law in BiH did not regulate the prevention of expiry of limitation terms.		This issue will be taken into consideration.
Czech Republic
Finland	No special provisions, but the limitation terms can normally be easily interrupted		Depends on the possible adoption of the proposed EU directive on certain aspects of mediation in civil and commercial matters
Germany		2. During mediation there is a suspension of the running of time for purposes of limitation (§ 203 BGB). After dropping out mediation there is for 3 months a period if restraint for filing of action.
Hungary		This question is regulated by the following provision of the Act on Mediation: “Commencement of the mediation process means the discontinuation of the limitation period. Regarding the limitation period, Subsections (1) and (2) of Section 327 of the Civil Code shall apply if the mediation process is successful and Subsection (2) of Section 326 of Civil Code shall apply if not.” This means, that the starting of mediation process suspenses the limitation period.	-
Lithuania	No at the moment.		Yes with the adoption of the new draft law on mediation.
Poland
Portugal	There is no limitation terms. Under the the Act n.º78/2000  (Justice of Peace), this problem do not arise, because in this system, it is ruled that the parties must have a session explaining Mediation, and if they want,  they will try to solve the dispute  by Mediation  and only after, if they can not reach the agreement by Mediation, they will bring the dispute  before the judge.		Given the system, there are not plans to change this aspect.
Romania		The prescription term of the right to act for the disputed right under mediation is suspended starting with the day of signature of the mediation contract until the closing of the mediation procedure by any of the means provided in this law. (art. 47 of the Law)
Slovenia	1. I think there is no state law on this matter.	3. The Civil Procedure Act, Article 305b, paragraph 5, states that on the basis of the proposal by the parties, who agree that they try alternative dispute resolution, the court may interrupt the civil procedure for not longer than three months.	1. I don't think so, but I don't really know. 2. / 3. I don’t know. 4. /
Sweden
United Kingdom (England and Wales)		The Judge has the power under CPR 1.4 (2)(e) to encourage the parties to avoid litigation by using ADR and also to facilitate same. However it is expressly recognised that no party should be forced to mediate or enter into any form of ADR.	There are no current plans to change the UK law.

Still on the subject of time periods, but from another perspective, it is striking that the CEPEJ-GT-MED did not ask any questions about delays or delaying tactics, given that the recommendation specifically mentions these.

Recommendation Rec (2002)10 on mediation in civil matters says:

'9. States should take into consideration the opportunity of setting up and providing wholly or partly free mediation or providing legal aid for mediation in particular if the interests of one of the parties require special protection.

10. Where mediation gives rise to costs, they should be reasonable and               proportionate to the importance of the issue at stake and to the amount of work carried out by the mediator.'

	Pour un litige donné, s'il existe une procédure de médiation, quel est le coût de la médiation comparé au coût d'une procédure judiciaire ? (Questionnaire Med_Civ, Q.5a)
Countries	Coût de médiation moins élevé	Coût égal	Coût de médiation plus élevé
Austria
Bosnia Herzegovina	Yes*
Czech Republic
Finland	Yes
Germany	1.             Mediation mostly is reasonably, but there are no reliable collections. 2.             It depends on the value in dispute, sequence of courts and scale of mediation.
Hungary	Yes
Lithuania	Cheaper, when the mediation is paid for by the state or private funds.		When the users have to pay themselves, mediation costs can be higher if compared to litigation costs, because litigation in Lithuania is quite cheap and expeditious.
Poland
Portugal	Yes
Romania	Yes
Slovenia	Yes
Sweden
United Kingdom (England and Wales)	Yes

*Bosnia and Herzegovina: 'For now mediation is free of charge thanks to foreign donations to the Association of Mediators. In future, parties will pay for mediation to the Association, however the costs of this service will be lower than the court costs.  We expect this will be another argument for the parties to try mediation'.

Our conclusions on this point in regard to family matters seem to us to be entirely valid for civil matters too. The reader is referred to these for more information.

Recommendation Rec (2002)10 on mediation in civil matters says:

'3. States are free to organise and set up mediation in civil matters in the most appropriate way, either through the public or the private sector.'

Mediation may thus be funded from a range of sources :

	Dans votre pays, la médiation civile est assurée par : (Questionnaire Med_Civ, Q.5b)
Countries	Les parties	Fonds privés	Fonds publics	Autres
Austria
Bosnia Herzegovina		Yes (Association of Mediators of BiH)		Donations en provenance de l’étranger
Czech Republic
Finland			Yes (State)
Germany	Yes
Hungary	Yes  (civil disputes)	Yes (collective labours disputes)	Yes (collective labours disputes)
Lithuania	Yes	Yes
Poland
Portugal			Yes (Ministry of Justice)
Romania			Yes (Mediation Council)
Slovenia	Yes	Yes (association)	Yes	Yes (Court budget)
Sweden
United Kingdom (England and Wales)	Yes			Yes (Court budget)

Our conclusions on this point in regard to family matters seem to us to be entirely valid for civil matters too. The reader is referred to these for more information.

Of those countries which answered, four give no government funding to mediation: Germany, Bosnia and Herzegovina, Lithuania, United Kingdom. Question 5e allows us to add Hungary and Romania to that list. Various explanations are given for this lack of government funding (Questionnaire Med_Civ, Q 5e): shortage of money may well be a factor (Hungary) but it is perhaps not the main reason or at least not the only reason – contrary to general belief.

The responses suggest that correspondents believe the lack of funding to be closely linked to a lack of awareness of and confidence in mediation. Because there is little public interest in it, ministers are not made to look at the importance of alternative ways of settling family disputes and little effort is thus put into developing public funding for mediation systems (Germany, Lithuania, Slovenia). Bosnia and Herzegovina is unique in this respect, partly because government subsidies for mediation come essentially from foreign donors and partly because mediation manifestly receives no consideration in the machinery of government (the institutional structure of that country is highly complex, making matters worse in the national correspondent's view).

Countries	Dans votre pays, la médiation civile est-elle assurée par les parties ? (Questionnaire Med_Civ, Q.5b)	Les usagers de la médiation peuvent-ils bénéficier de l'aide judiciaire ? Si oui, doivent-ils payer une contribution ? (Questionnaire Med_Civ, Q.5g)		Coût de la médiation pour les parties (Questionnaire Med_Civ, Q.5f)
Austria
Bosnia Herzegovina		Not yet		In the pilot phase mediation is free of charge for all the users, except of those in commercial disputes (legal entities – companies) which pay 100 KM (about 50 EUR) each for administration of mediation session. This is possible thanks to the funding from foreign donations. In future, when mediation starts to be fully implemented in accordance to the Bylaws, there will be costs as follows: a) mediators’ fee (100 KM / 50 EUR per hour of mediation meeting), b) administrative costs – depending on amount of work for administration staff of the Association, c) other costs that may rise from the process – for example in case of mediators’ travel or wish of the parties to use space other than the one provided by the Association etc. This is expected to start from October 2006.
Czech Republic
Finland
Germany	Yes	No		1. Very different. Between 30 and 1.800 € per hour.                 2. Usually fee per hour. The hourly rates are very different. Criteria are: scale of mediation, financial situation of parties, co-mediation or not, participation of lawyers.
Hungary	Yes	Yes	Act LXXX. of 2003 on Legal Aid: “Aid may be granted to a party if the party is taking part in an out-of-court mediation to settle a legal dispute and the party is in need of legal advice prior to signing the agreement terminating the mediation.”	According to the law, the cost of mediation is not fixed, it is variable: it depends on the sorts of disputes, the duration of the mediation process, the number of mediators or experts. At National Professional Federation of Contact Centre Mediators in Hungary the clients have to pay a 4000 Ft per hour fix sum.
Lithuania	Yes	Yes	Mediation in legal aid sector has started to develop only in 2005.  At the moment there are no tangible results.	See answers to the sub-questions a and b.
Poland
Portugal		No		This question is answered in number 4 a).
Romania				According to the law, the mediator is entitled to honorary payment, established through negotiation with the parties, and to a refund of the mediation expenses incurred. The amount of the honorary payment should be reasonable, it shall take into account the nature and object of the dispute. (art. 26 of the Law)
Slovenia	Yes	Yes (For the court annexd)	1.  They don't have to pay no contribution, fot other tyipes of mediation I'don't thik so. 3. If the user doesn’t have funds to get legal counselling and he wishes to attend mediation with a lawyer, a lawyer is appointed to him through legal aid of the court free of charge. 4. They can use legal aid for free in our organization.	1. The court annexd is free, the mediation provided by the Center charge abowt 13.000,00 SIT for one session. 2. Mediation is free of charge. 3. Mediation at the District court of Ljubljana is free of charge. The parties only have to pay the expenses of their own participation (possible expanses for a lawyer, travel expanses…) 4. It is written is task a.
Sweden
United Kingdom (England and Wales)	Yes	Yes	Users of the NMH who are in receipt of legal aid (public funding) may be eligible to claim reasonable costs of mediation. Funding Code Guidance is provided on the Legal Services website	For a successful mediation there is no cost to the users as their overall costs of resolving the dispute will usually be lower than going to court adjudication – there is therefore an overall notional saving in both time and money. However for a case that fails to settle at mediation the costs of the mediation process must be added to the costs of any subsequent litigation process that is used to reach final resolution.  Costs of using the National Mediation Helpline scheme are as follows: for claims under £5,000 - £100 per party for 2 hour mediation; for claims between £5,000 and £15,000 - £250 per party for 3 hour mediation; for claims between £15,000 and £50,000 - £375 per party for a 4 hour mediation.

As in family matters, there seems to be an emerging consensus amongst countries on requiring the user to pay for mediation: a system of legal aid seems to be in place everywhere, with the notable exception of Germany (where mediation can sometimes be very expensive: up to € 1 800 an hour).

But users are generally required to pay part of the cost, though they may sometimes not have to thanks to legal aid granted by the state (Hungary) or the courts (Slovenia).

Concerning the cost to the user of mediation in civil matters, the national data are no more comparable than the data on the cost of family mediation.

These problems can be overcome next time round, however.

To that end:

        Figures must be supplied in euros using 1 January of the current year as the conversion date. This year Hungary, the United Kingdom and Slovenia did not convert.

        Amounts declared must be those of the average cost of one hour of mediation (for example – the CEPEJ-GT-MED is of course free to change this criterion).

        The average per capita gross monthly national wage must be provided (because in order to make comparisons it is essential to apply weightings based on the national cost of living and the average wage).

Ultimately it will be possible to compile a table which compares the cost of mediation to the user. This table is presented in outline below.

Countries	Frais de médiateur à la charge des parties en € / heure (conversion au 01 janvier dernier) (Questionnaire Med_Fam, Q.5f)	Salaire mensuel brut moyen par habitant en € (conversion au 01 janvier dernier)	Pourcentage des frais de médiation par rapport au salaire mensuel brut moyen par habitant
Etat 1	50	100	50%
Etat 2	200	300	66%
Etat 3	0	500	0%
Etat 4	1.000	1.500	66%

Countries	Quels domaines/activités de médiation sont fourni(e)s par l'Etat ou des organismes publics ? (Questionnaire Med_Civ, Q.5c)	Quels autres domaines/activités spécifiques peuvent être financés par l'Etat ou des organismes publics ? (Questionnaire Med_Civ, Q.5d)
Austria
Bosnia Herzegovina	The State parliament has passed the Law, while the State Ministry of Justice registers the associations – mediation service providers. All other competences are on the associations (NGOs) registered by the Ministry.	The work of the Association and mediation services can be financed from the Governments’ funds. This would include training, public awareness presentations, legislative on mediation harmonization in the country as the whole and other important fields and activities. It would be of great importance that the public entities provide space and funding for the operational Mediation Centres in larger cities in the country (6-8) There are some initiatives from both the Association and from the Government officials to provide some of this assistance. Courts’ budgets planning if the future should start including courts’ costs in respect to mediation so that the case handling costs could be covered.
Czech Republic
Finland
Germany	1. Only court annexed projects and mediation in penal matters.                 2. Only pilot projects with court mediators
Hungary	Currently, there are no fields/activities of mediation are provided by State/public entities.
Lithuania	In mediation pilot scheme in Vilnius city 2 district court mediation is provided free of charge. The 2005 Law on State Guaranteed Legal Aid stipulates for obligation of providers of primary legal aid to take measures to conciliate parties. This is meant to provide for development of mediation through legal aid system. There are several NGOs’ operated mediation schemes funded by private funds (e.g. Baltic Partners change for management, etc.). Still those schemes are not well-known and popular.	-
Poland
Portugal	The fields we refered in number 2 b), under the Act n.º78/2001 (Justice Courts – Organisation, powers and working methods) and some Family matters that will be answer in the Questionnaire on Family Mediation and Mediation for some injuries commited by young people.	………….
Romania	None	None
Slovenia	1. I'm only awair of court annexd mediation. 2. For mediation centre at Slovenian Insurance Association none. 3. Mediations in civil, family and commercial disputes are carried out at the District Court of Ljubljana. 4. By state entities it is mostly coverd with family mediation.	1. There is also active the Center for mediaton and it could be financed maybe just partly by the state, but it's not. 2. / 3. Mediations in criminal cases in administrative law…. 4. /
Sweden
United Kingdom (England and Wales)	Her Majesty’s Courts Service [HMCS] provides a few court-based schemes and also the National Mediation Helpline (NMH). HMCS has a dedicated team – PDRT – working full-time on the promotion of mediation for civil disputes. The Civil Justice Council promotes the use of ADR on its website.	None identified at present.

The plan to build civil mediation into legal culture and court practice has to contend with widely differing national realities. Many national correspondents said that there are currently no mediation areas/activities provided by the state or by government bodies (Bosnia and Herzegovina, Hungary, Portugal, Romania).

In systems where the state does play a role, this is often the result of court-annexed mediation (Germany, Lithuania, Slovenia, United Kingdom). The state may also provide other services such as free conciliation as part of the government legal aid service (Lithuania) or the promotion of mediation in civil matters (United Kingdom).

In the systems analysed, no government funding is provided for mediation.

IV. Mediation process

Relations between mediation and classic judicial proceedings (Questionnaire Med_Civ, Q.10b)

Recommendation Rec (2002)10 on mediation in civil matters says:

'11. States should consider the extent, if any, to which agreements to submit a dispute to mediation may restrict the parties' rights of action.'

The CEPEJ-GT-MED questionnaire asked national correspondents whether, after a case had been filed, the judge had power to advise parties to use mediation or to refer the case to mediation (Questionnaire Med_Civ, Q.10b)

Countries	Après la saisine du tribunal, le juge peut-il conseiller aux parties de recourir à la médiation ?	Après la saisine du tribunal, peut-il renvoyer l’affaire au médiateur ?
Austria
Bosnia Herzegovina	Yes, to suggest parties to use mediation and give them all necessary information about the process.
Czech Republic
Finland
Germany	To advise yes (§ 278 Abs.5 S.2 ZPO),	No, if parties don’t want
Hungary	Yes. During the court proceeding, judge can advise parties to use mediation, if he/she decides it because of the nature of the case. It can be convincing for the parties, if the judge explains the parties the essence of mediation.	No, the judge do not have the power to refer the case to mediation
Lithuania	It is on discretion of judge. Article 231 of the Code of Civil Procedure of Lithuania entrenches obligation of the judge to take measures he thinks are appropriate to conciliate parties. Inter alia it may be to advise to use mediation.
Poland
Portugal	*	*
Romania	Yes. The judicial and arbitration authorities, as well as other jurisdictional authorities shall inform the parties concerned on the possibility and the advantages of using mediation, and may advise them to resort to mediation in order to settle their disputes. (art. 6 of the Law) – general obligation of the authorities, irrespective of there being a pending case.	In case the dispute has been withdrawn from the judicial procedure, it can be settled through mediation on the initiative of the parties or on the recommendation of the instance, the parties agreeing, when the mediation concerns rights which the parties may enjoy according to the law. (art. 61 al. 1 of the Law)
Slovenia	*	*
Sweden
United Kingdom (England and Wales)	The Judge has the power under CPR 1.4 (2)(e) to encourage the parties to avoid litigation by using ADR and also to facilitate same.	it is expressly recognised that no party should be forced to mediate or enter into any form of ADR.

* Although there are two questions, Portugal gave just one answer of 'No' and Slovenia one of 'Yes', not indicating whether their reply was to both questions or only one of them.  The question is poorly formulated – some answers cannot be processed.

Not counting the two unclear replies from Portugal and Slovenia, six countries answered this question. In each of them, judges may advise the parties to use mediation, but in none of them does the judge have the power to refer the case to mediation (unless the parties agree, in which case he is effectively just advising them to use mediation).

Obligation on users to consider mediation (Questionnaire Med_Civ, Q.10a)

Recommendation Rec (2002)10 on mediation in civil matters says:

'11. States should consider the extent, if any, to which agreements to submit a dispute to mediation may restrict the parties' rights of action.'

	Existe-t-il une disposition prévoyant l'obligation d'envisager une médiation avant d'intenter une action en justice ou/et une disposition concernant la médiation obligatoire ? Veuillez préciser. (Questionnaire Med_Civ, Q 10a)
	Yes	No
Austria
Bosnia Herzegovina		No. Only, District of Brcko has a mandatory mediation and it stipulates that in case of the plaintiff’s non compliance with the notice to appear, court closes the case on the premise/assumption  of “the claim withdrawal”.
Czech Republic
Finland
Germany		No
Hungary		Currently, there is not any provision like this.
Lithuania		No
Poland
Portugal	Under the Justice Courts system (Act   78/2001), there is an obligation to be present in a session where Mediation is explained, before going to court, but if people doesn't want the Mediation they are completely free to go to court or to give up.
Romania		No
Slovenia		No
Sweden
United Kingdom (England and Wales)	The Civil Procedure Rules 1999 include one Practice Direction and eight Pre-action Protocols for specific types of claim which set out the processes to be followed before a formal claim is issued. Since 1 April 2006 all nine documents now contain a standard section that sets out the obligation for parties to consider whether some form of ADR (including mediation) would be more suitable than litigation, which the Courts view as a last resort.

It is clear from the table that civil mediation is never mandatory under the law. Recourse to mediation is left to the parties' discretion.

Nevertheless, to ensure that the decision whether to take up this option is reached in full awareness of the legal consequences, some countries require the parties to attend mediation briefings before the start of legal proceedings (United Kingdom, Portugal).

Recommendation Rec (2002)10 on mediation in civil matters says:

'12. Mediators should act independently and impartially and should ensure that the principle of equality of arms be respected during the mediation process. The mediator has no power to impose   solution on the parties.

14. Mediation processes should ensure that the parties be given sufficient time to consider the issues at stake and any other possible settlement of the dispute. '