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Sleeping? Comatose? Only Mandatory Consideration of Mediation Can Awake Sleeping Beauty

Cardozo Journal of Conflict Resolution Jed D. Melnick Annual Symposium 2014 New York City, 3 November 2014. Sleeping? Comatose? Only Mandatory Consideration of Mediation Can Awake Sleeping Beauty in the European Union. Giuseppe De Palo

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Sleeping? Comatose? Only Mandatory Consideration of Mediation Can Awake Sleeping Beauty

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  1. Cardozo Journal of Conflict ResolutionJed D. Melnick Annual Symposium 2014New York City, 3 November 2014 Sleeping? Comatose? Only Mandatory Consideration of Mediation Can Awake Sleeping Beauty in the European Union Giuseppe De Palo President, ADR Center – member of JAMS International (Rome, ITALY) Professor of Alternative Dispute Resolution Law & Practice, Hamline University School of Law (St. Paul, USA)

  2. DIRECTORATE GENERAL FOR INTERNAL POLICIES LEGAL AFFAIRS ‘Rebooting’ the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf

  3. European Union Mediation Directive (2008/52/EC) Art. 1 of the Mediation Directive The objective … is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.

  4. Key Features of the Directive • Ensuring the Quality of Mediation- Article 4 • Referral to Mediation - Article 5 • Enforceability of agreements resulting from mediation - Article 6 • Confidentiality of Mediation - Article 7

  5. Number of Mediations in 2011 (in Top Performing Countries) • Bulgaria: 472 • Romania: 300 • Hungary: < 2000 • UK: < 8.000 • Italy: < 2000 The European Mediation Paradox … a beautiful but dormant process (despite the 2008 EU Mediation Directive) 5

  6. The 2012 Hearing of European Commission on Mediation Pursuant to the balanced relationship requirement shouldn’t the Commission take legal action against the Member States, since they have failed to achieve the balance between mediation and judicial proceedings is actually attained? http://www.europarl.europa.eu/sides/getDoc.do?type=OQ&reference=O-2012-000169&language=EN

  7. Balanced Relationship Target Number Theory Each Member State must determine its own BRTN = minimum percentage of cases to be mediated to arrive at “balanced relationship”with that of litigated cases. Each Member State is free to choose the appropriate policy tools to reach its BRTN (mandatory mediation, information sessions, financial incentives etc.) Failure to set and reach BRTN = failure to comply with the Directive

  8. Subtitle

  9. Main Rebooting Study Issues • The Directive’s rules on confidentiality are by some Member States deemed not to be strict enough • Differing opinions on the role of legal professions involved in mediation procedures • Uncertainty as to the precise scope of the exceptions to the duty of secrecy and confidentiality; • How the provisions of the Mediation Directive giving the possibility for courts to refer the parties to mediation may have affected national procedural law

  10. “It is regrettable that …. ADR has not been correctly established and is not running satisfactorily in all geographical areas or business sectors in the Union.”

  11. The Rebooting Study Team Giuseppe DE PALO, ADR Center – member of JAMS International; Hamline University School of Law Study co-authors Leonardo D’URSO, ADR Center - member of JAMS International Mary TREVOR, Hamline University School of Law Bryan BRANON, Benjamin N. Cardozo School of Law, J.D. Romina CANESSA, Benjamin N. Cardozo School of Law / ADR Center - member of JAMS International Beverly CAWYER, Pepperdine University, J.D. L. Reagan FLORENCE, Hamline University School of Law, J.D.

  12. The EU Parliament’s Study Goal: Resolving the “EU Mediation Paradox” 1) Update the “Costs of Non Mediation” survey 2) Analyze the legislation implementing the Mediation Directive in a number of Member States 3) Propose legislative measures to increase the use of mediation across the EU 4) Propose non-legislative measures to increase the use of mediation across the EU

  13. Copertina Studio http://www.europarl.europa.eu/document/activities/cont/201105/20110518ATT19592/20110518ATT19592EN.pdf 13

  14. Litigation vs. Mediation in Italy, Belgium and EU

  15. If All Cases Go to Mediation First … and 50% Settle

  16. Time and Costs: Break-Even Point in Belgium 9% of Success Rate Time Savings 44% of Success Rate Cost Savings 17

  17. Time and Costs: Break-Even Point in Italy 4% Success Rate Time Savings 28% Success Rate Cost Savings 18

  18. Time and Costs: Break-Even Point in the European Union 19% of Success Rate Time Savings 24% of Success Rate Cost Savings 19

  19. High Performance Even at Low Success Rates Savings of successful mediation are much greater than extra costs (i.e., mediation then litigation) when mediation fails

  20. Estimated Annual Number of Mediations in the EU Over 10 000: DE, UK, IT, NL Between 5 000 and 10 000: HU, PL Between 2 000 and 5 000: BE, FR, SL Between 500 and 2 000: AT, DK, IE, RO, SK, ES Less than 500: BG, HR, CY, CZ, EE, FI, GR, LV, LT, LU, MT, PT, SE

  21. Estimated Annual Number of Mediations in the EU Over 10 000: DE, UK, IT, NL Over 200 000Italy A bit more than10 000 Germany United Kingdom Netherlands

  22. Average Time of a Dispute in Days 566 Savings 240 days Savings 354 days 326 212 Average time of litigation in the EU Average time of mediation then litigation (with 50% mediation success rate) Average time of mediation then litigation (with 70% mediation success rate)

  23. Average Cost of a Dispute in Euros 9 179 Savings 1 219 Savings 3 055 7 960 6 124 Average cost of litigation if trial is preceded by succesful mediation in 50% of the cases Average Cost of Litigation in the EU Average cost of litigation if trial is preceded by succesful mediation in 70% of the cases

  24. Legislative Measures That Have Not Made Mediation Happen Strong confidentiality protection Judges pro-activity Easy enforceability Financial incentives Lawyer duty to inform clients Robust mediator accreditation systems

  25. The Single Most Effective Legislative Measure 270 Mandatory mediation in certain cases Mandatory mediation info sessions 212 Financial incentives to mediate 188 Require counsel to inform parties of mediation 142 105 Economic sanctions Judges power to order mediation 90 Mandatory mediation with opt-out 85

  26. The Single Most Effective Legislative Measure 270 Mandatory mediation in certain cases Mandatory mediation info sessions 212 Financial incentives to mediate 188 Require counsel to inform parties of mediation 142 105 Economic sanctions 297 Judges power to order mediation 90 Mandatory mediation with opt-out 85

  27. Organ Donations Graph, by Country By Eric J. Johnson and Daniel Goldstein https://www.academia.edu/5104501/Save_default_save_life

  28. The Keyis the DMV Form Check the box below if you wantto participate in the donor program People don’t check the box --- and don’t join Check the box below if you don’t want to participate in the donor program People don’t check the box --- and do join

  29. The Single Most Effective Non-Legislative Measure 4,3 Mediation advocacy education Pilot projects 4,2 4,2 EU-wide‘settlement week’ programs 4,0 EU-wide mediation pledge National mediation «champions» 4,0 3,9 EU ADR agency to promote mediation 3,8 EU certification of mediators

  30. Will a «Culture of Safe Driving» Alone Do it?

  31. The Two «Fs» Fight Flight 33

  32. Mandatory mediation ends, number of mediations plummets 2012 • Features of the Italian System: • Mandatory first meeting in certain types of cases • Nominal fee if parties stop there • Sanctions for not showing up • Tax incentives for settling The Italian Mediation Roller Coaster 2011 Mandatory mediation introduced, numbers exceed 200,000 annually 2013 Mandatory mediation with opt-out introduced, number of mediations back to over 200,000

  33. Legislative Measures to Solve the «EU Mediation Paradox» 1) Introduce “mitigated mandatory mediation” in Mediation Directive and other EU legal instruments on ADR (in force and being proposed), albeit on a temporary basis, as a trial. 2) Insist that the Member State of the EU accept the “Balanced Relationship Target Number” theory (given the poor results of all other pro-mediation legislative measures, alone or combined, it should lead the Member States to do the same as above)

  34. JAY FOLBERG PIC

  35. Alternative Dispute Resolution: An Empirical Analysis, Joshua Rosenberg and Jay Folberg (46 Stanford Law Review 1538, July 1994) "[T]his indicates that litigants and their attorneys often followed the path of least resistance, simply staying on the [ADR] track into which they were initially slotted regardless of their judgments about the suitability of that track for their case. What may appear to be complete freedom of choice to participate in alternative dispute resolution may actually result in no real choices being made at all." 36

  36. The Study shows that the EU needs to learn from this new Italian model and do more to encourage mediation as an alternative to legal proceedings.

  37. The UK Following the Rebooting Study? National Family Mediation: “If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings.  But before an application can be made to court, you are now required to attend a Mediation Information Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be used to resolve your difficulties, rather than going straight to court.” - http://www.nfm.org.uk/index.php/family-mediation/mediation-information-meeting-miam Lord Faulks QC, Minister of State for Justice, CMC 2014 Conference: “The Ministry of Justice is also willing to reconsider compulsory mediation information and assessment meetings – or MIAMs – in civil claims”

  38. Critique of ‘Rebooting Study’ 1) The study methodology is flawed 2) Then number of settlements alone does not count 3) Mandatory mediation is forcing solutions down the throat of litigants 4) And these poor litigants pay for court services 5) Mediation marketing, not Mandatory mediation, is the solution

  39. 1) The Study Methodology is Flawed • An entire chapter of the study is devoted to the methodology • The Study does not recommend mandatory mediation but only experimentation with mandatory elements, and on a temporary basis • Need to look at the number of mediations taking place where certain policies are (ore are not ) in place

  40. Estimated Annual Number of Mediations in the EU Over 10 000: DE, UK, IT, NL Between 5 000 and 10 000: HU, PL Between 2 000 and 5 000: BE, FR, SL Between 500 and 2 000: AT, DK, IE, RO, SK, ES Less than 500: BG, HR, CY, CZ, EE, FI, GR, LV, LT, LU, MT, PT, SE

  41. 2) The Number of Settlements Alone Does Not Count Size (of the number of mediated settlements) does matter, and users’ satisfaction matters, too

  42. 3) Mandatory Mediation is Forcing Solutions Down the Throat of Litigants Compulsion to mediation is different from compulsion in mediation

  43. 4) And Litigants Pay For Court Services • Not really, and certainly not in full: • Italy litigants contribute 10.7% • Romania litigants contribute 13% • The EU average is 30% • The non-litigants, who pay 87% of the litigation tab, have the right to ask litigants to try something else first Data from the 2014 CEPEJ Report on «European Judicial Systems – edition 2014: efficiency and quality of justice» (http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf)

  44. 5) Mandatory Mediation is Not the Solution It actually is, and a certainly better one than mediation marketing

  45. Me and Mrs. Jones … From: Giuseppe De Palo [mailto:giuseppe.depalo@adrcenter.com] Sent: Thursday, October 02, 2014 3:53 PMTo:ivan@verougstraete.euSubject: New York Ciao Ivan How are you? I know you are looking for good stuff. You’ll thus like the attached. Sorry for my long silence re: Afghanistan.  All is good and I will send a long message shortly. Best, G

  46. Da: ivan verougstraete [mailto:ivan@verougstraete.eu] Inviato: giovedì 2 ottobre 2014 22:24A: 'Giuseppe De Palo'Oggetto: RE: sleeping beauty As far as I remember, the Prince gave only a gentle kiss and did not exert any authority. But I liked the stuff anyway! Yours ever, Ivan From: Giuseppe De Palo [mailto:giuseppe.depalo@adrcenter.com] Sent: Thursday, October 02, 2014 3:53 PMTo:ivan@verougstraete.euSubject: New York Ciao Ivan How are you? I know you are looking for good stuff. You’ll thus like the attached. Sorry for my long silence re: Afghanistan.  All is good and I will send a long message shortly. Best, G

  47. Da: Giuseppe De Palo [mailto:giuseppe.depalo@adrcenter.com] Inviato: venerdì 3 ottobre 2014 08:53A: ivan verougstraeteOggetto: R: sleeping beauty EXACTLY! He kissed her without consent (or assuming her consent).  Also, the magic required some physical contact. This is what happens with mandatory mediation with opt out: you must physically meet with the mediator and the other side, but you can walk away without paying for mediation, ie, without keeping on kissing the beauty (ie, conducting a full-blown mediation), let alone marrying her (ie, settling the case.) I rest my case against you, but maybe I have none. You liked this, in fact! Have a great day! Yours, G Da: ivan verougstraete [mailto:ivan@verougstraete.eu] Inviato: giovedì 2 ottobre 2014 22:24A: 'Giuseppe De Palo'Oggetto: RE: sleeping beauty As far as I remember, the Prince gave only a gentle kiss and did not exert any authority. But I liked the stuff anyway! Yours ever, Ivan

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