MANDATORY MEDIATION

MANDATORY MEDIATION Rita Pereira Sara Garcia

Mediation • A form of alternative dispute resolution (ADR) • A way of resolving disputes between two or more parties (which yields actual results) • Participation of a third party: the mediator • The mediator assists the parties to negotiate a settlement

The mediator • The mediator acts as a neutral third party and facilitates rather than directs the process • He/she must be: independent and impartial, neutral

Key Words • Empowerment • Interests The solution lies within the parties

Facilitate (eased) mediation: the mediator helps the parties achieving a settlement, without suggestion or personal interference of any kind (“real mediation”) • Interventional mediation: the mediator has an active role, proposing possible solutions and influencing the parties

Mediation: what are wetalkingabout? Mandatory mediation Induced mediation

Mandatory mediation: legal imperative There is a legal disposition that imposes mediation before you go to court. • Induced mediation: sanction If you do not choose mediation you have to pay a fine or the court fees. Attention: we should distinguish this theme from that of “mediation conventions”.

Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 On certain aspects of mediation in civil and commercial matters

2 The principle of access to justice is fundamental and, with a view to facilitating better access to justice, the European Council at its meeting in Tampere on 15 and 16 October 1999 called for alternative, extra-judicial procedures to be created by the Member States.

12 This Directive should apply to cases where a court refers parties to mediation or in which national law prescribes mediation.

Article 3 Definitions “Mediation” means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.

Is there a contradiction? • The directive does not take position. • Mandatory mediation: one of the possibilities

Peace Courts Law Art. 35.º (Of mediation and the functions of the mediator) 1 - Mediation is a form of extrajudicial dispute resolution, of private, informal, confidential, voluntary and non judicial nature, where the parties, with their active and direct participation, are aided by a mediator in finding, by their own, a negotiated and friendly solution to their dispute.

The portuguese solution • Art. 3.º, n.º 5 of the Penal Mediation Law The mediator contacts the accused and the victim in order to obtain their free and informed consent to mediation. He/she informs them of their rights and duties and of the nature, purpose and rules applicable to the mediation process, verifying if they gather the necessary conditions to participate in that process.

Family mediation • The parties that have a family dispute can submit it to mediation, voluntarily and through a joint decision. The judge can also determine mediation, at the parties request or of his own motion after obtaining their consent.

Portuguese Civil Procedure Code • Art. 447.º - D (Custas de partes – Parties costs) It establishes that the plaintiff’s own costs are supported by him if, being able to resort to alternative dispute resolution methods, he chose not to do it. ATTENTION: However, this norm does not apply yet because there is still no Ministerial Order to materialize it.

Portuguese Civil Procedure Code • Art. 279.º-A(Mediação e suspensão da instância – Mediation and stay of proceedings) 1 - At any stage of the cause, and whenever he/she deems appropriate, the judge may decide to refer the case to mediation, suspending the proceedings, unless any of the parties expressly opposes such a referral. 2 - Notwithstanding the preceding paragraph, the parties may jointly elect to resolve the dispute by mediation (...)

Two questions to consider: A) Is mandatory mediation unconstitutional? B) Is it a productive/useful method?

Principles in danger… • Acess to Justice • Right of action Article 20.º – The portuguese Constitution Article 6.º - The European Convention on Human Rights

a) Constitutional perspective • Some political systems where mandatory mediation is not considered unconstitutional: Germany Italy USA

Germany • Section 15a of the Introductory Act to the Code of Civil Procedure (EGZPO) A state (Land) law can determine that the filing of the action in minor cases is not permissible before an attempt has been made by a conciliator set up or recognised by the Land administration of justice, to resolve the dispute by mutual agreement.

Some political systems where mandatory mediation is considered unconstitutional: • Austria – Supreme Court - 1997 • UK – Supreme Court of Judicature – 2004 Halsey case • Mozambique

Mandatory mediation: • Is it a restriction of a fundamental right? • According to article 18 of the Portuguese constitution: Principle of proportionality: 3 aspects - Need - Adequacy - Proportionality strictu sensu

KERN – Core of the right

b) Is it a productive/useful method? • Approaching citizens and the justice system • Celerity of the process and low costs • An incentive to learn/be informed about it • Evolution on mediation methods • Preservation of social and family relations • Free the justice legal system of legal trifles • Avoiding pressure from public trials • Guarantee of a fair solution

On the other hand… • Waste of time and money • The parties are forced to mediate and probably the result will not be successful • Seen as a step until court, delaying the process • There is a huge risk: agreeing to a bad agreement because of a bad mediator • Information will not be made public

Mandatory mediation as a “temporary fatality”: creating a mediation culture. • But: until when?

Conclusion: possible solutions • Mandatory mediation restricted to some legal areas and excluding the possibility of resorting to the justice legal system • A mediation “try-out” as a necessary step before resorting to the justice legal system • Mandatory session of information on mediation before being able to resort to the justice legal system (Ursula Caser) — Incentives: trial fees and costs

Summarizing Mandatory mediation is a legitimate possibility provided that certain requirements are met: • Short maximum terms and reasonable costs • Impartiality and independence of the mediator • Confidentiality (protection of the content discussed at the mediation sessions)

MANDATORY MEDIATION