Rita PereiraSara Garcia

MediationA 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 mediatorThe 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 we talking about?

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

2The principle of access to justice is fundamental and,with a view to facilitating better access to justice, theEuropean Council at its meeting in Tampere on 15 and16 October 1999 called for alternative, extra-judicialprocedures to be created by the Member States.

This Directive should apply to cases where a court refersparties to mediation or in which national law prescribesmediation.

12

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 LawArt. 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 solutionArt. 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 CodeArt. 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

GermanySection 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 – 2004Halsey 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 systemCelerity of the process and low costsAn incentive to learn/be informed about itEvolution on mediation methodsPreservation of social and family relationsFree the justice legal system of legal triflesAvoiding pressure from public trialsGuarantee of a fair solution

On the other hand…Waste of time and moneyThe parties are forced to mediate and

probably the result will not be successfulSeen as a step until court, delaying the

processThere is a huge risk: agreeing to a bad

agreement because of a bad mediatorInformation 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 costsImpartiality and independence of the mediatorConfidentiality (protection of the content discussed at the mediation sessions)