THE PRACTICE OF MEDIATION IN COUNTRIES NEIGHBOURING THE NETHERLANDS A comparative study conducted on behalf of the Dutch Ministry of Justice

Dr Annie de Roo Dr Rob Jagtenberg

Erasmus University Rotterdam March 2003

TABLE OF CONTENTS 1 The rationale for this study .................................................................. 1 1.1 The research questions 1.2 Methodological accountability

2 3

2 Mediation within the judicial infrastructure in 11 European countries – a ‘quick scan’ ......................................................................................... 5 2.1 Introduction 2.2 The Romanistic „Civil law‟ countries 2.2.1 FRANCE 2.2.1.1 Mediation in France 2.2.1.2 Evaluation study 2.2.2 BELGIUM 2.2.2.1 Mediation in Belgium 2.2.3 SPAIN 2.2.3.1 Mediation in Spain 2.2.4 ITALY 2.2.4.1 Mediation in Italy 2.3 The Germanic „Civil law‟ countries 2.3.1 GERMANY 2.3.1.1 Mediation in Germany 2.3.1.2 Evaluation study 2.3.2 AUSTRIA 2.3.2.1 Mediation in Austria 2.3.3 SWITZERLAND 2.3.3.1 Mediation in Switzerland 2.4 The Scandinavian „Civil law‟ countries 2.4.1 DENMARK 2.4.1.1 Mediation in Denmark 2.4.2 SWEDEN 2.4.2.1 Mediation in Sweden 2.4.3 NORWAY 2.4.3.1 Mediation in Norway 2.4.3.2. Evaluation study 2.5 The „common law‟ legal tradition 2.5.1 ENGLAND 2.5.1.1. Mediation in England 2.5.1.2 Evaluation study 2.6 Comparative analysis on the basis of research questions 1, 2, and 3 2.6.1 RESEARCH QUESTIONS 1, 2, AND 3

5 5 6 7 11 12 12 15 16 17 18 19 19 20 24 24 24 26 26 28 28 28 30 30 33 33 36 36 36 38 41 42 42

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3 The practice of mediation in four selected countries .........................48 3.1 3.2 3.3 3.4 3.5

Introduction France Germany Norway England

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Comparative analysis based on research questions 4, 5, 6 and 7 ..58

48 48 51 52 54

4.1 Terminology 4.2 The findings ranked according to the four remaining research questions 4.2.1 Research question 6 4.2.2 Research question 5 4.2.3 When does mediation work? Attempt at a hypothesis 4.2.4 Intermediate conclusion 4.2.5 Research question 4 4.2.6 Research question 7 4.3 National courts, market and quality assurance 4.4 Conclusion

58 59 59 61 62 64 65 65 67 68

5 Summarising conclusions ............................. Error! Bookmark not defined. ANNEXES Annex 1: Composition of the Advisory Committee ........................................... 74 Annex 2: Names of the key informants for the four selected countries and of the extra informants for the purpose of the „quick scan‟ in 11 countries ................. 75 Annex 3: English and French versions of the questionnaire .......................... 7777 Annex 4: Collected and consulted literature .................................................... 81

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The rationale for this study

1 The rationale for this study The Government wants to define in the short term what role it must play with respect to mediation, as an option within the broad scale of conflict-handling methods, which also includes litigation. The purpose of the national projects „Mediation naast rechtspraak‟ [Court-encouraged mediation] and „Mediation gefinancierde rechtsbijstand‟ [Mediation and Legal Aid] is to collect specific Dutch information in support of policy preparation in this matter. It is important to compare the data from both Dutch projects with developments currently taking place in countries neighbouring the Netherlands. The aim of the present research study is to gain some insight into the practice of mediation in civil law and administrative law, within the judicial infrastructure in countries neighbouring the Netherlands and their legal systems.1 As there are a great variety of disputes within these two large legal fields, as regards civil law, special attention has been paid to the practice of mediation in family and labour disputes and with respect to administrative law to the practice of mediation – if any – in administrative legal and environmental disputes. The practice of mediation within criminal law has been disregarded. By collecting data from the countries neighbouring the Netherlands, it is possible to determine whether the Dutch developments are exceptional, or form part of a more European, international tendency. The latter almost certainly seems to be the case, anyway. A similar international development leads, as a matter of course, to the inventarisation of the concepts of roles which exist among sister governments – especially within the European Union – with respect to mediation. In the frame of this comparative research study, and also in the light of the current ADR initiatives at EU level, the following 11 countries and their legal systems have been studied: The United Kingdom; this is a common law system, but at the same time an EU Member State; a great deal of empirical research has been done here; specific legislation and court rules are available; France; French law has in many respects acted as a model for Dutch law; there is lively debate there concerning mediation; there are specific legal provisions and a great deal of research has recently been conducted; Germany; our most important trading partner; in judicial terms, the Netherlands is becoming increasingly aligned with Germany; mediation is a recent development, there is specific legislation; furthermore, the first empirical data over the practice of mediation have now become available; Belgium; is our nearest neighbour, but often deviates unexpectedly from the Netherlands; the first experiment with judicial mediation has only recently started; Austria and Switzerland; belong to the German legal tradition; sometimes innovative with ADR projects; The Scandinavian countries (Denmark, Sweden, Norway); the administrative culture and problem-oriented approach in these countries are often seen as an example for the Netherlands; in Norway, especially, there have recently been experiments with mediation, which have resulted in a draft Tvisteloven (Disputes act). 1

Ministerie van Justitie, Meer wegen naar het recht Beleidsbrief ADR 2000-2002, par. 2.1.2.

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The rationale for this study

The Southern European countries, qua administrative culture, are further away from the Netherlands; nevertheless, it is still useful to briefly examine Spain and Italy, inter alia due to the relative weight that these countries add to the scale in the decision-making process of the European Union. From this group of 11 countries, four countries and their legal systems will be selected on the basis of available empirical data for further research. In the light of the foregoing, it seems highly likely that France, Germany, Norway and England will qualify for this.

1.1 The research questions The problem for this inventarising research study can be operationalised by the following seven research questions.

1. Are there regulations applicable to mediation, and if so, what are they? This refers in particular to rules anchored in legislation or case law relating to mediation as a process, for example rules concerning duties of confidentiality and the privilege of nondisclosure, and rules concerning the exit from mediations, meaning the judicial formalisation of successful mediations, and potential sanctions on failed mediations.

2. What quality requirements are imposed on mediators? The specific professional background of mediators plays a central role here. Is there an independent profession of mediators, or is it, for example, the judge who mediates? What is the situation here in respect of entry requirements, commitment to permanent education, codes of conduct and incompatibilities?

3. What variations of „referral‟ to mediation exist within the various legal systems? This question is closely related to the first two questions and targets chiefly the entry to mediations. Is the mediator different from the handling judge? If so, how are parties then directed towards him? Is there automatic referral, or is it the judge who specifically refers a case? How voluntary or mandatory is the proposal of mediation? 4. What criteria are used for the referral and/or passing-on of cases to mediation? Are there

any contra-indications?

This relates to the „why‟ of the referral or passing on. 5. What factors have an influence on the actual acceptance of, and/or co-operation in,

mediation by parties?

This relates to the „why‟ of the co-operation of parties in a mediation. Obviously only insofar as a referral to mediation requires consent from both sides. Factors to be considered here include the explanation received by parties about mediation, characteristics of parties such as ability to withstand stress, case characteristics, or financial incentives.

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The rationale for this study

6. What results have been recorded with mediation and how do these relate as a proportion

of the „ordinary‟ judicial settlement of disputes?

This relates, inter alia, to the percentage of cases referred to the courts which are referred to mediation, and the percentage of disputes brought before a mediator, that results in an agreement between parties. In this respect, we are also interested in the satisfaction of parties with the result achieved.

What are the experiences of people other than parties (and their counsel) with mediation? Is there support for mediation in society as a whole? 7.

Here one may think of the judiciary, the academic community, of organisations in civil society. The first three research questions are answered in paragraph 2.6 as part of the „quick scan‟ of the aforementioned 11 countries. The remaining four research questions are treated at length in Chapter 4, where a comparative analysis will be made of the evaluation studies examined in the four countries to be selected in greater detail and their legal systems.

1.2 Methodological accountability The research study will take place in two phases. Phase 1 will involve an examination of which four countries of the total of 11 are worth a more thorough analysis. Phase 2 will then be directed toward the study of the available evaluation studies in the four countries to be selected for more detailed examination. In view of the short period of this research study, it is not possible for us to carry out empirical research. This inevitably means that it will be necessary i.a. to build on data collected by others. These data collected by others will, however, be complemented by information obtained from interviews held by us with so-called key informants and extra informants. These key informants are in each case representatives: • from the policy-related (departmental) angle; • from the judiciary; • from the academic community. The information obtained from the interviews held with the key informants will be used to analyse the evaluation studies of the practice of mediation in the four countries to be selected for more detailed examination. The holding of separate interviews with representatives from the aforementioned three groups will increase insight into the reliability and meaning of the available research data. The extra informants will be specifically consulted for the purpose of the „quick scan‟ in 11 countries.

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The rationale for this study

In the data collection, especially in Phase 1 of the research study, use will be made of the large amount of „grey‟ inventarisations already available. Examples of this are the documentation held by the Council of Europe on mediation in administrative law, and the recent national reports on mediation in civil causes, which were published for the Académie Internationale de Droit Comparé in 2002.

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2 Mediation within the judicial infrastructure in 11 European countries – a ‘quick scan’ 2.1 Introduction The international dimension of mediation contributes to a fruitful exchange of knowledge about ADR, and more specifically mediation. Therefore there are no isolated, national mediation developments. On the contrary, there is a great deal of cross-pollination. ADR organisations, national and international authorities, and also, increasingly, the judiciary are being inspired and stimulated by developments, abroad both far and near.2 People are organising and frequently taking part in international congresses and training programmes. This is true in each case for all 11 of the research countries. Important sources of inspiration for the development of mediation in these 11 countries appear mainly to be the mediation developments in the United States, England and Canada. Of these three countries, the United States in particular is regarded as the cradle of „modern‟ mediation. What this means is that the techniques of mediation have been systematised and refined on the basis of (mainly) experimental research.3 Regardless of the external influences, most countries ultimately select their „own‟ solutions, which are often coherent with the individuality of that country‟s legal system. This chapter starts by examining whether, in the 11 countries, there is respect for mediation and if there can be said to be a mediation practice and, if so, the extent to which evaluation studies concerning mediation are available. If evaluation studies are available, these will be briefly discussed. The sequence for treatment of the 11 countries is based on classification according to legal tradition.

2.2 The Romanistic „Civil law‟ countries In countries belonging to the Romanistic legal tradition, Roman law has been the principal basis for the development of legal thinking/doctrine. Another characteristic of this legal tradition is that the „act‟ is regarded as the most important source of law. The countries which belong to this legal family mostly have written basic laws and codified law. Although the law-making role of the courts in the countries belonging to this legal tradition is being increasingly recognised in practice, this is not by definition apparent from the style of judicial decisions. 2

See i.a. the report of the OESO: OESO, Legal provisions related to business-to-consumer alternative dispute resolution in relation to privacy and consumer protection, OESO: Paris, 2002. 3 A. de Roo and R. Jagtenberg, Mediation in the Netherlands: Past – Present – Future, in: E. Hondius & C. Joustra eds., Netherlands Reports to the Sixteenth International Congress of Comparative Law, Antwerp: Intersentia, 2002, p. 127.

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Mediation - a ‘quick scan’

2.2.1 FRANCE France is a centralised unitary state, with relatively many powers for the President of the Republic and the government: the executive branch. Due to the Napoleonic codification, which has had a powerful influence on many countries, France is regarded as the „mother system‟ of the continental European or „civil law‟ legal family. French jurists have set up networks such as the Association Henri Capitant in order to consolidate French judicial influence worldwide. This influence is clearly visible in The law of the European Union – in the ADR domain, too.4 In France, the administration of justice in the domain of private law (and criminal law) is kept strictly separate from that of administrative law. All disputes to which a public body is party are qualified as administrative legal disputes and come under the jurisdiction of the Conseil d‟État, and below that the Tribunaux Administratifs. Much more than in the Netherlands, in France there still prevails the concept of service public, or public service, which executes the tasks of the state, a term which also dominates in the discussions about reforms within the judiciary; indeed, this is also a service public. In France, therefore, there appears to be greater resistance to the concepts of market and efficiency. The discussion on efficiency in the public administration of justice and the concept of costeffectiveness has primarily gained in momentum due to the publication of the Coulon Report, named after Jean-Marie Coulon, the current president of the Cour d‟Appel of Paris. Coulon was chairman of a commission in the mid-1990s which was set up to consider ways of modernising the public administration of justice. The final report of the Coulon Commission, titled „Réflexions et propositions sur la procédure civile‟, was published in 1997. The proposals related mainly to reforms in the actual law of procedure, but there was no lack of suggestions to promote ADR – for example allowing the option of settlement agreements being cast by a judge in enforceable form. The French judicial organisation differs from the Dutch only in a few parts. In civil causes, we find the familiar three-stage structure, with the Tribunaux de Grande Instance (TGI) as the regular courts of first instance, the Cours d‟Appel, and the Cour de Cassation. There are also the Tribunaux d‟Instance, comparable to the Dutch kantongerechten [magistrates‟ courts] (old style). The Dutch magistrate‟s court became part of the district courts in 2002. One notable difference in comparison with the Netherlands is formed by the separate commercial and labour courts respectively, the Tribunaux de Commerce and the Conseils de Prud‟hommes, where lay judges (Juges Consulaires) administer justice in commercial and labour cases, usually with the option of an appeal.

4

See i.a. The Green Paper concerning alternative ways of dispute settlement in the field of civil law and commercial law, European Commission, 19 April 2002.

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Mediation - a ‘quick scan’

The complement of the Chancellerie (Ministry of Justice), unlike that in the Netherlands, consists mainly of members of the sitting magistracy. For a few years, but in some cases for more than ten consecutive years, they perform administrative and policy-making functions in the Ministry. Many policy-making officials also carry their professional qualification of Magistrat. The policy support research study has been centrally organised since 1994 in the Mission de Recherche Droit et Justice, a Public Interest Group [Groupement d‟Interêt Public (GIP)], wherein the Ministry (50%) and the organisation for scientific research (Centre National de la Recherche Scientifique (CNRS) (30%) participate, with the supportive participation of the École Nationale de la Magistrature (ENM), the professional training college for the judiciary, and the Conseil National des Barreaux, the National Bar.

2.2.1.1 Mediation in France

The caseload of the French judiciary has been declining for some years.5 Nevertheless, the Modes Alternatifs de Résolution des Conflits (MARC) or Modes Alternatifs de Règlement des Litiges (MARL) are enjoying a fast-growing importance among academics, the legal profession, magistracy and policy-makers.6 Otherwise the interest in alternatives for public administration of justice is a great deal older and subject to a cyclical pattern. During the period 1791–1804 a system of Bureaux de Paix et de Conciliation was introduced: Peace Offices, mainly manned by laymen with a preliminary role of conciliation with respect to all disputes in the competence of the courts.7 The fortunes of this historical variation of court-annexed-mediation have been charted over a long period, and are therefore directly relevant to the present ADR debate. The French developments can be summarised as follows: first the preliminary conciliation task was transposed to the judiciary itself (Juge de Paix), after which it gradually lost its importance. The enthusiasm among people seeking justice actually to make use of this option fell between 1830 and 1930 from 74% to 5%. In 1949, preliminary conciliation, also referred to as “grande conciliation”, was then also abolished.8

5 6

See Ministère de la Justice, Les chiffres-clés de la justice.

The term ADR or MARC, to many French authors, means more than just negotiation-based methods. For example, complaint procedures and arbitration are also included. This approach can also be found in the European Green Paper on ADR. 7 8

Ch. ten Raa, De oorsprong van de kantonrechter, Deventer, 1970 Art. 48 ff. of the old Code de Procédure Civile of 1806.

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Mediation - a ‘quick scan’

At the same time, however, a new provision was introduced whereby henceforth both the lower and upper courts, at any stage of the case, could summon parties to make an attempt at mediation. In the new Code de Procédure Civile of 1975 this provision remained, under the mission statement of art. 21: “[…] il est dans la mission du juge de concilier les parties.” In the meantime the préliminaire conciliation continued at the specialist labour courts (the Conseils de Prud‟hommes), where the popularity of this preliminary conciliation, however, has fallen just as much: from 90% in around 1830, to 10% in 1980. In the 1970s, the alternatives for public administration of justice again took on great importance, particularly in the frame of the Access to Justice movement. According to some French authors, this was not so much to do with alternative as with the so-called „palliative‟ dispute settlement: namely the development of accessible institutions, where dispute [settlements] were made possible by research, mediation, advice or the imposition of a decision, in diverse combinations.9

Civil disputes; including family disputes In the wake of the Access to Justice movement, in 1978 the institute of Conciliateurs was

created by decree: a national network of unpaid lay mediators, with the mission of facilitating extra-judicial solutions. Any interested party (natural or legal person), but also any judge, can call on the Conciliateurs by virtue of the decree, while the institute already stands at the margin of the judicial infrastructure. The decree also stipulates that settlements whereby parties waive rights must be laid down in a constat d‟accord, and must also be signed by the Conciliateur. By an act of 8 February 1995 the institute was renamed Conciliateurs de Justice, whereby it was decreed that the Juge d‟Instance may delegate a „tentative préalable de conciliation‟, a preliminary attempt at conciliation, at the request of the parties, to the conciliators. In fact, these then act in place of the judge himself. In 1996 the link to the judiciary was further reinforced by assigning the selection and appointment of conciliators to the Juges d‟Instance. The services of these conciliators are free, and as already mentioned, for the conciliators themselves this is voluntary work. Empirical research study has confirmed that the typical conciliator is a highly-trained, recently retired man. There are differences in the degree of organisation of the conciliators in each field, and the structure of the lines of communication with the relevant judicial instances. In 2000, there were 1728 conciliators working in France.

9

The term ‘palliative’ is borrowed from Évelyne Serverin; É. Serverin, Les procédures de règlement amiables en France, entre théorie et pratique”, paper for the Civil Litigation in the 21st Century conference, Copenhagen, 7-9 July 2002. Examples of this worth mentioning here are Boîte Postale 5000 in the field of consumer law and the Médiateur de la République in the field of administrative law.

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Mediation - a ‘quick scan’

By the same law of 8 February 1995, whereby the link between conciliator and Juge d‟Instance was reinforced, a new player was also introduced in addition to the Conciliateur: the Médiateur. The provision is that the judge, with the consent of the parties, at any stage of the case, can instruct a third person to “[…] assist in clarifying the points of view of the parties, in order thus to enable them to find a solution to their dispute.” 10 Unlike the Conciliateurs, the services of the Médiateurs are not free. Parties must pay the fees of the Médiateur themselves, unless they are eligible for legal aid. A recent law, of 4 March 2002, introduces a less voluntary referral to these mediators, in the domain of parental custody following divorce. If the (ex-)spouses cannot reach agreement, the judge can direct (enjoindre) them to conduct an introductory discussion with a Médiateur, so that the latter can explain to them the nature and aim of a mediation. The French legislator has laid down a few general standards for mediators and mediations, namely in Art. 131 NCPC. These involve, inter alia, the requirement of independence and a statutory duty of confidentiality. Specific provisions on the requisite qualifications of mediators are rather expected from relevant professional organisations. The result is that at present there is a development in the direction of self-regulation. This is especially true for divorce mediation, where a large number of professional organisations is now active, such as the Association pour la Promotion de la Médiation Familiale (APMF), and the Comité Nationale des Associations et Services de Médiation Familiale (CNSFM). In October 2001, a liaison unit along the lines of these organisations was set up within the Ministry of Justice itself: the Conseil National Consultatif de la Médiation Familiale. This seems to indicate a „politique favorable à la médiation‟ on the part of the Ministry. Also in the domain of commercial disputes, there are now some self-regulating organisations, the most important of which is the Centre de Médiation et d‟Arbitration de Paris (CMAP). In the meantime both conciliation and mediation can now take place across the entire bandwidth of civil litigation (normally only with the consent of both parties). One may wonder why there was any need to introduce a mediation procedure in addition to conciliation. Our French interlocutors also recognise that the co-existence of the two options is confusing. The difference is chiefly related to social-cultural connotations. Conciliation is an established term, but is sometimes still associated with the old preliminary procedure, which chiefly acted as a filter. Mediation appeals to a different ideology. Here „thérapique sociale‟ appears to take precedence. Many mediators turn out to be psychologists or social workers, or lawyers. In the professional organisations for divorce mediation and mediation in the commercial sector, mediation is clearly regarded in the American way. However, on the basis of this overview, it will become clear that the term conciliation is more strongly anchored historically in France.

10

Art. 131 of the Nouveau Code de Procédure Civile.

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Mediation - a ‘quick scan’

As neither the judge himself, nor the Conciliateur de Justice is prescribed a standardised training, it is not always clear how far here (whether intuitively or not) the Harvard method is followed, or whether it is a matter of persuasive settlement. The Harvard method aims at the identification of (mutual) underlying interests and the finding of win-win options. The NCPC, in Art. 131, does in fact set requirements for the independence and impartiality of the Médiateur. Settlement agreements, including mediated settlement agreements, have a special status in France, namely that of transaction.11 By decree of 28 December 1998, inspired by the Coulon report, a transaction-promoting instrument was introduced, that is the option of allowing a settlement agreement to be delivered by the judge by way of an enforcement order. Little use is made of this facility, however. This is the provision laid down in paragraph 4 of Art. 1441 NCPC. The doctrine struggles with this construction.12 Specifically in the field of health law and medical liability law, in a recent law of 4 March 2002, a national network of Commissions Régionales de Conciliation et d‟Indemnisation has been established. The special feature here is that these commissions combine mediation as method with a special sort of power of subrogation with respect to the insurer. This means the patient – the victim – can quickly be compensated by means of advances provided by the commissions. The commissions are, however, just about to start, so that experiences with this interesting construction are not yet available.

Labour disputes For the settlement of individual labour disputes, France can boast the oldest existing institute for dispute settlement: the Conseils de Prud‟hommes, dating from 1806. The Conseils consist of two chambers, the Bureau de Conciliation and the Bureau de Jugement. Both chambers have – and this is unique – a bipartite combination of an employer and employees representative. In order to present a dispute arising from a contract of labour to the Bureau de Jugement an attempted settlement must first be undertaken before the Bureau de Conciliation. As willingness to settle has been declining steadily over recent decades, diverse incentives have been introduced, such as the legal obligation for parties in each case to appear in person – rather than be represented by their counsel – before the Bureau de Conciliation.

Administrative disputes; including environmental disputes In the field of administrative law, mediation has not (yet) really got off the ground. The Médiateur de la République, somewhat comparable to the Dutch Nationale Ombudsman, does mediate in the frame of the handling of complaints by citizens against public officials. The question is whether this institute stands completely outside the judicial infrastructure, since this Médiateur can also hear disputes in which the French administrative judge is competent.

11

Art. 2044 Code Civil. See i.a. P. Chevalier, Y. Desdevises, P. Milburn (eds.), Les modes alternatifs de règlement des litiges: les voies nouvelles d‟une autre justice, La documentation française, Paris 2003. 12

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Within the Conseil d‟État, consideration is currently being given to judicial options for integrating mediation into administrative law. This has not yet delivered a concrete result. In the environmental field, it has been found that in France „environmental mediation is a white spot on the political map‟.13

2.2.1.2 Evaluation study Between 1995 and today, some ten evaluation studies have been carried out, in particular under the supervision of the Mission de Recherche. Those of great interest for the Netherlands are the empirical evaluations of Desdevises and Suaud into the practice of the Conciliateurs de Justice, and the evaluation study of Bonafé-Schmitt on the practice of the Médiateurs. There has also been an evaluation study conducted directly by the Chancellerie by Moreau et al., on the extent to which judges do actually refer cases to a Médiateur.14 A comparison of the use of free conciliation with that of paid médiation can – with a certain amount of caution – provide insight into the question of what role is played by state payment (or non-payment) in the „success‟ of mediation. An evaluation study offering a closer perspective on the needs of parties (the „demand side‟) in mediation is the study by Touzard et al., which has made a particular study of conceptualisation among lawyers.15 A number of other studies from the Mission de Recherche offers a more a dogmatic-judicial, or legal-theoretical evaluation with respect to (the integration into legislation of) negotiation-based ADR methods. One study deserving of mention is that by Noury concerning the suitability of mediation in administrative law.16 There have also been studies into the need for quality assurance of mediators. Incidentally, it should be noted that there has also been a great deal of research into offender-victim mediation and neighbourhood justice.17 With respect to mediation in labour conflicts, there is also a somewhat older, but fascinating research study by Cam, to which a recent study by Serverin forms a supplementary to some point.18 13

A. Gotwald & V. Gotwald, Environmental mediation in Europe – Status and Experiences, Vienna, 2000, p. 24 ff. 14

Y. Desdevises and Ch. Suaud, Conciliateurs et conciliation, Université de Nantes, 2001; J-P. BonaféSchmitt, Les médiations: logiques et pratiques sociales, Université Lumière-Lyon II, 2001. 15 H. Touzard et al., Les représentations sociales du règlement des litiges – le cas des modes alternatifs, Université René Descartes, 2001. 16 A. Noury, Les alternatives au règlement par les juridictions étatiques des litiges intéressant l’administration, Université Lille 2, 2001. See also J-B. Racine (ed.), Pluralisme des modes alternatifs de résolution des conflits, pluralisme du droit, l’Hermès: Paris, 2002. 17 J.-P. Challine et al., Étude quantitative et qualitative de la médiation pénale dans le ressort de la Cour d’Appel de Paris, Université de Paris II: Paris/Orléans, 2001. 18 P. Cam, Les Prud’hommes, juges ou arbitres? Les functions socials de la justice du travail, Paris, 1981.

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Mediation - a ‘quick scan’

Finally, various studies should also be mentioned, including that of Serverin, into the function and the reform of legal aid, or aide juridique, in France.19

2.2.2 BELGIUM Belgium is a parliamentary monarchy which has had, since 1970, a highly advanced and complicated federal structure. Decision-making authority does not belong solely to the federal Government and the federal Parliament. The federal Parliament consists of the Kamer van Volksvertegenwoordigers [Chamber of People‟s Representatives] and the Senaat (Senate). Administration in Belgium is jointly in the hands of the so-called Gemeenschappen [Communities] and the Gewesten [Regions]. The federal government is in any case responsible for everything to do with the public interest. At the top of the Belgian judicial organisational pyramid, charged with civil (and criminal) cases, is the Hof van Cassatie (Court of Cassation). One step lower are the Hoven van Beroep [High Courts of Appeal], the Arbeidshoven [Labour courts] and the Hoven van Assisen [Crown Courts], followed by the Rechtbanken van Eerste Aanleg [Courts of First Instance, the Arbeidsrechtbanken [local labour courts], and the Rechtbanken van Koophandel [Commercial Courts]. The Vredegerechten [Justice of the Peace Courts] and Politierechtbanken [Police Courts] form the base line of the Belgian judicial organisation. The most important administrative court is the Raad van State [Council of State]. Finally there is the Arbitragehof [High Arbitration Court, which is competent in conflicts between existing laws and decrees and between one decree and another. At present, there does not appear in Belgium to be any question of a judicial backlog. Nevertheless, a future backlog is feared and a number of options are being explored to realise an efficient administration of justice.

2.2.2.1 Mediation in Belgium There is increasing interest in ADR or mediation in Belgium. A variety of bodies, including the Bar and notaries, have recently tackled the subject. There is also a certain institutionalisation of mediation in the private sector. One example of this is the Centre Belge d‟Arbitration et de Médiation (CEPINA). So it appears that the climate appears favourable for mediation. Some people even believe that to go to court in Belgium has now become an ultimum remedium. So writes, for example, Laenens: “In Belgium, court proceedings have become an ultimum remedium. The judge rules only when absolutely necessary. This is an application of the principle of subsidiarity.”20 Mediation is definitely now more the rule than the exception for the settlement of certain disputes, such as collective labour disputes.

19

É. Serverin, Le rapport de la commission de réforme de l’accès au droit et à la justice: comment décret repenser l’aide juridique?, in: Revue Nationale des Barreaux, No. 65, July-December, 2001, p. 71 ff. 20 J. Laenens, Règlement Alternatif des Litiges en Belgique, Report to the Sixteenth International Congress of Comparative Law, Bruxelles/Brisbane, 2002, p. 2.

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Civil disputes Since the introduction of the Juge de Paix/ (Justice of the Peace) in 1795, Belgium has been familiar with judicial conciliation. However, little use is made of this form of conciliation even now by disputing parties. One important reason for this is that the existing conciliation task of these courts is not separated from its function of the administration of justice. Some feel this mixed role prevents parties from laying their cards on the table and providing confidential information about their conflict.21 This relatively (negative) experience with judicial conciliation has, nevertheless, not stood in the way of a renewed interest in the mediating style of conflict resolution by the courts. In October 2002 the Belgian Minister of Justice spoke out in favour of mediation by the courts in all civil, commercial and labour disputes.22 The Minister perceived the introduction of judicial mediation itself as one of the most important amendments included in the „Bill to amend the judicial code with respect to the administration of justice and jurisdiction‟. In this bill, which forms the keystone of the approach to the judicial backlog in civil disputes in Belgium, an entire Chapter is devoted to mediation.23 Art. 734 sexies 1 of the new law specifies that with the exception of the Court of Cassation and the Courts of First Instance, at least one Mediation judge will be assigned to each court.24 The Mediation judges must be at least 35 years old and, at the time of appointment, have been working as a judge for at least 3 years. Furthermore the Mediation judge must have followed a specialised training course.25 The Mediation judges perform their mediation activities in disputes which fall within the sphere of competence of the court of which they form part or to which they have been assigned territorially. In principle, all disputes which can be dealt with under Belgian civil law can be considered for mediation. If parties wish to request the intervention of the Mediation judge, they must file a jointly signed request at the introductory hearing or not more than 15 days before the hearing. The handling judge will make a pronouncement on this within a month by means of a reasoned decision, after hearing the parties in this matter or having summoned them as appropriate. The handling judge can refuse to refer the case to the Mediation judge if public order is at issue. There is no legal remedy for this decision.

21 22

Ch. de Vel, De mediating judge, paper Conference on Judicial Mediation, 9 October 2002, Brussels, p. 6.

Speech given by the Belgian Minister of Justice, Marc Verwilghen, at the conference on judicial mediation, 9 October 2002, Brussel. 23 Apart from a chapter devoted to mediation, one section is included which relates to ‘Conciliation during the administration of justice’. 24 At the Court of Appeal and at the Labour Court, these judges bear the title of Mediatieraadsheer or mediation councillor 25 The training programme for the Mediation judges must be defined in accordance with Art. 259a, §2 Ger.W.

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When the parties reach an agreement about their dispute through the intervention of the Mediation judge, a report is drawn up, signed by the parties, the Mediation judge and the clerk of the court. The dossier is then sent together with the report to the handling judge who earlier referred the case, who then summons the parties to appear before him in order to take note of the agreement concluded and to declare it enforceable, unless it conflicts with public order. There is no provision open, in principle, against the order relating to the enforcement order, the so-called „agreement order‟. On 1 January 2003 in Antwerp, the project „De rechter als bemiddelaar‟ [The judge as mediator] was started. The concept of the project broadly follows the model of judicial mediation proposed by the legislator. Christian De Vel, First chairman of the Court of Appeal, and his colleague Katy Allegaert are the initiators of this project. Their inspiration for the conceptualisation of this Antwerp project was the model of the Court of Quebec. The project runs in any case until 1 January 2005. It seems highly probable that the project will be evaluated with the collaboration of the University of Antwerp.

Labour disputes

In Belgian industrial relations, mediation is a tried and tested method, especially for the settlement of collective labour conflicts. The resolution of collective labour conflicts is characterised by a high degree of professionalisation and institutionalisation. The Conciliateurs Sociaux/Social Mediators, together with Commissions de Paritaires/Parity Committees play a mediating role in the settlement of collective labour conflicts. Both have legal status.26 The Department of Social Mediators, headed by the Administrateur-General, forms a separate department within the Belgian Ministry of Employment and Labour. In order to be appointed as a Social Mediator, one must be at least 35 years old and familiar with Belgian industrial relations. The Parity Committees consist of a chairman – the Social Mediator – and an equal representation of employers and employee organisations. These committees have a twofold function: the creation and conclusion of collective labour agreements and the fulfilment of a mediating role – under the chairmanship of the Social Mediator – if conflicts arise on the occasion of or during the negotiations of a Collective Labour Agreement. There is no charge for the services of the Social Mediators. The settlement of individual labour conflicts has, since 1970, formed part of the competence of the Labour Courts. Unlike their predecessors, these courts have no conciliation task. The forerunners of the labour courts were in the first instance the Justice of the Peace courts, which started their activities in 1795. These had, just like the French Juge de Paix, a conciliation task. The obligatory conciliation in individual labour conflicts was abolished by the law of 12 August 1911.

26

See e.g Royal Decree of 23 July, Monit. 30 July 1969; Law on Collective Labour Agreements and Parity Committees, 5 December 1968.

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In 1842 the Werkrechtersraden or councils of lay judges were the direct successors to the Justice of the Peace courts. These councils, established following the example of the French Conseils de Prud‟hommes, also had a conciliation task.

Family disputes In addition to the recently started project „De rechter als bemiddelaar‟, Belgium also has what is known as procedure gebonden (court annexed) mediation in family cases. This form of mediation is governed by law of 19 February 2001 and forms a separate Chapter in the Judicial Code. The legal regulation of family mediation was in many respects a codification of an existing practice, whereby the judge referred parties to an external mediator.27 The law gives no definition of family mediation. In family disputes between both married couples and co-habitees, the Belgian judge can, at the joint request of parties or on his own initiative but with the consent of the parties, appoint a mediator. Only lawyers and notaries who have followed a special mediation training course can be appointed as mediator. The same applies for natural persons who are authorised to do so by the competent authorities. If no agreement can be reached, the parties can simply continue the procedure. If, however, an agreement is reached, this is recorded by the judge in an „agreement order‟. The Belgian legislator has prescribed no maximum period for family mediation.28

Administrative disputes; including environmental disputes Scarcely any use is made of the options for mediation in administrative and environmental disputes respectively. Only the Walloon Espace Environnement has spoken out for the introduction of mediation in environmental disputes.

2.2.3 SPAIN Spain is a decentralised unitary state with a constitutional monarchy and a parliamentary system. The new Basic Law of 1978 introduced a two-chamber Parliament, the Cortes, consisting of the Senado and the Congreso de los Diputados. The Spanish Constitution of 1978 is based on unity of administration of justice. The judicial column for civil cases includes in any case the Tribunal Supremo (Supreme court) in Madrid. One level lower are the Audiencias Provinciales (Provincial High Courts), followed by the Juzgados de Primera Instancia (Courts of first instance) and the Juzgados de Paz (Justice of the Peace courts). Some of these courts also deal with administrative disputes. Spain also has specialised courts such as the Magistratura de Trabajo (Labour Court).

27

Art. 734a-734 sexies Ger. W. A. Thilly, La médiation familiale en droit belge, in: Global Trends in Mediation, N. Alexander, Cologne: Otto Schmidt Verlag, 2003. 28

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In Spain, the number of civil cases has risen on average by 10% per year. As a result, the time taken to deal with a case has increased accordingly. Some even argue that “[…] the principal problem with civil justice in Spain is the excessive duration of litigation.”29

2.2.3.1 Mediation in Spain Some forms of ADR, in particular conciliation, are not completely unknown phenomena in Spain. For certain disputes, such as labour disputes, there is even said to be a rapid rise in conciliation/mediation.

Civil disputes; including family disputes Since 1881, Spain has had a system of judicial conciliation. From that moment, parties have been obliged to co-operate in an attempted conciliation, before any dispute could be brought before the civil judge. This changed with the relatively recent amendment of the code of civil procedure in 1984, whereby this preliminary conciliation became optional since the old mandatory conciliation appeared not to have been a success. If the present, optional conciliation leads to a settlement agreement, this can be converted into a transacción judicial in the presence of the judge. In general, it is accepted that this judicial conciliation is reasonably successful, especially in those cases where the judge is in possession of sufficient information about the nature of the case. This assumption, however, cannot be backed up by empirical data. Family disputes belong in principle to the competence of the civil judge of first instance, the Juzgados de Primera Instancia. Some courts of first instance, however, have separate Juzgados de Familia, with exclusive competence in family cases. There is still no national legislation prescribing that parties must co-operate in an attempt at conciliation/mediation, prior to filing the petition for divorce. At the level of the Spanish autonomous communities, though, legislation has been created whereby the judge can refer parties to mediation. Thus for example Art. 79, part 2 of the Catalan Code for Family Law stipulates that when a divorce petition is filed without the consent of the other spouse, the judge can refer the parties to a mediator or a mediation institute. Art. 11, part 1 of the Catalan Family Mediation Law also stipulates that parties are not obliged to co-operate herein.30 The Catalan Centre for Family Mediation mediates regularly in this sort of conflict. It is not yet known whether the Catalan example and that of other autonomous communities will find a following at national level.

29

I. Díes-Picazo Giménez, Civil Justice in Spain: Present and Future. Access, Cost, and Duration, in: Civil Justice in Crisis, A.A.S. Zuckerman ed., Oxford, 1999, p. 395. 30 Catalonia: Ley 1/2002, de 15 de marzo, De mediación familiar de Cataluňa (DOGC No. 3355, 23.3.2001); Galicia: Ley 4/2001, de 31 de mayo, Reguladora de la mediación familiar (DOG. No. 117, 18.6.2001); Valencia: Ley 7/2001, de 26 noviembre, Reguladora de la mediación familiar (DOGV No. 4138, 29.11.2001).

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Labour disputes Spain has a practice of mediation and arbitration for both individual and collective labour conflicts. Individual and collective labour conflicts can be brought before the Magistratura de Trabajo, after parties have first undertaken a conciliation or mediation attempt under the direction of an employee from a Servicio de Mediación, Arbitraje y Conciliación (Mediation, Arbitration and Conciliation Service). If during this preliminary mediation no settlement agreement is produced, the labour judge will nevertheless again venture a mediation attempt during the judicial procedure. If this judicial mediation attempt is a success, then the settlement reached is converted into a settlement order. With respect to the settlement of collective labour conflicts, it is interesting to note that in 1998 the Servicio Interconfederal de Mediación y Arbitraje was established.31 This organisation is responsible for the implementation of the Acuerdo sobre solución extrajudicial del conflictos laborales (Accord relating to the extrajudicial settlement of labour conflicts). This Accord, signed by the most important Spanish trade unions and employers‟ organisations, means that for the settlement of collective labour conflicts at intersectoral or national level, parties shall call on the assistance of SIMA.

2.2.4 ITALY The parliamentary republic of Italy has been a sovereign unitary state since 1861, and was proclaimed a republic on 2 June 1946. The Parliament includes the Chamber of Deputies and the Senate. Both chambers exercise equal powers. Between 1922 and 1943 there were almost no democratic organs and rights for citizens. This changed with the establishment of the Basic Law on 1 January 1948. The Corte Constitutionale (Constitutional Court) nullified laws which conflicted with the Basic Law. The Italian judicial organisation has many regular and specialised courts. The ordinary courts, which rule in civil and criminal cases, include in any case the Corte di Cassazione, the highest judicial council. Additionally, the ordinary courts also include, inter alia, the Corte di Appello (Court of Appeal), the Tribunale Ordinario (Tribunal), the Pretore (Local court) and the Giudice di Pace (Justice of the Peace courts). The Tribunali Amministrativi Regionali (Regional Administrative Tribunals) and the Consiglio di Stato (Council of State) have authority in administrative disputes. In various courts, there are laymen and experts sitting.

31

E. González-Posada Martínez, La solución extrajudicial de los conflictos laborales, Valladolid, 2001.

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2.2.4.1 Mediation in Italy Italy has been struggling for a long time with an enormous delay, especially in the handling of civil cases. The time taken to hear a civil case in first instance is an average of 1204 days.32 There have been various attempts to counter this problem of delay, including the reform of the civil procedural law in 1942. However, this has not brought about the desired change - on the contrary. According to Chiarloni there may even have been a dramatic increase in the time taken to handle civil disputes.33 Others even speak of a „familiar evil‟, maintained in particular by advocates, judges, and insurance companies.34 In the light of this situation, ADR, or more particularly mediation, is regarded by some as an attractive prospect for dealing with this problem.

Civil disputes; including family disputes The Giudice di Pace, the Pretore, and the Tribunale, are the courts which deal with civil cases in first instance. The Giudice di Pace and the Pretore both have an explicit, conciliating

task. Otherwise the former makes very little use of this power.35 Outside the judicial infrastructure, incidentally, experiments are being conducted with conciliation/mediation. The Sip Telecom Italia project can be mentioned as an example of this. In the frame of this project, regional conciliation commissions conciliate in complaints by customers about, for example, their telephone bill. The intervention of a commission of this kind can result in a conciliation or a non-conciliation report. If it is the latter, the claimant can opt for arbitration. 82% of the total number of cases are resolved via this form of conciliation. Also, the Italian Chambers of Commerce were given a legal conciliation and arbitration role by law of 29 December 1993 (no. 580). Mediation in family disputes is (still) very little institutionalised. Incidentally the Italian judge instructs the parties about the possibility of mediation.

Labour disputes

Alternative forms of conflict resolution are known methods for the settlement of labour disputes in Italy. Conciliation in particular has a long tradition. The Collegi dei Probiviri (Colleges of Wise Men), introduced in 1893, very similar to the French Conseils de Prud‟hommes, were in the first instance given the role of conciliation and administration of justice in individual labour conflicts, later in collective labour conflicts too.

32

S. Chiarloni, Civil Justice and its Paradoxes: An Italian Perspective, in: A.A.S. Zuckerman ed., Civil Justice in Crisis, Oxford, 1999, p. 268. 33 Ibid., p. 268. 34

S. Pellegrini, Formal and informal justice in Italy, paper presented at the conference ‘Civil Litigation in the 21st Century, Copenhagen, 2002, p. 4 35 See S. Chiarloni, et al., p. 289.

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They always started their activities with a conciliation (attempt). If the conciliation is unsuccessful, they then put on their judge‟s cap.36 The Collegi were abolished during the fascist period (1930–1940); specialised courts were not allowed in that period. After World War II the „ordinary‟ courts were charged with the settlement of individual labour conflicts. From 1973, however, the Pretori (Local courts) were specifically charged with individual labour conflicts.37 The procedure in labour cases is aimed at simplicity and speed. Before the case can be dealt with, parties must demonstrate that they have already tried to reach a resolution of their dispute, with or without the assistance of an Ufficio Provinciale del Lavoro (Labour office). These Labour offices, hierarchically subordinate to the Italian Ministry of Labour, have since 1973 had a legal, preliminary conciliation role, which they exercise via commissions specially established for the purpose. In individual labour conflicts concerning officials, the conciliation practised by the labour offices themselves is mandatory. Apart from the labour offices, the Pretori themselves also make a conciliation attempt. If this attempt is successful, the settlement agreement will be converted into a settlement order. The aforementioned Labour offices, just like politicians, also fulfil a conciliating role in collective labour conflicts.38

Administrative disputes; including environmental disputes

The number of disputes between the Italian government and private parties has sharply increased in recent decades and has led to an increase in the workload of the courts. To counter this development, the Italian Parliament has decided to introduce a preliminary conciliation phase, preceding an administrative procedure.39

2.3 The Germanic „Civil law‟ countries Just as in the Romanistic „Civil law‟ countries, in these countries, too, the law is codified. However, it is chiefly academic thinking which has left its mark on these „Germanic‟ codifications; witness the systematic drafting of the codes. At the same time, a more pragmatic vision of the need for judicial law-making prevails in these countries; witness the many open norms and the style of judicial verdicts which differs from that of the Romanistic countries.

2.3.1 GERMANY The Federal Republic of Germany is a parliamentary democracy with a highly advanced federal structure. This makes it difficult to pass general comments on „the‟ German practice

36 37 38

Annie de Roo & Rob Jagtenberg, Settling Labour disputes in Europe, Deventer/ Boston, p. 333. L.n. 533/1973.

M. Grandi, Extra-judicial resolution of collective disputes in Italy, The Study of Conciliation, Mediation, and Arbitration, Madrid/Brussels, 2002. 39 European Committee on Legal Co-operation, Working Party of the Project Group of Administrative Law, Strasbourg, 15 November 1999.

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of mediation. Hereinafter repeated reference will be made to experiences in specific Länder, such as Nordrhein-Westfalen or Bavaria. The German judicial organisation is highly specialised. For civil disputes, with the exception of labour cases, there are the Amtsgerichte (competent in „minor‟ civil disputes), the Landgerichte (Courts of First Instance), and the Oberlandesgerichte (Appeal Courts). At the very top of the hierarchy is the Bundesgerichtshof. For labour disputes there are the Arbeitsgerichte (Labour Courts of First Instance), the Landesarbeitsgerichte, and the Bundesarbeitsgericht. For administrative legal disputes there is also a separate column in the judicial organisation: the Verwaltungsgerichte, the Oberverwaltungsgerichte, and the Bundesverwaltungsgericht. In addition to these, there are also specialised instances for social security cases, and for tax cases. The Bundesverfassungsgericht, the German Constitutional Court, stands at the pinnacle. Entering the German Magistracy usually means that one opts for a separate, official career path. Germany has a proportionately large number of judges per capita of the population. Lengths of procedures are fairly short as a result. Another characteristic of the German system lies in the statutory fee rates for advocates, and the fact that about 90% of all Germans have legal insurance. These data are possibly relevant for the cost infrastructure of dispute settlement in Germany.

2.3.1.1 Mediation in Germany

The mediating style of conflict resolution is gaining in interest slowly but surely in Germany. This development is perceptible, despite the much-discussed „Deutsche Neigung zur möglichst vollständigen Verrechtlichung von Konflikte‟ [German tendency to legalise conflicts as far as possible]. This tendency may be an element of the German legal culture, but financial considerations probably play just as great a role.

Civil disputes

According to authoritative authors, the so-called Gütegedanke has always formed part of German procedural law.40 This concept means that an agency with decision-making powers, before reaching a decision, must first explore the possibility of an amicable settlement. A settlement of this type usually takes priority. The more specific term Güteverfahren refers to a mediation process that takes place in the shadow of any decision which may be imposed by the judge. The actual business of mediation is known as Vermittlung (mediation) or Einigung (conciliation), sometimes also as Schlichtung. A number of authors reserve this last term for mediation attempts which are undertaken outside the judicial infrastructure by private Schlichtungsstelle [mediation agencies].

40

Stein-Jonas, ZPO [code of civil procedure], 21st ed., Tübingen: J.C.B. Mohr, 1997.

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In 1924, in economically difficult times, the Güteverfahren was integrated into the Zivilprozeβordnung (ZPO) as an obligatory preliminary phase in the procedure before the Amtsgericht. This preliminary phase, however, turned out to raise unexpected problems. In a subsequent amendment to the law in 1950, the formulation was then altered. The rule was henceforth that the judge „auf die gütliche Beilegung des Rechtsstreits hinwirken soll‟ [the judge should work towards an amicable settlement of the legal dispute]. In 1976 the formulation was again amended.41 The rule for every civil judge was now that he should, at every stage of the case, „auf eine gütliche Beilegung des Rechtsstreits bedacht sein soll‟ [consider an amicable settlement of the legal dispute] Despite this dilution of judicial mediation, from 1970 a spread of negotiation-based methods took place, particularly in consumer law. Mediation was and is applied as a method in the frame of complaint procedures before diverse sector-specific Ombudsman institutions (such as the Bankenombudsmann at the Bundesbank for complaints by customers about banking services). In some Länder, such as Nordrhein-Westfalen, there was traditionally a number of independent mediators-cum-arbitrators officiating, the Schiedsmänner. From research by Klaus Röhl in the 1980s, however, it has emerged that these Schiedsmänner were only given a very small number of cases to deal with, and therefore played only a marginal role on the judicial stage.42 Röhl attributes this partly to the lack of an effective referral mechanism from the court system. In the mid-90s, however, there was increasing interest in Germany in the American style of mediation, due inter alia to the publications of Stephan Breidenbach and Walther Gottwald.43 A number of lawyers and Betriebsberater [business advisors] took the lead in the establishment of private mediation providers for business-to-business and intra-company conflicts. The largest of these providers is now the Gesellschaft für Wirtschaftsmediation und Konfliktmanagemen (GWMK), based in Munich. These organisations have their own training programmes and certification requirements. By now, the family mediators also had their own (diverse) organisations. A new term came into vogue: „a.Be.R.‟, aussergerichtliche Beilegung von Rechtsstreitigkeiten [extrajudicial settlement of legal disputes]. In the meantime, Anglo-American mediation had also taken root; so there is the Centrale für Mediation, with its predicate „Ihr Service-Centrum für

professionelles Konfliktmanagement‟.

Politicians also started to take an interest in the subject. On 15 December 1999, the Bundestag adopted an amendment to the law concerning par. 15a Einführungsgesetz ZPO (EGZPO) [introductory act - civil procedure act]. This amendment meant that Länder were offered the opportunity, through a so-called Öffnungsklausel, if they so wished, to prescribe a mandatory preliminary mediation round from 1 January 2000 for three categories of disputes: property law disputes up to a limiting value of DM 1500, neighbours‟ disputes, and matters relating to harm to someone‟s reputation and good name.

41 42 43

Par. 279 ZPO. Klaus F. Röhl, Das Güteverfahren vor dem Schiedsmann, Köln: Carl Heymanns Verlag, 1987. S. Breidenbach & M. Henssler, Mediation für Juristen, Köln: Dr. Otto Schmidt Verlag, 1997.

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Why just these categories of dispute? According to the initiators of this law, these are typical areas where in most cases it is not so much legal issues which are involved, but interpersonal problems, which make unnecessary demands on the time of the courts. In the background, the concept of efficiency also plays a role, although less pronounced than in the Netherlands and England. An illustration in this respect are the fierce controversies within the judiciary over the so-called Personalsbedarfberechnungssystem (PEBBSY) [personnel requirement accounting system]. To summarise, it can be stated that par. 15a EGZPO had a two-fold objective: to build in a filter to relieve the burden on the court system and to fix attention on ADR. Mandatory mediation services now also had to be provided by external organisations: by recognised Gütestelle, or by other Schlichtungsstelle. These organisations have to charge parties a legal fee of € 100 for their services. The parties also have to pay their lawyers, if they want to take them along to the mediation session. The regulation concerning mandatory preliminary mediation is in the nature of a Zeitgesetz, that is, an experimental law which in this case retains its validity until 31 December 2005. At that point the results of an evaluation study must show whether a definitive mediation regulation must be established. So far, seven Länder have seized this opportunity and created a mandatory mediation regime at Land level. Bavaria and Nordrhein-Westfalen were the pioneers. In Nordrhein-Westfalen, a good 500 different organisations are licensed as Gütestelle or Schlichtungsstelle, including many of the Schiedsleute described by Röhl. In Bavaria, it was decided to designate as recognised Gütestellen: all notaries, and also those lawyers licensed as Gütestelle by the Rechtsanwaltskammer [Bar Association]. The sonstige Schlichtungsstelle are formed by a varied group, with diverse existing complaints commissions, such as the Schlichtungsstelle of one of the Ärtzekammern [medical councils], the Schlichtungsstelle at the Chambers of Commerce and Industry, and the Schiedsstelle für den Gebrauchwagenhandel. [arbitration agency for the used vehicle trade] If one of the parties does not wish to co-operate at this stage, then the assistance of a Gütestelle must be called in. If both parties agree on the choice of the mediation authority, then they can also approach a different Schlichtungsstelle. Only an order recorded by a Gütestelle can be valid as enforcement order.44 The evaluation studies prescribed by the Zeitgesetz have only recently started. At the time of writing there was only a first interim report available from Nordrhein-Westfalen, and a few quantitative data from Bavaria. Also, there is nothing yet known about experiences with a different, even more recent legal amendment, namely that concerning par. 278 IV ZPO, whereby parties are allowed to ask the court handling the case for a special mediation hearing.

44

Only failures recorded by a Gütestelle can stop a period of prescription.

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Labour disputes

Unlike the practice in ordinary civil courts, for the labour courts it has always been standard practice to make a preliminary investigation into the possibility of an amicable settlement. This practice is based on par. 54.1 of the Arbeitsgerichtsgesetz (ArbGG). The Arbeitsgericht has a tripartite composition: a professional judge-jurist as chairman, and two lay assistants representing employers and employees. The preliminary mediation attempt is, however, undertaken by the Chairman alone. This is a practice which has for a long time delivered fairly constant settlement percentages, namely of between 30 and 40%.45 There are no more precise rules which prescribe how the Chairman of the Arbeitsgericht should proceed in his mediation attempt. A former Labour Court judge says, however, looking back on his ten-year practice, that “[…]die Ursache für die zahllosen Kompromisse in

der Güteverhandlung weniger in meiner Überzeugungskraft lag als vielmehr in der Tatsache, daβ die Prozeβparteien meine Einschätzung der Prozeβaussichten ihrem Kalkul zugrundelegten.” [the reason for the countless compromises in conciliatory hearing was due less to my powers of persuasion than to the fact that the parties based their calculation on my estimation of the prospects of the proceedings].46 There is a time limit provision: in cases involving dismissal, the mediation attempt must take place within two weeks after the filing of the claim.

The Arbeitsgericht handles individual labour disputes. Collective disputes are usually brought before one of the many Schlichtungsstellen which are created in each sector by CLAs. These Schlichtungsstellen in turn combine mediation powers with decision-making authority. Notwithstanding successful interventions in the 1970s and 1980s, they have been unable to prevent Germany recently being confronted by increasing labour unrest.

Family disputes

Mediation is furthest developed in the field of divorce and parental access law. In 1989 the first American trainers were called in, and in 1992 the Bundes-Arbeitsgemeinschaft für Familien-Mediation (BAFM) was established. The BAFM has issued a code of conduct, containing the usual requirements of voluntariness, neutrality, informed consent, confidentiality and secrecy. The BAFM has also created a detailed training rulebook, compelling BAFM members to follow regular interdisciplinary courses and to build up practical experience, in connection with the requisite certification of mediators.

45

See i.a. Thilo Ramm, Germany, in: R. Blanpain (ed.), International Encyclopedia of Labour Law, Kluwer losbl. 46 Eckart Stevens-Bartol, Mediation im Arbeitsrecht, in: S. Breidenbach & M. Henssler, Mediation für Juristen, Cologne: Verlag Dr. Otto Schmidt, 1997, p. 142.

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Administrative disputes

In this field, no structural activities have as yet been developed. There are, however, a few individual mediators who have recorded a certain amount of success on an ad hoc basis with the use of mediation techniques in the preparatory phase of decision-making in the sphere of environmental planning, such as for example the recent expansion of Frankfurt Airport. There is regular written material being produced about the options (and the problems) of judicial integration of mediation into administrative law.47

2.3.1.2 Evaluation study At present, there is a series of evaluation studies taking place on the occasion of the mandatory mediation regulations at Land level under Art. 15a EGZPO. The problem is that these evaluations have only recently started. There is, however, already a first interim report available for the Land of Nordrhein-Westfalen, drawn up by Klaus Röhl, and also a recent first impression from Bavaria by Reinhard Greger.48 The interim report concerning Nordrhein-Westfalen appears to be particularly interesting, not just because this relates to truly mandatory (just as in Bavaria and elsewhere), and furthermore paid mediation, but also because Nordrhein-Westfalen as a Land is comparable, in many respects (number of inhabitants, composition of population) with the Netherlands.

2.3.2 AUSTRIA Austria is a federal republic, with a parliamentary system. The Parliament, the Bundesversammlung, consists of two Chambers, the Bundesrat and the Nationalrat. The judicial organisation includes a civil, a criminal and an administrative column. At the top of the civil (criminal) column stands the Oberster Gerichtshof (Supreme Court), followed by four Oberlandesgerichte (Appeal Courts). The Bezirksgerichte (Local courts) and the Landesgerichte (District Courts) form the courts of first instance. Administrative disputes fall under the competence of the Verwaltungsgerichte (Administrative courts). Austria also has a Verfassungsgerichtshof. (constitutional court).

2.3.2.1 Mediation in Austria

The Austrian mediation landscape is of recent date. Mediation manifested itself for the first time in 1985, in the frame of the discussion over the review of the juvenile criminal law. Despite criticism from the judiciary and the Public Prosecutor's Office, experiments were done with the so-called außergerichtlicher Tatausgleich (ATA) [extra-judicial mediation between offender and victim]. This form of extra-judicial dispute resolution appeared to be successful and subsequently, with the creation of the Jugendgerichtsgesetz in 1989 took on a legal basis. In 1999 the scope of action of this method of settlement was extended to adult offenders.49 This regard for the ATA in criminal law has been important for the development of mediation in other areas of the law.

47

S. Breidenbach & M. Henssler, Mediation für Juristen, Cologne: Dr. Otto Schmidt Verlag, 1997. K.F. Röhl, Evaluierung des nordrhein-westfälischen Ausführungsgesetzes zu §15a EGZPO, 1. Zwischenbericht, April 2002. 49 N. Koblinger, Mediation im Strafrecht – Der Außergerichtliche Tatausgleich, in: Mediation in Österreich, A. Pritz, Wien: Orac, 2000, p. 157-164. 48

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Civil disputes

In the spring of 2001, the Austrian Ministry of Justice began to prepare a bill concerning the so-called gerichtsnahe Mediation in civil disputes. This resulted in the draft of the

Bundesgesetz über gerichtsnahe Mediation sowie über Änderungen des Ehegesetzes, des Außerstreitgesetzes, des Zivilprozeβordnung, des Strafprozeβordnung, des Gerichtsgebührengesetzes und des Kindschaftsrechts-Änderungsgesetzes 2001. [federal law on court-annexed mediation and on reform of the matrimonial law, the proceedings act, the civil procedure code, the criminal procedure code, the court fee act and the law on the reform of parent and child law 2001]. As has now become apparent, this law will come into force on 1 March 2003. This law is aimed chiefly at the supervision and the quality of the mediators.

Labour disputes

With the exception of Vienna, individual and collective labour conflicts over rights are in principle handled by special labour sections within the Landesgerichte. These sections consist of a professional judge, who is assisted by two specialist laymen. They represent the employers‟ and employees‟ organisations. Collective labour conflicts over interests can be brought before so-called Conciliation Boards, which are convened separately for each conflict.50

Family disputes

The launch of the Co-Mediation project in 1994, in which two local family courts in Vienna and Salzburg took part, was a first approach to the development of mediation in family disputes.51 In the frame of this one-year project, the judge was able to offer parties the opportunity to resolve their conflict by means of co-mediation, which meant that two mediators were always involved in a mediation. Furthermore, this duo of mediators had to consist of a man and a woman, with a judicial or psychological background respectively. It was felt to be important that the divorcing couple were faced by a man and a woman. The choice of this form of mediation was inspired in particular by dissatisfaction with the normal method of settlement of family disputes and a huge increase in the number of divorces. The participation of parties in a co-mediation of this type was free. During the period 1994-1995, 8 mediation teams mediated in 90 disputes. In more than a third of the long-term procedures, the judge recommended mediation to the parties. In more than half of the mediated cases, a (partial) agreement was reached between parties. It was also found that communication between the ex-spouses was improved by the intervention of the co-mediators.52

50 51

§ 144 Arbeitsverfassungsgesetz.

Family disputes here means disputes over divorce, alimony, asset-related issues, custody and visiting rights. 52 C. Mattl and A. Prokop-Zischka, Mediation in Austria, in: Global trends in mediation, N. Alexander, Cologne: Otto Schmidt Verlag, 2003, p. 6.

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This project was the direct cause of the creation of the Eherechtsänderungsgesetz [reform of matrimonial law act] in 1999 and the Familienlastenausgleichgesetz [family costs contribution law] in 1997. These laws afforded co-mediation in family disputes a legal basis and also governed the financial contribution to the costs of mediation. Since June 1999, all Austrian courts have had the option of recommending co-mediation to parties in disputes over divorce, custody and visiting rights. Otherwise co-mediation can only be offered by mediators who are affiliated to accredited mediation organisations, such as the Österreichische Bundesverband des MediatorInnen.

Administrative disputes; including environmental disputes

Occasional reference is made to mediation in the frame of administrative procedures. But the practice of mediation in administrative and environmental disputes respectively remains at an embryonic stage.

2.3.3 SWITZERLAND The federal Swiss state consists of the Federation and 26 cantons. These cantons have the status of a state. They have their own basic law, own law and own organs. State supervision is exercised by a Parliament elected by the people, the eidgenössische Räte, also known as the Bundesversammlung. The Bundesversammlung has two chambers: the Nationalrat and the Ständerat. Switzerland is a direct democracy. This means that people are familiar with the instrument of the people‟s initiative, with which an amendment of the Basic Law is intended, and the referendum, whereby the people decide on the laws of the Bundesversammlung. The highest judicial body of the Swiss federation is the Bundesgericht in Lausanne. This body is only empowered if the Basic Law or a federal law so stipulates. At cantonal level, despite the different names, there is always an Obergericht/Kantonsgericht, followed by Bezirksgerichte/Ambtsgerichte. These courts rule in criminal, civil and administrative legal disputes. For disputes with a low value at issue, one relies chiefly on the Friedensrichter (Justice of the Peace Courts).

2.3.3.1 Mediation in Switzerland

In Switzerland, for a number of disputes, use is made of alternative methods of conflict resolution. In general, going to court is regarded as the ultimum remedium. Conciliation in particular, as practised by the Friedensrichter, has a long tradition. The rise of modern mediation is, however, of recent date. In general it is expected that this form of conflict resolution will merely broaden the existing ADR scale and not actually contribute to a reduction in the workload of the courts, since many disputes are already resolved outside the courts.53

53

I. Meier, Mediation and Conciliation in Switzerland: With an emphasis on the legal framework for mediation, in: Global trends in mediation, N. Alexander, Cologne: Otto Schmidt Verlag, 2003, p. 10.

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Civil disputes

In Switzerland, a civil procedure usually begins with a conciliation session under the direction of a lay judge, the Justice of the Peace. With the exception of the cantons of Freiburg, Geneva and Jura, where one can go directly to court, this conciliation procedure is mandatory in all cantons. In 30% of cases, the intervention of the Justice of the Peace does actually lead to a resolution of the dispute.54 Apart from the Justices of the Peace, in all the cantons there is also a specialised Justice of the Peace for disputes between landlord and tenant, the so-called Schlichtungsbehörden.55

Labour disputes

The settlement of individual labour conflicts varies for each canton. In principle there are three options. An individual labour conflict is presented to: the „ordinary‟ civil court; a Tribunal de Prud‟hommes (Court of Wise Men) in cases with a claim of under 20,000 Swiss Francs. Above this amount, the ordinary civil court has competence; a specialised court, consisting of a jurist and an equal representation of employees and employers.

Family disputes

The entry into force of the new divorce act in 2000 has given an incentive to the development of mediation in family disputes. In all Swiss cantons, there are mediators who have specialised in family mediation. Often people opt for co-mediation, practised by a mediator-jurist and a mediator-psychologist. In the canton of Zürich there is legislation providing for funding of legal aid if parties opt for mediation.56

Administrative disputes; including environmental disputes

Occasionally, use is made of mediation to settle environmental disputes. Due to the presence of a number of negotiation opportunities in administrative procedures, inter alia, there appears still to be no great demand for mediation in this field.57

54

I. Staubli, Der Friedensrichter in der Schweiz, in: Öffentliche Einrichtungen zur außergerichtlichen Vermittlung von Streitigkeiten, P.G. Mayr, Vienna, 1999, p. 189. 55 Art. 274a OR. 56 § 89a ZPO Zürich. 57 A. Gotwald & V. Gotwald, Environmental Mediation in Europe – Status and Experiences, Vienna, October 2000, p. 57.

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2.4 The Scandinavian „Civil law‟ countries The Scandinavian legal systems, also often referred to as the Nordic legal systems, are characterised by a strong political and cultural bond, which has led to great similarity between the respective legal systems. The origin of these legal systems is the old Germanic law, which was committed to writing from the 12th century. With the rise of the centralised unitary state, the law then began to be compiled and unified. Only in the 17th century did Romanistic law begin to take on any influence in these countries and then it was mainly in the areas where the Germanic law displayed lacunae. In essence, the Scandinavian legal systems experienced their own (codification) development, whereby it appeared that there was an increasing academic orientation towards the law, due, inter alia, to the influence of the continental European legal systems.

2.4.1 DENMARK Since 1849, Denmark has been a constitutional monarchy with a Parliamentary system. The Parliament, which consists of only one Chamber, has 179 members. The Danish Basic Law uses the principle of the division of powers. This means that legislative power is transferred to the King and the Parliament together, the executive power to the King, and judicial power to independent courts. The regular Danish administration of justice takes place in three instances. At the top of the Danish judicial organisation resides the Højesteret (Supreme Court), followed by two Landsretter (High courts) and 82 Byretter (courts). These courts rule in both criminal and civil cases. There are also specialised courts such as the Arbejdsretten (Labour Courts). Denmark has no administrative courts.

2.4.1.1 Mediation in Denmark ADR, in particular conciliation, is fully developed in Denmark with respect to the settlement of labour conflicts. There is a high degree of institutionalisation and professionalisation. Other disputes, including family disputes, are occasionally resolved by way of modern mediation. Since 1998, a commission has been working, by order of the Danish Ministry of Justice, on the review of civil procedural law. This commission is simultaneously required to explore the possibilities of judicial referral to mediation. In the interim report of the commission, there is nothing said yet about mediation. Some Danish authors in the field of mediation wonder if this might be interpreted as a general prejudice against mediation.58

58

V. Vindelov, Conciliation and mediation in Danish Law, in: Parts of Danish Law in Action, National Reports XVIth Congress of the International Academy of Comparative Law, Brisbane 2002.

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Labour disputes

Danish industrial relations are characterised by a high degree of organisation of both employees and employers, with the result that the legal position of most Danish employees is governed by collective labour agreements. As a result, a sharp distinction is made in Denmark, especially between collective labour conflicts over rights and interests respectively. Individual labour conflicts are mainly dealt with via the dispute clauses included in collective labour agreements. The social partners are very attached to self-regulation. In principle, Danish conciliation is mandatory in collective labour conflicts. This means that before a dispute can be put before a mediator of the Statens Forligsinstitution (Public Conciliator) or the Arbejdsretten (Labour court), a conciliation attempt must already have been made. As a result, most collective labour agreements provide stratified dispute clauses: mæglingsmøde (conciliation agreements) and organisationsmøde (organisation agreements). Most disputes are resolved at these two levels. With the introduction of the Forligmandsloven (Public Conciliator) in 1908 for the settlement of collective labour conflicts, conciliation or mediation became the prevalent method for the settlement of collective labour conflicts.59 The immediate successor to these Forligmandsloven from 1908 is the Statens Forligsinstitution.60 This service formally comes under the Ministry of Labour, but conducts its activities on an independent basis. Furthermore, the Statens Forligsinstitution has its own budget and offices. The services of the Forligsinstitution are free. The Statens Forligsinstitution is served by three Forligsmænd (Conciliators) appointed by the Minister of Labour, who are assisted by 21 Mæglingmænd (Assistant mediators). The appointment of the mediators takes place following consultation of the main employers‟ and employees‟ organisations. The Statens Forligsinstitution mediates chiefly in collective labour conflicts over the establishment, review and extension of collective labour agreements. The function of the service is laid down in law.61 The Forligsmænd can start their mediation work at their own initiative or by request of parties and they can make mæglingsforslag (conciliation proposals). The representatives of the parties, the trade unions and the employers‟ organisations are obliged to put these proposals to the vote by their members. A simple majority is sufficient to reject such a proposal.

Family disputes

90% of all divorces in Denmark are dealt with via an administrative procedure. The competent public body for this procedure is the Statsamtet. To be able to file a joint divorce petition at the Statsamtet, parties must first have reached agreement over custody arrangements and the maintenance order. All other differences can be discussed with the official of the Statsamtet, who has i.a. a mediating role and must ultimately grant - or not his approval for the divorce. 59

A. de Roo & R. Jagtenberg, Settling Labour disputes in Europe, Deventer/Boston, 1994, p. 321-325; J. Kristiansen, Conciliation, mediation and arbitration: Denmark, EU Project for the Study of Conciliation, Mediation, and Arbitration, Madrid/Brussels, 2002, p. 3; O. Krarup, Free Bargaining or State Coercion – Conciliation in the Danish Labour Market, paper, University of Copenhagen, 2000. 60 Law of 1910 on Conciliation in Collective Labour conflicts, as last amended in 1997. 61 Ibid., Art. 4 ff.

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In 2000 all Statsamter started to offer mediation by specially-trained mediators.62 These mediators, who work together with a co-mediator, are employed by the Statsamtet and are mostly lawyers or psychologists. When mediation fails, the case is further handled by another colleague at the Statsamtet. On the basis of the available information as of September 2001, 12 mediations have taken place.63 The intention is to evaluate the experiences with this form of mediation.

Environmental disputes

Mediation remains an unknown method for the solution of environmental disputes. It has been shown by research, however, that existing procedures are suitable for the implementation of mediation. One example worth mentioning here i.a. is the Miljøankenævnet (Environmental Action Committee), which consists of a judge-chairman and experts.64

2.4.2 SWEDEN Just like Denmark, the kingdom of Sweden is a parliamentary democracy. The Swedish Basic Law comprises three constitutional laws, the Regeringsformen (Constitutional Law), the Successionsordningen (Law of Succession to the Throne) and the Tryckfrihetsförordningen (Freedom of the Press Act). The Riksdag (Parliament) has 349 seats and consists of one Chamber. This is the supreme legislative organ. Occasionally, a people‟s referendum is held. Unlike Denmark, Sweden does have administrative courts. At the top of the administrative column stands the Regeringsrätten (High Administrative Court) to which one may appeal if the public interest is at stake or if there is a precedent needed to clarify the law. The intermediate layer consists of four Kammarrätterna (Administrative Appeal Courts), followed by Länsräerna (Provincial Administrative Courts). The civil (and criminal) column consists of the Högsta Domstolen (Supreme Court). Then come the six Hovrätterna (Courts of Appeal). The Tingsrätterna (District courts) form the courts of first instance. Then there are also specialised courts, such as the Arbetsdomstolen (Labour court).

2.4.2.1 Mediation in Sweden

Alternative methods of conflict resolution and their organisations (if any) have long been part of Swedish society, more specifically the legal system. In general it is accepted that ADR contributes to a considerable reduction in the workload of the Swedish courts. Not only has ADR achieved a permanent position within the Swedish courts, but apart from that an ADR and mediation practice has developed which has also led to a process of institutionalisation. So quite a few ADR organisations have achieved legal status. The Allmänna Reklamationsnämden (National Board for Consumer Complaints) is mentioned here as just one example of an ADR organisation with legal status.65 In 2002 the Board dealt with 62

The training of these mediators consists of a 4-day course paid for by the state. V. Vindelov et al., p. 4; Commissie Herzieningscheidingsprocedure, Rapport Anders Scheiden, The Hague, 2 October 1996, p. 90. 64 A. Gotwald and V. Gotwald, Environmental Mediation in Europe – Status and Experiences, Vienna, October 2000, p. 30-33. 65 Regulation giving instructions for the National Board for Consumer Complaints (1988:1583). 63

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8848 complaints from consumers. The decisions of the Board, in the form of a recommendation, are not binding. This does not detract from the fact that about 75% of manufacturers and other businesses abide by the recommendations of the Board. The procedure at the Allmänna Reklamationsnämden is free.

Civil disputes

The current code of civil procedure dates from 1948 and has brought important changes, the chief objective being to prevent delay and postponement of procedures in civil disputes.66 It is characteristic of the Swedish civil procedural law that a distinction is made between the so-called förberedelsen (preliminary proceedings) and the oral huvudförhandlingen (hearing). During the preliminary proceedings, which take place under the direction of the judge, the case is brought to a state of readiness such that in principle a huvudförhandlingen will be sufficient. Another important objective of the preliminary proceedings is the investigation by the judge of ways to resolve the dispute by means of förlika (conciliation).67 Should the parties opt for conciliation during the förberedelsen, then the handling judge will put on his conciliator cap. The judge-conciliator will in the first instance hold a discussion with the parties together and subsequently with each of them separately. This option of conducting separate discussions with parties was felt to be highly problematic in the past. Nowadays, this method of dispute resolution by the judge-conciliator appears to be generally accepted and is practised in all Swedish courts. When a settlement agreement is reached through the intervention of the judge-conciliator, this can be converted at the request of the parties into a settlement order. With the exception of the obligation to pay administration costs, this judicial conciliation procedure is free.68 Most civil disputes brought before the judge for consideration are resolved at the stage of förberedelsen by means of conciliation. Apparently, the disputing parties appreciate the active attitude of the Swedish judge-conciliator. If parties fail to resolve their dispute with the assistance of the judge-conciliator, then the judge-conciliator may refer the parties to a mediator, appointed by the court with the consent of the parties.69 This mediator, more than the judge-conciliator, can address himself directly to the interests of parties. When parties bring their conflict to a solution with the assistance of the mediator, they can ask the handling judge to convert the settlement agreement achieved into a settlement order. They can also opt to withdraw their case. The costs of this form of mediation are payable in full by the parties.70

Labour disputes

In Sweden there are various ways to resolve labour disputes. Usually parties, employers and employees, will first try to resolve their disputes amongst themselves. Should this fail, however, the dispute may be presented for evaluation to the judges of the Arbetsdomstolen. These judges, like their colleagues of the Tingsrätterna, have the option of resolving disputes via conciliation.71 Mediation in Sweden is a tried and tested method of resolving collective labour disputes. 66

Regeringskanliet & National Courts Administration, The Swedish Judiciary – A Brief Introduction, Stockholm/Jönköping, 2003. 67 See Chapter 42, Section 6.2, Code of Civil Procedure. 68 The amount of court costs payable is SEK 450. 69 Chapter 42, Sectie 17, Code of Civil Procedure. 70 Regeringskansliet (Ministry of Justice), Memorandum Information regarding Alternative Disputes Resolution for the Council of Europe, 25 June 2002, Stockholm, p. 2. 71 Chapter 3, Section 7.9, De Arbeidsgeschillen (Rechterlijke Procedure) Wet 1974, SFS 1974:371.

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As long ago as 1906, the Medling Lag (Mediation Law) came into force as the result of a huge increase in the number of (collective) labour conflicts. With the entry into force of this law, the Swedish state took its first step towards the institutionalisation of mediation in labour conflicts.72 The introduction of this form of mediation relied completely on the voluntary co-operation of the social partners. Since 1 June 2000, Sweden has had the so-called Medlingsinstitutet (National Mediation Service).73 The primary role of this service, the head office of which is based in Stockholm, is to offer mediation in collective labour conflicts. As the Medlingsinstitut has no mediators in permanent labour, the mediators are appointed separately in each dispute. Usually these mediators are very familiar with Swedish industrial relations and have the necessary negotiating skills. The mediation offered by the Medlingsinsitutet takes place in principle on a voluntary basis, unless there is a risk of a strike. Voluntariness means that parties (or one of them) can ask the service to appoint a mediator to assist them in resolving their dispute. So this is a clear case of „assisted bargaining‟. The Medlingsinstitutet cannot appoint a mediator if one of the parties does not accept the intervention of a mediator. If there is a threatened strike, then the Medlingsinstitutet has the authority to appoint a mediator without the consent of parties and the parties are obliged to co-operate in the mediation. This means that parties are in any case obliged to appear at the negotiating table. When parties (or one of them) do/does not heed this request, he/they may face a fine. If the interventions of the mediator fail to lead to a resolution of the dispute, he may refer parties to an arbitrator. The Medlingsinstitutet has its own register of arbitrators. For the rest, the obligation to appear at the negotiation table does not apply to parties who have concluded the so-called „co-operation agreements‟. These are agreements defining which steps must be taken if a dispute arises.74 The results of the collective negotiations, reached with the assistance of a mediator, result in principle in collective labour agreements.

Family disputes

Disputes over custody and parental access arrangements can be presented directly to the competent judge, who will, where possible, personally attempt to resolve such conflicts via conciliation. In addition, parties may make use of the mediation services of local social work organisations, especially in case of crisis situations. In the Swedish Social Work Act, it is stipulated that these organisations may mediate in such disputes.75 On the basis of Section 18 of the Parents‟ Law, the judge may as a temporary measure also refer the parties to a local organisation for social work.76 This has become standard practice.

72

K. Eriksson, National Report: Sweden, in: Project for the Study of Conciliation, Mediation and Arbitration, Madrid/Brussels, 2002, p. 3. 73 www.mi.se 74 Here one may think of i.a. schedules and rules for the appointment of mediators. 75 Chapter 5, Section 3, Social Work Act. 76 Chapter 6, Section 18, Parents’ Law.

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Administrative disputes

In general it is felt that the Swedish administrative procedures, which unlike civil procedures are conducted entirely in writing, do not lend themselves to the implementation of mediation initiatives. Public bodies are, namely, obliged to reconsider the decisions taken by them before presenting the dispute to the administrative judge. Furthermore, it has become current practice for parties to start a dialogue before filing a claim.

2.4.3 NORWAY Norway is a constitutional monarchy with a parliamentary system. The Norwegian Parliament, the Storting, is one of the oldest in Europe. Norwegian law belongs to the Scandinavian tradition and has been influenced over the centuries by Germanic customary law, German law, Danish law, and even English law. The Norwegian Basic Law says little about the judicial organisation. There is a separate law for this, the Lov om Domstolene (Law on Judicial Organisation) of 1915. The regular courts in Norway are: the Tingetter (Courts of first instance), the five Lagmannsretter (Courts of Appeal), and at the top of the hierarchy the Høiesterett (Supreme Court). These courts have a general competence in both civil (and criminal) and administrative cases. There are no separate courts; all judges are regarded as generalists. The Forliksrader (Conciliation Councils or Conciliation Courts) form part of the regular courts, where only laymen sit. These laymen are appointed by local administrative bodies for four years. The Forliksader have a limited power of adjudication in debt collection cases and small claims cases – their power is limited to a maximum value limit. In practice there are many in absentia cases. This adjudicatory power is, however, combined by the Forliksader with a general preliminary conciliation role. Anyone wanting to bring a dispute before the Tingretter is obliged first to undertake a conciliation attempt in the presence of the Forliksrader. Apart from the regular courts, there are also some Saerdomstoler, special courts, of which de labourrett (high court for labour cases) is mentioned here. This High Court has sole competence to hear collective labour disputes on the basis of existing collective labour agreements (CLAs). Apart from the Lov om Domstolene there is another important law, the Tvisteloven, likewise dating from 1915, which governs the whole of procedural law, thus for civil and for administrative disputes. Characteristics of Norwegian procedural law include, inter alia, an almost completely verbal procedure, and the absence of obligatory procedural representation.

2.4.3.1 Mediation in Norway

In 1999 a Commission for the Reform of (Civil) Procedural Law was established, which submitted its final report in 2002 with a draft for a completely modernised procedural code. The proposals, apart from a few actual procedural matters, relate to a substantial extent to negotiation and mediation. So a general obligation is imposed on parties, before bringing a case before the courts, to investigate the options for an amicable settlement with each other. Our Norwegian

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colleagues speak in this connection of „a sort of pre-action protocol‟. The Forliksrader on the other hand are more or less sidetracked: it is felt to be problematic that this body, exclusively staffed by laymen, should continue to retain its adjudicatory power. The preliminary conciliation role is also being taken away from the Forliksrader, and replaced by the option for parties, perhaps on a voluntary basis, to present a mediation request to these councils. An important part of the proposals of the Commission for the Reform of the (Civil) Procedural Law is then devoted to a new phenomenon, rettsmekling (judicial mediation), or to be more precise: mediation at the instigation of the judge. Norwegian judges already had the power to order settlement conferences, in approximately the same way as this also occurs traditionally in the Netherlands. At the start of the 90s a few leading Norwegian jurists, who had learnt about the American Harvard mediation, came to the conclusion that in the traditional settlements, the judge did not have the right instruments, and parties did not have the right safeguards. In 1993 judge Tore Schei, then President of the Høiesterett, launched a proposal for a national experiment with a form of mediation, still initiated by the judge, but more in line with the Harvard model. If the results of this experiment were positive, this rettsmekling would have to take on a structural position in Norwegian procedural law. The national experiment was given the green light and began on 1 January 1997. At the start of 2001 the project was concluded, with positive results. The Commission for the Reform of (Civil) Procedural Law, which was under the chairmanship of Tore Schei, was then able to include these results in its proposals. The Commission has also proposed including in the new procedural law a paragraph on „ordinary‟ mediation, that is, mediation whereby parties – out of court – request a private institution (or natural person) as mediator. The proposal regulation concerning rettsmekling will now briefly dealt with. The experiences on which this regulation is based, obtained during the national experiment, are dealt with in this report as part of the evaluation of this experiment, thus in the Chapter on the practice of mediation in Norway.

Civil disputes

As already mentioned, settlements have long come under the guidance of the Norwegian judge. According to the reformers, three disadvantages attach to this settlement practice. The first is that the judge who steers towards the settlement attempt is the same as the one deciding the dispute if this attempt fails. That fact inevitably casts its shadow in advance over the negotiation process, because after a failed settlement attempt the judge in question may unconsciously be influenced. Secondly, the judge is not at liberty to conduct separate discussions with each of the parties. And thirdly, there is no duty of confidentiality concerning what has happened in the courtroom itself with respect to a settlement conference. The rettsmekling confronts these three complaints. The mediating judge may not in principle continue to handle the case if his mediation attempt fails. The mediating judge may make use of separate discussions. The mediations take place in another room of the courthouse, whereby both the parties and the mediating judge are bound by a legal duty of confidentiality. However, there is one interesting exception to the duty of confidentiality: the mediating judge must make notes of the various proposals made during the mediation. The reason for this is that, according to the proposals of the Commission for the Reform of

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(Civil) Procedural Law, the party which has allowed the mediation to fail due to an unreasonable attitude can be sanctioned for this with an order for costs. This sanction option is also known from the British Civil Procedure Rules of 1999, although there the entire duty of confidentiality poses an obstacle to putting this sanction into effect in practice. In Norway the negotiation behaviour of parties can thus to some extent be reconstructed. Another aspect of the rettsmekling with which it is hoped to increase efficiency in the administration of justice is the possibility of presenting a full proposal on this at the start of the procedure to parties. It is interesting that the Commission has now also for the first time proposed a regulation for private mediations. Similar mediations already take place here and there, for example in the oil and gas sector. But they are not regulated. No information is available yet on this mediation practice. The regulations on private mediation also prescribe that the course of the mediation is documented, and that at the request of parties, specific proposals are registered.

Labour disputes

Individual labour disputes are handled in the regular courts and so fall under the existing and possibly soon the new regime of judicial mediation. Collective labour conflicts on the basis of existing collective labour agreements (CLAs) are adjudicated, and this takes place in the aforementioned Labourrett. Collective disputes which arise concerning a newly negotiable CLA however must be presented to the Riksmeklingsmannen (State mediator). This official is appointed by the King and operates on an independent basis. It is important to note that trade unions which intend to call a strike must first inform the employer concerned and the Riksmeklingsmannen. For four days, counting from the notification, no strike can be called. In this period a mediation attempt must be undertaken in the presence of the Riksmeklingsmannen. If this is a planned strike which threatens seriously to disrupt public life, then the Riksmeklingsmannen can temporarily ban the strike. During the following period a mediation attempt must take place. From the tenth day, counting from the issue of the ban, the trade union may request an end to the mediation. The Riksmeklingsmannen handles on average almost a hundred cases per year.77

Family disputes

In Norway no-one speaks of divorce mediation, or family mediation, but of „parent mediation‟. This is to emphasise the responsibility of parents, including unmarried parents. This mediation was brought in in 1993 and has a legal basis in, firstly, the Ekteskapsloven (Matrimonial Law), and secondly in the Barneloven (Children‟s Act). The relevant rules prescribe that parents who separate and have children under 16 years old, are obliged to conduct an introductory discussion with a „parent-mediator‟. For married parents who want to divorce, the rule is that the divorce cannot be settled until they have attended this introductory meeting. The divorce, if it is by mutual consent, is ultimately dealt with by the Fylkesmann, a provincial administrative official.

77

A. Jacobs, Conciliation, mediation and arbitration in industrial disputes in the countries of Western Europe, Tilburg/Dublin, 1993.

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The mediators in question must be qualified, and have taken special training (for psychologists, a programme with basic judicial knowledge, for jurists a programme with basic psychological knowledge). This mediation concerns chiefly custody and visiting rights rather than aspects relating to assets. Parents are obliged to attend an introductory session even if, by mutual consideration, they have themselves set down all arrangements relating to the children on paper. It is still possible that they may have overlooked an important aspect. This form of mediation is free. Because it is funded from public resources, a time limit is set: a maximum of 3 sessions of 4 hours.

Administrative disputes

As yet no mediation practices have developed in this field, except in the frame of the complaints handled by the Ombudsman. This system was introduced in 1962 in Norway, and is a respected institution, employing 30 full-time staff.

2.4.3.2. Evaluation study Norway is the only neighbouring country where, just as in the Netherlands, an evaluation has taken place with reference to a multi-year national experiment with mediation. This experiment was co-ordinated from the Ministry of Justice and the judiciary. The Norwegian evaluation, however, did start somewhat earlier, in 1997, and was completed in 2001. All of this makes the Norwegian experiences of greater interest to the Netherlands.

2.5 The „common law‟ legal tradition English law forms the foundation of the common law tradition which has spread throughout the world. In common law countries, case law is dominant, and there are no systematic codifications. This applies both to substantive and to procedural law. The common law judge has traditionally never had the scope to carry out mediation and/or settlement activities in addition to his adjudicative role. This is in contrast to his continental counterpart.

2.5.1 ENGLAND The United Kingdom of Great Britain and Northern Ireland forms one political unit, which is alluded to as a constitutional monarchy with a traditionally powerful parliamentary system. Despite this political unity, the United Kingdom incorporates three separate legal systems, namely England and Wales, Scotland, and Northern Ireland. In this Chapter, only the law of England and Wales will be considered, English law for short. In England, procedural law is formed by what the superior courts have laid down hereon in authoritative decisions, in court rules, in practice directions and statements, and by the provisions in some specific laws. The term superior courts refers to: the House of Lords, the Court of Appeal and the High Court. In this order, they form the hierarchical pinnacle of the system of the courts of law.

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78

It is usually the County Courts which function as courts of first instance in civil cases. The judicial power of the County Courts is limited by the amount of the claim. Cases are usually handled by a unus iudex. There is a special procedure for dealing with small claims. One step up in the hierarchy stands the High Court of Justice. The High Court consists of three divisions: the Family Division (family cases, such as custody arrangements), the Chancery Division (as successor to the earlier equity court, deals with trusts, mortgages, bankruptcies and tax cases) and the Queen‟s Bench Division (which handles all civil disputes which formerly came under the common law courts, in particular contractual claims and tort). Within the Queen‟s Bench Division there are two further sub-divisions, to wit, the Commercial Court for commercial cases, and the Admiralty Court for maritime cases. Cases in first instance are also handled here by a unus iudex. Where the High Court functions as appeal instance (with respect to some decisions of the County Courts), full courts also adjudicate. The total number of judges in the High Court is relatively low: about 85. They all come from the top of the legal profession. Above the High Court stands the Court of Appeal which adjudicates in appeals against decisions by the County Courts and the High Court. The appeal court consists of 24 judges who adjudicate exclusively in full courts. The members of the Court of Appeal also come from the top of the legal profession. They enjoy great social esteem, as do the judges in the

High Court.

Decisions by the Court of Appeal may sometimes be appealed to the House of Lords, if either the Court of Appeal or the House of Lords give leave to do so. This only occurs in a very limited number of cases. Within the House of Lords, it is de facto only the Law Lords, that is, the Lords with a background in the magistracy or the Bar, who adjudicate. The Lord Chancellor acts as chairman, although in practice he seldom attends hearings, since he is also chairman of the upper house as legislative organ, and – more importantly – is at the same time a member of the Cabinet, and head of the Lord Chancellor‟s Department (LCD), the Ministry of Justice. Apart from these courts, England also has a system of Tribunals. Strictly speaking, these fall outside the normal administration of justice, but function as independent adjudicatory boards. In the past 40 years, a huge variety of Tribunals has been created by the legislator, in particular to rule on disputes between citizen and state. These are the so-called Administrative Tribunals, such as the Immigration Adjudicator, the Social Security Tribunals and the various Tax Tribunals. Sometimes, however, they also rule in disputes between citizens, such as the Employment tribunals. The procedure for these Tribunals is always less formal than that before the courts of law, and there is no mandatory procedural representation. The administration of justice is always collegial, with a legally-qualified chairman and two specialist lay assistants. Ultimately, it is always possible to lodge an appeal against a decision by a tribunal at a superior court. The regular courts have, for the rest, always been competent to hear disputes between state and citizen, and have also formulated in their rulings a number of principles of sound administration to which all Administrative Tribunals refer. 78

There are also the Magistrates’ Courts, which in addition to a competence in criminal cases are also empowered to deal with some specific matters of family law. Cases may be referred to the Crown Court, and thereafter in some circumstances to the Court of Appeal.

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Mediation - a ‘quick scan’

In the field of administrative legal disputes, the diverse inquiries must also be mentioned, consultation procedures which apply mainly to the domain of environmental planing, and the internal review procedures, complaint procedures against (the failure to issue) decisions, which are widespread, especially at local government level. Finally, there is the Parliamentary Commissioner, a national ombudsman introduced in 1967 who deals with complaints against acts by public authorities, but can only do so following the intervention of a Member of Parliament. There have also been various „ombudsmen‟ introduced in recent decades with various territorial or functional specialisations to deal with complaints by citizens or consumers.

2.5.1.1. Mediation in England

Traditionally, English procedural law has always been directed towards the trial, the day in court, when parties, after extensive honing of their case to the sharpest of edges, must present it before the judge as umpire, and usually before that to a jury. The English judge had less discretionary powers than his continental European colleague in this respect. The rigid formalistic framework of the English process, and the traditional emphasis on procedural fairness, prevented the judge himself from playing an active, mediating role. Alternatives for administration of justice then mainly developed outside the courts. At first this mainly involved arbitration (for various categories of commercial disputes), while from the 1960s and 1970s for individual citizens, inter alia in their capacity as consumers, various complaints procedures and appeal options to Tribunals were introduced.

Civil disputes

Around 1990, mediation, based on the Harvard method of negotiation, became known to a broader public, thanks to a couple of private initiatives: the launch of the Centre for Effective Dispute Resolution (CEDR) and the establishment of the ADR Group, organisations which propagate the spread and quality assurance of mediation. Both initiatives were given broad support right from the start by the business community, and, to a somewhat lesser degree, by the legal profession. Individual judges also became enthusiastic, and, against the background of a growing reservoir of qualified mediators, in 1993 the Commercial Court began to experiment cautiously with referrals to mediation. In the Practice Statement (Commercial Cases: ADR) of 10 December 1993, Judge Cresswell stated that the Court, in appropriate cases, should invite parties to investigate whether ADR might offer a solution. From that point, the Clerk of the Commercial Court started a list of professional external providers of mediation and other ADR services. On 26 July 1995, Sir Thomas Bingham issued a similar Practice Statement on behalf of the Court of Appeal. In 1995 a Working Party on ADR was formed within the Commercial Court. This working party studied diverse foreign court-annexed-ADR programmes, in which referral to mediation was more compulsory. This led to the further-reaching Practice Statement of 7 June 1996, wherein the Court declared itself competent to instruct – to direct – parties by means of an ADR Order parties to undertake a mediation attempt, in anticipation of which their case was adjourned. The Court thereby reserved the right to question parties on the initiatives developed, if the unfinished case should come back into the courtroom.

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Also, in 1996 in the Central London County Court (CLCC) , a trial was started, at the initiative of some judges, with court-annexed-mediation: this meant that the County Court , at an early stage of the procedure, made an offer to parties to discuss their dispute (almost) free of charge with an experienced mediator in a session of a maximum three hours. Incidentally, this related in all cases to non-family civil disputes at the CLCC, the Commercial Court, and the Court of Appeal . In the same period that these developments were taking shape in practice, the foundation was being laid for a far-reaching reform of the whole of English procedural law. The LCD had asked the Lord Chief Justice, Harry Woolf, to convene a commission of experts and to advise on how the English civil justice system could be modernised. In July 1996, the final report of the Woolf Commission was published, titled „Access to Justice‟.79 The Commission advocated a transformation of the English judge from passive umpire into active case manager. The judge would have to be given the structural option of referring parties to ADR, and should be able to sanction a reluctant party with an order for costs. In order to encourage mutual agreements at an even earlier stage, the Woolf Commission also advocated pre-action protocols. These pre-action protocols are codes of conduct, established in each case by two relevant umbrella organisations or interest groups in a case where a potential lawsuit is threatened between their members. The proposals of the Woolf Commission were largely adopted by the new government which came to power in 1997. The proposals were incorporated into a total plan for the modernisation of the judicial system, laid down in the White Paper of December 1998, titled Modernising Justice. The new Civil Procedure Rules came into force on 26 April 1999. This bestowed on judicial referral to mediation a structural position in England.

Labour disputes

In labour disputes, mediation had long since acquired structural status. Until the 1960s the rights and obligations of the individual employee were in principle defined in collective labour agreements with no legal status. These were often collectively maintained by means of the strike weapon.80 Over the years, dispute clauses were incorporated into most of these collective labour agreements, whereby it was agreed that in the first instance a mediation attempt, known as conciliation, would be undertaken by the Department of Employment, before reaching for the strike weapon. From the 1960s, the degree of organisation of employees began to decline and individual employee rights were increasingly defined in various laws. A system of Employment tribunals was established for the individual maintenance of these rights. The already established conciliation practice in collective labour disputes was „taken along‟ to the individual labour disputes. The practice in individual labour disputes is as follows: shortly after submitting a standard application form the employee receives a telephone call from a conciliator, explaining about conciliation and asking whether the employee would be interested in it. If so, then the conciliator approaches the other party – the employer – and a first conciliation session can take place, while the appeal is included in the meantime in the schedule of the Tribunal.

79

Lord Woolf, Access to Justice, Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, London: HMSO 1996. 80 Annie de Roo and Rob Jagtenberg, Settling Labour disputes in Europe, Boston/Deventer, 1994, p. 41 ff.

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Mediation - a ‘quick scan’

It is also stipulated by law that a settlement agreement in which an employee waives his legal rights is only valid if this agreement has been reached in the presence of an official conciliator from ACAS. The conciliation services were transferred in 1974 from the Department of Employment to an independent organisation, the Advisory Conciliation and Arbitration Service (ACAS). There are now about 600 full-time conciliators working at ACAS, mostly on individual labour disputes. A limited number of (experienced) conciliators assists in collective labour conflicts. Apart from the above, the service is regularly called in to companies where there is a great deal of industrial unrest, to advise on how the atmosphere can be permanently improved. This activity is also referred to as „preventive mediation‟. The ACAS conciliators are employed by the state and their services are free. In 2001, the Department of Trade and Industry, into which the Department of Employment was incorporated in the 90s, initiated a consultation round on dispute handling on the shop floor, with a document titled Routes to Resolution.81 The underlying concept is to stem the ever-increasing caseload for the Employment tribunals, by compelling employers to set up proper conflict handling procedures within the company, and compelling the employee to make use of these. These obligations must be incorporated into the Employment Act by means of an amendment. Calculations of the anticipated cost savings for the employer and for the justice system are also included in the Regulatory Impact Assessment which is mandatory for this.

Family disputes

Mediation for divorce and parental access in England is relatively well developed, as in many other countries. The authoritative organisation is the UK College of Family Mediators. Since its inception, this organisation has provided the training and certification of many family mediators, and has its own professional codes of conduct. In addition to this, Mediation UK also offers mediation services in this field, although the accent with this organisation is on neighbourhood mediation and town planning and environmental problems. At all times, it is the solicitor who will suggest to parties that they should take up the proposals of mediation. In the literature, there is an assumption that relatively many potential legal cases are resolved at this stage and therefore never get as far as the courts.82 Mediation has also been addressed within the judicial infrastructure for some years now, certainly in the field of legal aid in divorce and parental access cases. In 1996, it was included in art. 29 of the Family Law Act , prescribing that potential candidates for legal aid must first look into the option of mediation – „require to explore the mediation option‟. Legal aid was reformed in 2000. On 1 April of that year, the Legal Services Commission (LSC) was established on the basis of the Access to Justice Act 1999. The LSC replaces the old Legal Aid Board, and its task is to deliver a made-to-measure service within a manageable budget. Areas of priority for the issue of a Legal Aid Certificate are summarised in a Funding Code. In civil causes, the LSC may itself contract organisations which meet minimum quality standards, and subsequently grant these organisations a quality mark. Henceforth, only such contracted organisations can offer legal aid. The mandatory 81

Department of Trade & Industry, Routes to resolution: improving dispute resolution in Britain, London, 16 August 2002. 82

th

L. Mistelis, ADR in England and Wales, Report to the XVI International Congress of Comparative Law, Brisbane 2002, p. 18.

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exploration of mediation as an option in divorce and parental access disputes is also continued under the LSC, but is now open to discussion.

Administrative disputes; including environmental disputes

In the field of administrative law, mediation is still at an embryonic stage. This situation may now change, since a covenant was concluded in 2001 between all the separate British ministries to explore the possibility of mediation in the first instance in administrative disputes. Mention must also be made of a survey, published on 19 June 2000 by the Office of the Deputy Prime Minister titled Mediation in the Planning System. This analyses a number of possibilities and limitations to the application of mediation, especially in public preparatory procedures in the field of environmental planning. For the rest, it should not be overlooked that there is already de facto mediation going on in the various complaints procedures which operate in the administrative legal domain.

2.5.1.2 Evaluation study

Against the background of the new ideas on a more appropriate use of the public administration of justice, in 1996 a research department was also set up by the LCD, the LCD Research Department. Various evaluation studies were directed and subsidised by this, for example the research study into the relationship between procedural costs and the value of the dispute at issue. From this research study, conducted by Hazel Genn, it appears that court costs in England are much too high in relation to the value of the claims at issue.83 Furthermore, Hazel Genn was also commissioned to evaluate the Central London County Court trial project, as well as the impact of the ADR Orders issued by the Commercial Court. Another research commission awarded to Genn concerned the evaluation of the completely voluntary practice of the Court of Appeal, started in 1996, to instruct parties as standard in a letter on the option of trying ADR, in particular mediation. The evaluation of the CLCC was published in 1998, the evaluations of the Commercial Court and the Court of Appeal in 2002. Also published in 2002 was a brief evaluation concerning Commercial lawyers‟ attitudes and experience with mediation, written by Penny Brooker and Anthony Lavers. The data in this report form, as it were, an update to the research study of Genn. This research study concerns the practice following implementation of the Civil Procedure Rules. An evaluation study at the margin of the judicial infrastructure is the study „Mediating medical negligence claims – an option for the future?‟ by Linda Mulcahy. This is an evaluation of an experiment set up by the Department of Health in two regions, where a few specialist solicitors were available as mediators, and parties (patient or hospital, or their insurers) could each present a proposal to explore the mediation option to the other party. The mediator did have to be paid, but in a number of cases these costs were covered by legal aid. A pre-action protocol for clinical negligence claims has now been established. In the field of labour conflicts, annual evaluations are conducted by ACAS itself, namely in its Annual Report. There are also various external evaluations; particular mention must be made of the evaluation by Linda Dickens concerning conciliation in unfair dismissal cases, and the study by Peter Graham and Norman Lewis of conciliation in discrimination cases.84 83

This research study is included as an appendix in the final report of the Woolf Commission. L. Dickens e.a., Dismissed, Oxford, 1985; C. Graham & N. Lewis, The role of ACAS conciliation in equal pay and sex discrimination cases, Manchester, 1985. 84

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Mediation - a ‘quick scan’

Recently there have also been various Workplace Employee Relations Studies, while another research study by Hazel Genn – Paths to Justice – provides insight into the baseline of the development of labour disputes. In the field of family disputes, an interesting evaluation study has taken place at the behest of the Legal Services Commission under the direction of Gwynn Davis, titled Monitoring Publicly Funded Family Mediation. In this study, an attempt has been made to find out how cost-effective funded mediation is compared with funded „regular‟ legal aid, how effective the commercial and the non-commercial (LSC-contracted) providers of mediation services are, and what impact the mandatory referral under Art. 29 of the Family Act has had so far. So far, no evaluation study has been conducted in the field of administrative disputes. However, the aforementioned survey from the Deputy Prime Minister‟s Office does show that sometimes mediation techniques are used in the field of environmental planning.

2.6 Comparative analysis on the basis of research questions 1, 2, and 3 In the above paragraphs, eleven European countries were briefly screened for the presence of mediation and/or conciliation within the judicial infrastructure. This inventarisation has provided information, in particular, on the incidence of „mediation on paper‟, or mediation in the legislation of the countries mentioned. Study questions 1, 2 and 3 can now be answered with the information obtained. However, in most countries, there is little known of the frequency and the course of the practice of mediation. In only four of the eleven countries (France, Germany, Norway and England) systematic study, to some extent, has been conducted into the practice of mediation, often on the basis of experiments. Research projects of this type are discussed in more detail in Chapter 3.

2.6.1 RESEARCH QUESTIONS 1, 2, AND 3 Where, with respect to legislation in the other seven countries, the sources consulted gave indications about practice, these have been mentioned here, where relevant. Similarly, reference will be made to practices where (as yet) no legislation for this exists.

1. Is there legislation applicable to mediation, and if so, what? 2. What quality standards are set for mediators? 3. What variations of „referral‟ to mediation exist within the various legal systems? It is useful to structure the answers to these first three research questions by field of law. In this respect, the quick scan has in fact shown up a clear pattern. For a „back-translated‟ answer to each question, for the sake of brevity, reference has been made here to the summary conclusions, at the end of this rapport. From the broad genus „civil disputes‟, in almost all the countries examined, two specific dispute categories branched off:

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1. 2.

labour disputes, which break down further into individual disputes (especially concerning dismissal) and collective disputes (especially concerning strikes); and family disputes, especially disputes about parental access and custody following divorce.

Labour disputes

In labour disputes mediation or conciliation appears to be a tried and trusted method of dispute resolution in most countries. For collective labour disputes most of the countries examined have had an institutionalised mediation agency for more than 50 years, before which parties may even be obliged to bring their dispute in the event of a threatened strike. This applies in any case for Belgium, to a certain extent for Spain and Germany, all Scandinavian countries, and England. Here the need for domain-specific knowledge of industrial relations, and limitation of damage resulting from a strike to the general public, is mentioned as rationale for these mediation procedures. Individual labour disputes in most countries are either brought before a specialised Labour Court, where the judge in many cases will or can himself undertake a conciliation attempt (Belgium, Germany, Austria), or else a court which can refer the case to an external specialist mediation agency (Spain, Italy). Elsewhere parties always pass through a conciliation agency on their way to the Labour Court (in England it is voluntary, in France more mandatory). Denmark, finally, adopts a special position. Individual labour disputes here, in view of the high degree of organisation, are almost exclusively handled via the collective track. In most countries, requirements are imposed on the mediators in labour disputes which are connected with sector-specific expertise, and in this case this usually means knowledge of industrial relations. Skills are often largely assumed and not explicitly required (except in England). Mediation cast in the American mould has not (yet) had any great impact in the institutions surveyed. Individual mediators who are in fact trained in these „modern‟ skills, are also coming forward in increasing numbers, especially in France and Germany.

Family disputes

There are referral systems in place for family disputes in the countries surveyed (with the exception of Italy), or else such systems are being prepared. Referrals are always made to mediators who must meet special professional quality standards and are usually associated with specific professional organisations. They are usually jurists or psychologists, who have followed mediation training moulded on the American, or at least academic model. Family mediators have become organised in most countries during the past 15 years. There is a high degree of organisation. Referral is compulsory in a number of countries, such as in France and Norway. In England it is mandatory if a request is made for legal aid. In a number of other countries the degree of obligation (or voluntariness) has not yet crystallised out (Belgium, the Spanish-Catalan system, Austria, the Danish experiment).

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Mediation - a ‘quick scan’

The interests of minor children involved and the control of social costs compel a specific expertise among the mediators, firstly, and secondly a certain urgency in the referral.

Other civil disputes

How are „other‟ civil disputes managed? It is worth bearing in mind that there is still a varied landscape in this area: from neighbours‟ quarrels and consumer complaints to commercial issues of very different types, from personal injury and medical liability matters, to straightforward debt collection procedures. In many of the countries surveyed, there are separate complaints procedures for consumers, in the frame of which there is sometimes mediation, but ultimately most are settled.85 Similar complaints procedures are often set up by sectoral organisations. It is, however, a fact that these procedures tend always to be started by the parties themselves ex contractu. This means that they find themselves outside the judicial infrastructure (except in Germany, insofar as the claims fall below the „15a EGZPO limit‟). This also applies to dispute commissions in, for example, the medical care sector, where reference is made here to the interesting experiments with clinical negligence mediation in England and France. When such commissions are established the consumer and the patient are usually regarded as the parties with a structural backlog. Also, an interesting pattern has emerged within the actual judicial infrastructure. In almost all continental European countries, the civil judge may traditionally, at any stage of the case, explore the possibility of an amicable settlement. In a number of countries, in the past, and for varying periods, there was a mandatory preliminary conciliation session prescribed under the direction of the handling judge, i.a. in France, Belgium, Spain, Italy, Germany, Switzerland and Norway. This phenomenon has, however, undergone a transformation in two respects. Firstly, in most of these countries the mandatory nature of a preliminary session of this type has been abolished. Only in Germany has a mandatory preliminary session recently been reintroduced, if only for „15a EGZPO‟ disputes. Secondly, it is increasingly no longer the handling judge, but a „third party‟ who explores an amicable settlement with the consent of parties. This „third party‟ can be a speciallyappointed mediation judge (Belgium, Norway) or an external mediator (France in case of conciliation and médiation, Germany in the „278 ZPO‟ procedure, Austria with its gerichtsnahe Mediation, and Sweden with its „section 17‟ procedure). The English judge, who can never mediate in person, until recently could not refer, either. However, the express power of referral to an external mediator is laid down in the completely revised Civil Procedure Rules of 1999. On surveying these developments, one may cautiously speak of a turnaround. Certainly, continental European judges can still at any time direct traditional settlement attempts. But in many countries, there has obviously been a desire to create additional options. These options are mostly set down in legislation. Why? Evidently the techniques and safeguards around the „modern‟ mediation or conciliation (i.a. laid down in the UNCITRAL Conciliation Rules 1980), such as impartiality, separate discussions and duty of confidentiality, have found their way in. This is apparent for

85

E.H. Hondius, Consumer redress and ADR in the Netherlands, in: Journal of the Japan-Netherlands Institute, 2001, p. 107-120.

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Mediation - a ‘quick scan’

example from Belgian and Norwegian publications. In this respect Sweden is a rare bird, where the handling judge-conciliator may himself conduct separate discussions. The duty of confidentiality has as yet been granted hardly any legal status – except in France and in the Norwegian bill. What is special about this proposal is that specific proposals made by parties during the negotiations can be separated from the duty of confidentiality, thus making the sanctioning of sabotage behaviour possible. In England, too, there is the sanction option. It is, however, not clear how this can be used in the light of the integral (contractual) duty of confidentiality which is usual in England. In a few countries, advocate-mediators may rely on their specific (legally protected) rights as advocate, such as for example in Germany. There is still no true right of non-disclosure for mediators in any of the countries surveyed, usually because the profession of mediator is not yet protected. The sanctioning of sabotaging behaviour brings us to the exit side of mediations. Only in England and Norway is any such sanctioning provided in non-mediations (refusal to start a mediation attempt, or sabotage of a positive outcome). In the other countries a failed mediation has no procedural consequences. A rejected mediation leads to inadmissibility only in the obligatory German „15a EGZPO‟ system. A successful mediation results, in a number of the countries surveyed, in a specific agreement, such as transaction or Vergleich. It is noteworthy that many countries have created special regulations to offer parties the option of allowing the agreement reached to be delivered by the judge in the form of an enforcement order. The possibilities for infringement have also subsequently been greatly reduced: from transaction homologuée, akkoordvonnis and vollstreckbar (erklärtes) Vergleich, to the Norwegian „in-court settlement‟. From the research study into the practice of mediation, which will be discussed next, it also appears that – at least in the four selected countries – use is (still) seldom made of these options. The reason why these special provisions have been made is perhaps the wish to give mediation a definitive character, both for the parties, and to relieve the burden on the court system. Going back for a moment to the entry side of mediations: the quick scan compels a refinement of the difference between „voluntary‟ and „obligatory‟ referral. In fact various subvariations have come up for discussion: 1. parties can – entirely on their own initiative – together decide to ask the judge to offer them the option of presenting the dispute to a mediator (for example in the frame of the „278 ZPO‟ procedure; cases can even be referred directly to the Conciliateurs de Justice); 2. the judge can give parties the option of mediation (under the direction of himself, or a mediation judge, or an external mediator), or an external mediator can give parties this option (as with the individual ACAS conciliation). Each of the parties is free to reject this option, with this in any way affecting the procedure before the judge (nor is there any delay). This variation, wherein thus someone other than the parties puts forward the idea, can be completed as a pure formality. It is, however, also possible that whoever puts forward the idea may also give an expert explanation of the possibilities of mediation, and thereby perhaps enthusing the parties. We shall therefore make a distinction in the rest of this study between the „voluntary‟ sub-variation, and the „expert explanation‟ sub-variation. The first sub-variation is encountered at the Court of Appeal

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3.

4.

and the majority of médiation judiciaire, the second sub-variation is met at ACAS and also mainly in the frame of the rettsmekling in Norway; a judge can decide of his own accord to explore the possibilities for an amicable settlement as at the Arbeitsgericht, or advise parties of his own accord to use an external mediator (as in the Commercial Court Orders, in the frame of the more general power of referral of the English judge under the Civil Procedure Rules, in the Austrian family mediation, and sometimes also in the frame of the rettsmekling); the difference with the former variation is that the judge (as third party) here proceeds directly to negotiation, without first having to wait first for the explicit consent of (both) parties. However, each of the parties is still free to call a halt to the referral procedure which has already begun, by making it known that it has no interest in mediation. The usual procedure then resumes its course, sometimes with a slight delay. In this variation too, two sub-variations can be distinguished. So there is the sub-variation in which reluctance on the part of (one of the) parties has no further repercussions (the sanctionless sub-variation), and on the other hand the sub-variation in which reluctance can in fact be sanctioned by the judge in the continuing judicial procedure, for example in the form of an order for costs (the sanction-controlled sub-variation). The practice of the Arbeitsgericht belongs to the first sub-variation, the practice of the Commercial Court Orders has gradually developed from the first into the second variation; parties can be compulsorily referred by the legislator or the judge to an external mediator, to appear there (bureau de conciliation, Conseil de Prud‟hommes, Riksmeklingsmannen if there is a strike threat) and/or to conduct an introductory discussion (family mediation in England when there is an application for legal aid, Norwegian mediation programme for divorcing parents, German „15a EGZPO‟ procedure). In this „truly obligatory‟ variation the parties must always follow up the referral, under penalty of inadmissibility in the judicial procedure in the frame of which the mediation is obligatorily prescribed (Conseil de Prud‟hommes, the „15a EGZPO‟ procedure). Apart from inadmissibility, there is also the possibility of other unconditional and fatal sanctions, such as the withholding of legal aid (family mediation England) or a strike ban (Riksmeklingmannen procedure). The mediation obligation always includes an obligation for parties to appear before the mediator, either for an introductory discussion, or for an actual mediation attempt.

To summarise, therefore, 6 (sub-)variations are distinguished on the scale from (more) voluntary to (more) obligatory referral to mediation: 1. parties propose the option; 2a. the judge proposes the option, but on a voluntary basis; 2b. the judge (or mediator) proposes the option, but with expert explanation; 3a. the judge initiates, parties can refuse without sanctions; 3b. the judge initiates, but a sanction may now follow refusal; 4. the case cannot be brought before a court unless mediation has been taken up first. All things considered, only the first variation is completely „voluntary‟, and only the fourth variation is completely „mandatory‟. The second „voluntary‟ sub-variation lies very close to the first variation, and the third „sanction-controlled‟ sub-variation lies very close to the fourth variation. The second „expert explanation‟ sub-variation, and the third „sanction-free‟ sub-variation form sub-categories, whereby it is less easy for parties to reject the mediation option completely, in variation 3a because the judge must then be „recalled‟, in variation 2b

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because then arguments will have to be brought in against a substantively well-founded outline of the possibilities of mediation. Finally, one more conclusion concerning mediation in administrative or administrative legal disputes, including disputes in the field of environmental law. It is noteworthy that mediation does not (yet) appear to have achieved a position in this field in any of the countries surveyed. This is, according to the sources consulted, mainly due to the circle of interested third parties which is often difficult to delineate and which must be taken into account in administrative disputes. Also, the impossibility for the administrative body to modulate the ascribed power under public law according to its own opinion, or to share it with a mediator plays a role. Moreover, review procedures by the administrative body itself are widespread everywhere. There is now ad hoc experience in many countries with the implementation of mediation techniques in the preparatory decision-making procedures concerning large projects in the field of environmental planning.

47

3 The practice of mediation in four selected countries 3.1 Introduction On the basis of the results from the quick scan of 11 countries, more detailed study is now warranted for the countries: France, Germany, Norway and England. Empirical and/or evaluation research into mediation is still in its infancy in the other countries, although a trend towards similar research has unmistakeably started. In this chapter, the diverse evaluation studies relating to the four previously selected countries are discussed. No further structuring has been done on the basis of the research questions as described in Chapter 1. These research questions will be expanded on in Chapter 4.

3.2 France Discussed here are respectively the evaluation studies of Moreau into judicial referral, of Bonafé-Schmitt into Médiateurs, and of Desdevises and Suaud into Conciliateurs de Justice. After that some data from the Touzard research study into the image of ADR among judges and lawyers are examined. Finally, some data from the already somewhat older studies on mediation in labour disputes by Cam, Supiot and the Conseil Supérieur de la Prud‟homie are reproduced.86 With respect to general civil practice and the practice of family law, first and foremost in interest is the evaluation of Moreau et al. In this research study, an examination is in fact made, with respect to médiation judiciaire (but not with respect to conciliation!), of how often judges have referred parties to an external mediator. In this research study all 473 Tribunaux d‟Instance, 181 Tribunaux de Grande Instance (TGI) and 33 Cours d‟Appel were approached by letter in the autumn of 2001, with the request to complete a survey form. In this questionnaire, these courts were asked about the number of mediation providers (natural persons and organisations) in their field, with a distinction being made between (organisations of) family mediators and (organisations of) mediators working outside the domain of family law. The courts were also asked to state on the form the referral decisions issued by them in the month of October 2001, and orders (related thereto) concerning the fees owed to the mediator. In accordance with Art. 131 (13) NCPC the fee of the mediator should in fact be paid by the parties themselves, or via legal aid. The response lay between 70% for the Tribunaux d‟Instance and 94% for the TGIs. A first interesting fact is that in the field of family mediation, no less than 228 organisations (and 48 independent mediators) offer their services to 140TGIs, while outside the domain of family law, 66 organisations (and 362 independent mediators) offer their services to 42 Tribunaux d‟Instance and 76 TGIs. This says something about the high degree of organisation of the family mediators.

86

P. Cam, Les Prud’hommes: juges ou arbitres? Les functions socials de la justice du travail, Paris, 1981; A. Supiot, Déclin de la conciliation prud’homale, in: Droit Social, No. 3, 1985.

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Four selected countries

However, the French judges appear to make very little use of this ample supply of services. The TGIs turned out to have made a referral decision in only 1.6% of the family disputes brought before them. At the Cours d‟Appel the figure was 2.3% of all family disputes. For non-family disputes, the percentages were even lower. Both at the Tribunaux d‟Instance and at the TGIs only 1.1% of all other civil disputes were referred to mediation. At the Cours d‟Appel the figure was 1.5% of the other civil disputes. This therefore related to the cases in which both parties had agreed to referral – a necessary condition for the judge to be able to proceed to such a decision.87 There were, however, some noteworthy highlights: one particular judge had referred almost 33% of all cases handled by him.88 Furthermore, one particular Cour d‟Appel referred almost 9% of all newly-filed cases and was thereby responsible for half of all cases referred by all Cours d‟Appel combined. On the other hand it emerged that 68% of the TGIs had not made a single referral decision in October 2001. These data indicate that personal enthusiasm does play a role. But the survey showed that all the judges expressed themselves positively on mediation and the referral option. The main reason why nevertheless they only seldom made a referral was, according to the respondents, the cost aspect. Parties must pay an amount, which is difficult to estimate, for a service, without knowing whether this will deliver a result. The mediator services are not in fact subject to a fixed scale of charges. In family cases, where relatively more mediations occur, a relatively large proportion of the parties are moreover eligible for legal aid. The Bonafé-Schmitt research study took place in 1998 and 1999. In Paris, Créteil, Lyon and Grenôble, dossiers were studied and parties and mediators interviewed. Not all of the mediators turned out to be organised. They did in fact appear to be fairly unanimous about the skills required: active listening and the ability to redefine. There turned out to be use of both diplomatie de la navette (separate discussions) and of joint meetings. Family disputes appeared usually to be handled by a female mediator, with a background in psychology. Labour cases were mainly dealt with by male mediators with a judicial background. The number of successful mediations was 38.4% for family legal disputes, and 76.3% in labour disputes. The reasons why the mediations ultimately failed appeared to be various. Often mentioned was: the negotiations ran aground again. It should be borne in mind that there is only a small number of mediations involved here, where both parties had agreed to judicial referral in the first instance. In two of the three mediations analysed, the costs amounted to between 3000 and 5000 FF. In less than a quarter of the cases, the costs were between 1000 and 3000 FF. The Desdevises and Suaud research study took place in 1999 and 2000 on the basis of dossier study and a written research survey among conciliators in the jurisdictions of Angers, Rennes, Douai and Riom. It emerged that the conciliators handled an average of 75 to 100 cases per year. 87

The mandatory referral introduced on 4 March 2002 for an introductory discussion in parental access cases could not yet be discounted in the survey. 88 Telephone inquiry revealed that the percentage was correct, but that the judge in question (jurisdiction: Rochefort) had since left, after which the whole referral practice had ceased to exist.

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On combining diverse statistical data, the following overall picture emerged: in 1995 there were 1333 conciliators, who were called in for 72,912 cases, and therein helped to produce 32,178 settlements. That means an overall success percentage of 44.1%. In 2000 there were 1728 conciliators working, who were called in 106,891 times, and brought about 50,116 conciliated settlements. The success percentage in this year was thus 47%. In general, it emerged that there was a positive correlation between the number of years of experience of a conciliator and the percentage of success achieved by this conciliator. There did not appear to be any particular local variations. What is interesting is that the local degree of organisation and the „intégration du conciliateur dans l‟appareil judiciaire‟ appear to have a huge influence. In Douai, for example, in 1992 an association of conciliators was established, and consultation with the Cour d‟Appel took on a structural character, so that there was no longer any dependence on a „simple mutation de magistrat‟.89 The skills found to be important by the conciliators turned out to lie both in (the recognition of) judicial dimensions and in the sphere of communication skills. The Touzard research study takes us back to the (referring) judge, and the lawyer. Touzard has attempted to bring into focus the opinions and attitudes of judges and lawyers with respect to mediation and to relate these to their actual knowledge of and experience with these methods. Does the old Dutch adage hold true: “What the farmer doesn‟t know, he doesn‟t like”? (Some people don‟t trust anything they don‟t know.) With respect to this last point, Touzard found no significant correlation. There was, however, found to be a correlation between a negative opinion about mediation and a traditional view of the law and the administration of justice. This traditional view is regarded as a hierarchical concept of the administration of justice, wherein the law is seen as an external factor that must be applied in the name of the State by means of judicial decisions clothed with authority. Judges and lawyers with such a view appear to think little of ADR, and to refer litigants significantly less often to mediation. Finally, a few more data from the research study of Pierre Cam, Alain Supiot and the Conseil Supérieur de la Prud‟homie. The success percentage in conciliations could be followed over a long period, and showed a marked decline, from around 90% of all cases filed in 1830, to 13% in 1985. According to Cam, the cause must be sought in the changing habitus of the employee, who has changed from a completely dependent worker to a personnalité juridique. The culture of régler en douce no longer fits in with this changed habitus, which is inspired per se by the structure of the modern welfare state. In the meantime, we would like to comment that this cannot explain the variation in success percentages with, for example, mediation of labour disputes in England. It may be, rather, that the bipartite composition of the Conseils plays a role. This can have a paralysing effect, since both conciliators represent opposing interest groups.

89

Roger Pierrestiger, l’Indespensable organisation de l’institution de conciliateurs de justice, in: Pierre Chevalier et al., Les modes alternatifs de règlement des litiges, La documentation française, 2003, p. 239 ff.

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A few more interesting data. Where an employee arranges to be assisted by a lawyer, only 2% of the cases are conciliated. If parties come alone, without a lawyer, then sometimes success percentages of 34% are achieved. The Conseillers can be divided in two ways. Firstly, between those who regard the conciliation phase as a necessary evil and devote little time to it, and secondly those who draw it out on average to an hour or more. On the other hand a distinction can be made between an école neutraliste and an école interventioniste, where the adepts of the latter movement freely give suggestions for a potential solution or predict what the result from the Bureau de Jugement may be.

3.3 Germany The following overview is abridged. It concerns only the experiment with obligatory mediation in the Land of Nordrhein-Westfalen, and is based on the first interim report of April 2002 in this respect from Klaus Röhl, supplemented by some recent data. First of all, the participating mediators sometimes appear overwhelmed by the new regulations on obligatory referral. This was true both for the Gütestelle and the Schlichtungsstelle. They had to deal with clients who had arrived by other routes, and with legal areas with which they often had first to become familiar. The interim report reveals that obligatory mediation, for most mediators, has resulted in a very slight, or even no increase at all, in the number of cases presented. Of the 147 respondents, 20% had not been given a single case in 2001, and (cumulatively) 50% not more than four cases. Four Schlichtungsstelle, however, scored noticeably well, each with more than 100 cases in 2001. These were three Vermittlungsstelle der Handwerkskammern, and the Gütestelle of the Anwaltsverein Aachen. The reasons for this outcome have yet to be investigated. Interviews made it clear that some dedicated mediators invested a great deal of time in the cases presented to them. There was, however, also an Anwaltverein which allocated just five minutes to a case. This means the mediation attempt had degenerated into a mere formality. The first cases raised unexpected questions relating to content, such as: how precisely does one define a dispute as „relating to property law‟? In the literature, the conclusion has now been reached that the obligatorische Streitbeilegung under Art. 15a EGZPO completely fails to meet the high expectation. Three reasons are mentioned: parties can avoid this obligatory preliminary phase via the escape route of the Mahnverfahren, a shortened procedure to obtain a judicial distress warrant; mediation is still too little known; and, perhaps the most important reason, the Verdienstmöglichkeiten [earning opportunities] for mediators (and for the lawyers of parties) are too low. The time required bears no relation to the legal fees.

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Many lawyer-mediators actually appeared to be so frustrated about this that they were not even willing to co-operate in data collection and/or in the survey by Röhl.90 The payment made to lawyers of parties who co-operate in a mediation has increased, as a result of this – intended as (modest) incentive. According to the interim report, the number of actual settlements reached, say many respondents, is not significantly higher in Art. 15a EGZPO mediations than in other, voluntary mediation sessions. Recently it emerged that the settlement percentage was 50 to 60%, if parties had approached a Schiedsmann mediator, but only 15% if parties had contacted a Gütestelle established by an Anwaltsverein. As most common reasons why no settlement had been reached, the following are mentioned: the fact that parties had failed – or refused – to pay the requisite advance on the fee of the mediator; and the fact that parties had not appeared in person.

3.4 Norway The preliminary conciliation role of the Forliksrader has already been briefly discussed in paragraph 2.4.3.1. Of the total number of cases filed, 3.5% are conciliated. That may not seem many, but in reality it is a substantial percentage, when one considers that a good 80% of the total caseload of the Forliksrader concerns, not „genuine‟ disputes, but chiefly non-appearance/debt collection cases. Of the remaining „genuine‟ disputes, thus about 20% are conciliated. The rest of this paragraph is entirely devoted to the evaluation of the national experiment with rettsmekling, mediation at the instigation of the judge. This is in fact the form of mediation which stood at the centre of the national experiment. The project (1997–2001) was preceded by an amendment act. This act made it possible for judges temporarily, on an experimental basis, to use the instruments deemed necessary. The project was set up on a national scale. At first five courts of first instance took part, and one appeal court. Later a few more courts began to participate. In total, 1440 surveys were sent out, and many dozens of interviews among parties, their lawyers, mediators and judges were conducted. Three yardsticks were used to explore the effectiveness of the rettsmekling : the success percentage of cases mediated in this way (in comparison with cases settled in the traditional way); the satisfaction of parties and their lawyers; the reduction in court costs realised, that is, firstly from the perspective of parties, and secondly from the perspective of the Ministry (operational costs for the administration of justice).

90

K.F. Röhl, Evaluierung des nordrhein-westfälischen Ausführungsgesetzes zu § 15 a EGZPO, Zwischenbericht, April 2002, Bochum.

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Four selected countries

The number of cases in which rettsmekling took place, measured as a percentage of the total number of pending procedures, fluctuated at each participating court, and overall lay between 5 and 22%. The success percentage of judicial mediation towards the end of the experiment was nearly 80%. This percentage had gradually risen since the start of the project. The percentage of 80% compares favourably to the 42% traditional settlements recorded in the year preceding the start of the project. A great majority of parties was satisfied with the rettsmekling. This method is felt to be less burdensome and stressful than an ordinary judicial procedure. In 10% of the parties, however, the final opinion was negative. The time spent handling disputes which were actually completed with a mediated settlement was 60% of the normal time spent on civil procedures. Where a mediation failed, parties wasted time. A number of parties and their lawyers stated, however, that even so, they had still benefited from the work that they had done for the sake of the failed mediation. For judges, no referral criteria were defined. This was not felt to be helpful, since cases can vary infinitely and ultimately a lot depends on the personal attitudes of parties. This assumption appeared correct, and nor have any criteria been defined in the new procedural law. The judge is given discretionary power here. However, in paragraph 7.3 of the bill it is explicitly laid down that in the case of proposals for mediation, consideration must be given to the relative positions of power of parties, the potential costs of a mediation, and the progress of any earlier mediation attempts in the same dispute.91 In principle, the judge will only proceed to a mediation session if both parties agree. Wherever necessary, a judge may also, against the will of an obviously unwilling party, summon the interested parties to the negotiation table, if he has the impression that there are in fact real possibilities for a mediated solution on the horizon. The way in which mediation is presented to parties as an option was not consistent. Often, little explanation was given in advance about mediation. As already stated, the judge may, in the proposal of the Commission for the Reform of (Civil) Procedural Law, issue an order for costs against an unco-operative party. During the experiment, this sanction was not applied. In paragraph 7.6 of the bill, a legal duty of confidentiality is included for both parties and mediator, including the judge-mediator. Concrete proposals for the new procedural law which emerged from the experiment included inter alia: more mediators from outside must be appointed (thus other than judges) – the underlying idea is that this will make more specialisms available; a fixed „pool‟ of mediators will be linked to each court; the lines of communication must be short and clear; all mediators must have received training and be certified. During the project a number of judges had in fact followed a training course but not all of them. This was later seen as a shortcoming.

91

The term ‘relative positions of power’ is not elaborated in any more detail.

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Four selected countries

rettsmekling remains free. Judges are expected to perform mediation activities in the

frame of their judicial role. External mediators receive a state remuneration based on the current remunerations in legal aid; if, however, parties have a special mediator in mind, who wishes to charge a higher fee, then the parties are at liberty to pay this (additional) higher fee themselves; mediated settlements have the status of „in-court settlement‟ by virtue of paragraph 7.10 of the bill. A party who feels there are grounds for nullification must bring suit in this respect in principle within six months. To summarise, it can be stated that the Norwegian Commission for the Reform of (Civil) Procedural Law certainly sees a structural place for mediation on the basis of the national experiment. The proposal of the Commission is, however, still being discussed at present.

3.5 England There now follows a short discussion of the design and results of the three evaluation studies of Hazel Genn concerning the ADR practice of the Central London County Court (CLCC), the Commercial Court and the Court of Appeal. After that some evaluation data relating to ACAS conciliation will be compiled. Finally, there will be a look at the evaluation rapport of Davis on legal aid-funded mediation in family disputes. The pilot mediation scheme at the CLCC concerned an offer made to all parties whose dispute amounted to a value of at least £3000. Data collection took place between 1996 and 1998 on the basis of hundreds of dossiers with both mediated and non-mediated cases and interviews with parties, their lawyers and with mediators. It was hoped that this project could bring about a reduction in legal costs. The cost of the actual mediations for parties, incidentally, was £100. The results were as follows: only 5% of all mediation offers were accepted by both parties. In personal injury cases this percentage was close to 0, in contractual disputes the score was close to 10%. The acceptance level was highest in business-to-business disputes. Reasons for rejecting mediation offers lay in ignorance on the part of the lawyers and the fear that acceptance would show a sign of weakness; where parties did try mediation, this resulted in 62% of the cases, as early as the first session, in a settlement. The chance of agreement appeared to be greater if parties did not bring their lawyers along. Also cases in which full proceedings took place sometimes delivered settlements, but relatively many fewer, and furthermore much later, than in the cases brought before a mediator; parties appeared in general to be (very) satisfied with the mediator, and especially valued the chance to relieve their feelings and be able to get to the true core of the case. The final conclusion of Genn was that there is very low demand for mediation, and that the legal profession plays a central role in the influencing this demand. She also concluded that mediation has most chance of success if there is a global balance of power between parties. Now to the evaluation study at the Commercial Court, with its more selective and obligatory referral based on ADR Orders. On the basis of dossiers and interviews with lawyers, this examines the impact of a total of 233 Orders issued between mid 1996 and mid 2000. The average number of Orders issued rose during the study period from about 3 to about 12 per month.

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For the actual mediations, parties had to pay the current commercial rate. On average, it seemed that there was compliance with 50% of the Orders by parties by means of a mediation attempt. Of this 50%, half resulted in a mediated settlement agreement. Of the cases not sent before the mediator, another 20% ended in a later settlement reached directly between parties. In the other 50% cases, in which no action was taken by virtue of the Order, ultimately another 65% were settled directly between parties, while 20% felt that the Order had certainly played a part in the background. Reasons for not complying with the ADR-Order mentioned were: the case was not suitable for this; the timing of the Order was wrong (too early or just too late); a general lack of faith in ADR/mediation. On balance, Genn judged the impact of Orders as neutral to slightly positive. Many parties feared that to make a mediation proposal themselves would be taken as a sign of weakness. This was removed by such an Order. Where a mediation resulted in a settlement, parties were very satisfied with the mediator. Where no settlement resulted, opinions were more negative, but not completely negative. The evaluation of the ADR practice at the Court of Appeal covered the period from the end of 1997 to mid 2000. During this period, some 1000 written invitations were sent to parties. In 38 cases both parties agreed to mediation, a percentage of about 2%. The mediations themselves were free of charge. For some time, the experiment was able to rely on a full-time manager within the Court of Appeal and in this period it ultimately emerged that more parties were willing to try mediation. Of the cases which were presented to a mediator, a good 50% were settled within one or two sessions. The cases which were not settled for the most part ultimately exhausted all legal avenues. Reasons for the low level of acceptance mentioned are: the case centres on an important legal issue and/or a precedent is needed; there is a long history of obstinate or unreliable conduct on the part of the other party. Genn concluded that, outside commercial practice at least, distrust of lawyers towards ADR is the trump card. A more selective and personalised approach (instead of a standard written invitation) would, she felt, perhaps also have more impact. Where mediation resulted in a settlement, lawyers said there was also a saving on costs. Where no settlement resulted, however, the mediation contributed to an increase in costs, if account was also taken of the preparation time. Hazel Genn also points out the gradually increasing influence of the Woolf reforms, in that from 1999 – more than before – outside the doors of the courthouse, it was already being investigated whether and to what extent amicable settlements might be possible, for example in the frame of pre-action protocols.

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According to Booker and Lavers, knowledge and experience of mediation are now increasing within the (commercial) legal profession. A random sample survey among 500 lawyers showed that 60% of the respondents had already taken a training course in mediation. It also emerged that a good 60% had taken part in a mediation attempt more than once.92 This part of the reality of mediation is largely played out outside the judicial infrastructure, now that more and more multi-stage dispute clauses are being used in the commercial sector. If mediation as preferred option is a success, then parties obviously stay away from the courthouse. The final conclusion reached by Genn on the basis of all three of her evaluations is, however, somewhat more sombre. There is clearly a demand problem. The legal profession remains sceptical, and often still thinks that a mediator cannot achieve any more than what they themselves have tried to realise with direct negotiations. Genn also wonders, with respect to her research at the Court of Appeal, whether referral could not take place better if it were more selective. This method used to be followed by the Commercial Court. Secondly, it would seem that a dedicated contact person, who provides parties with information by way of a standard letter and thereafter keeps his finger on the pulse, could deliver a constructive contribution. This emerged from the Court of Appeal study. The number of referrals rose thanks to a dedicated manager. Considerably more (visible) success appears to be delivered by the mediation practice in labour disputes. In 1999 and 2000, 39% of the cases brought before Employment Tribunals ended in a mediated settlement, reached with the assistance of ACAS.93 It is noteworthy that the aforementioned percentage has been more or less constant for years: it fluctuates around 35 to 40%. The increase in the number of procedures before the Employment Tribunal reported by the Department of Trade and Industry is then also unrelated to the constant effective ACAS intervention, but is ascribed to a number of changes in the structure of the labour market. It is interesting that in the end, only 25% of the number of claims submitted are handled by the Employment Tribunals, because apart from the 39% successfully mediated cases, in as many as 33% of the cases, either the claim is withdrawn or a direct settlement is reached. Some more data: the highest settlement percentages were obtained by ACAS in unfair dismissal cases (where the interpretation of open norms are at issue), while the lowest settlement percentages were obtained in conflicts relating to discrimination on the shop floor (where there are usually strict norms and matters of proof involved). When parties decide to take part in a mediation attempt, they often appear to hope for an evaluating mediator, who can tell them something about their chances with the judge. The most common reason why employees settle (43%) is that they find the (usually financial) offer from the employer adequate, and do not expect to be able to realise a higher amount 92

This number can give a somewhat distorted picture: the response was actually aabout 25%. But even this percentage is not low. 93 On paper, ACAS differentiates between ‘conciliation’ and ‘mediation’, whereby the conciliator acts as more than a ‘go between’, and the mediator may adopt a more active role and can make proposals. It has been shown by research that in practice both facilitating and – at the request of parties – evaluating actions are taken.

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before the Employment Tribunal in any case. For the employers, the chief reason (69%) for settling was the saving which this brought them in time and therefore money. In the frame of the DTI consultation, diverse players in civil society were asked if they had any need for additional organisations, apart from ACAS, to be licensed as mediation providers. ACAS is to date a monopolist, inasmuch as settlement agreements in which the employee waives his rights are only binding if they have been made in the presence of an ACAS conciliator. It emerged from the reaction to the consultation that in fact no-one needs another similar organisation. This appears to indicate that ACAS is fully accepted as structural provider and has a lot of credit among social partners. Legal aid-funded mediation in family cases reveals the following picture – based on several rounds of interviews in 1998 and 1999 with more than 1000 (ex-)spouses and over 600 lawyers. With the reformed Family Law Act of 1996, public resources, via legal aid, were made available for the first time in England. The introductory meeting with a mediator required by Art. 29 of the Family Law Act appeared, as planned, to have led to an increase in such meetings. However, many cases went no further than this first introduction. The number of actual mediations appears scarcely to have increased at all. It is ultimately the mediator who must then, after both parties have attended an introductory discussion, determine the suitability of the dispute for mediation. That means a change from former practice, wherein the sole fact that both parties appeared also implied that they agreed to a mediation attempt. The most common reasons for non-suitability are: one of the partners is not prepared to cooperate in a compromise (37%), or one of the partners simply does not turn up (36%). Where ultimately there is co-operation in a mediation, people were reasonably satisfied. In cases concerning parental custody and access, a settlement was also reached in 50% of the cases. In matrimonial property matters this percentage was around 34%. One more fact: more use is made of non-profit mediation providers than of solicitormediators. The fee of the first category amounted on average to £700 per case, the solicitor-mediators charged on average £1200 per case. Davis determines in her evaluation that the number of legal aid certificates has certainly decreased, but that, on the basis of multivariate analysis, it cannot be concluded that this is the result of legal aid-funded mediation, or the mandatory introductory session by virtue of Art. 29 of the Family Law Act in particular. Also the impact of mediation on legal costs still appeared to be practically negligible. Davis does, however, stress that the cost-effectiveness of mediation cannot be determined solely from the direct savings on legal costs, but that it is also necessary to look at social costs and the personal value of a mediated settlement for parties.

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4

Comparative analysis based on research questions 4, 5, 6 and 7

A comparative analysis on the basis of the previously described evaluation studies must be undertaken with a certain amount of care. The studies discussed do, after all, differ from each other in design, while the societies and legal systems within which the evaluations were performed differ from each other in a number of points.

4.1 Terminology The term „mediation‟ itself is scarcely a technical-judicial term. Nevertheless, we must first stop here a moment to consider the problem of terminology, because every legal system has system-specific terms. Now that the separate country studies have been completed, we shall now opt explicitly for the following broad working definition: we are interested in negotiation-based dispute resolution with third party assistance, or in other words: assisted bargaining, where the neutral, if not always subtle, person steers the negotiation process of the conflicting parties, regardless of whether this process is referred to as „mediation‟ or otherwise. We thus draw our conceptual frame broadly, and make no distinction as to specific methods or means of approach, the person and/or other powers of the initiator, or the scope of intervention of the mediator. With this broad definition, we obviate the fact that in the countries surveyed, relevant terms may be classified in different ways. On the one hand there are the countries where different terms relate to the degree of intervention by a neutral third party. „Mediation‟ here is halfway between „direct negotiation by parties‟ and „private administration of justice‟ (arbitration, binding recommendation). On the other hand are the countries where different terms are linked to the agency which initiates the intervention, and the other powers, if any, enjoyed by this agency. This brings to mind the specific use of the term Güteverfahren for mediation activities conducted by a court. Or the French term conciliation, which indicates a process that is initiated either by parties themselves, or by the Tribunal d‟Instance, while médiation judiciaire comes from the TGIs. The aforementioned term „conciliation‟ is used in many countries and is probably just as common as the term „mediation‟. That should cause little surprise in view of the shared etymological backgrounds of these terms: the Latin conciliare means to bring together, reconcile, while mediare means to adopt a halfway position.

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Comparative analysis

These terms are often used interchangeably, and sometimes a formal distinction is also made. That is – except in French civil disputes – for example also the case in English labour law, where ACAS makes a formal distinction between conciliation (mere go-between) and mediation (the third party makes proposals). Additionally, the Anglo-American term „mediation‟ is being used increasingly (also, for example in German-speaking countries) to show that this is not a reference to traditional mediation, but to the modern, American-style mediation, whereby specific conditions, techniques or tools are used, for example the technique of principled bargaining (BATNA, win-win options etc.), separate discussions, guarantees of confidentiality. These modern mediations can be characterised as more facilitative or more evaluative. These are refinements which are seldom or never used with the term „conciliation‟. While the word „mediation‟ means modern, Anglo-American mediation, „conciliation‟ is associated more with historically-developed practices. Our broad definition covers both procedures referred to as „conciliation‟ and „mediation‟ procedures. If the terms used here in Dutch: mediation, mediated, conciliator and settlement, are used in a specific sense, this will always be apparent from the context.

4.2 The findings ranked according to the four remaining research questions The following research questions have not yet been answered: 4.

What criteria are used in the referral of cases to mediation? Are there any contraindications?

5.

What factors influence the actual acceptance of, or co-operation in, mediation by parties?

6.

What results does mediation show and how do these results relate to those of the „regular‟ judicial resolution of disputes?

7.

What are the experiences of others than the parties (and their legal advisors) with mediation? Is there any support for mediation in society as a whole?

Of these four questions, the second – question 5 – is the most essential. These are after all the factors which define whether mediation works. If mediation works, this is apparent from the quantitative data to which question 6 relates.

4.2.1 RESEARCH QUESTION 6 First the findings were analysed in the light of research question 6, the question about the quantitative results of (referral to) mediation. We begin with the preliminary question, of how many cases as a percentage of the total number of pending disputes (per instance) are referred to mediation. A distinction must be made here between the variations developed to this end, in paragraph 2.6, from more voluntary or more obligatory referral. We made a distinction there between the following six (sub-)variations:

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Comparative analysis

2. parties offer the option; 2a. the judge offers the option, but on a voluntary basis; 2b. the judge (or mediator) offers the option, but with expert explanation; 3a. the judge initiates, parties can refuse without sanctions; 3b. the judge initiates, but a sanction may now follow refusal; 4. there can be no court proceedings unless mediation has been taken up first. Variation 1 was not actually studied in the evaluation studies mentioned. Where variations 2a or 2b were concerned (the judge raised the idea), the referral percentage for some instances was very low, i.e. under 5%. At other instances the percentage was fairly high, i.e. over 30%. The figure was less than 5% referrals in médiation judiciaire (both at the TGIs and the Cours d‟Appel), at the Central London County Court, and at the Court of Appeal. On the other hand, the referral figures more than 30% for conciliation de justice (by the Tribunaux d‟Instance), and at ACAS. In the case of the rettsmekling in Norway the percentages fluctuated between 5 and 22%. In variations 3a and 3b (the judge initiates, but the parties can still refuse) the percentages were always above 30%: 35% for the Arbeitsgerichte, and 50% for the Commercial Court. Where there was completely mandatory referral (bureaux de conciliation, Conseils de Prud‟hommes, family mediation in England if there was an application for legal aid, custody and parental access mediation between parents in Norway, and the German „15a EGZPO mediation‟ ) the referral percentage was, by definition, 100%. These data must be qualified to some extent: there were obviously individual peaks found everywhere. A telling example is the judge at Rochefort, who had referred 33% of cases in the frame of médiation judiciaire. How this was possible, however, can no longer be ascertained, since the magistrate in question has since left. In Grenoble, too, high referral percentages were obtained in labour disputes. Of this local practice, it is known that parties always receive a personal, expert explanation about mediation. We will return later to this potentially relevant fact. If we now look firstly at the results obtained in aforementioned mediation procedures, that is, the percentage of mediations that resulted in an agreement, then it is notable that these percentages in both variations 2a and 2b, and in variations 3a and 3b, always lay above 30%: between 38 and 76% for médiation judiciaire, more than 62% for the CLCC, a good 50% for the Courts of Appeal, 47% for conciliation, 39% for ACAS, nearly 80% for the rettsmekling, between 30 and 40% for the Arbeitsgerichte and 50 to 70% for the

Commercial Court.

The completely mandatory referral procedures led, on the other hand, to very different results. Sometimes the settlement percentages were low, such as those for the Conseils de Prud‟hommes (13%) and for some recognised Gütestelle by virtue of „15a EGZPO‟ (15%), but sometimes the percentages were around 50% (for family mediation with application for legal aid, and for some Schiedsmann-mediatoren in „15a EGZPO‟ procedures. These data must be further qualified in two ways. The final settlement percentage seems to be on average lower in systems of mandatory referral than in (semi-)voluntary referral. That appears logical, because in voluntary referral parties must already agree on at least one thing: namely that a mediation attempt makes sense. This observation (“the more

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mandatory the referral, the lower the final settlement percentages”) is also confirmed globally in Germany, by the recent data of Reinhard Greger. But this does not rule out the fact that a system of obligatory referral, measured in absolute numbers of cases, can relieve the burden on the court system. Suppose court A handles 1000 cases per year. Of these, 20 cases (2%) are referred voluntarily, and of those 50% are settled: then there are 10 settled cases. Suppose, then, that court B also handles 1000 cases, and these are all (100%) obligatorily referred. The settlement percentage here is 15%. Then in absolute numbers, this relates to 150 cases. A second qualification concerns the relationship between the number of settlements by virtue of mediations, and settlements reached directly, bilaterally between parties, who did not choose the mediation option, or who simply did not have this option available. Both in England and in Norway, such control groups have been studied – in England simultaneously (by Hazel Genn), in Norway diachronously (before and after the start of the national experiment). It now seems that in bilateral settlements, too, high percentages are achieved (45 to 65% at the Commercial Court, and 42% settlements in the pre-rettsmekling period). The settlement percentages resulting from mediations, however, lie quantitatively higher (in Norway even significantly higher), and it is known from diverse studies that parties in the category of settlements resulting from mediation in each case also gave a high qualitative rating: in general parties were very satisfied with the outcome, and sometimes it was stated that they could never have achieved such a result alone. We will talk more later about possible explanations for this varied pattern of results. Firstly, the findings produced by research question 5 will be dealt with, the question about the acceptance factors for parties.

4.2.2 RESEARCH QUESTION 5 The diverse national research projects always charted globally the same quantitative data. However, the acceptance factors which were explored vary for each project. To obtain as complete a picture as possible, we have compiled a list of candidates below in which all different acceptance factors are aggregated. A distinction must be made as to acceptance of the referral, and the ultimate acceptance of a settlement offer. A further distinction can be made between acceptance factors for parties, and acceptance factors for the lawyers of parties. Factors which play a role in the acceptance of the referral for parties themselves in each case: the cost aspect of the mediation (examined by Bonafé-Schmitt). This relates to the costs of the mediation as such, and looked at separately – thus not offset against the costs of the full court proceedings. Costs in connection with mediation have a negative effect on acceptance by parties; case characteristics, in particular the existence of negotiating space and equality between parties (researched by Genn). The lack of negotiating space and/or of equality have a negative effect on acceptance by parties. The term „equality‟ is moreover not clearly defined in the relevant evaluation studies. Even in higher appeal procedures (Court of Appeal) there seems to be little enthusiasm. Personal characteristics (especially awareness of rights, researched by Cam). A keen awareness of one‟s own rights has a negative effect on acceptance by parties;

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the advice of the lawyer (researched by Genn). Taken as a whole, the presence of lawyers has a negative effect on acceptance (except in a number of „business-tobusiness‟ commercial disputes). Familiarity with mediation and the presentation of the mediation option by the referrer are mentioned in a number of studies and publications, although not usually very prominently (Genn, Dickens, Graham & Lewis, Blohorn-Brenneur). Familiarity with mediation has been examined as an acceptance factor with respect to the lawyers of the parties (Touzard). Touzard has also looked into the legal attitude of lawyers (and judges), in particular „one-dimensional‟ thinking on the administration of justice, as a factor. Financial considerations for lawyers have not been investigated, maybe because few reliable answers on this point would be expected. With respect to the ultimate acceptance of settlements, the following factors have been examined: the quality and the enthusiasm of the mediator (Röhl). An expert and enthusiastic mediator has a positive effect on acceptance by parties; willingness to negotiate (Davis, Bonafé-Schmitt); negotiating space, case characteristics (Genn, Graham & Lewis). Relatively low settlement percentages were achieved, for example, in discrimination cases; estimates by the mediator as to chances in court (Dickens); the presence or absence of lawyers (Cam, Röhl); at this stage, their presence always has a negative effect. For the rest, in almost all studies, the overall satisfaction of parties with mediator and mediation was investigated. Parties generally appeared to be satisfied if the mediation was crowned by an agreement, but clearly less satisfied if the mediation attempt ultimately failed.

4.2.3 WHEN DOES MEDIATION WORK? ATTEMPT AT A HYPOTHESIS In view of this difference in emphases in the diverse evaluation studies, it is certainly no sinecure to state why and when mediation does exactly work. There is no obvious mono-causal connection which catches the eye (insofar as that could ever be demonstrable for any complex social phenomenon). Rather, it is a specific interaction between diverse factors (variables) which appear to be of crucial significance. If we firstly look at mediations to which parties were referred by virtue of 2a or 2b, then it is striking that in this category ACAS and the Conciliateurs de Justice have the best scores. One explanation for this could be that it is precisely these two institutions which are fairly well „integrated‟ into English and French society respectively. Both have existed as such for more than 20 years, and are founded on even older traditions. That distinguishes these institutions from the organisations to which referrals are made in the frame of médiation judiciaire, or in the frame of the practice directions of the Central London County Court or the Cour of Appeal. A second distinction between, firstly, ACAS and the Conciliateurs on the one hand, and secondly the other institutions, is that the services of the first are free. In médiation

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judiciare the costs may be considerable, and the CLCC mediations soon cost £100. The mediation at the Court of Appeal may be free, but there it seems, in view of the results of

the research study by Genn, that it is mainly factors relating to the substance of cases which prevent co-operation in mediations. Perhaps there is yet a third difference, which is, however less simple to deduce from the research results. There is the impression in a number of cases that the parties were to do a strengths/weaknesses analysis of their case, expressed by the mediator or conciliator. Although it can safely be said that evaluative mediation is not part of the role of ACAS conciliators, mediations do seem to be taking this turn. There is also the possibility that this plays a role for the Conciliateurs de Justice – who in any case often have a judicial background. Somewhat exaggeratedly, then, one might thus express the presumption that certainly a number of parties sees this as a way to obtain (extra) free legal advice. This conclusion can, however, still not be directly deduced from the available research data. Finally, a fourth distinction appears to be relevant: referral percentages for médiation judiciaire sometimes displayed positive peaks, and that happened when the referrer gave expert explanations. In the case of the rettsmekling, the referral percentages often lay around 20%, while there again, an expert explanation often (but not always) preceded the referral. At ACAS the referral percentages were high, and expert explanations were invariably given. So it seems likely that referral variation 2b, where the referrer gives expert explanations, is significantly more successful than the entirely voluntary (formalistic) referral variation 2a. Our preliminary, tentative conclusion is that a structural position (or at least: the „integration‟) of the mediation provider, the structural mechanism for referral to this provider, and also the fact that the mediation is free of charge, appear to be important factors for the voluntary acceptance of referral proposals, and ultimately too for settlement proposals. The somewhat less voluntary referral variation 2b, whereby the referrer gives an expert explanation concerning the options of mediation, is just as beneficial for the acceptance of mediation as option. It is interesting that this picture is confirmed by Röhl, when it comes to acceptance of settlement proposals in the frame of „15a EGZPO‟ procedures. There, it is the personal effort and expertise of individual mediators which sometimes results in unexpected positive results, in a system where the number of settlements in general is not very high. The role of the cost aspect is pointed to as a reason for the overall moderate score: these mediations are not free, either (but are in most cases covered by legal insurance). More important is that the lawyer-mediators themselves also see little advantage here because of the cost aspect – or remuneration aspect, if you like – and clearly minimise their efforts. The systems for obligatory referral thus appear to confirm our tentative conclusion with respect to the role of costs, or at least not to contradict it. Does this also hold true for „integration‟? At first sight, the Conseils de Prud‟hommes appear to contradict the importance of this „structural‟ factor. In any case, the Conseils definitely score low in terms of settlement percentage, but are the longest-established institution studied. However, one must bear two things in mind at this point. Firstly, there is obligatory referral at the Conseils, and that brings with it a tendency to lower settlement percentages. Then there is the fact that the Bureau de Conciliation is composed on equal terms: two conciliators with opposing interests operate here (unlike modern co-mediation). Certainly, if

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one takes stock of the antagonistic French industrial relations, the percentage of 13% then ultimately exceeds expectations. Next come the mediation programmes based on referral variations 3a and 3b: those of the Arbeitsgerichte, where the judge, as it were, refers cases to himself as mediator, and those of the Commercial Court. Here both the referral and the settlement percentages are at a reasonable level. At the Arbeitsgerichte the evaluative character of the judicial conciliation attempt does appear to play a role, witness the citation from the former labour judge discussed earlier. Furthermore, the Arbeitsgericht is also an established institution and the built-in conciliation is in fact free. At the Commercial Court , however, the picture is different. Here the mediation is by no means free – the usual commercial rates for mediators apply. Nor are they long-established mediation providers. The Commercial Court is nevertheless a specialist court. The lawyers here are specialists from large firms, who work for (mainly) corporate clients. Genn has already emphasised in her research study that such commercial lawyers have a more positive attitude towards mediation than „ordinary‟ lawyers – it is mainly these latter who are most likely to exercise a negative influence. The attitudes of commercial lawyers may follow from the creation of organisations such as CPR in the United States and CEDR in England: here it was the companies themselves (and their in-house lawyers) who took the lead in promoting the use of mediation, in order thus to save on legal costs, and on a larger scale, to bring commercially viable solutions within reach. From the point of view of defensive marketing the commercial lawyers must of course follow their own, major clients. There are two further aspects to this, aspects which appear again somewhat to confirm our preliminary hypothesis about „structural‟ and „costs‟ factors. There are solid networks within the top of the corporate world and the top of the corporate legal profession. According to our key informant in the Lord Chancellor‟s Department, big companies and their lawyers now know precisely which mediators at organisations such as CEDR deliver good quality work. These mediators are also often from the same top strata. In that sense, mediation becomes widely known, and the mediators too become widely known. The „structural‟ factor here has a personal tinge (insofar as that is not a contradiction in terms). The fact that a commercial rate must be paid for the services of these mediators is not a problem for large companies. Costs are always relative. Relative with respect to the value in dispute, and relative due to the ways in which a party to the proceedings can pass these same costs on to others (for example to the taxman, or to the consumer). In this way, the „structural‟ factor and the „costs‟ factor ultimately play a role here too, while party characteristics and case characteristics are also involved.

4.2.4 INTERMEDIATE CONCLUSION To what preliminary conclusion to these considerations lead? A structural position for mediation, and the familiarity with and trust of the phenomenon thereby made possible, appears to be a necessary condition to allow mediation to work. A necessary condition, but not a sufficient condition. The same holds true for personal effort, expertise and enthusiasm on the part of the mediators and the referrers. An expert explanation and enthusiasm definitely appear to play a role, but it remains to be seen if enthusiasm alone can be effective, in the absence of a structure.

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It seems plausible that a structural provision per se is beneficial for institutionalised quality requirements. These quality requirements can in turn guarantee professional enthusiasm. The costs element also appears to play an important role. Yet it cannot be said that free mediation is a necessary condition for acceptance by all types of parties in dispute, in all sorts of disputes. Here a distinction must be made, depending on whether or not the parties are able to pass on the costs. For commercial parties, not charging is, in our opinion, not a necessary condition; for individual „one shotters‟, not charging certainly is a necessary condition. For the sake of completeness, it must be mentioned that – obviously – party characteristics or personality characteristics also play a role, whether or not in combination with more technical case characteristics, or a specific trial strategy. That is known from a number of American studies. How precisely these factors interact with each other is impossible to investigate on the basis of currently available data. The „structural‟ and „costs‟ factors, as well as the expertise of the referrer, however, are brought into the limelight, because these factors can be influenced up to a certain level in accordance with policy, contrary to personality characteristics and specific case characteristics. We will now look at whether the findings in response to the two remaining research questions, numbers 4 and 7, show this interim conclusion in another light.

4.2.5 Research question 4 This question was to do with what, if any, criteria were set for the referral of disputes to mediation. This question, in most studies, is either not even on the agenda, or is only marginal. In some mediation programmes, such as at the Court of Appeal or ACAS, all parties are instructed about the mediation option as standard. In other programmes, this occurs on a selective basis, at the instigation of the judge – such as at the Commercial Court, or at the instigation of the parties, perhaps in dialogue with the judge, such as in conciliation and médiation in France, and in the national experiment in Norway. What criteria precisely are used in these programmes (by parties, or by the judge) is, however, seldom focused on with any precision. There are, though, some interesting data. In médiation judiciaire, the costs aspect of the mediation acted as the main contra-indication for the parties (and therefore also for the judge). And the Norwegian Commission for the Reform of (Civil) Procedural Law explicitly laid down as a rule that in the proposals for mediation, attention must be paid to (1) the relative position of power of parties, (2) the potential costs, and (3) the progress of any earlier mediation attempts in the same dispute (paragraph 7.3 of the Norwegian bill). For the rest, the clear conclusion from the Norwegian research study was: stipulating referral criteria is pointless, because cases can be infinitely varied and ultimately a great deal depends on the personal attitude of the parties.

4.2.6 RESEARCH QUESTION 7 This question related, in essence, to the support for mediation in the countries surveyed, apart from parties (and their counsel) themselves.

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It was only in the Norwegian national experiment that the opinions of a number of organisations in civil society were probed. The reactions to rettsmekling as a separate mediation track were largely positive. In England the DTI survey brought to light how the social partners think about ACAS. That opinion is very positive. Organisations of employers and employees both said there was no need for any other providers apart from ACAS. Special attention should be paid to the support for mediation among judges. In France, Touzard brought into focus the attitudes of judges to mediation. It seems that the magistracy‟s familiarity with the phenomenon varies. Of crucial importance for referrals however, appear to be above all their attitudes to the nature of the administration of justice and their own role therein. „One-dimensional‟ thinkers refer significantly fewer cases than judges who also recognise the importance of individualised justice. Both views are represented in the French magistracy. An important finding in the meantime is that the developments in all countries surveyed are moving in the same direction: mediation programmes already exist, or have recently been set up, or else similar programmes are at least being studied. In this connection we would like to give an impression of the mood among judicial policymakers, by letting our key informants in the policy sector make a brief statement on the future of mediation in their country. The English answer is unequivocal: “We don‟t have a clear policy”. Referring to the diverse court-annexed-mediation programmes, our informant points out that these were set up by a few enthusiastic professionals, but are never centrally controlled. For that reason, too, our informant suggested that in the next three years a number of further experiments will be set up, in order to generate enough material to lay the foundation for a clear policy. The precondition is that the necessary resources are also made available for this. Consideration is being given to the cost aspect of mediation itself, and also to more or less mandatory referral (in particular to opting-out systems). These two aspects (costs and referral system) cannot, however, be looked at separately from each other in connection with access to the courts. The thinking on these questions is still at a very early stage. Otherwise one might wonder whether there may not be British self-mockery hiding behind these observations, since court-annexed-mediation has already existed for some decades in labour disputes and the 1999 Civil Procedure Rules brought in a broader structural position for mediation. Our German key informant referred to the character of paragraph „15a EGZPO‟ as Zeitgesetz. Inherent to this status is that it is systematically evaluated before any decision is made on a permanent regulation, and therewith a structural provision. The Ministry in question nevertheless plays an active role in the information about the A.Be.R., and the fundamental attitude, it seemed during the interview, was clearly positive. Some concern about the caseload of the German courts also came through in the interviews, although this has not yet led to excessive handling times – due to the relatively large number of judges in Germany. Otherwise we refer again here to the newly-introduced paragraph 278 ZPO, which offers parties the (structural) option in the course of the proceedings request time for mediation. In France the Chancellerie has recently come out with a positive position on the MARC with an anthology in which one of its policymakers – our key informant in the department – is named on the cover as editor.

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“Les juges sont invités à participer à une recomposition politique de leurs modes d‟intervention”, [judges are being asked to do a political reshuffle of their methods of intervention] reads the clear conclusion drawn at the end. In France mediation already has a legal basis, and to that extent also a structural position. What is new is the large-scale, concerted action which was put on track by the Ministry in consultation with a number of magistrates and academics in 1996, to bring into focus the practice and the dogmatic embedding of mediation by means of a large number of studies. According to our key informant, mediation will remain an important focal point at the Ministry in coming years – also in the light of the relevant European initiatives. One of our academic key informants, however, contradicts this. According to her, mediation is no longer a top priority, since the number of procedures in France has been declining for some years. In Norway, finally, the bill of the Commission for the Reform of (Civil) Procedural Law is on the table, in which a structural position is devoted to the rettsmekling. Our key informants expressed the expectation that there is expected to be some opposition to the retirement of the Forliksrader, but that the system of rettsmekling will more than likely be given its planned structural place.

4.3 National courts, market and quality assurance The aforementioned final comment brings us, inter alia, to the question: what is the attitude in departments, in practice, and in academia, about referral – by national courts – to external, private ADR/mediation organisations? Should this market for dispute resolution services be regulated? In Norway, the desire has been expressed to call in more external mediators to the rettsmekling. In England, however, it is only possible to refer cases to external mediators. In Germany the external mediators are also on the advance, in the frame of the „15a EGZPO‟ procedure. Even in France, the judge has delegated his „mission de concilier les parties‟ to conciliators or mediators (who may or may not be organised). The flipside of this development must be: professional quality assurance, and supervision thereof. There was agreement on this in all countries surveyed. In the explanations on the Norwegian bill for the reform of procedural law, the lack of any clear training and quality standards during the national experiment is now very much deplored and is regarded as an action point. In France, too, much has been written and debated over the necessary compétences of the mediator. Here the legislator has already formulated some preconditions (in Art. 131 NCPC) relating to independence, impartiality and duties of confidentiality. In Germany the Rechtsberatungsgesetz takes centre stage in the discussions, now that judicial advice can only be given by qualified persons (namely lawyers), and such advice will be asked of a mediator, at least casually. In England, too, there is a lot of discussion, and common standards have been created in the field of family mediation. In short: quality assurance appears in the first instance to be a matter of self-regulation by the private service providers, whereby the state often plays a promotional role, and

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sometimes formulates a few general standards – as in France; moreover, there is then often a supervisory role set aside for the state. So there is a first initiative from „the field‟, but the multiplicity of organisations and disciplines – and the interests associated therewith – continue to hamper a rapid completion of the national discussions. Opinions about the minimum number of training hours for mediators, the content of the requisite training course, the compulsory nature of éducation permanente and the necessity of disciplinary supervision are still widely divergent.

4.4 Conclusion The findings on research questions 4 and 7 do not form a refutation of our hypothesis that „structural‟ and „cost‟ factors, as well as referral on the basis of expert explanation – all variables which can be influenced at policy level – play an important role in the success of mediation (next to case characteristics and personality characteristics, which cannot be influenced). The structural aspect must furthermore be related to institutional quality assurance, and the cost aspect must be differentiated according to the possibilities for parties to a procedure to pass on their costs to others. Policymakers in our neighbouring countries have a generally positive attitude towards mediation. Recently-collected data must now be studied, and/or additional research must be awaited. This is, according to practically all our interlocutors, also an excellent time to compare the experiences in Europe with each other. Duly noted.

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5

Summarising conclusions

The aim of this research project was to describe and analyse the practice of mediation in eleven countries neighbouring the Netherlands. The focus was on mediation within the „administration of justice infrastructure‟. This particular perspective includes referrals of litigants – by a court – to mediation, during any stage after proceedings have been instituted. Mediation initiatives in earlier stages have been excluded, unless prospective litigants were referred to mediation from within a legal aid scheme. The scope of research was on disputes in the private law area (including family and employment disputes) and the administrative law area. The research was carried out in two consecutive stages. During the first stage, a quick scan was made of mediation in eleven European jurisdictions, i.e. France, Belgium, Spain, Italy, Germany, Austria, Switzerland, Denmark, Sweden, Norway, and England. Building on the quick scan, four jurisdictions were then selected for a more thorough analysis of data regarding the local practice of mediation. The availability of empirical data on mediation practice was a key criterion for selection. Thus, for the second stage of this research, France, Germany, Norway and England were selected. This particular selection had the advantage that all the European legal traditions (the Romanistic legal family, the Germanic legal family, the Nordic legal family, and the Common law legal family) were represented in the research project. The existing empirical data for these four countries were complemented with new, direct information, collected through interviews with „local‟ ADR experts from the respective Ministries of Justice, the judiciary, and the academic community. By doing so the reliability of the available research data could be extended. 1. During the first stage of the research, information with regard to legislation and regulations on mediation was collected in 11 European countries. Here the leading question was: Are there rules and/or legislation applicable to mediation? It was found that nearly all countries have a regulatory framework in situ for mediation or conciliation in labour disputes. For this type of disputes there are often separate settlement institutions. In nearly all of the researched countries, statutory referral regimes for family disputes are being prepared, in which the court compulsorily or voluntarily refers disputants to external, professional mediators. For other civil disputes, some countries have legislation authorising the handling judge to explore, together with the parties, the possibilities for reaching a friendly settlement. In addition, there is, however, a clear trend to assign this task also to others than the handling judge, thereby creating the opportunity of bringing in specially developed negotiation and mediation techniques. Just a few countries do have a statutory duty of confidentiality for mediators and/or parties. In some countries, the results of a successful mediation can be made enforceable through the regular judge. Thus far, however, this opportunity is not often made use of. In none of the countries mediation regulations were found in the area of administrative law, and as yet there is also no mediation practice other than the occasional use of mediation techniques in prepatory procedures in planning and zoning (inquiry procedures). It is however relevant to note, that in 2002 all the ministries in England signed a covenant, by which they agreed to settle their differences primarily through mediation. Finally, it should be recorded that there is a

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provision in English law, which makes the granting of legal aid in family disputes dependent on a preceding mediation attempt by the legal aid applicant. Recently, however, this provision was once more brought up for discussion. 2. The second research question was as follows: What qualifications are to be met by mediators? For labour disputes, it was found that, in particular, branch specific knowledge – know-how – is required. For mediators involved in family disputes mostly professional organisations have determined stringent training requirements, which include legal and psychological skills. In other areas of law, there is a multitude of introductory and secondary training, offered by diverse institutions and organisations. Consequently, views on the minimum length of training, contents, and the necessity of éducation permanente are varied. Nevertheless, there is agreement that quality control and (government)-supervision are necessary. 3. The third research question was: What variations of „referral‟ to mediation exist within the various jurisdictions? The answer to this question is that six (sub-) variations of referral can be distinguished: 1. The parties themselves propose the idea for mediation as an option; 2a. The judge proposes the idea, in a non-committal way; 2b. The judge (or mediator) proposes the idea, but accompanied of professional explanation; 3a. The judge initiates and the parties can refuse without a sanction being imposed; 3b. The judge initiates, but a sanction may be imposed upon refusal; 4. Access to court is denied, as long as mediation has not first been attempted. Only in variation 1 there is full voluntary (self-) referral, while only in variation 4 there is complete mandatory referral. In the past, mandatory referral was widespread. At present, however, it is only practiced in those disputes where huge social costs and/or interests of vulnerable, weak third parties, like children involved in a divorce or the public at large confronted with a general strike, are at stake. The difference between variation 2 and 3 is that variation 2 requires the consent of both parties before the mediation option can be further explored, while in variation 3 the judge may refer without the consent of the parties. In this variation, parties can still halt the referral, but by doing so they may run financial risks. In particular, variations 2 and 3 are widespread. By now, it is clear that variation 2b is less voluntary than variation 2a. Here parties shall have to come forward with well-founded arguments, if they seek to counter the professional overview of the possibilities that mediation may offer in the dispute at hand. In the second stage of the research project empirical evaluations of mediation practices in France, Germany, Norway and England were discussed. It appeared that in these countries, by far the largest quantity of empirical data was available. 4. The fourth question was as follows: What criteria are used in the referral of cases/disputes to mediation? Are there any contra-indications?

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Specific criteria for referral were unknown or were not regarded as useful because of the infinite diversity of cases and party characteristics. There was however a clear contra-indication: no mediation in case there is a power imbalance between the parties. In the respective studies, however, the term power imbalance was not further explained 5. Question five was crucial: What factors influence the actual acceptance of, or cooperation in, mediation by parties? In fact, it here concerned the question under which preconditions mediation works. All the time, it appeared that in the various evaluation studies different combinations of factors of acceptance had been examined, which hamper a precise comparison. In general, however, it can be concluded that parties are less prepared to consent to a proposal for referral, if the costs of mediation as such are higher, if the parties are more aware of their rights, and if the dispute itself does not really allow for negotiations. It also appeared that the presence of lawyers might have a negative influence. The factor „costs of mediation‟, however, does not seem to play a role in business-tobusiness disputes. As far as the factor costs is concerned, as yet, systematic information over the costs of pursuing a case further in court as a criterion is lacking. As to the final acceptance of a settlement proposal resulting from mediation, the following factors play an important role (positively or negatively): the quality of the mediator, the assessment of the mediator, the room for negotiation, and the willingness to negotiate. 6. The sixth research question concerned the quantative dimension of (referrals to) mediation. The question was: What results does mediation show and how do these results lie to those of the „regular‟ judicial resolution of disputes? Here two sets of data are relevant. First, the number of cases that were referred as percentage of the total number of cases brought before the court. When it concerned the variations 2a and 2b (the judge proposes the idea), for a number of instances this percentage was low (< 5%) and for others rather high (> 30%). For the variations 3a and 3b the percentage was constantly more than 30%, and for mandatory referral the percentage was by definition 100%. The second set of data concerned the percentage of mediations resulting in a settlement (agreement). Both for the variations 2a and 2b, as well as for the variations 3a and 3b this percentage was constantly more than 30%, and for the majority of instances it was even more than 50%. For mandatory referral, however, the ultimate settlement percentages greatly differed, but compared to (semi-) voluntary referral these numbers were in general significantly lower. Although the settlement number for mandatory referral compared to (semi-) voluntary referral is less favourable in terms of percentage, this does not imply that thereby also the absolute settlement numbers are less favourable. 7. The seventh and last research question read as follows: What are the experiences of others than the parties and their (legal) advisers with mediation? Is there a basis/support for mediation in society as a whole? There are specific data on record from Norway, and from England regarding labour disputes. In Norway it concerned the probing of interest groups, preceding the introduction of the new mediation programme; in England, interest groups were invited to evaluate a mediation provider, which had already functioned for more than 25 years. In both cases, the reactions were positive, and the support for mediation

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apparent. Particularly in France, the support for mediation amongst judges has been examined. Decisive for the referral of cases to mediation by judges were their views on the nature of the administration of justice and their part in it. „One-dimensional‟ thinkers refer significantly less cases, than judges who recognise the importance of individualised justice. The findings, based on the preceding research questions, led to the following, tentative hypothesis. The following factors, which are of relevance to the success of mediation, can be influenced by policy measures: the structural character of the referral regime, the costs of mediation, and the expertise of the person who refers. In addition, case characteristics and party characteristics play a role, but they can hardly be influenced by policy measures. As far as the „structural factor‟ is concerned: most cases were referred on a (semi-) voluntary basis, if the mediation provider had taken root, had been functioning for more than 20 years, or was otherwise familiar to the disputants. Moreover, it is likely that a structural regime promotes institutionalised quality standards. As far as the „costs factor‟ is concerned: in disputes between private or unequal parties, it appeared that mediation free of charge is important for acceptance by the parties. In disputes between commercial parties, however, the costs of mediation seem to be irrelevant and mediation at a commercial rate is accepted. As far as the expertise of the person who refers is concerned: this factor appeared to have a positive effect on the degree of acceptance in proposals for referral. In mediation programmes, which as such were not very successful, the expertise and dedication of the individuals referring contributed to positive peaks. Expertise can be consolidated and optimised by giving permanent providers a structural place within the legal system. Meanwhile, an important observation is that in all countries the developments head towards the same direction: mediation programmes have already obtained a structural place, or have been recently established, or otherwise such programmes are considered. This development is confirmed by interviews with ADR experts from ministries of justice. In England and France mediation has already been given a structural place in the legal system. During the past years, it was French policy to visualise this practice by various research projects. Also in England research has been carried out, but not so much under the auspices of the Ministry of Justice. In England, therefore, additional research is required, thereby creating an adequate basis for prospective policy. In Germany, experiments are still in progress – at the level of the Länder. And in Norway the national experiment has been concluded. Here, it has been suggested to give mediation a structural place and statutory basis. All policy makers agreed that the safeguarding of quality standards is necessary, firstly by private providers, complemented by a supervisory task for the government. The multitude of organizations and disciplines involved hamper as yet a speedy conclusion of the discussions.

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ANNEXES

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Annex 1: Composition of the Advisory Committee

Prof. Mr. J.M. Barendrecht

Chairman

Centre for Liability Law University of Tilburg

Mr. J.G. Salverda Member

Access to Justice Department Ministry of Justice

Dr. M.J. ter Voert

Academic Research and Documentation Centre Ministry of Justice

Mr. W.M. de Jongste Member

Academic Research and Documentation Centre Ministry of Justice

Member

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Annex 2:

Names of the key informants for the four selected countries and of the extra informants for the purpose of the „quick scan‟

In the frame of the research study, interviews were conducted with key informants specifically with respect to the four selected countries. Additionally, contact was made and interviews held with extra informants for the purpose of the „quick scan‟. An * indicates that only publications by the key informant concerned were relied upon. Key informants – for the four selected countries

France Évelyne Serverin Pierre Chevalier Myriam Bacqué Loïc Cadiet Pierre Delvolvé* Pierre Lenoël Jean-Paul Jean

Germany Rainer Wiedemann Johannes Schwarzmann Renate Dendofer

Dr. / Directeur de Recherche au CNRS IDHE-Cachan Chef du Bureau de la Procédure du Droit Public et Social, Ministère de la Justice, Paris Secrétaire Général, Centre the Médiation et d‟Arbitration de Paris Professeur, Université de Paris I, PanthéonSorbonne Professeur, Université de Paris II Directeur Mission de Recherche Droit et Justice, Paris Mission de Recherche Droit et Justice, Paris Dr., Regierungsdirektor Bayerisches Staatsministerium der Justiz, Munich Dr., Landesnotarkammer, Munich

Christian Duve Helmut Kitschenberg* Klaus Röhl Reinhard Greger

Prof.dr., Gesellschaft für Wirtschaftsmediation und Konfliktmanagement e.V., Munich Dr., Freshfields, Frankfurt Dr., CJ-DA, Bad Neuenahr Prof.dr., Ruhr-Universität Bochum Prof.dr., Universität Erlangen

Norway Arnfinn Bårdsen Arnulf Tverberg Steingrimm Bull* Geir Engebretsen Greta Nordhelle

Prof., University of Bergen CJ-DA, Ministry of Justice, Oslo Ministry of Justice, Oslo District Court Asker & Baerum Mediator, Oslo

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England Hazel Genn Heather Bradbury Terry Lippiatt Martin Partington*

Prof., University College, London Civil Landscape Branch, LCD, London ACAS, London CJ-DA, University of Bristol

Extra informants for the purpose of the ‘quick scan’ Christian De Vel Jean Lejeune Fernando Valdés DalRé Stefania Pellegrini* Pär Zelano Charlotta Arvidson

First Chairman, Court of Appeal, Antwerp Lawyer, Leuven Prof., Universidad Complutense, Madrid Dr., University of Bologna Judge of Appeal, Göteborg Ministry of Justice, Stockholm

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Annex 3: English and French versions of the questionnaire The practice of mediation in neighbouring countries – research assignment in the framework of the project ‘Mediation naast rechtspraak’ (Court-encouraged mediation)

What results does mediation show and how do these results relate to those of the „regular‟ judicial resolution of disputes? As for „results‟ the focus is on: What percentage of cases brought before/ presented to the mediator, results in an agreement between the parties? What percentage of cases does not result in an agreement and ends up (again) with the court; what percentage ends differently (for example, by withdrawing the claim or petition or appeal)? What was the content of the settlement agreement following successful mediation? Were the parties (and their [legal] advisers) satisfied or not? And How long-lasting did the agreed settlements turn out to be?

What variations of „referral‟ to mediation exist within the various jurisdictions? This concerns variations in relation to the „how‟ (or „by whom‟) and „when‟ of referrals. Here, for example, one could think of: direct referral to mediation, ex lege or ex contractu, preceding the first court session; referral to mediation by an official other than the judge, preceding the first court session; referral to mediation by the judge during the first or later court session, and/or in the framework of specific procedural acts; if the judge refers a case to mediation: what role s/he then plays in the progress control of the mediation.

What criteria are used in the referral of cases/dispute to mediation? Are there any contra-indications? This concerns the „why‟ of the referral.

What factors influence the actual acceptation of or co-operation in mediation by parties? This concerns the „why‟ of the co-operation of the parties. Here diverse factors and preconditions might have an influence, for example: the voluntary or mandatory character of the referral; in addition, there are many more variations of these two extremes; the (type of) information the parties have received; the litigation fatigue/lassitude of the parties, or their durability or immunity to stress; financial (dis-) incentives; policies of legal expenses insurers; „pressure of the environment‟; the type of dispute (as perceived by the parties); the „ripeness‟ of the dispute.

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What are the experiences of others than the parties and their (legal) advisors with mediation? Is there a basis/support for mediation in society as a whole? In any event, this includes the judge/judiciary; in addition, one could think of interest groups such as trade union, or employers‟ associations, etc.; It may also include how the media and the (legal) academic community write about mediation; and whether mediation is accepted as a field of expertise in (legal) education.

Are there rules or legislation applicable to mediation? If yes, could you please indicate which rules or legislation?

This not only concerns legislation, but also self-regulation, codes of conduct, and case law. Apart from specific rules, legislation or case law, other, more general rules or „doctrine‟ may be of relevance. for example, ADR clauses in general contract terms, and the precise, exact legal status of mediated solutions/settlements; does it concern regular contracts or named contracts (like in the Netherlands) or „gentlemen‟s agreements‟? here, it is also relevant whether the solution reached can be enforced?

What qualifications are to be with by mediators?

the existence of professional organizations; permanent (mediation) education; codes of conduct; incompatibilities; possible sanctions.

Is professional privilege granted to mediators? What is the status of the duty of confidentiality in relation to the contents of the mediation settlement?

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Questionnaire de Recherche relatif à la pratique de la médiation dans nos pays voisins

Quels sont les résultats obtenus grâce à la médiation, comparés à ceux obtenus suivant la voie „normale‟, à savoir le règlement judiciaire des différends?

Quel pourcentage d‟affaires confiées à un médiateur aboutit à un accord entre les parties? Quel pourcentage d‟affaires n‟aboutit pas à un accord et revient devant le juge? Quel pourcentage connaît une autre issue (par ex. retrait de la demande)? Quelle est la nature de la solution convenue and cas de médiation réussie (dans la limite des données disponibles)? Les parties (et leurs conseillers) sont-elles ou non satisfaites? Les solutions convenues se sont-elles révélées durables?

Quelles formes the „renvoi‟ vers la médiation, au sens neutre du terme, existent dans les diférents systèmes juridiques?

Renvoi direct à la médiation, ex lege ou ex contractu, préalablement à la première audition. Renvoi par un fonctionnaire autre que le juge, préalablement à la première audition. Renvoi par le juge lors ou après la première audition, et/ou dans le cadre d‟actes de procédure spécifiques. En cas de renvoi par le juge, quel est alors son rôle dans le suivi de la médiation?

Quels critères régissent le „renvoi‟ d‟une affaire en médiation? Y-a-til des contre-indications? Il s‟agit ici du „pourquoi‟ du renvoi.

Quels sont les facteurs qui influencent l‟acceptation effective, respectivement la coopération des parties à la médiation ?

Il s‟agit ici du „pourquoi‟ de la coopération des parties. Divers facteurs et conditions connexes peuvent ici avoir une influence, par exemple : Le caractère facultatif ou obligatoire du renvoi. Il existe d‟ailleurs de nombreuses situations intermédiaires entre ces deux extrêmes. La (nature d)es informations relatives à la médiation, reçues par les parties. La lassitude des parties par rapport au procès judiciaire et leur (non) résistance au stress. Les incitations financières, les clauses de police d‟assurance contre les frais de justice, la pression exercée par l‟entourage. La nature du différend (telle que perçue par les parties), la „maturité‟ du conflit.

Quelle expérience les participants autres que les parties et leurs conseillers retirent-ils de la médiation? Quel écho reçoit la médiation dans l‟opinion publique?

Il s‟agit ici principalement des juges mais aussi des divers groupes de pression sur le terrain social. La façon dont la presse et la doctrine écrivent sur la médiation et la place de la médiation dans l‟enseignement (juridique) sont ici également visées.

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Y-a-til une réglementation applicable à la médiation, dans l‟affirmative quelle est-elle? -

Il s‟agit ici non seulement de la législation mais également des codes de conduite et de la jurisprudence. En plus de la réglementation (ou de la jurisprudence) spécifiquement applicable à la médiation, les principes généraux et théories existantes peuvent également revêtir une importance. On envisage ici l‟admissibilité des clauses de règlement des différends dans les conditions générales de contrat et aussi le statut juridique précis des solutions issues de la médiation. S‟agit-il (le contrat de médiation, trad.) d‟un contrat ordinaire, d‟un contrat spécial, d‟un contrat nommé (comme en droit néerlandais) ou de gentlemen‟s agreements? La question de savoir si la solution obtenue (à l‟issue de la médiation, trad.) peut être ou non (simplement) revêtue de la formule exécutoire, joue ici aussi un rôle.

Quelles sont les qualités requises des médiateurs?

Seront ici principalement examinés : L‟existence d‟une organisation professionnelle, L‟obligation de suivre une formation permanente, Codes de conduite, incompatibilités, les possibilités de sanctions (et leur application effective).

Comment le droit de dispense des médiateurs – dans la mesure où il existe – et l‟obligation de secret relative à la teneur des propos échangés au cours des sessions/réunions de médiationsont-ils réglés dans nos pays voisins?

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Annex 4: Collected and consulted literature General: Literature: Louise Otis, La justice conciliationelle: l‟envers du lent droit, in: Ethique publique, Vol. 3, no 2, 2001. [ADR in Quebec]. Paul Vezina, Conférences de règlement amiable au Québec, October 2002. Annie de Roo & Rob Jagtenberg, Mediation in the Netherlands: Past – Present – Future, in: Netherlands Reports to the Sixteenth International Congress of Comparative Law, Intersentia 2002. A. Brenninkmeijer, Handboek Mediation, SDU Den Haag 2001. N.J. Baas, Mediation in civiele en bestuursrechtelijke zaken Onderzoeksnotities, WODC, nr. 5 2002. E. van Beukering-Rosmuller, Mediation naast rechtspraak in civielrechtelijke geschillen: een vergelijking tussen de Engels en Nederlandse situatie, nr. 4, Tijdschrift voor Mediation, 2002. Commissie Herziening Scheidingsprocedure, Rapport Anders Scheiden, Den Haag, 6 October 1996. M. Pel, La médiation judiciaire in Frankrijk, in: Tijdschrift voor Mediation, no. 2, 2001, p. 28-31. A.A.S. Zuckerman, Civil Justice in Crisis, Oxford, 1999.

Questionnaires/law/legislation:

Règles modifiant les Règles de pratique de la Cour supérieure du Québec en matière civile, Gazette Officielle du Québec, 8 August 2001, 133 year.

International: Literature: OECD, Legal Provisions related to Business-to-Consumer Alternative Dispute Resolution in Relation to Privacy and Consumer Protection, Paris 2002. E.H. Hondius, Consumer Redress and ADR in the Netherlands, in: Journal of the Japan-Netherlands Institute, 2001. EU:

Literature:

Évelyne Serverin, Report „What place is there for civil mediation in Europe?‟, Committee of Experts on Effciciency of Justice (CJ-EJ (2000) 6 FINAL), 12 April, Strasbourg 2001. CJ-EJ (2000) 6 FINAL. CMAP, Programme Grotius, MARC 2000 Avec le soutien de la Commission Européenne, Paris 2000. Meeting Report Bestuursrecht, Document prepared by the Secretariat Directorate of Legal Affairs, Council of Europa, Strasbourg 8-10 November 1999. Council of Europe, Adoption of Recommendation No. (2001)9 on alternatives to litigation between administrative authorities and private parties. List of ADR hits, Council of Europe, Strasbourg, 2002. European Committee on Legal Co-operation, Working Party of the Project Group of Administrative Law, Strasbourg, 15 November 1999. Committee of Ministers, Resolution Res(2002)12 establishing the European Commission for Efficiency of Justice, Council of Europe, 18 September 2002. Council of Europe, Committee of Ministers, Recommendation Rec(2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties. Committee of Ministers, Activities Report 2002, Strasbourg 2002.

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Green Paper on Alternative Dispute Resolution in civil and commercial law, 19 April 2002 [versions: Dutch, French, English, German version], European Commission. Alternatives to litigation between administrative authorities and private parties: conciliation, mediation and arbitration – proceedings, Council of Europe, Lisbon 1999. Annie de Roo & Rob Jagtenberg, Settling Labour disputes in Europe, Deventer/Boston: Kluwer Law International, 1994. A. Gotwald & V. Gotwald, Environmental Mediation in Europe – Status and Experiences, Federal Ministry of Agriculture and Forestry, Environment and Water Management, Vienna, 2000. B. Feldtmann, H. von Freyhold, E.L. Vial, The Cost of Legal Obstacles to the Disadvantage of Consumers in the Single Market, Bremen, 1998. Belgium: Literature: A. Thilly, La médiation familiale en droit Belge, Report to the Sixteenth International Congress of Comparative, Brussels/Brisbane 2002. Jean Laenens, Reglement Alternatif des Litiges en Belgique, Report to the Sixteenth International Congress of Comparative Law, Antwerp/Brisbane 2002. Brochure „De rechter als bemiddelaar‟, Federal Overheidsdienst Justitie, Antwerp, 2002. Letter from Minister of Justice (Marc Verwilghen) Pilot project Rechterlijke Bemiddeling. Speech by Minister of Justice (Marc Verwilghen) Conferentie De Rechterlijke Bemiddeling, 9 October 2002, Brussels (French and Dutch version). Piet Van Baeveghem, Paper Conferentie De Rechterlijke Bemiddeling, October 2002. Christian De Vel (First Chairman of the Court of Appeal in Antwerp), Paper Conferentie De Rechterlijke Bemiddeling, October 2002.

Questionnaires/law/legislation:

Art. 52 Judicial Code (Art. 734 sexies. 1 to 734 sexies. 10)

France:

Articles

Évelyne Serverin, Le rapport de la commission de réforme de l‟accès au droit et à la justice: comment: comment repenser l‟aide juridique?, in: Revue nationale des Barreaux, No 65, JulyDecember 2001; Themanummer Mediation, Revue Nationale des Barreaux, No 66/67, January-June 2002. Évelyne Serverin, Quels faits sociaux pour une science empirique du droit?, in: Revue Internationale de Théorie du Droit et de Sociologie Juridique, No. 50, 2002. Chambre de Commerce et d‟Industrie de Paris, Livre Vert sur les Modes Alternatifs de Résolution des Conflits relevant du Droit Civil et Commercial: Réaction de la CCIP, 19 September 2002. Évelyne Serverin, Les procédures de règlement amiables en France, entre théorie en pratique, CNRS, Copenhagen, 2002. L. Cadiet, Procès équitables et modes alternatifs de règlement des conflits, in: Variations autour d‟un droit commun, M. Delmas-Marty, H. Muir Watt, H. ruiz Fabri eds., Société de Législation Comparée / CNRS, Paris, 2002. L. Cadiet, Les modes alternatifs de règlement des conflits et le droit, in: Les modes alternatifs de règlement des litiges, P. Chevalier, Y. Desdevises, Ph. Milburn eds., Paris, 2002. L. Cadiet, Les jeux du contrat et du process: esquisse, in: Philosophie du droit et droit économique, Paris, 1999. L. Cadiet, Le spectre de la société contentieuse, in Droit civil, procédure, linguistique juridique, Poitiers, 1994. L. Cadiet, L‟économie des conventions relatives à la solution des litiges, in: L‟analyse économique du droit dans les pays de droit civil, Paris, 2000. J.-F. Six & V. Mussaud, Médiation, Paris, 2002.

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J.-B. Racine, Pluralisme des modes alternatifs de resolution des conflits, pluralisme du droit, Université de Nice Sophia / GIP Mission de Recherche Droit et Justice, Lyon, 2002. P. Chevalier, Y. Desdevises, Ph. Milburn, Les Modes Alternatifs de règlement des litiges: les voies nouvelles d‟une autre justice, Mission de Recherche Droit et Justice, Paris, 2003. Ch. ten Raa, De oorsprong van de kantonrechter, Deventer, 1970. A. Supiot, Déclin de la conciliation prud‟homale, in: Droit Social, No. 3, 1985. P. Cam, Les Prud‟hommes: juges ou arbitres? Les fonctions sociales de la justice du travail, Paris, 1981.

Questionnaires/law/legislation:

La juridiction de proximité, Loi no. 2002-1138 de 9 September 2002 d‟orientation et de programmation pour la justice, Journal Officiel de la République Française, 10 September 2002. Nouvelle Code Procedure Civile, Arts. 127-131, La Conciliation. Nouvelle Code Procedure Civile, Arts. 131.1-131.15, La Médiation. Loi n. 91-647 du 10 juillet 1991 relative à l‟aide juridique.

Data:

Ministère de la Justice, Les chiffres-clés de la Justice, October 2001.

Brochures:

Centre de Médiation et d‟Arbitration de Paris, Programme Grotius Marc 2000, Paris.

Research reports:

Y. Desdevises & Ch. Suaud, Conciliateurs et conciliation, Centre Nantais de Sociologie / Institut de Recherche en Droit Privé, GIP Mission de Recherche Droit et Justice, May 2001, Nantes/Paris. B. Blohorn-Brenneur, La médiation judiciaire: quelle procédure pour les MARC?, in: P. Chevalier, Y. Desdevises and Ph. Milburn (eds.), Les modes alternatifs de règlement des litiges: les voies nouvelles d‟une autre justice, Mission de Recherche Droit et Justice, Paris 2003, p. 173-181. M.-C. Rivier, Les Modes Alternatifs de Reglement des Conflits Un objet nouveau dans le discours des juristes français?, Université Jean Monnet de Saint Etienne / GIP Mission de Recherche Droit et Justice, May 2001, Saint Etienne / Paris. J.-P. Bonafé-Schmitt, Les Mediations logiques et pratiques sociales, CNRS-ISH-Université LumièreLyon II, April 2001, Lyon / Paris. B. Deffains, L‟analyse economique du reglement des litiges: approaches theorique, empirique et comparative, Université de Nancy / GIP Mission de Recherche Droit et Justice, January 2001, Nancy/Paris. A. Noury & G. Marcou, Les Alternatives au Reglement par les Juridictions Etatiques des Litiges Intéressant L‟administration, Université Lille II / GIP GIP Mission de Recherche Droit et Justice, April 2001, Lille / Paris. J. Faget, Accès au droit et médiation, CNRS / GIP Mission de Recherche Droit et Justice, Paris, 2000. Ph. Milburn, La médiation: innovation et stabilisation des compétences, CNRS / GIP Mission de Recherche Droit et Justice, September 2000, Paris. M. Bouyssi-Ruch & S. Calmont, La conciliation en matière d‟inventions de salariés, l‟Institut de Recherche en Propriété Intellectuelle / GIP Mission de Recherche Droit et Justice, September 2000, Paris. H. Touzard, M. Bastounis, I. Benharda-Piget, Les Représentations socials du Règlement des Litiges – Le cas des Modes Alternatifs, Université René Descartes / GIP Mission de Recherche Droit et Justice, April 2001, Paris. J.-Ph. Challine, Étude quantitative et qualitative de la médiation pénale dans le ressort de la Cour d‟appel de Paris, GIP Mission de Recherche Droit et Justice, Paris/Orléans, 2001. J.-P. Challine, Étude quantitative et qualitative de la médiation pénale dans le ressort de la Cour d‟Appel de Paris, Université de Paris II, Paris/Orléans, 2001.

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Spain:

Literature:

M. Luz Rodriguez Fernandez, Out-of-court methods for resolving conflict in the Spanish system of labour relationships, Madrid/Brussel, 2002. E. Gonzálex-Posada Martínez, La solución extrajudicial de los conflictos laborales, Valladolid, 2001.

Italy:

Literature:

Stefania Pellegrini, Formal and informal Justice in Italy, Conference Copenhagen July 2002. M. Grandi, Extra-judicial resolution of collective disputes in Italy, The Study of Conciliation, Mediation, and Arbitration in Collective Labour disputes, Madrid/Brussels, 2002.

Germany: Literature: Johannes Schwarzmann & Robert Walz, Das Bayerische Schlichtungsgezetz Kommentar und Leitfaden zur Verhandlungsführung für den Schlichter, Stuttgart: Richard Boorberg Verlag, 2000. Stephan Breidenbach & Martin Henssler, Mediation für Juristen, Cologne: Dr. Otto Schmidt Verlag, 1997. Frank-Bernd Weigand, Report on the Experience of Germany in the Field of ADR, Strasbourg, November/December 1999, Annette Schneider, Report on ADR and the Consumer – the position of the notary, Strasbourg, November/December 1999. Zeitschrift für Konfliktmanagement, Heft 5, September/October 2002. International Journal of Dispute Resolution, Heft 46, 2002. K.F. Röhl, Das Güteverfahren vor dem Schiedsmann, Cologne: Carl Heymans Verlag KG, 1987. J. Riehl, Prozesskosten und die Inanspruchnahme der Rechtspflege: Eine Ökonomische Analyse des Rechtsverhaltens, Dissertation, Gießen, 2000. Stein-Jonas, ZPO, 21st ed., Tübingen: J.C.B. Mohr, 1997. Bayerisches Gesetz zur obligatiorischen aussergerichtlichen Streitschlichtung in Zivilsachen und zur Änderung gerichtsverfassungsrechtlicher Vorschriften, Bayerische Gesetz- und Verordnungsblatt Nr. 11/2000. Gesetzentwurf des Staatsregierung eines Bayerischen Gesetz zur obligatorischen aussergerichtlichen Streitschlichtung in Zivilsachen (Bayerisches Schlichtungsgesetz – BaySchlG), Bayerischer Landtag, 14. Wahlperiode. Verfahrensordnung der Gesellschaft für Wirtschaftmediation und Konfliktmanagement e. V. für das Mediationsvefahren, GMWL, Munich 2002. - Art. 278, Gütliche Streitbeilegung, Güteverhandlung, Vergleich, Zivil Prozessordnung, June 2002.

Brochures:

Schlichten ist besser als Prozessieren, Informationen zur obligatorischen und freiwilligen aussergerichtlichen Streitbeilegung, Bayerischen Staatsministerium des Justiz, Munich, 2000. Aber wer wird denn gleich vor Gericht ziehen?, Bayerisches Staatsministerium des Justiz, Munich 2002. Schlichter und Mediatoren im Bezirk des Landgerichts Nürnberg-Fürth, Bayerischen Staatsministerium der Justiz, Munich 2002. Konflikt als Chance: Neue Wege zur Beilegung von Streitigkeiten im Wirtschaftsleben, Gesellschaft für Wirtschaftsmediation und Konfliktmanagement, Munich 2002. Course brochure GWMK 2002/2003. Wirtschaftsmediator (IHK) GWMK 2002/2003. Mitteilungen des Bayerischen Notarvereins, der Notarkasse und der Landesnotarkammer Bayern, May/June 2002.

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Research reports:

K.F. Röhl, Evaluierung des nordrhein-westfälischen Ausführungsgesetzes zu § 15 a EGZPO, Zwischenbericht, Bochum, April 2002. R. Greger, Forschungsprojekt Aussergerichtliche Streitbeilegung, Reactie 10 March 2003.

Austria:

Literature:

Christine Mattl & Andrea Prokop-Zischka, Mediation in Austria, Brisbane, 2002.

Questionnaires/law/legislation:

Entwurf Bundesgesetz über gerichtsnahe Mediation sowie über Änderungen des Ehegesetzes, des Außerstreitgesetzes, des Zivilprozessordnung, des Strafprozessordnung, des Gerichtsgebührengesetzes und des Kindschaftrechts-Änderungsgesetzes 2002.

Switzerland: Literature: I. Meier, Mediation and conciliation in Switzerland: with an emphasis on the legal framework for mediation, in: Trends in Global Mediation, (N. Alexander ed.), Otto Schmidt Verlag, Cologne, 2003. Denmark: Literature: Vibeke Vindelov, Conciliation and Mediation in Danish Law, in: Parts of Danish Law in Action National Reports XVIth Congress of the International Academy of Comparative Law, Brisbane 2002. Hans Boserup, Report on the experience of Nordic countries in the field of alternative means of dispute resolution, Aarhus/Strasbourg, 1999. J. Kristiansen, Conciliation, mediation and arbitration: Denmark, EU Project for the Study of Conciliation, Mediation, and Arbitration, Madrid/Brussels, 2002. O. Krarup, Free Barganing or State Coercion – Conciliation in the Danish Labour Market, paper, University of Copenhagen, 2000. Sweden

Literature:

P. Zelano, Some remarks on ADR in Sweden, in: Tijdschrift voor Mediation, no. 1, 2003. pp. ??? Ministry of Justice & National Courts Administration, The Swedish Judiciary – a Brief Introduction, Stockholm/Jönköping, 2002.

Questionnaires/law/legislation:

Proceedings in the lower courts, The Swedish Code of Judicial Procedure, Regeringskansliet Justitiedepartementet, Ds 1998:65. Memorandum Information regarding Alternative Dispute Resolution, Ministry of Justice, 25 June 2001, Stockholm. Sweden, Questionnaire Committee on Civil Law Matters, Council of Europe, 22 June 2000, Stockholm/Strasbourg.

Norway:

Literature:

Karel Kristin Paus (Mediation and Reconciliation Service Co-ordinator), Victim-offender mediation in Norway, 27-29 October 1999, Leuven.

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Geir Engebretsen and Ingmar Nestor Nilsen, Court mediation in Norway, Asker and Baerum District Court, Oslo/Strasbourg 1999. Arnfinn Bårdsen, Alternative dispute resolution from a Norwegian perspective – pilot project and upcoming reforms, Bergen, 2002. Carsten Anker, Mediation in Scandinavia – Norway, Oslo/Strasbourg 2000. Stein Evju, Norwegian Courts and Labour Jurisdiction – Synthesis, paper presented at the conference Espace judiciaire et social européen, Brussels, 5 November 2001.

Questionnaires/law/legislation:

Victim-offender Mediation Act (Lov 21 des 2000 nr. 121). The Parliamentary Ombudsman Norway Act, The Constitution of the Kingdom of Norway of 17 May 1814, Article 75. Questionnaire CJ-dA 99 – Alternatives to litigation in administrative law, Oslo 2000. The Public Administration Act, Act of 10 February 1967, as amended by Act of 9 January 1998, No. 5, Oslo. Brief Summary and Overview of the ADR Report – Evaluering av prøveordningen med rettsmeling Justis- og Politidepartementet, Oslo 2001. ADR Draft Statute, Justis- og Politidepartementet, Oslo 2001. Forskrift om endring I forskrifft om forsøksordning med ettsmekling, Justisdepartementet, Oslo 2002.

England: Literature: Margaret Ross, Mediation in Scotland: An eluded opportunity?, Report to XVth Congress of the International Academy of Comparative Law, Brisbane 2002. Loukas A. Mistelis, ADR in England and Wales, Report to XVth Congress of the International Academy of Comparative Law, Brisbane 2002. The ACAS arbitration scheme for the resolution of unfair dismissal disputes, ACAS, London. Hazel Genn, Mediation in action: Resolving Court Disputes without Trial, Calouste Gulbenkian Foundation, London, 1999. J. Gatenby, ADR & The English Courts: Current Issues & Future Trends, Manchester, 2002. Office of the Deputy Prime Minister, Mediation in the Planning System, London, 19 June 2000. Department of Trade & Industry, Routes to resolution: improving dispute resolution in Britain, London, 16 August 2002. Lord Woolf, Access to Justice: Final Report to the Lord Chancelor on the Civil Justice System in England and Wales, London: HMSO, 1996.

Research reports:

L. Mulcahy, M. Selwood, A. Netten, Mediating medical negligence claims: an option for the future?, Stationery Office, London, 1999. The Clinical Disputes Forum‟s, A guide to mediating clinical negligence claims, London, 2002. Legal Services Commission, Family Mediation Research, London, 20 December 2002. G. Davis, Monitoring Publicly Funded Family Mediation, Bristol, 2000. P. Brooker & A. Lavers, Commercial Lawyers‟ Attitudes and Experience with Mediation, in: Web Journal of Current Legal Issues, 2002. C. Graham & N. Lewis, The role of ACAS conciliation in equal pay and sex discrimination cases, Manchester, 1985. L. Dickens et al., Dismissed, Oxford, 1985. Hazel Genn, Court-based ADR initiatives for non-family civil disputes: the commercial court and the court of appeal, University College London, 2002. Hazel Genn, The Central London County Court Pilot Mediation Scheme, Evaluation Report. The Lord Chancellor‟s Department Research Service, No. 5 „98, 1998.

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