Development of Mediation on the international level

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Development of Mediation on the international level

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The Mediator’s role

Development of Mediation on the international level

The Mediator’s role is to manage a dispute. The Mediator is a neutral, independent and impartial professional that works together with the protagonists to find a satisfactory solution to the problem, and reach an agreement.

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Mediation developed in a rather disparate fashion. China, Japan or Polynesia are countries where mediation has been present for a long time. In Japan, until a recent time, everything was settled by negociation and mediation.

Later on, Scandinavian countries and common law countries like the United States of America, The United Kingdom, Canada set up a range of new ways to solve conflicts. These ways, Alternative Dispute Resolution (ADR), are out of the judicial sphere. ADR proved to be a rather fast and efficient set of processes and it currently boasts a significant growth.

ADR have been under the spotlight in the USA since the the end of the 80’s, with the collective labor disputes. In this way Mediation had a leading role. It is now listed in the Constitution of the USA (Uniform Mediation Act (UMA), August 16th, 2001).

Ontario Government also passed a law back in 1995, making the attempt to settle by mediation mandatory before any litigation process. This Province abrogated this act in 2005, deeming it unnecessary since Mediation was extensively used in almost every case.

If Mediation and conciliation were at first greeted in most of Europe with a lot skepticism, it then started to gain trust from judicial professionals and parties in a conflict. They were sensitive to the advantages of these ADR.

 

ADR established itself as a solution for Courts that are flooded with litigation cases. Judicial Mediation gradually grows. Mediation allows a quicker and more efficient way of solving disputes.

 

Mediation established itself as a solution and a valid and interesting alternative for Courts, that are flooded by a significant workload with the litigation trials. It represents a quicker and more efficient way of solving disputes. It is the perfect expression of the parties’ will. Beyond the sole answer to their problem, parties look to an alternative way to solve them.

ADR attracts more and more law practitioners and University professors in Europe, but it seems that Mediation practice is not fully developped. This fact is even more accurate when it comes to economical matters.

 

Mediation in Europe

 

One can notice gaps between the different member countries of the European Union. Switzerland remains an exception as Mediation has been there since 1803 thanks to Napoleon the first who drafted the Mediation Act for the Vaud administrative district.

Spain, Finland, Luxembourg, Portugal, Greece or even Denmark are countries where Mediation can’t seem to take roots, even though significant initiatives such as the OMED (Mediation and Arbitration service in Greece) are taken.

On the other hand, UK, France, Germany, Belgium, Austria, Italy, Ireland, Sweden and Netherlands receive positive feedback from courts as well as from professionals like lawyers, public-accountant.

This helps the emergence of Mediation and conciliation structures. These structures are necessary to the development of the practice of Mediation.

Regarding legislation, the European Directive 2008/52/CE of the European Parliament and the Council regulates certain aspects of Mediation in civil or commercial matters.

Thanks to that Directive, the European Union aims to encourage amicable dispute resolution, and especially the practice of Mediation.

 

Regarding legislation, the European Directive 2008/52/CE of the European Parliament and the Council regulates certain aspects of Mediation in civil or commercial matters.

 

Thanks to that Directive, the European Union aims to encourage amicable dispute resolution, and especially the practice of Mediation.

This Directive regulates cross border disputes in civil and commercial matters. Tax, custom, administrative and State liability matters are ruled out of the Directive. This Directive does not apply to Denmark

The Directive plans that member states of the EU can authorize Courts to suggest Mediation to the parties in a litigation process. However they can’t impose it.

The Directive is the result of a long thought process engaged in 2000, with the following steps:

  • 2002 , The Commission drafts a green book on ADR for civil and commercial matters.
  • 2004, A proposition of Directive on certain aspects of Mediation in civil and commercial matters is published on October 22nd of 2004. This proposition aims to incite member state of the EU to resort to Mediation.
  • 2008, European Directive on certain aspects of Mediation in civil and commercial matters.
  • 2009, A Mediator’s Ethics National Code is signed by 10 associations and organizations at the Assemblée Nationale (most important chamber of the French Parliament).
  • 2011, Statutory Order of November 16th of 2011 for transposition of the Directive on certain aspects of Mediation in civil or commercial matters. The Order expands the scope of Mediation to any dispute and not only to cross-border disputes.
  • 2012, a new chapter is created in the French Civil Procedure Code, regulating the ADR outside of a judicial process

This project was submitted to the Parliament. In 2005, a commission of experts whose mission was to present the advantages and disadvantages of voting for this project drafted a report. A lot of lobbying seemed to oppose the project.

  • 2008, The Parliament approves the Directive on certain aspects of Mediation in civil and commercial matters. It is limited on cross border disputes.
  • 2009, Mediator’s Ethics National Code defines Mediation in France.
  • 2011, OPEN FORUM: PROFESSIONNALIZE MEDIATION
  • 2011, Statutory Order for the transposition of the Europan Directive in France.
  • 2011, Decree enforcing the statutory order.

 

 

Patricia MALBOSC