Resumes and Analysis
1. Legal Frame of Mediation
Law 3898/2010 on mediation transposes the Directive 2008/52/EC. The Law applies to all mediations /cross-border and internal/.
The text of the law: http://www.ethemis.gr/wp-content/uploads/2010/12/Ν-3898.2010-Διαμεσολάβηση-σε-Αστικές-Εμπορικές-Υποθέσεις-ΦΕΚ-A-211-16.12.2010.pdf
Law Nr. 3994/2011, published in the Official Gazette of the Hellenic Republic, Volume A, Nr. 165 / 25.7.2011, p. 3479 brings a number of amendments to the Code of Civil Procedure . The basic idea was that 3 models should coexist within the Civil Justice scope: mediation, conciliation, and out of court dispute resolution by lawyers and their clients (collaborative mediation).
2. Court Referral to Mediation
A court before which an action is brought may, at any stage of the trial, invite the parties to use mediation in order to settle their dispute.
A court referral may be also initiated from a foreign court, as provided for by article 3 § 1 c of the act.
3. Confidentiality of Mediation Proceedings
Art. 10 of the Greek Mediation Act provides for the confidentiality of the mediation procedure. Mediators, parties, their attorneys/representatives and any other person involved in the mediation process are not to be summoned as witnesses, nor may they be compelled to produce evidence in any subsequent judicial or arbitration proceedings. The mediation law, however, provides for an exception to this prohibition for public policy reasons. Such reasons are addressed in Article 7, para. 1 of the EU Directive and repeated in Article 10, para. 2 of the law.
4. Enforceability of Mediation Agreements
In the event of a Mediation successfully leading to a Settlement, the Mediator draws up a mediation agreement record, which should contain the following: The Mediator’s full name; the location and time of the mediation meeting; the full names of the participants ; the agreement to mediate upon which the mediation session was based; the agreement reached . At the end of the Mediation session, the mediation agreement record is signed by the mediator, the parties and their lawyers. The original agreement can be submitted by the Mediator unilaterally, upon the request of one of the parties, to the Secretariat of the Court of First Instance of the local jurisdiction where the Mediation took place. Once submitted in this manner, the mediation agreement becomes enforceable. (Article 9).
5. Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
There are not requirements for parties and lawyers to consider mediation as a dispute resolution option.
If the parties have agreed to mediate, they have to participate in the procedure in the presence of their attorneys at law. Article 8 Para 1 provides for the compulsory presence of the parties’ lawyers in mediation.
6. Accreditation Requirements for Mediators
Under the Greek law the mediator must be a lawyer accredited as mediator by a competent Accreditation Body /for domestic mediations/.
Pursuant to article 7 of the Mediation Act, the Accreditation Body will be the Department for lawyers and bailiffs, attached to the General Direction for the administration of Justice at the Ministry of Justice. By virtue of a decision from the MoJ, a number of important issues will be regulated, under Art. 7 para 2, such as:
With respect to mediation training institutions: According to Article 5 para 1, a training centre has to be founded by at least one Greek Bar Association and one Greek Professional Chamber. Any other mediation training issues (e.g. the required number of training hours needed) will be regulated by presidential decree, following a proposal by the Ministry of Justice and the Ministry of Education, Lifelong Training & Religious Matters (Article 5, para. 2). Such a decree has not been issued yet.
Additionally, the new mediation law provides for the establishment of a commission entrusted with the preparation of necessary rules and regulations related to the certification criteria. The Ministry of Justice will determine the commission members (Article 6).
Тhe minimum hourly rate of the mediator’s fee is to be defined and (later on) amended by decision of the MoJ (Art. 12 para 3). A mediator cannot collect an hourly fee for more than 24 hours of work, including time spent for preliminary mediation preparation (Article 12, para. 1). Unless the parties agree otherwise, each party is obliged to pay half of the mediator’s fees, and each party pays his or her own attorney’s fees (Article 12, para. 2).
Mediation is appropriate when the parties need a decision and are willing to
Voluntary recourse, ability to take decisions (autonomy)
-Participation of a party in mediation is not forced (by threats or in any other way) by the other party or any third party;
General rule: Where parties are not ready to search for a solution, where they do not see the necessity to search for a solution or where at least one of the parties insist to resolve their conflict by asserting the position solely. The cases listed below could be seen as unsuitable only upon certain conditions and it has to be taken into account that in many of these cases the alleged obstacle may be surmounted in the course of mediation.
Information for mediators or mediation providers is available online, and often can be found in the chambers of commerce, embassies, or associations of mediators in the respective country. Usually this type of information is available on the Internet.
Useful criteria for choosing a mediator would be: