The Directive 2008/52/ES is being implemented by the draft of the Mediation Act, still in process (information from 2011).
The draft regulates the mediation process in a minimal extent (the initiation, termination, the refusal by the mediator, basic principles of the mediation process and the conditions of the mediation contract, the confidentiality of the mediator, the organisation of mediation).
Other aspects regarding mediation will be implemented in different acts as the Commercial Code, the Civil Procedure, the Civil Code the act on Advocacy and Notary rules.
Provisions of the Act which go beyond the requirements of the Directive or may be specific for Czech law:
1) The Act governs only the activity of accredited mediators (recorded in the Register of Mediators) in all non-penal matters. This does not incapacitate other persons from providing services similar to mediation; the state only guarantees the quality and competence of accredited mediators.
2) The Act divides the accredited mediators in 2 categories:
- Mediators-attorneys, supervised by the Czech Bar Association (CBA)
- Accredited mediators, supervised by the Ministry of Justice.
3) A mediator interested in family mediation can pass a special exam and such qualification shall be recorded in the Register of mediators.
4) The court may order a first meeting with a mediator of 3 hours and for this purpose temporarily suspend the proceedings at most for 3 months
a. At this first meeting the mediator informs the parties about the possibilities of mediation
b. The costs of the compulsory meeting are considered costs of proceedings and are paid by the parties. The amount of costs is limited as well as the extent of the meeting (3 hours)
c. The mediation itself is completely voluntary and the parties to a dispute may enter into a contract with the mediator and settle the price for its services
d. Only the mediators-attorneys may be appointed for this compulsory meeting
e. The parties to the dispute shall choose the mediator-attorney from the Register, if not agreed, the court shall appoint him
5) The mediator (attorney or not) cannot provide legal service to the parties to the dispute. The pronouncement of his legal opinion is not considered as the provision of legal service
6) The contents of a written mediation agreement can be made enforceable by drafting the agreement in the form of a notarial/executionary deed with an express consent to enforceability or by approval of judicial settlement.
In non-contentious proceedings the agreement can be approved by the final decision of the court.
7) A national of another Member State (or other natural person under the Recognition of qualifications of nationals of other Member States of the EU Act) may exercise mediation temporarily or occasionally as a Visiting Mediator. A visiting mediator must follow the Czech Mediation Act.
a. The Ministry shall record the Visiting mediator into the Register (document proving that the visiting mediator exercises the mediation under the laws of other Member State is needed)
b. The visiting mediator is entitled to exercise mediation by presentation of required documents to the Ministry.
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: