1. Legal Frame of Mediation
The Mediation in Civil and Commercial Matters Act (adopted on 23 May, 2008, into force since 21 June, 2008) - contains basic principles and rules on mediation procedure; transposes the Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters to Slovenian law. The Mediation Act applies to all mediations /cross-border and internal/ in disputes arising out of civil, commercial, labour, family and other property relationships with regard to claims which may be freely disposed of and settled by the parties (Art. 2, para. 1)/. Its provisions also apply to mediation in other disputes, as long as this complies with the nature of the legal relationship out of which the dispute has arisen and if this is not excluded by law.
Other Acts containing provisions on mediation procedure:
- The Act on Alternative Dispute Resolution in Judicial Matters /adopted in November 2009/- contains specific provisions on mediation offered by courts to parties in judicial proceedings. It imposes the obligation to all first instance courts and courts of appeal to offer mediation or other ADR to parties in civil, commercial, family and labour disputes. On the basis of this Act, the 59 courts of first instance (44 local courts, 11 district courts and 4 labour courts) offer mediation to parties since 15 June 2010. The 5 courts of second instance shall introduce such programmes before 15 June 2012. One of the courts of appeal has already introduced the programme of mediation.
- The Patients Rights Act - introduces mediation as a means of resolving disputes between a patient and a provider of medical services. In case of such disputes, mediation is offered to parties by the Commission for the Protection of Patients Rights.
- The Proposal for the Family Act – contains several specific rules on mediation procedure in the area of family matters.
2. Court Referral to Mediation
According to the Civil Procedure Act, the court must, at any time, look for the possibility of a court settlement. Parties can conclude a court settlement in any stage during the proceedings (Article 306 of the CPA). A settlement hearing is a compulsory part of the proceedings (Article 305a). The main purpose of the settlement hearing is peaceful settlement of a dispute. In such hearing, a judge may inform parties on the use of mediation.The court may interrupt civil proceedings for up to 3 months, if parties agree to try alternative dispute resolution (Article 305).
The Act on ADR in Judicial Matters introduces a special provision on information session. This Act contains some incentives and some sanctions, for example: courts may demand from parties that they take part in a special information session on mediation; mediation is free of charge for parties in family and certain labour disputes; in other disputes (except in commercial disputes) the first 3 hours of mediation are free of charge for parties etc.
In case parties do not propose referring the case to alternative dispute resolution, the special information session may be held at any time during the judicial proceedings. The information session may be held by a judge or by his assistant (Article 18 of the Act on ADR in Judicial Matters). After the information session has been held, the court may decide that parties shall try solving their dispute in mediation. Parties have the right to oppose to such decision and in that case mediation proceedings do not commence. However, parties who unreasonably decline the use of mediation might bear costs of the judicial proceedings, irrespective of the outcome of the proceedings (Article 19 of the Act on ADR in Judicial Matters).
3. Confidentiality of Mediation Proceedings
Article 10 of the Mediation Act regulates confidentiality within mediation proceedings. It stipulates that information, received from one party, may be disclosed (by a mediator) to any other party to mediation, unless information has been given to the mediator subject to a specific condition that it be kept confidential.
Article 11 of the Mediation Act regulates confidentiality outside mediation proceedings (=towards third persons). It stipulates that all information originating from mediation or relating to it is confidential, unless otherwise agreed by the parties, or unless its disclosure is required by law or for the purposes of implementation or enforcement of a dispute settlement agreement.
Article 12 of the Mediation Act regulates the specific question of admissibility of evidence in other proceedings. The parties, mediators or third persons who participated in mediation shall not in arbitral, judicial or other similar proceedings rely on, introduce as evidence or give testimony regarding any information obtained during the mediation, including information that an invitation has been made by a party to engage in mediation proceedings or the fact that a party was willing to participate in mediation proceedings. Such information may only be disclosed or used in proceedings before an arbitral tribunal, court or other competent government authority for the purpose of evidence under conditions and to the extent required by law, in particular on grounds of public policy (e.g. protection of the interests of children or prevention of interference with a person's physical or mental integrity) or insofar as necessary for the implementation or enforcement of an agreement on the settlement of adispute; otherwise such information shall be treated as an inadmissible fact or evidence.
4. Enforceability of Mediation Agreements
According to Article 14, para. 2 of the Mediation Act, parties may agree that the agreement shall take the form of a directly enforceable notarial deed, a court settlement or an arbitral award based on the settlement.
A court settlement in pending court cases: The Civil Procedure Act stipulates that the court must, at any time, look for the possibility of court settlement. Parties can conclude a court settlement in any stage during the proceedings (Article 306 of the CPA). Parties, who conclude an agreement in mediation during the judicial proceedings, can have the agreement written down in a form of a court settlement immediately after the termination of mediation proceedings.
A court settlement in cases of out-of-court mediation: In case an action has not been brought, it is also possible for parties to conclude a court settlement. The Civil Procedure Act stipulates that a person, who intends to bring an action, may try concluding a court settlement in local court (Article 309 of the CPA).Jurisdiction of the court is to be determined with regard to the place of residence of the other party in conflict. The court which receives a proposal for settlement shall invite the other party and present the offered terms of settlement to that party. The parties may also request together that an agreement be made enforceable by a court in a form of a court settlement.
A directly enforceable notarial deed is another possibility for the parties who conclude an agreement in mediation. The Notary Act stipulates that a notarial deed is enforceable in case a person, who has an obligation, determined in the deed, consents to direct enforceability in the same or in another notarial deed (provided that the claim is due; Article 4 of the Notary Act).
Arbitral award based on the settlement: The Arbitration Act (ZArbit) stipulates that the arbitral tribunal terminates proceedings in case parties conclude a settlement. Parties may demand that the settlement be written in a form of an arbitral award. The arbitral award rendered on the basis of the settlement has the same effects as any other arbitral award - the effects of a final judgement (Article 38, Zarbit) and may be enforced once it is declared enforceable by court (Article 41, ZArbit). The possibility of having the agreement written in a form of an arbitral award is suitable for those parties, who try mediation during the arbitration proceedings. For other parties it would be too complicated (too costly and time consuming) to start arbitration proceedings with the sole intention to have the agreement resulting from mediation be made enforceable.
5. The Impact of Mediation on Statutes of Limitation
Limitation period for a claim subject to mediation shall cease to run during mediation proceedings (Art.17 of the Mediation Act). If mediation is terminated without an agreement, the limitation period shall continue to run from the moment the mediation proceedings are terminated. The time that expired prior to the initiation of mediation proceedings shall be included in the limitation period laid down by law.
If a deadline for bringing an action is set by a special regulation in respect of a claim subject to mediation, this deadline shall not expire earlier than 15 days after the termination of mediation.
The Mediation Act determines the precise moment when mediation proceedings commence (Article 6) and when they terminate (Article 13).
6. Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
According to Art. 16 of the Mediation Act, where the parties have agreed upon mediation and have expressly undertaken not to initiate, until the expiry of a certain period of time or until a specified event has occurred, arbitral or judicial proceedings with respect to an existing or future dispute, the arbitral tribunal or the court must, upon an objection by the defendant, dismiss such an action, unless the plaintiff demonstrates that otherwise harmful and irreparable consequences would occur. The defendant must submit this objection in the defence plea at the latest.
The court shall dismiss an action even if before bringing the action obligatory mediation proceedings are prescribed by law.
According to the Act on ADR in Judicial Matters, the judge may order an informational session and after such a session has been held, the court may decide that parties shall try solving their dispute in mediation. Parties have the right to oppose to such decision and in that case mediation proceedings do not commence. However, parties who unreasonably decline the use of mediation might bear costs of the judicial proceedings, irrespective of the outcome of the proceedings (Article 19 of the Act on ADR in Judicial Matters).
7. Requirements for Parties to Participate in Mediation
There are no requirements for the parties to participate in mediation. The principal of voluntary cooperation of the parties is declared as one of the fundamental principles of the Mediation Act (Art. 4, para 2). However, the party who unreasonably refuses to try mediation might have to bear some negative consequences (see p.6 above).
8. Accreditation Requirements for Mediators
The Mediation Act does not contain any provision on ensuring the quality of mediation.
However, the Act on ADR in Judicial Matters, adopted in November 2009 and Rules, issued on the basis of this Act, contain certain provisions which aim at ensuring the quality of
mediation. The Act stipulates that mediators can only work in court-annexed or court-connected mediation programmes if they fulfil certain conditions. For example, they have to pass the initial and further training which meets the standards laid down by the Act (Article 8 of the Act on ADR in Judicial Matters). The Centre for Judicial Training provides training for mediators who work in court-annexed or in court-connected programmes. The Head of the ADR office in court monitors the execution of the programme and may take certain measures in case of problems with the quality of mediation services.
The Patients Rights Act and Rules, issued on the basis of this Act, also contain provisions aiming at ensuring the quality of mediation. For example, the Act lays down the conditions under which one may become mediator in the area of healthcare. It also determines control mechanisms concerning the provision of mediation services in this area.
A total number of about 2 500 court – annexed mediations conducted for a year has been declared recently at a Mediation Experts Meeting held in November 2011 in Milan.