Presentazione standard di PowerPoint - EJTN Law 2015/3) ADR 8-9 October...EU-wide mediation pledge...

WWW.ADRCENTER.COM/INTERNATIONAL

Alternative Dispute Resolution in

Administrative Law, EJTN –October 8, 2015

Mandatory Mediation

Romina Canessa | ADR Center | Member of JAMS International (Rome, ITALY)

ADRCENTER.COM/INTERNATIONAL Phone: +39 06 360937 [email protected]

EXPERIENCE

MATTERS


MEDIATION?

TIMELESS AND UNIVERSAL,

BUT...

NOT FREQUENTLY USED


EU MEDIATION DIRECTIVE (2008/52/EC)

The objective… is to facilitate access to alternative

dispute resolution and to promote the amicable

settlement of disputes by encouraging the use of

mediation and by ensuring a balanced relationship

between mediation and judicial proceedings.

ART. 1 OF THE MEDIATION

DIRECTIVE


KEY FEATURES OF THE MEDIATION DIRECTIVE

Ensuring the quality of mediation ART. 4

Referral to mediation

Enforceability of agreements resulting from mediation

Confidentiality of mediation

ART. 5

ART. 6

ART. 7


THE EU “MEDIATION PARADOX”

ONLY 0.05% of civil cases

mediated

20 MILLION civil cases filed in trial courts




mediated


NO BALANCED RELATIONSHIP between mediation and judicial proceedings (required by art. 1 of Mediation Directive)




mediated


NO BALANCED RELATIONSHIP between mediation and judicial proceedings (required by art. 1 of Mediation Directive)

Massive

economic loss

BILLIONS WOULD BE SAVED even if only 50% of mediations end with an agreement


NUMBER OF MEDIATIONS IN 2011 (IN TOP PERFORMING

COUNTRIES)

Bulgaria: 472

Romania: 300

Hungary: < 2000

UK: < 8.000

Italy: < 2000

The European Mediation Paradox


HEARING OF THE EUROPEAN COMMISSION

ON MEDIATION (2012)

Pursuant to the balanced

relationship requirement shouldn’t

the Commission take legal action

against the Member States, since

they have failed to achieve the

balance between mediation and

judicial proceedings is actually

attained?

http://www.europarl.europa.eu/sides/getDoc.do?type=OQ&reference=O-2012-000169&language=EN

2012


THE “BALANCED RELATIONSHIP TARGET NUMBER” THEORY (BRTN)

Each Member State is free to choose the appropriate policy tools to reach its BRTN (mandatory mediation, mandatory information sessions, financial incentives etc.)

Each Member State must determine its own BRTN = minimum percentage of cases to be mediated to arrive at “BALANCED RELATIONSHIP” with that of litigated cases

Failure to set and reach BRTN = failure to comply with the Directive


EVERY FIFTH NEWLY ASSIGNED CASE


Court – Referred or Court-annexed Mediation An Important Judicial Tool

Court annexed or court referred mediation gives

judges the power to refer the parties to

mediation with or without the parties consent on

a case-by-case basis.

In general, the court referred mediation rules

provide for: not a stay of the proceeding;

confidentiality; and they give the mediator the

same immunity from suit as an arbitrator or a

judge of the Court.


“It is regrettable that […] ADR has not been correctly established and is not running satisfactorily in all geographical areas or business sectors

in the Union.”


http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-

JURI_ET%282014%29493042_EN.pdf


THE ‘REBOOTING’ STUDY MAIN GOAL:

RESOLVING THE “EU MEDIATION PARADOX”

Update the 2011 “Costs of Not Doing Mediation” survey 1

Analyze the legislation implementing the Mediation Directive in the Member States 2

Propose legislative measures to increase the use of mediation across the EU 3

Propose non-legislative measures to increase the use of mediation across the EU 4


http://www.europarl.europa.eu/document/activities/cont/201105/

20110518ATT19592/20110518ATT19592EN.pdf


LITIGATION VS. MEDIATION IN ITALY, BELGIUM AND THE

EU (2013))

LITIGATION

MEDIATION

time

cost

548 Days

88 Days € 10,499

€ 2,497

EU

time

cost

1,210 Days

47 Days € 15,370

€ 4,369

19

Italy

Belgium

time

cost

505 Days

€ 16,000


LITIGATION VS. MEDIATION IN ITALY, BELGIUM AND THE

EU (2013))

LITIGATION MEDIATION

time

cost

548 Days 88 Days

€ 10,499 € 2,497 EU

time

cost

1,210 Days 47 Days

€ 15,370 € 4,369

20

Italy

Belgium

time

cost

505 Days

€ 16,000

45 Days

€ 7,000


AVERAGE TIME/COST OF CASE IF ALL GO TO

MEDIATION AND 50% SETTLE

21

Time

Savings

Cost

Savings

24%

BEP

19%

BEP


HIGH PERFORMANCE EVEN AT LOW SUCCESS RATES

22

Savings of successful

mediation are much greater

than extra costs (i.e., mediation

then litigation) when mediation

fails


ESTIMATED ANNUAL NUMBER OF CIVIL

AND COMMERCIAL MEDIATIONS IN THE EU (2013)

Over 10,000

Between 5,000 and 10,000


Between 500 and 2,000

Less then 500

HU, PL

AT, DK, IE, RO,SK, ES

BE, FR, SL

BG, HR, CY, CZ, EE, FI, GR, LV, LT,

LU, MT, PT, SE

DE, UK, IT, NL

http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-

JURI_ET%282014%29493042_EN.pdf


AVERAGE DURATION OF A DISPUTE IN DAYS (IN 2014)

24

326

212

Savings

240 days

Savings

354 days

Average time

of litigation in the EU

Average time

of mediation then litigation

(with 50% mediation

success rate)

Average time

of mediation then litigation

(with 70% mediation

success rate)


AVERAGE COST OF A DISPUTE IN EUROS (IN 2014)

25

9,179

7,960

6,128

Average cost of

litigation in the EU

Average cost of

litigation if trial is

preceded by

succesful mediation

in 50% of the cases

Average cost of

litigation if trial is

preceded by

succesful

mediation in 70% of

the cases

Savings

1,219€ Savings

3,055€


LEGISLATIVE MEASURES THAT HAVE NOT MADE

MEDIATION HAPPEN

26

Strong confidentiality protection 1

Judges pro-activity 2

Easy enforceability 3

Financial incentives 4

Lawyer duty to inform clients 5

Robust mediator accreditation systems 6


THE SINGLE MOST EFFECTIVE LEGISLATIVE MEASURE

27

Mandatory mediation in certain cases

Mandatory mediation info sessions

Financial incentives to mediate

Require counsel to inform parties of mediation

Economic sanctions

Judges power to order mediation

Mandatory mediation with easy opt-out

270

212

188

142

105

90

85



28





Economic sanctions



270

212

188

142

105

90

85



29





Economic sanctions



270

212

188

142

105

90

85

297


ORGAN DONATIONS GRAPH

30

By Eric J. Johnson and Daniel Goldstein https://www.academia.edu/5104501/Save_default_save_life


ORGAN DONATIONS GRAPH

31

By Eric J. Johnson and Daniel Goldstein https://www.academia.edu/5104501/Save_default_save_life


THE KEY WAS THE DMV FORM !

32

Check the box below if you want to participate in the donor program

Check the box below if you don’t want to participate in the donor program

PEOPLE DON’T CHECK THE BOX ---

AND DON’T JOIN

PEOPLE DON’T CHECK THE BOX ---

AND DO JOIN


Alternative Dispute Resolution: An Empirical Analysis,

Joshua Rosenberg and Jay Folberg

(46 Stanford Law Review 1538, July 1994)

33

"[T]his indicates that litigants and their attorneys

often followed the path of least resistance, simply

staying on the [ADR] track into which they were

initially slotted regardless of their judgments about

the suitability of that track for their case. What

may appear to be complete freedom of choice to

participate in alternative dispute resolution may

actually result in no real choices being made at

all."


THE SINGLE MOST EFFECTIVE NON-LEGISLATIVE

MEASURE

34

Mediation advocacy education

Pilot projects

EU-wide ‘settlement week’ programs

EU-wide mediation pledge

National mediation «champions»

EU ADR agency to promote mediation

EU certification of mediators

4,3

4,2

4,0

3,9

3,8

4,2

4,0


LEGISLATIVE MEASURES TO SOLVE THE «EU

MEDIATION PARADOX»

35

Insist that the Member State of the EU accept the “Balanced Relationship Target Number” theory (given the poor results of all other pro-mediation legislative measures, alone or combined, it should lead the Member States to do the same as above)

Introduce “easy opt-out mediation” in Mediation Directive and other EU legal instruments on ADR (in force and being proposed)

1

2

WWW.ADRCENTER.COM/INTERNATIONAL 36


THE TWO «Fs»

Flight Fight


ENCOURAGING GOOD BEHAVIOR

‘


ESTIMATED ANNUAL NUMBER OF CIVIL

AND COMMERCIAL MEDIATIONS IN THE EU (2013)

Over 10,000



Between 500 and 2,000

Less then 500

HU, PL

AT, DK, IE, RO,SK, ES

BE, FR, SL

BG, HR, CY, CZ, EE, FI, GR, LV, LT,

LU, MT, PT, SE

DE, UK, IT, NL

Almost 180,000

More or less 10,000


«OPT-IN» vs. «OPT-OUT» MEDIATION

Parties must sign an agreement TO mediate

OPT-IN MODELS

Parties are by default in mediation, but can decide

NOT TO mediate

OPT-OUT MODELS

27 Countries • None has more than 15,000 cases

• 19 have less than 2,000 cases

• 13 have less than 500 cases

Almost 180,000

1 Country (Italy)

‘Rebooting the Mediation Directive’, available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/

493042/IPOL-JURI_ET%282014%29493042_EN.pdf


THE NUMBER OF MEDIATIONS, AND THE SUCCESS

RATE, UNDER DIFFERENT MEDIATION REGIMES

MANDATORY

MEDIATION

VOLUNTARY

MEDIATION

ONLY INITIAL

MEDIATION MEETING

MANDATORY

2012 2013 2014 1993-2012

VOLUNTARY

MEDIATION

42% SUCCESS

RATE

47% SUCCESS

RATE

+5%

+63%

Source: Department of Statistics – Italian Ministry of Justice, 2015

< 2,000/Y 179,587 15,633 110,220

The number of mediations, and the success rate, under different mediation regimes: voluntary, fully mandatory, voluntary and when only the first mediation meeting is mandatory (i.e. «easy opt out»)


ART 5 THE OF ITALIAN MEDIATION LAW

1.[1] omitted

1-bis. Those who intend to commence a legal case in a court of law in an action related to a dispute concerning a matter of joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, medical malpractice and defamation via the press or any other means of publicity, insurance, bank and financial contracts, are required to participate, prior the initiation of legal proceedings and with the assistance of a lawyer, in the mediation procedure foreseen in this decree …. The attempt at mediation is a condition precedent for legal proceedings. These provisions will be effective for four years following the date of their entry into force. Failure to comply with the condition precedent must be raised by the defendant, or by the judge ex officio, no later than at the first hearing, under penalty of forfeiture … [NEW CASES]

2… A judge, even in the Appellate Courts, may consider the nature of the case, the stage of the trail and the conduct of the parties, and can order the parties to attempt mediation … [PENDING CASES]

2-bis. When mediation is a condition precedent for legal proceedings, the condition is considered satisfied where the initial meeting with the mediator ends without an agreement. [EASY OPT OUT]


ONLY 8% OF ITALAN CIVIL AND COMMERCIAL CASES

ARE SUBJECT TO THE MEDIAITON REQUIREMENT

joint ownership, real estate, partition, inheritances, family covenants, lease, bailment, business lease, medical malpractice and defamation via the press or any other printed means, insurance, bank and financial contracts …

1-bis

CASES SUBJECT TO MEDIATION

200,000

2,800,000 TOTAL CASES IN TRIAL COURTS (2014)

VS


HOW TO GET TO 180,000 MEDIATIONS IN ONE YEAR

THE ITALIAN “OPT-OUT” MEDIATION MODEL

Required initial mediation meeting, in certain cases (until September 2017)

1

Nominal fee for mediation (40 euro per party for initial meeting)

2

Sanctions for not showing up at initial meeting 3

No obligation to pay more, unless parties agree to continue mediation after initial meeting

4

No sanctions for opting out during initial meeting 5

Judges may order mediation in pending disputes 6

some fiscal/economic benefits to parties 7


THE NUMBER OF MEDIATIONS, AND THE SUCCESS

RATE, UNDER DIFFERENT MEDIATION REGIMES

MANDATORY

MEDIATION

VOLUNTARY

MEDIATION

ONLY INITIAL

MEDIATION MEETING

MANDATORY

2012 2013 2014 1993-2012

VOLUNTARY

MEDIATION

42% SUCCESS

RATE

47% SUCCESS

RATE

+5%

+63%


< 2,000/Y 179,587 15,633 110,220

The number of mediations, and the success rate, under different mediation regimes: voluntary, fully mandatory, voluntary and when only the first mediation meeting is mandatory (i.e.«easy opt out»)


WHEN MEDIATION IS REQUIRED IN CERTAIN TYPES OF

DISPUTES, THE NUMBER OF NEW CASES DECREASES

-34,749

+19,846

12% DEFLATION

(attributable to Mediation)

- 3% DISPUTES NOT SUBJECT TO

MEDIATION REQUIREMENT

- 15% DISPUTES SUBJECT TO

MEDIATION REQUIREMENT

VOLUNTARY

MEDIATION

ONLY INITIAL MEDIATION

MEETING MANDATORY



WHO PAYS, AND HOW MUCH, FOR CIVIL JUSTICE

IN ITALY?

With court fees,

average Italian

litigant

of total civil justice

service costs (EU average is

20.5%)

PAYS ONLY

Non-litigants in Italy Pay

89.5% of costs

(via general taxation)

Have the right to ask

litigants to try

mediation first

Data from the 2014 CEPEJ Report on «European Judicial Systems – edition 2014: efficiency and quality of justice»

(http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf)

48

The Study shows that the EU needs to learn from

this new Italian model and do more to encourage

mediation as an alternative to legal proceedings.


VOLUNTARY MEDIATION IS NOT AS EFFICIENT

AS MANDATORY MEDIATION

“No less restrictive alternative to the implementation of a

mandatory procedure exists, since the introduction of an

out-of-court settlement procedure which is merely optional

is not as efficient … ”

• Should not be binding on the parties

• Should not cause a substantial delay

• Should suspend the period for the time-barring of claims

…

• Should be free or very low cost.”

Regional Court

of Lazio (TAR)

European

Court of Justice

The “Alassini”

Case of 2010

(sec. 65)

Mediation..

(sec. 67)

• “The TAR has never doubted the ability to render …

mandatory the use of mediation

• The judgment of the Constitutional Court n. 272/2012 has

frustrated the clear purposes of reducing the number of

civil cases arriving in courts …”

Judgment

1351/2015


THE ROMANIAN EXPERIENCE

Romania’s Law on Mediation required plaintiff to attend a mediation

information meeting prior to initiating certain kinds of civil cases

(more than 50% of the cases). If plaintiff skipped mediation

information meeting, case would be dismissed with prejudice.

Romanian Constitutional Court in Decision No. 266 of May 7, 2014:

“[M]andatory participation in learning about the advantages of

mediation limits access to justice because it is a filter for the exercise

of a constitutional right, and because of the legal proceedings’

inadmissibility, this right is not just restricted, but even prohibited.”

The procedure, “appears undoubtedly as a violation of the right of

access to justice, which puts undue burden on litigants, especially

since the procedure is limited to a duty to inform, and not an actual

attempt to resolve the conflict through mediation, so the parties

briefing before the mediator has a formal character.”


CURRENT MEDIATION TRENDS

In family cases, no direct access

to courts; mandatory first meeting

with mediation counselor (not a

mediator!). MoJ considering to

extend mechanism to all civil

cases.

Opt-in system:

less effective than

opt-out.

Bill requiring mediation before trial

recently announced. No indication

of easy opt-out.

Plain mandatory

mediation: also less

effective.

Inclusion of mandatory elements

in proposed legislation such as

IDD and PRIIPS - the final

versions of this legislation do not

include mandatory elements or in

the case of PRIIPS reference to

ADR.

Importance of the

careful drafting of

mandatory

provisions and of

the inclusion of an

opt-out provision


A NEW ARTICLE 5 FOR THE MEDIATION DIRECTIVE

Member States shall ensure that a mediation step is integrated into the judicial process for civil and commercial cases, except for such cases as Member States shall determine are not suitable for mediation.

The minimum requirements for such mediation step are that the parties must meet together with a mediator, subject to the condition that the procedure shall:

• Not result in a decision binding on the parties

• Not cause a substantial delay

• Suspend the period for time barring of claims

• Be free of charge, or of limited cost in the case any party decides to opt out at the initial session.


Mandatory Mediation

ROMINA CANESSA | ADR Center

PHONE: +39 06 360937

EMAIL: [email protected]

SITE: adrcenter.com/international

THANK YOU!


ABOUT ADR CENTER

Fax: +39 06 69190408

www.adrcenter.com/international

Via Marcantonio Colonna 54 - 00192 Rome (Italy)

ADR CENTER

ADR Center is the leading consulting firm in continental Europe in the field of civil and commercial mediation services, with a particular focus on international business disputes.

Over the past fifteen years, ADR Center has become one of the most widely-recognized ADR consulting firms, with experience in projects for the World Bank, the Inter-American Development Bank, USAID and the European Union, and with project offices in Asia, Africa and the Caribbean.

ADR Center’s Development division specializes in coordinating and managing Technical Assistance Projects involving international business diplomacy, consensus building, and conflict management in the international commercial and entrepreneurial sectors.

We integrate multiple disciplines—ADR Case Administration, ADR Policy Assessment and Advocacy, ADR Training, ADR Academic Eminence, ADR Monitoring and Evaluation, and ADR Project Management expertise—to consistently help our clients meet their ADR development goals and needs.

PHONE: +39 06 360937

EMAIL: [email protected]

SITE: adrcenter.com/international

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