Have there been any developments regarding mediation in your jurisdiction?
International Arbitration (3rd edition)
Mediation is starting to become more and more recognized as an efficient and viable alternative. Several organizations are strongly promoting mediation, including CRCICA, the General Investment Authority and the Egyptian ADR Association. However, mediation remains subject to contractual agreement, and is not formally regulated by legislation, although the Ministry of Justice some years back considered working on a draft law for mediation, but this initiative was not followed through.
In 2014, the ICC ADR Rules were replaced with the ICC “Mediation Rules”. This name change mostly reflects the fact that the ICC, in the field of ADR, has been dealing almost exclusively with mediation cases, but that should not prevent the parties from using other ADR methods: “Like the ADR Rules, which they replace, they can be used for conducting other procedures or combinations of procedures that are similarly aimed at an amicable settlement of the dispute, such as conciliation or neutral evaluation” (introduction to the Rules). The 2014 Mediation Rules are now published in the same booklet as the 2017 Arbitration Rules.
In a recent decision, the Paris Court of Appeal (Paris Court of Appeal, 28 June 2016, 2016 Rev Arb 1153) issued a ruling confirming that an arbitral tribunal’s decision with respect to a preliminary conciliation clause should be analysed in terms of admissibility rather than jurisdiction, which means that this decision is not subject to set-aside proceedings on one of the five grounds recognised under French law (see Question 30).
In addition, Law No. 2016-1547 of 18 November 2016 “on the modernization of justice in the 21st century” features several provisions meant to favor mediation and ADR within the French justice system.
In order for Cyprus to be in line with the EU Directive 2008/52/EC concerning certain aspects of mediation in civil and commercial matters, the Law 159(I)/2012 has been enacted. This law concerns civil disputes as well as commercial disputes and is an attempt to modulate the whole mediation process by defining the mediator’s duties, any procedural matters and the Court’s role in these proceedings. The use of mediation as an extrajudicial resolution of disputes has increased over the years in our country since it is a cost effective and faster solution for the concerning parties.
Mediation is a regulated alternative dispute resolution under Czech law. Furthermore, state courts and arbitral tribunals are encouraged to promote out-of-court settlements.
State courts may order parties to participate in a mandatory mediation hearing before the start of the court proceedings.
There have been no recent developments regarding mediation in Romania. In addition, mediation is not frequently used in our jurisdiction.
There is a legal frame governing mediation and a number of institutions in Serbia which aim to promote mediation (Serbian National Association of Mediators, Partners Serbia, etc.). However, mediation has not taken hold in Serbia and the number of disputes that are resolved through mediation is negligible.
So far China does not have a legislation on commercial mediation. China Council for the Promotion of International Trade and BAC respectively established the mediation centers in 2011 and 2012. In 2018, CIETAC established its Mediation Center to provide an alternative for dispute resolution.
In 2016, the Supreme People’s Court issued its Opinions on Further Deepening Reform of Diversified Dispute Resolution of People’s Courts, which stressed the role of mediation.
China also participated in the drafting of the United Nations Convention on International Settlement Agreements Resulting from Mediation which may have influence on the development of mediation in China.
a. In 2015 the DIA adopted a new set of rules on mediation. Sometimes the DIA suggests that the parties seek the dispute resolved through mediation.
In June 2017 meditation was introduced as a method of resolving disputes in certain type of administrative cases which involve parties with conflicting interests.
Since the entry into force of the CPC on 1 January 2011, domestic mediation is explicitly recognized under Swiss Law as an alternative form of dispute resolution. The CPC only articulates the relation between mediation and judicial proceedings in civil matters and does not govern the domestic mediation processes itself. The parties retain their full autonomy to decide on the procedure for their domestic mediation. As regards the mediation of international cases or foreign mediation, Swiss law does not contain any specific statutory provisions.
However, there are many institutions in Switzerland that offer private mediation, such as the Swiss Chamber for Commercial Mediation (SCCM), the Swiss Chambers' Arbitration Institution (SCAI), the Federation of the Swiss Mediation Associations (FSM), and various cantonal mediation associations. In addition, also the WIPO and the CAS provide for mediation services.
UAE - Federal
There have been no recent developments in field of mediation within the UAE. However, mediation represents a mandatory (albeit merely procedural) pre-requisite for litigants before the Dubai Federal Courts.
Dubai previously established the Centre for Amicable Settlement of Disputes to deal with claims including claims against Banks and those related to debts subject to a financial cap. Certain claims, such as those related to personal status or labour are not within the Centre’s remit.
UAE - Free-zone Jurisdictions
The Rules of the DIFC Court provide for Alternative Dispute Resolution, including mediation. Mediation, however, is not mandatory.
The DIFC-LCIA Arbitration Centre and the ADGM Arbitration Centre also cater for mediation proceedings.
England and Wales is a mediation friendly jurisdiction. There are costs implications if the parties refuse to participate in mediation and proceed straight to the local courts.
Yes, mediation in the KSA is provided for in the SCCA Mediation Rules which came into effect on 31 July 2016. There is currently no state legislation governing mediation in the KSA.
Yes. Most state and local courts have rules governing mediation. At the federal level, the Alternative Dispute Resolution Act (“ADRA”) requires all federal trial courts to implement ADR and allows judges the discretion to order that cases go to mandatory ADR, including mediation. Additionally, many administrative agencies have established mediation practices, such as the Equal Employment Opportunity Commission (“EEOC”), the Environmental Protection Agency (“EPA”), and the Department of Labor. In addition, most arbitral institutions also provide for mediation. For instance, JAMS, the AAA, the ICDR, the CPR, and the ICC all provide procedures for mediation. ICSID proposed new mediation rules in August 2018, which are currently under consideration.
Moreover, from an international standpoint, the United States government was active in the negotiations of the UNCITRAL Working Group II’s draft Convention on International Settlement Agreements Resulting from Mediation, to be known as the “Singapore Convention.” The draft treaty would function akin to the New York Convention in that it would create an international regime for mediated settlements and would allow for streamlined enforcement of mediated agreements in any signatory party’s courts. The Singapore Convention would not apply to mediation that resolves consumer, personal or family transactions, and courts would be able to refuse enforcement under the Singapore Convention if an agreement has already been performed or where the agreement was not meant to be binding. UNCITRAL considered the final draft at its 26 June 2018 session and resolved to recommend it for adoption by the United Nations. If the draft Singapore Convention is adopted, the United States ratifies the treaty, and it enters into force, parties would be able to seek the enforcement of mediated agreements in U.S. courts. This would make enforcing mediated agreements significantly easier for parties.
VIAC also provides for rules on mediation and actively promotes the use of mediation. There are other institutions with the seat in Austria such as the Energy Community that also promote the use of mediation.
There is a growing awareness on the need to encourage and patronize other forms of Alternative Dispute Resolution (ADR) such as mediation. Court rules have provisions empowering the judges to encourage parties to explore mediation especially before the suit can proceed to trial. Currently, in Lagos State, any suit instituted must go through the ADR screening process and any case found suitable would be referred to mediation at the Lagos Multi-door Court House.
Recently, the Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry approved its rules of mediation, in force since 1 March 2016, which state that it may be subject to mediation disputes of civil and commercial nature. These mediation proceedings shall never exceed the period of three months.
Since the law on mediation was enacted in 2010, there have been no new developments regarding mediation in Russia.
A very significant development is that Ireland now has the Mediation Act, 2017 which, for the first time, makes statutory provision for mediation. It is now mandatory for solicitors to advise clients, before issuing proceedings on their behalf, about mediation. Certain disputes (including arbitrations, workplace disputes, Revenue disputes and judicial review) are excluded from the provisions of the Mediation Act and its provisions do not replace a contractual dispute resolution provision. Settlements achieved through mediation are enforceable as contracts. The Mediation Act,2017 permits a court on its own motion or on the application of a party, to invite the parties to consider mediation as a means of resolving a dispute. If one party resists mediation then the courts will only exercise their discretion to adjourn proceedings if they consider it appropriate to do so having weighed up all of the considerations such as the potential for mediation to bring about a resolution of the dispute, the timing of the application, the moving party’s conduct of the litigation to date and its bona fides and motivations in seeking mediation. Mediation has gradually become vaey mainstream in the context of commercial litigation and the passing of the Mediation Act is expected to increase awareness and use of mediation.
There have not been any recent rule changes regarding mediation. The Norwegian Civil Procedure Act of 2005 contains rules on both court-sponsored and out-of-court mediation. However, there is increasing focus in legal circles on using mediation in order to avoid time-consuming arbitration and litigation. Another development is that parties to extensive projects, typically large construction projects, agree to use so-called project integrated mediation to resolve disputes immediately during the course of the project rather than after the project is completed.
In implementation of the European Mediation Directive, Germany enacted the Mediation Act (Mediationsgesetz) in 2012.
In addition, the DIS provides for additional, institutional rules of mediation under its so called "DIS Mediation Rules". Mediation is supposed to play a more prominent role in regular court proceedings also as various provisions had been implemented in connection with the enactment of the Mediation Aact.
No recent developments have been observed. The current Croatian Mediation Act has been in force since 2011, and there are sporadic initiatives to encourage parties in litigation to attempt court-assisted mediation, which is rarely successful.
The Chilean Ministry of Justice and Human Rights is currently working on a draft bill to introduce a new Law of Civil and Commercial Mediation in Chile, which will work as a complement to the new Civil Procedure Code.
Besides that, there have been no recent developments regarding mediation in Chile.
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 has been implemented and transposed into the Greek legal system by virtue of Law 3898/2010. Direct reference to the latter is also made in several other laws dealing with specific types of claims. Mediation has righteously attracted extensive attention and endorsement by legal practitioners and the judiciary. Nevertheless, its practical effect is not yet evident. Resolution of disputes by state court litigation and/or arbitration is still prevalent and predominant to such an extent that mediation is not considered nor perceived as a serious alternative. Considerable efforts are made to change that.
It is noted that a recent legislative attempt to fashion mediation as a compulsory prior prerequisite for state court litigation met strong resistance on constitutionality grounds and for the time being its implementation has been postponed.