Have there been any developments regarding mediation?
International Arbitration (2nd Edition)
The AIAC and Malaysia courts have been supportive of mediation in Malaysia. It is now commonplace for Malaysian judges to encourage parties to consider court-facilitated mediation. Supplementing this, many courts around Malaysia have recently dedicated facilities for such mediations. Our experience shows that these efforts have been well-received by the courts’ users.
In Chile there have been no recent developments regarding mediation. Furthermore, the mediation regulation provided by the Santiago Arbitration and Mediation Center, dates from 2000 and there are no current projects to its modification.
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.
Mediation has been used for several years in social, family, certain administrative and criminal matters.
There is now specific legislation on civil and commercial mediation introduced on 24 February 2012. The new law, Mediation in Civil and Commercial Matters has introduced mediation in both civil and commercial matters into the NCPC (articles 1251-1 to 1251-24 of the NCPC). The law transposes in Luxembourg Directive 2008/52/CE on mediation in civil and commercial matters.
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.
In 2012, Germany enacted the Mediation Act (Mediationsgesetz, MediationsG). The MediationsG implemented the European Mediation Directive into German law and sets forth basic principles and procedures for mediation in Germany.
In addition, in the context of the enactment of the MediationsG in 2012, several provisions of the ZPO and other procedural codes have been amended and now provide for mediation in connection with court proceedings. Section 278a of the ZPO clarifies that state courts are empowered to suggest to the parties mediation or another form of alternative dispute resolution. Courts may also refer the parties to another judge who acts as a judicial conciliator (Güterichter, section 278 (5) ZPO). The judicial conciliator may use all methods of alternative dispute resolution, including mediation, but is not authorized to render a binding decision.
Finally, the DIS provides for institutional mediation under the DIS Mediation Rules.
The institute of mediation is not legally regulated in Ukraine. The draft law introducing such regulation is registered at the Ukrainian Parliament. In 2016 this draft law was adopted in the first reading, however, there have not been any further significant developments so far.
In Panama, there have not been any developments regarding mediation.
The Dubai Courts
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 this centre’s remit.
UAE Off-Shore 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.
Mediation continues to struggle with its general popularity in Sweden. The SCC has new mediation rules as of 2014 but the area continues to be fairly unregulated in Swedish law, save in some specific areas.
The approval of a legal text which regulated mediation in Spain took place not so long ago.
Directive 52/2008 on mediation in civil and commercial matters was transposed in Spain by the Law 5/2012, of July 6th, of Mediation in Civil and Commercial Matters. Such Act is applicable to mediation in civil or commercial matters, including cross-border disputes, as long as these do not affect rights and obligations of which the parties may not dispose by virtue of the applicable laws. In the absence of specific or tacit submission to this Act, it shall be applicable when at least one of the parties resides in Spain and the mediation is conducted within the Spanish territory.
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.
Just like arbitration, mediation is one of the preferred modes of dispute settlement in the Philippines. To further this, the Philippine Supreme Court issued A.M. No. 11-1-6-SC-PHILJA or the Consolidated and Revised Guidelines to Implement the Expanded Coverage of Court-Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR) (“Consolidated Guidelines on CAM and JDR”), which mandates that the following cases must be brought to mediation before commencing trial:
(1) All civil cases;
(2) Civil liability of the following crimes :
i. Where payment may prevent criminal prosecution or may extinguish criminal liability, such as violations of Batas Pambansa Blg. 22 (Bouncing Checks Law), Republic Act 1161, as amended by Republic Act 8282 (SSS Law) and Republic Act 9679 (PAG-IBIG Law) ;
ii. Crimes against property under Title 10 of the Philippine Revised Penal Code, where the obligation may be civil in nature such as : Theft under Article 308, Philippine Revised Penal Code, Estafa under Article 315 (1), Philippine Revised Penal Code except Estafa under Article 315(2) and (3), Philippine Revised Penal Code ; Others forms of Swindling under Article 316, Philippine Revised Penal Code ; Swindling a minor under Article 317, Philippine Revised Penal Code, Other deceits under Article 318, Philippine Revised Penal Code ; and Malicious Mischief under Article 327, Philippine Revised Penal Code ;
iii. Crimes agains honor under Title 13, Philippine Revised Penal Code where the liability may be civil in nature, such as :
a. Libel by means of writings or similar means under Article 355, Philippine Revised Penal Code;
b. Threatening to publish and offer to present such publication for a compensation under Article 356, Philippine Revised Penal Code;
c. Prohibited publication of acts referred to in the course of official proceedings under Article 357, Philippine Revised Penal Code;
d. Grave Slander (Grave Oral Defamation) — of serious and insulting nature under Article 358, paragraph 1, Philippine Revised Penal Code;
e. Simple Slander (Oral Defamation) — not of a serious and insulting nature under Article 358, paragraph 2, Philippine Revised Penal Code;
f. Grave Slander by Deed — of a serious nature under Article 359, paragraph 1, Philippine Revised Penal Code;
g. Simple Slander by Deed — not of a serious nature under Article 359, paragraph 2, Philippine Revised Penal Code;
h. Incriminating innocent person under Article 363, Philippine Revised Penal Code;
i. Intriguing against honor under Article 364, Philippine Revised Penal Code;
iv. Libel under Republic Act 10175 (Cybercrime Prevention Act of 2012) where the liability may be civil in nature;
iv. Criminal negligence under Title 14, Philippine Revised Penal Code, where the liability may be civil in nature; and
v. Intellectual property rights cases where the liability may be civil in nature.
(3) Special proceedings for the settlement of estates;
(4) All civil cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law;
(5) All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts;
(6) All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction of first level courts;
(7) All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts; and
(8) All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts.
Under the Consolidated Guidelines on CAM and JDR, court diversion is a “three-stage process”. The first stage is the CAM where the judge refers the parties to the Philippine Mediation Center for the mediation of their dispute by trained and accredited mediators. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage, where the JDR judge becomes a mediator-conciliator-early neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will continue with the regular trial of the unsettled case. The third stage is during the appeal where covered cases are referred to the Philippine Mediation Center of the Appeals Court Mediation Unit for mediation.
Recently, the Hon’ble Supreme Court of India and various Hon’ble High Courts have opened Mediation Cell and the Courts are promoting mediation. Especially in the cases of civil dispute or matrimonial disputes, the Courts are encouraging the parties to explore the possibility of settlement through mediation. To promote settlement through mediation, some States has amended the existing Court Fees Act to the effect that if the dispute has been settled through mediation prior to the stage of trial, then the parties will get 100% refund of the Court Fees.
Yes, there are improvements in mediation. The use of mediation as an alternate dispute resolution mechanism is rapidly growing. One of the most important arbitration and mediation centers informed that they see an increase of 250% in the number of mediations compared to last year, 2016. The Constitution and laws promote mediation as a dispute resolution method even for disputes involving the State and state entities.
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.
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.
No recent developments have been observed. The current Mediation Act is in force since 2011, and there are sporadic initiatives to encourage parties in litigation to attempt court-assisted mediation, which is rarely successful.
Mediation is becoming increasingly popular in Cyprus as an alternative dispute resolution mechanism. The Law 159(I)/2012 has been enacted transposing the requirements of EU Directive 2008/52/EC on ‘certain aspects of mediation in civil and commercial matters’. This law applies to civil disputes and cross-border disputes and attempts to regulate the mediation process by providing for the creation of a register for mediators, mediators’ duties, procedural maters as well as the role of the Court in such a process and in the enforcement of any settlement agreements that the parties may reach.
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 Italy mediation has become a crucial step in certain judicial proceedings. In particular, mediation is a (compulsory) pre-condition to file a lawsuit with respect to some civil and commercial disputes, specifically listed by the law (i.e., joint ownership; rights in rem; division; inheritance; family agreements; renting; commodatum; rent of company; damages arising from medical and healthcare liability; defamation through the press or by other means of advertising; insurance, banking and financial contracts).
Furthermore, national courts—taking into consideration the nature of the proceedings, the phase of the process and the behavior of the parties—can order the recourse to mediation irrespective of the subject matter.
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 proccess and any case found suitable would be referred to mediation at the Lagos Multi-door Court House.
VIAC has also sponsored rules on mediation. And there are other institutions seated in Austria that are also promoting mediation such as the Energy Community.
Yes. The UNCITRAL Working Group II continues work started in 2014 on the development of an international instrument for enforcement of settlements resulting from international commercial conciliation and mediation. The United States government has been active in these negotiations. In addition to government delegations, many arbitral institutions, including the AAA/ICDR have observer status at the working group and have actively participated in negotiations.
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.
In an attempt to improve the Israeli judicial system, expedite the handling of cases, and decrease the load on the courts, as of 2008, an information, acquaintance and coordination proceeding has been put in place under which the parties to a dispute filed with the court are referred to a pre-mediation proceeding trying to establish whether it is possible to avoid conducting the proceeding at court. This proceeding applies to civil claims under the sum of NIS 75,000 (except for unusual cases). This proceeding is mandatory and it includes a session with both parties in an attempt to resolve the dispute by way of consent, with the presence of an external party, that examines whether there is potential to refer the dispute to a mediation proceeding. If there is such potential, the parties are referred for further negotiations under a mediation proceeding.
In addition, as of 2016 and aiming to settle family disputes consensually and amicably and to decrease the need for legal litigation, considering all the aspects relating to the dispute and the children's bets interest, it was determined that a divorce proceeding may not be commenced by filing a claim with the competent court, but rather an application for resolving the dispute should first be filed after which the parties are invited to the court's assistance unit, for a session with professionals, in order to examine whether there is potential to refer the dispute to a mediation proceeding. If the answer is positive, the parties are referred for further negotiations under a mediation proceeding.
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. This is likely to influence a tribunal's view in a similar manner.
There has been no recent development regarding mediation. Although the Mediation Law was enacted in 2006, the usage of mediation remains quite reduced.
Recently, a new regulation, namely the Law on Labor Courts has been accepted by the Congress on 12.10.2017, and has entered into force by publishing on the Official Gazette on 25.10.2017. Its provisions include a new addition to mediation regulation: mediation is now mandatory for labor cases. Application to mediation is now a ‘’cause of action’’, meaning that Labor Courts will now require such application to be made previously, before overseeing the dispute.