Mediation: Institutional Setting Key for Success
22.09.2008
The study includes consideration of the definition and meaning of mediation, its institutional setting, the structure of mediation procedures as well as professional standards for mediators. One of the central findings of the comprehensive analysis: mediation is employed with particular success in those countries where alternative dispute resolution is institutionally integrated in the judicial system. The expert report represents an important preparatory step for the implementation of the „Mediation Directive“ and is illustrative of the comparative research which the Institute has performed in the fields of private law and business law since its inception in 1926. The work is titled „Hopt/Steffek: Mediation – Rechtstatsachen, Rechtsvergleich, Regelungen“ and has been published by Mohr Siebeck.On 23 April 2008 the European Parliament adopted on second reading the „Directive on certain aspects of mediation in commercial and civil matters“. Known as the Mediation Directive, it implements mediation as a procedure for resolving disputes in Europe. A central principle is facilitating better access to justice for the citizens of Europe. The Directive must be fully incorporated into German law by May 2011. Thus, the German legislature must now confront two foundational questions. First, regulatory provisions must be identified which as a result of the Directive will require modification. Second, the legislature needs to consider whether implementation of the Directive in respect of cross-border disputes also gives occasion for the creation of national rules on mediation which move beyond the presently existing provisions on alternative dispute resolution.
As commented by Prof. Dr. Dr. Klaus J. Hopt from the Max Planck Institute for Private Law, “the lawmakers now have to determine whether they wish to create a comprehensive body of mediation law or only a few selected rules in support of mediation”. Hopt further added that “the lawmakers needed to identify the appropriate level of regulation, e.g. compulsory rules or codes of conduct. The expert report will help to answer these and other questions on the basis of the experience of other legal systems.”
Learning from the Experience of Others
The development of mediation in Germany has been shaped by a comparative law tradition since its inception. It is for this reason that the Federal Ministry of Justice commissioned this unique comparative law analysis during the run-up to the implementation of the Mediation Directive. Lying at the heart of the research is consideration of countries within Europe and the rest of the world where mediation has known a comparably long tradition or has been promoted in some unique fashion. The study spans across the following countries (listed alphabetically): Austria, Australia, Bulgaria, Canada, China, England, France, Hungary, Ireland, Japan, New Zealand, the Netherlands, Poland, Portugal, Russia, Switzerland, Spain, and the USA. Analysed in each instance is the definition of mediation as well as types of regulation; the degree to which mediation is institutionally integrated into the law and dispute resolution procedures; the structure and function of mediation proceedings; the use of mediation in particular legal fields; duties, liability and professional standards for mediators; and empirical research.
Among its central findings, the study ascertained that mediation is most effectively practiced in those countries where it has been institutionally integrated into the dispute resolution system. Thus, mediation has gained a particularly high level of acceptance in those countries where individuals from the relevant groups, e.g. judges, attorney, and parties, serve as information multipliers for the practice of mediation. Institutionalising support for mediation repeatedly proved its worth, be it in the form of a mediation coordinator or an independent institution fostering contact between judges, attorneys, parties and mediators and disseminating information on the topic of mediation. Good examples in this regard are offered by the USA, England and the Netherlands.
In respect of the professional qualifications to be possessed by mediators – an oft discussed area of regulation – the report presents three models: The Licensing Model, encountered, for example, in Australia, requires possession of a mandatory license before one commences activities as a mediator. Under the Incentive Model found e.g. in Austria, certain favourable legal provisions (e.g. special rules on the duties of the mediator or the confidentiality of the mediation proceedings) only apply if the mediating parties employ a registered mediator. Thereby, the parties have an incentive to retain registered mediators and the mediators are induced to satisfy the qualifications necessary for licensing. The Market Model, as seen in England, assumes that the interaction of supply and demand in regards to mediator services will ultimately insure that a high level of professional standards and competence will result.
Many Nations, One Global Aim
„In analysing the various national legal provisions, it became clear that mediation cannot be statistically represented or evaluated through a lens of abstract methodology“, stated Dr. Felix Steffek, Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law and co-editor of the expert report. „Rather, its effect and significance for legal practice is revealed and explained in the interplay between the legal environment and the culture of dispute resolution in which it is embedded.“ Moreover, added Steffek, in many countries mediation represents a new means of dispute resolution whose legal and cultural framework is still rapidly developing.
Nonetheless, in spite of the national variations in the regulatory regimes covering mediation, the countries analysed employ mediation in pursuit of the same goal: Reducing the burden on courts, cutting costs otherwise borne by the state and its citizens, increasing access to justice and realising the more enduring conflict resolution and reconciliation which results from the equitable character of mediation.
Against this background and in respect of all of the examined countries, the researchers of the Max Planck Institute for Private Law have formulated the following definition of mediation: „Mediation is a procedure premised upon the voluntary participation of the parties in which an intermediary without decision making power systematically encourages communication between the parties with the aim of facilitating a resolution for which the parties themselves assume responsibility.”