NEW TRENDS OF ADR IN THE EU - A Leading UK … TRENDS OF ADR IN THE EU ... «OPT-IN» vs. «OPT-OUT» MEDIATION Parties must sign an agreement TO mediate ... 1 Country (Italy)

WWW.ADRCENTER.COM/INTERNATIONAL

NEW TRENDS

OF ADR IN THE EU

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

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


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

JURI_ET%282014%29493042_EN.pdf


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)

8

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)

9

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€


THE SINGLE MOST EFFECTIVE LEGISLATIVE MEASURE

10

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

297


ORGAN DONATIONS GRAPH

11

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

WWW.ADRCENTER.COM/INTERNATIONAL 12


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 either 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]


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



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


PROBLEMATIC 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.


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.


NEW TRENDS

OF ADR IN THE EU

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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NEW TRENDS OF ADR IN THE EU - A Leading UK … TRENDS OF ADR IN THE EU ... «OPT-IN» vs. «OPT-OUT» MEDIATION Parties must sign an agreement TO mediate ... 1 Country (Italy)