Category Archives: International

Long Awaited German Mediation Law Enacted

Posted on by Matthew Rushton

As we last reported, the German Mediation Code, after going back and forth between the Bunderstag’s two chambers for the last 18 months, was sent to mediation itself. But finally, the code was signed into law by the President of the Federal Republic on July 21 and four days later, it was published in the Federal Gazette and came into law on July 26.

According to JAMS International panelist Judge Sabine Konig, in an interview with CDR News, “The German constitution includes a mechanism to resolve disputes between the two parliamentary chambers, the Vermittlungsausschuss, translated as the Mediation Committee. So our new mediation law is itself the result of a successful mediation; what a great start!”

The Mediation Act required the Mediation Committee of the upper and the lower chambers (Bundesrat and Bundestag) to find an amicable solution within the German parliament.

Considered the two biggest hurdles between the sides was the use of court-integrated mediation with judges acting as mediators and the concept of a conciliation judge, which were approved and integrated into the Act.

Other regulations in the Mediation Act include:

  • Financial incentives to encourage mediation, which is a first in German law. Such incentives may be created by individual states and will likely differ from state to state. The states can reduce or even waive court fees, if matters are settled through mediation or other means of ADR;
  • Introduction of the title of a “certified mediator,” who has to complete at least 120 hours of intensive training. Prior to the Mediation Act, German mediators did not have to meet any specific educational standards required by law;
  • Suspension of the statutes of limitation during mediation proceedings;
  • Enforceability of settlement agreements reached through mediation.

It’s a big day for the German mediation community and we look forward to see how the act is utilized.

Information Friday: Some News to End Your Week

Posted on by Chris Poole

Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!

New dispute-settlement rules give Canadian banks power of choice

Starbucks, Kraft start arbitration in dispute over coffee distribution

Norwegian Government enforces compulsory arbitration in oil and gas dispute

EEOC and Family Dollar Stores Sign Mediation Pact

Oregon homeowners facing foreclosure can get help with mediation

International Mediation – The New Libel Tourism?

Posted on by Matthew Rushton

Paul Tweed

Paul Tweed is a mediator and arbitrator with JAMS International who focuses on media law in England and Ireland.

For decades, U.S. nationals have taken advantage of the UK’s more favorable libel laws, dating back to Liberace’s famous case against the Daily Mirror on the basis of an article implying that he was a homosexual at a time when homosexuality was illegal.  However, in recent times, there has been a marked increase in the number of these claims for several reasons:

  • The rapid expansion of the Internet has resulted in the extended publication internationally of established U.S. newspapers and periodicals, many of which can and are readily downloaded from within the UK and other European jurisdictions.
  • There is an increasing importance of brand protection, with the credibility of the names of international personalities – their brands – being just as important to their commercial interests as to their professional achievements and personal reputation.
  • There is the prohibitive nature of the challenging hurdles facing an individual wishing to bring an action in the United States.  Not only do the First Amendment and other protections leave an individual with the difficult burden of having to prove actual and specific malice on the part of the publisher, but the introduction by states such as California of SLAPP Motions, with the various costs and risks involved, is discouraging.

However, over the past year, there have been a number of positive indications from the UK and Irish governments that mediation should be encouraged as an alternative to expensive litigation in these types of matters. A number of high-profile cases have made the views of the judiciary crystal clear, along with the draft Irish Mediation Bill, and with an indication given that lawyers owe a duty of care to their clients to advise them of the option of mediation and to caution them on the likely consequences if they refuse.

With increasing pressure from the British Government and Judiciary for a reduction in escalating legal costs, it will be interesting to see whether these increasing calls for mediation as an alternative to litigation will be adhered to, particularly following from the recent European Directive, which is intended to encourage ADR across the board in all European states.

Perhaps surprisingly, it has until recently been the defendant publishers who have shown the most reluctance to engage in what is still regarded as very much a new and untested option of ADR.  The landscape is changing rapidly, primarily due to the dramatic revelations coming out of the Leveson Inquiry on a daily basis and the introduction of an experienced mediator to determine the level of damages in the less controversial of the phone hacking cases.  Perhaps this new direction in strategy on the part of News Corporation will encourage others to follow suit with regard to other forms of media litigation.

Accordingly, we may yet see London, Dublin and Belfast becoming the go-to places for their mediation facilities for Americans seeking justice on European shores.

 

Breaking Down the Romanian Mediation Law

Posted on by Matthew Rushton
Constantin Adi Gavrila

Constantin Adi Gavrila

Constantin Adi Gavrilă is a well known Romanian mediator and mediation trainer, co-founder and general manager of the Craiova Mediation Center Association, first president of the Romanian Mediation Centers Union and first vice-president of the Romanian Mediation Council.

While the rest of the EU didn’t adopt its Mediation Directive until 2008, Romania has had its own mediation law since 2006.

The law clarified the definition and the place of mediation within conflict resolution, the role and obligations of mediators, how can one access the mediation services and who can act as a mediator. It included provisions for the type of cases that can be mediated, including commercial and family disputes, penal matters and labor conflicts.

Parties can voluntarily choose to mediate, but all judicial bodies must inform parties about the mediation process and its advantages and recommend its use.

Mediators in Romania do not have to possess law degrees in order to receive accredidation, which is adminstered by the Romanian Mediation Council. However, there are many requirements for accreditation and the process is strict. A minimum of 80 training hours are required and at least 75 percent must be spent in practical circumstances, such as role-playing and other experiential exercises. Once accredited, authorized mediators are publicly listed on the Panel of Mediators published in the Romanian Official Journal, on the Mediation Council website and on a list distributed to all courts.

Parties may jointly request mediation, or one side may file independently. Under Romanian law, a formal mediation contract must be signed among all parties, including the mediator, before any mediation can begin.

As in other countries, the relationship between the mediator and the parties is paramount. It must rely on trust, integrity, sense of justice and sincerity of the mediator. If mediators are aware of any circumstance which might prevent them from being impartial and neutral, they have the obligation to refuse the case.

The mediators authorized by the Mediation Council have the obligation to deliver all necessary explanations to the parties related to the mediation activity, so that they clearly understand the purpose, limits and effects of mediation. All mediators must ensure that the mediation process fully respects the freedom, dignity and private lives of the parties. Mediators are also bound by confidentiality, which extends to all information or documents submitted into the process. As a rule, the parties are also bound by confidentiality, but they may decide to waive it in certain circumstances.

If a case pending in the courts is settled through mediation, the court will, on the request of the parties, issue a decision in accordance with the provisions under Art. 271 in the Romanian Civil Procedure Code. The court will also reimburse to the parties the judicial stamp charges paid to the court to deal with the case. This has become an important incentive for mediation in Romania.

Romania’s mediation law has been a significant step forward in the enhancement of public trust in mediators and the mediation process. It has also increased dispute resolution efficiency and assisted the courts in dealing with case backlogs.

A numer of other European countries have found success in the mediation directive, including Italy, Spain and the Netherlands, who have seen a significant drop in case backlogs. More countries continue to explore how best to apply the directive in their own jurisdictions.