This case study, analyses some recent developments concerning the legislation of mediation in Greece. In particular, the developments that took place on 30th of November, 2019.
The Date, on which Greek Law 4640/2019 was passed[1]. Almost 10 years after the first appearance of the Institution of Mediation in Greece[2] and almost two years after a previous Greek legislative effort[3], that never entered into force.
In particular, the first mediation Law in 2010, was in fact a translation of the EU Directive 2008/52/EC and some provisions included the Code of Conduct for Mediators and Code of Ethics.
The second effort in 2018, that amended this first mediation Law and never entered into force, introduced for the first time in Greek legislation system, the sense of “mandatory mediation” for many cases, as:
Finally, this new legislative initiative – Law 4640/2019 – took place at a particularly crucial timing, that exists the last decade, through socio-economic changes in Greece and through a long economical crisis.
Greece, like many other countries has been facing a deep economic crisis from the year 2009. Through all these years, only a few changes happened in favor of the Greek citizens. There was a huge taxation policy, that has really exhausted all the citizens, even the wealthy one. There were not many incentives for businesses, investors and self- employed. There had to be a change in favor of citizens, at least in justice, that would be a good motivation for broader change. And the legislator thought that this would be a positive start through mediation.
The changes that brings the new Mediation Law, are milestone in the promotion of a complete and out-of-court dispute resolution system. And that promotion will be achieved, because, for the first time the sense “mandatory mediation” is finally in force. It is high time, that mediation will be widely known and selected by the citizens. And the reason why mandatory mediation is so important, is because, for 10 years, this institution was not popular in Greece, so it had to be somehow mandatory in order to be known.
The structured promotion, globally, of this Institution, aims that the citizens will have the access to a quick, easy and economic method of dispute resolution. That is important, because many citizens gave up the efforts of claiming their right, up to now, because they couldn’t afford to reaching Courts, either for economic or for social reasons, and now they face a suitable for them alternative.
For example, if any claimant had any claim of that couldn’t afford, either because the cost of court procedure was high or because the claim itself was too low to interfere into court procedures, that claimant would not bother to initiate courts proceedings. Even if he knew that he would win. After all he knew that in many cases, the court decision could not be enforceable because of the lack of property of the opposite side.
On the other hand, mediation -as well as other ADR- also aims to speed up the times that any resolution of disputes needed, and aims to decongest and stop overloading the courts, since, such an option, aspires to lead to the resolution of cases outside the courtrooms.
Due to all the above[5], the timing is considered appropriate, for Mediation to move forward. After all, the European but mainly the International trends and best practices, contribute to a promotion of alternative ways in resolving disputes[6].
Before examining the new Law for Mediation, there is a necessity to look back and understand what happened, all these ten years, from the introduction of Mediation in Greece in 2010 until today. Why this Institution faced such a strong reaction all these years and how is Mediation faced today.
Historical Reference
The European Directive 2008/52 /EC, was ratified in Greece with the enactment of Law 3898/2010. This Law introduced for the first time the concept of Mediation[7], as an alternative way of resolving disputes, in Greece but also in cross-border disputes, ie disputes arising between human or legal personalities between at least two countries.
Unfortunately, at that time, civil & commercial Mediation couldn’t deliver the expected results, mainly for the reasons below:
– because of Mediation’s voluntary nature, no lawyer was willing to introduce the peaceful method to her/his clients, no lawyer was willing to learn more about mediation, everyone was familiar with classical, meaning court practice and in the uncertainty of the years of economic crisis, nobody wanted to lose clients seeking new methods[8] and
– because of non existing incentives in the application and preference of this ADR (mediation) like these that exist in England economic incentives for resolving disputes through mediation and in general out of court alternatives.
The numbers of concluded Mediation in Greece from 2010 until 2018, especially commercial and family mediation, proved that the evaluation that wanted Mediation not having succeeded, was not arbitrary.
The numbers show the truth:
A mediation law that was almost 10 years in force
A very small number of cases that were concluded through this ADR, in total of almost 50 cases in Greece.
A great failure of the institution. There was no willing of using this out-of-court method for resolving disputes, there was no public knowledge and awareness for Mediation, there was no willing from lawyers but also from judges to cast an eye to this ADR[9].
A very useful instrument for offering solution for many problems, was almost abandoned without having any chance.
Some changes to the first Mediation Law, were occurred,. The most significant, as is already written above, is that for the 1st time initial session of Mediation is mandatory[10]. One of the greatest mediation’s advantages, is that the majority of these very few cases, that were mediated, had a successful outcome and a common accepted settlement.
The academics who examined the application of this Institution, in particular the Central Mediation Commission of the Ministry of Justice, proceeding research, evaluating the flow of this institution in Greece, wondered strongly, why Mediation was inactive all these years, though the results, when was applied, proved that was a very successful ADR[11].
At the same time, Courts were overwhelmed with cases, fact that caused the result that expensive Justice was slowing down.[12] And every delay, means many more costs.
It had to be found a secure solution for this problem. The culture -and the turnover to peaceful and out of courts proceedings- had to been changed.
And this change had already begun.
Since the last 3 years though, since 2017, some private entities have started to promote the Institution of Mediation[13]. This “voice” started to be heard, and motivated and mobilized the gears of the Institution’s promotion mechanism.
Mediation Started to Move Forward
In 2018, Greek Legislator tried to transfer this “movement” for civil, commercial & family mediation. It had to be somehow “mandatory”. Of course it could not be selected a system that would promote mandatory mediation, because it was contra Constitutional Right to appear before a natural Judge[14]. The first effort to transform the voluntary mediation to “somehow mandatory”, was held in January 2018, with the article 182 of the Law 4512/2018.
The obligation consisted to the below: Before the in court discussion of a case, the parties were obliged to TRY to resolve their dispute through Mediation. If the parties wouldn’t pass through that phase, the penalty was the claim would be considered/judged as inadmissible and the claimant would lose the case for typical reasons.
This provision was not for every case. There were limited cases that the provision would had applied, as it is already referred above:
Though that Law was a groundbreaking change, contributing the establishment of Mediation, and a huge innovation, there were strong reactions and disputes regarding the implementation of that Law.
The most thunderous arguments against the implementation of Mediation Law of 2018, from lawyers and from judges, were the following:
According to opposite point of view, from the supporters of mediation, the mandatory phase of an out-of-court effort, would be only an effort and not a complete procedure of Mediation. If any part wanted to end proceedings and go to court, s/he would be free to do it. And that effort would be low cost and quick in time.
The above strong reactions, caused the 2 times suspension of that Law of 2018, and finally the Law was amended[15].
The 7th of July 2019, was a date of elections in Greece, and there was a change to political field. The new Government passed immediately after being elected, the new Law of Mediation that is in action today, the final new Mediation Law 4640/2019, which was unanimously approved even be the Administrative Session of the Supreme Court. Below is the analysis of the final and in force mediation law.
Modern trends have shown that we live in a globalized environment, that individuals and businesses are moving fast and at the same time efficiently. There are great expectations, also in the field of Justice: the disputes that arise must be resolved in the shortest possible time and at the lowest possible cost.
For example, an investor who wants to make profit from her/his investment, most probably would not select Greece for investing because all the problematics that will face in that country, as bureaucracy, unstable taxation system but most of all this slow and costly justice (not for all). That fact has a consequence that Greece doesn’t expand, is not a competative country, does not attract investments.
If justice worked, in Greece, investors would feel more secure to select Greece for their plans (whatever that would be) because they would easily and low cost resolve legal disputes.
That is one example, why practice should be changed through mediation.
Greece, as a country trying to monitor developments and adapt to Greek mechanism, must become a competitive State, giving an additional incentive to any entity that wants to invest in its territory.
A quick overview of the new Mediation Law 4640/2019
Mediation is globally considered as a very popular institution, exactly because the cases are in the hands of parties, and the neutral third, the Mediator, only helps the disputed parties to reach their true interest and not being attached to their position.
According to the widely known book “Getting to Yes”[16], parties usually stuck into their positions that is wrong because position can be easily changed. They also not interested for their interests, either because they don’t know that interest, or because they cannot recognize it and divide it from their position, they are confused. So, mediators have this exactly duty, to help, to educate, to train parties recognizing their interests and needs.
In Greece, a mediator has to be accredited by Ministry of Justice. That means that s/he must participate to a 80-hours compulsory course, having passed exams to the training entity and also having passed oral and written exams of the Ministry. No legal background is necessary but the candidates must retain a Degree of Higher Education. After achieving all these, mediators take a number of registry and are listed to the Mediators’ catalogue of the Ministry and of course can be selected for any civil -commercial etc mediation. Mediators must attend to lifelong mediation learning programs, every 3 years[17].
There are 2 Kinds of Mediation.
There is the voluntary Mediation for any civil- commercial case, apart from those who are not “mediatable”, and one more kind is the mandatory First Attempt Session of Mediation[18].
In this second case, the compulsory stage of mediation is limited only to one initial session. If the parties don’t want to continue mediation proceedings, they are free to move on with courts proceedings.
Due to new mediation law (4640/2019) this mandatory initial session of mediation applies for limited cases:
A key Benefit of Mediation is, that in case of a successful dispute resolution, a “minute of successful resolution” is drawn up, and this record can be submitted by any of the parties and at any time to the Registrar of the Court of First Instance, at the place of the dispute, and with a low cost procedure of Mediation and a small fee of 50 euros for the Mediation Minutes registry at the above court, the parties hold an Enforceable Title due to article 904 of Greek Procedural Code[19].
The Mediation procedure is described in articles 5-7 of the new Law. There are some written Formalities that must be performed, lack of which will lead to the loss of the cases if the Mediation will not end up with success and the Procedure in-courts will take place. If the parties cannot choose the common approval Mediator, there is a Central Committee of the Ministry of Justice that appoints the neutral third, the Mediator, from the Catalogue that all greek mediators are listed, due to their professional residence.
There are time limits for Mediation as the main procedure but also the Initial Mandatory Session. It cannot last forever it must ends up very quick because that is the key reason for a successful Institution: Resolves disputes very quick and with a low cost procedure.
Mediation’s Key Point: Qualified Mediator
Once again, Mediation is relied upon a qualified Mediator. On her/him the institution is depended. Her/his role, skills, abilities and personality can be the subject of a separate study, as these points are many and crucial.
There is no Mediation if there is no Mediator. But also there no Successful Mediation if there is no Capable Mediator.
Through her/his special mediation techniques, on which is initially trained but also continuously retrained, is called upon to communicate effectively with the parties who have a dispute.
Mediator does not guide the parties, at least in Greece. Does not propose solution, at least if s/he is not asked from the parties to do so.
S/He listens to the parties, s/he observes them, shows sympathy, helps them to realize their real problem, which is often overshadowed by various factors, such as selfishness.
S/he helps the parties to see their real interest and cuts them off from their positions.
In Greece, there is not yet any reference to the specific skills that a professional in mediation has to obtain. In training program there is a small familiarity to some skills and after that there are only a few workshops that mediators can be trained for finding their personality. But there are many international institutes, universities, entities[20], that Greek mediators attend (mostly online) to catch those skills, methods, ideas etc.
The key point for a qualified Mediator, is Education and Experience. But also concentration, dedication, communication, immediacy, neutrality, objectivity.
How Mediator manages the characteristics of a dispute and chooses the adequate skills to each dispute, makes the difference of one Mediator from another. It is her/his stigma.
The fascinated point of the whole process, has to do with the fact, that any Mediation is never the same with another. Even if both Mediator and the parties are the same, still can be differences to the outcome of each case and how each case is developed.
Mediator, likely performs the role of "philosopher" in the allegory of Plato's “Cave”:
Imagine a group of people, who live their whole lives being chained to the wall of a Cave, in such a way that they can only look in front of them, to the empty wall. Not in other direction. These people can only watch the shadows on that wall of the cave, formed by the objects that pass behind them and they think that, this is their reality: the shadow. They don’t know, that what they are watching is in fact their shadow.
Finally, that is the role of a third neutral, a mediator. S/he is called upon to untie the parties from their shackles and make them believe that reality is not their “shadows” that they considered as real. These bonds are their positions. And their positions, as is mentioned above, are not their interests. And the only one that can make them realize that is a skilled and qualified mediator.
ENDNOTES
[1] Greek Law 4640/2019 is titled as “Mediation in Civil and Commercial cases and further harmonization of Greek Legislation with the EU Directive 2008/52/EC, 21st May 2008 and other provisions” and is the amendment of the Greek Law for Mediation that was issued the year 2010.
[2] The 1st Greek law by which Mediation was first introduced in Greece was 3898/2010, with which Greece was finally harmonized with the European Directive 2008/52 / EC.
[3] The initial law of Mediation in Greece, in 2010, was amended for the first time in 2018, with the Greek law 4512/2018, which for the first time introduced Mediation as a mandatory stage for specific procedures (such as family cases, torts, medical errors, car accidents, financial disputes, etc.) Article 182. However, this law was suspended twice (first suspension until September 2019 and second until November 2019), because of the reactions both by the Lawyers and by the Judges in Greece. Eventually the law was never implemented and was replaced by the newer 4640/2019, which is finally in force.
[4] Like the word Arbitrable.
[5] the longterm economic crisis in Greece that has already affected the Greek population, the need that a method for quick and low cost justice has to be found, the beginning of Greece being attractive especially for investors who have to be reassured that they will not stuck in court proceedings for any dispute in Greece etc
[6] the Italian model shows that mediation is needed. The introduction of Singapore Convention for the enforcement of mediation settlements globally, like NY Convention for the enforcement of arbitral awards, shows also the promotion of mediation in international level. Etc
[7] Of course, the concept was already present in the Greek culture, still from ancient times. Some examples are the below: in 459-323 b.c. in Classic Period, the courts were public and before reaching courts there was a 3rd neutral, called Therapist, who tried to transfer proposals from one part to opposite, with huge discretion, in order dispute to be resolute before public court proceedings would destroy parts’ image.
Another example, that shows that in Greece there always was a culture of peaceful dispute resolution, is faced in Byzantine times when there were Laws about arbitration and concilition. Also, in some island like Crete, or the island of Ionian Sea, Corfu, Zante etc, mediation was alive since 13th century a.c. and the years 1485-1797 a.c., when we reach Sasmos and Sastis in Crete (like mediation and mediator or other Institutions in the rest of Islands that are very similar to mediation.
[8] of course majority of lawyers cannot realize that the future is flexible ADR and especially mediation.
[9] Population only now is starting to be aware of what is mediation. The past 10 years almost no-one knew it apart from those who work or live abroad. Lawyers also are not aware of the institution and they fight it a lot. Finally, judges confuse mediation to judicial mediation.
[10] As the accreditation of Mediators, for not only persons with legal background, but also other professionals, as psychologists, mechanics etc.
[11] and though Arbitration, especially in Investment cases, in commercial cases etc, was preferred by the parties and their Lawyers.
[12] many even simple civil cases had an average time for reaching an award (court decision), even for first instance’s cases, the 2 years and of course many of them faced the Appeal with further delays, up to 8-10 years for a case to be completed.
[13] entities like OPEMED (Greek acronyms for organization for promotion ADRs), EODID (Acronyms for European Organization for mediation & arbitration) even not so private entities but something in between like Sme’s Chambers or Commercial & Industrial Chamber started to create mediation centers, organize seminars and public awareness courses etc.
[14] Similar to Mediation, another practice existed, in article 214 A of the Greek Procedural Code, which was introduced by Law 2298/1995, but this practice was amended. This article concerned the attempt of the lawyers to find an out-of-court solution, with the presence of a neutral third party (if the parties wished that 3rd party), of common acceptance. Of course in practice the effective application of the provision had been weakened and this procedure remained inactive.
[15] it was the first time that a greek law was so soon amended and particularly without having been in action. In particular, there was issued a decision by the Administrative Session of the Supreme Court, the decision No 34/2018, which had reached a majority judgement (21-17 members), that the provisions of Law 4512/2018 on compulsory mediation in civil and commercial matters were contrary to the provisions of Article 20 par. 1 of the Constitution, 6 par. 1, 13 of the ECHR and 47 of the Charter of Fundamental Rights of the EU.
https://drive.google.com/file/d/1AUBOpwCeaTKSPcQv9kn8GzIBlsbx1g2w/view Decision in greek
[16] best selling book 1981, Roger Fisher, William Ury, publisher Penguin Group
[17] article 10, 12, 21,22,26-29 Law 4640/2019
[18] YAS is called in the new mediation law 4640/2019
[19] articles 5, 7-8 Law 4640/2019
[20] like Harvard, Ciarb, IMI, etc
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