The legislative framework for the introduction of ADR was passed back in 1995 and in the six years prior to its enactment, the legal profession in Greece has had many opportunities to voice its concerns that as a profession it is totally unprepared for the changes brought about by the use of ADR as a compulsory pre-trial process. The challenge ahead for practitioners in Greece is how to understand and espouse a process that is not only unfamiliar but also, on first impressions at least, antithetical to their methodology. The challenge for ADR in Greece, and for those committed to its growth, is how best to transform an imposed measure into an implement of choice.

The Greek legislative approach has been based on a model of compulsory ADR as a stage which must be completed prior to a case proceeding to trial. ADR promoters in England are well aware of the problems of removing the voluntary element from ADR, including potential breach of an individual’s right under the European Convention of Human Rights (article 6) to have a fair and public hearing by an independent tribunal established by law. Also, compulsory ADR can easily come to be seen (by lawyers and clients alike) as a hurdle to be overcome before proceeding to a more meaningful means of dealing with a claim. As the Law Society of England and Wales commented:

Of course, not all types of civil law cases have become subject to compulsory ADR under the new Greek law. The new ADR requirements apply only to the type of cases that the Greek Civil Code (article 871) recognises as capable of being the subject matter of conciliation. For example, a claim for divorce, adoption, the recognition of a child born out of wedlock, the annulment of a marriage etc. does not fall within the category of cases to which the new ADR law applies. However, any disputes that arise in connection with any of the above matters (for example, alimony disputes or disputes about the distribution of family assets etc.) and fulfill the criteria set out in the new ADR law as to value of claim and court jurisdiction, will need to be referred to ADR.

The ADR referral procedure is set out in some detail in the new law. On filing of a writ at the Multi-Member Court of First Instance, the writ is stamped by the court clerk so as to state the exact hearing date, as well as the obligation on both parties to attempt a pre-trial settlement. The requirement to attempt ADR is also repeated at the stage of the writ being served. The served writ must include an invitation to the defendant to appear at the offices of the claimant’s lawyer at a particular day and time so that both parties may try to resolve their differences out of court. The date notified to the defendant may be changed if this helps to bring about a settlement, but the meeting must take place within ten days following the service of the writ and twenty days before the date set for trial. A party has the right to ask the court to adjourn the trial if no settlement is reached within the permissible period, but the court must agree to such adjournment.

The new Greek law is silent as to what is to happen (and how) in an ADR meeting. It therefore affords maximum flexibility to the parties and their representatives. The main requirement is legal representation. The parties may either attend in person accompanied by their lawyers, or they may choose to be represented by their lawyers without personal attendance. The new law also indicates that any such ADR meeting may be facilitated, if the parties so wish, by a jointly chosen third person. The emphasis on legal representation is an obvious concession to a legal profession worried about missing out on work that until now has been their undisputed territory. This is also testified by the law's detailed account on how legal representatives are to be remunerated. At the first ADR meeting the parties are required to prepay the fees prescribed by the Greek Professional Code of Lawyers as the minimum fee for a lawyers' appearance in court. If a settlement is reached, the parties' lawyers are entitled to a set percentage of the settlement amount. The law is however silent on what the role of a third party facilitator is to be, or how such a facilitator is to be remunerated.

If a settlement (whether partial or full) is reached, any of the parties may request and obtain the court's endorsement on the settlement agreement, whereupon the agreement becomes an order of the court. The endorsement procedure is simple and fast. The parties and their legal representatives are named as parties to the settlement agreement. However, it is not clear whether all those taking part in the ADR meeting (in their capacity as non-legal experts or advisers) must also be referred to in the settlement agreement. This can have an impact if the case fails to settle and such advisers are to act as experts or witnesses in any future trial.

Once the settlement agreement is endorsed by the court, it can only be contested before the Appeal Court on very limited grounds such as incapacity, mistake, or unlawfulness. A party may also claim that the agreement settlement is forged. Otherwise, the parties are bound by the terms of the settlement agreement.

If the parties fail to settle, unilateral declarations must be filed by each party (or joint minutes by both parties) to the court stating the reasons for such failure. Such declarations are appraised by the court before it proceeds to hear the case. The court cannot hear a case unless attempts at ADR have taken place and an agreement has failed to be reached. The court may exercise its discretion in determining whether the ADR prerequisite has been fulfilled, and if it determines that no real attempt to reach settlement was made, it can postpone the date of the planned court hearing and request that an ADR meeting takes place.

There can be no doubt that for a substantial number of the Greek legal profession the new ADR requirements are at best stating the obvious and at worst jeopardising the way they serve their clients. For anyone reviewing the main elements of the ADR requirements, there is also room for cynicism. The law is silent on the ADR techniques, skills and qualifications required for ADR to stand a chance but fairly reassuring (from the legal profession's point of view) on the role to be played by lawyers (and their right to be paid whether settlement is reached or not). Yet, the real changes brought about by the new law (as well as the potential for such (perhaps modest) changes to bring about even bigger changes) should not be ignored.

In Greek, the word for "settlement" and "compromise" is the same. "Compromise" has always been a feasible means for resolving a dispute (albeit one that parties rarely exploit). More often than not it is seen as the inevitable result of last minute settlements brought about by the realisation of an even less attractive prospect: the cost risks and uncertainty of a court hearing. The word itself reveals why the concept is problematic: one does not usually compromise from a position of strength. The new law promises more than another opportunity to contemplate the pros and cons of compromising a claim. Under the new regime, settlement discussions are not initiated by any party. A defendant's lawyer cannot read a willingness to compromise into the invitation by the plaintiff's lawyers to meet to explore ways of resolving the dispute out of court. No party is required to make the first step and at the same time no party can refuse to make a step. However strong a case may appear to each party, they are obliged to show that they have seriously attempted to resolve their difference before getting to court. By institutionalising ADR as an obligatory prerequisite to the judicial process, the new law has freed the choice to talk from the stigma of compromise. Ironically, in that sense, the compulsory element of ADR allows more options than would be available without it.

Further, the new law provides for reaching a "mutually acceptable solution" allowing for the dispute to be examined by the parties and their lawyers "without regard to the substantive law". In a strict civil law system, the new law provides an opportunity for creative problem solving and flexibility, rather than narrow legal rights based solutions.

Although the new law does not impose a requirement for the involvement of a qualified third party ADR facilitator, it certainly contemplates a role for such a facilitator and allows full flexibility for their involvement. Whatever temptation there may be on the part of the legal profession to keep all the action for itself, the safeguards Greek lawyers have been granted will potentially make it easier for them to open up to the idea of using all available assistance. Unsuccessful ADR meetings can prove to be as problematic as losing too many cases in court. The provision in the new law that the parties and their lawyers may be "assisted, if they so wish, by a jointly chosen third person" is of fundamental importance, paving the way for mediation procedures to develop in Greece, even if this may not become apparent immediately.

The essense of mediation is the introduction of a third neutral and impartial party (a trained mediator) to assist in the parties' negotiations, detached from the parties' problem, the emotion and the commercial pressures and uncluttered by the detail of the issues involved. In a country such as Greece where "compromise" carries a stigma, mediation, being so obviously not the result of a "compromise", can only flourish.

Much of the success of this dispute-solving concept depends upon the legal profession as the obvious gatekeepers to the process. Not surprisingly, in other jurisdictions too, resistance has been a usual response of the legal profession to change coming from outside the profession. In the case of ADR, despite the fact that many of its early pioneers were lawyers, the challenge it offered was far from welcome by the less pioneering elements of the profession. Greek lawyers through their Bars have voiced their concerns based around two main issues: any risk of the new regime cutting down lawyers' "normal" work and any threat to their "normal" working practices. As in many other jurisdictions, the success of ADR in Greece will ultimately depend on basic principles of management of change.

Some of the aspects of the new legislative regime already mentioned above, eg the protective attitude towards the legal profession, may operate as tools of managing the ADR change. Compared to other jurisdictions, the new Greek law requires that the parties must be accompanied by their lawyers in ADR meetings, sending a clear message to the legal profession that as much as they are part of the problem of slow and expensive litigation, they are also part of the solution. Consistent with this, the new law provides a two-fold incentive to the Greek legal profession. First, both parties' lawyers participating in an ADR meeting are entitled to fees similar to those they would receive if they were appearing in court. Secondly, if a settlement is arrived at, the lawyers having contributed to it are entitled to a percentage of the settlement amount. The savings for the clients come from avoiding lengthy court hearings, in the majority of cases stretching over five years. Once these savings are appreciated by the public, there is every reason for a client to insist that his or her lawyers put as much effort in their ADR discussions as in their court appearance, and the lawyers would have nothing to lose by making ADR a success (and potentially a lot to lose for failing to do so).

In order to facilitate ADR in Greece myself and Mr. Nick Papayannopoulos, lawyer at the Athens Bar, of a 20-year international maritime law experience and a CEDR trained mediator have founded EPILYSIS, a non-profit Greek organisation for the promotion and provision of ADR services in Greece.

Vassiliki Skordaki is contactable at e-mail: vskordaki@epilysis.com