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Mediation
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About Mediation ...

According to article 6 of Greek Law No.2479/1997, where (after the 16th September, 2000) a writ has been issued in respect of a private dispute, subject to the jurisdiction of a Multi-member Court of 1st Instance, with a value exceeding 8 million Greek Drachmas, Euros 23,477- the parties to such a dispute must, before the Court may proceed to a hearing, meet and attempt to settle out of Court.  As from 1st November the threshold was increased to 15 million Drachmas,  Euros 44,020-. The procedure in this meeting(s) is entirely flexible. The parties must appear with their lawyers, or simply be represented by the latter, and may also be facilitated, if they wish so, by a jointly chosen third person. If a settlement is reached, any of the parties may obtain a Court's endorsement on the settlement agreement, whereupon the agreement becomes an order of the Court. If the parties fail to settle, unilateral declarations must be filed, or minutes, possibly containing reasons of disagreement, for the Court’s appraisal, before it proceeds to hear the case.

The provision in the new law, that the parties/their lawyers may be "assisted, if they wish so, by a jointly chosen third person" is a key one, pointing at Mediation.

The essense of Mediation is the introduction of a third neutral and impartial party (a trained Mediator) who assists in the parties' negotiations. A party, or his lawyer, no matter how friendly and reasonable may be, cannot play the role of a neutral. The Mediator is neutral and detached from the parties' problem, the emotions and the commercial pressures, uncluttered by the detail; he can bring a clear mind in the settlement process, he can facilitate in the creation of ideas towards a settlement in a way just not possible for the parties, their managers, or their lawyers, as they cannot avoid being at all times heavily involved in the dispute. A Mediator can be the catalyst towards a settlement

Key Benefits

A brief outline of the main features/benefits of Mediation, compared to the established dispute-solving methods (a Court/Arbitration trial), include:

It is voluntary; the parties are free to leave at any time. Until a settlement agreement is signed, nothing is binding upon the parties; the parties are not restricted from their right to refer ultimately to the judicial process. The provision for obligatory ADR/Mediation reference in the new Greek Law is not intended to restrict the right of any party to refer ultimately to the judicial process. Parties to a private dispute, of a value less than that provided by the new law, may still refer their dispute to Mediation, appreciating the benefits of this process.

It is a confidential process; everything exchanged in separate meetings with the Mediator is confidential; the Mediator cannot be examined as a witness. The new Greek law provides that where the attempt for a mutually acceptable settlement fails, and a Court hearing follows, the "third, jointly chosen, person having participated in the meeting" may not be called as a witness, neither be appointed as an expert, nor be involved under any other capacity in the ensuing judicial process.

Mediation requires the close involvement of the parties; knowing the factual strengths and weaknesses of each other, they are in position to arrive at a realistic and mutually acceptable solution to their dispute.

The parties retain a complete control over the final decision, thus the parties are safeguarded even if the Meditor may previously know one of the parties, raising suspicions as to his/her impartiality. The Mediator does not impose a settlement; the parties decide ! By contrast, in the Court process, the "system" takes over, the parties are put aside, and the outcome is determined by someone else (a judge, or an arbitrator) many times towards quite an unexpected direction.

The Mediator can help eliminate or reduce the effect of some of the main obstacles to a settlement. His presence changes the dynamics of the negotiating procedure. Carrying nothing from the emotional or factual "baggage", that inevitably clutters the parties and their advisers, adopting a fresh and clear mind, the Mediator can make real progress possible, where direct negotiations between the parties/their advisers are difficult to progress.

Mediation means saving time and costs, if a dispute can be settled on mutually accepted terms. Mediations may last only one working day, plus a few hours preparatory work. The quicker a settlement is agreed, the greater the savings. Even if a Mediation fails, the cost of its preparation is not waisted, as a preparation will in any event be needed for the Court hearing.

Defining the "proper jurisdiction" is not necessary in Mediation, for the simple reason that the parties, facilitated by a mediator, negotiate in effect their dispute towards a realistic and mutually acceptable settlement. This is particularly important in international disputes, where many times the determination of the "proper jurisdiction" may itself be a major issue in dispute.

Mediation looks forward, encouraging the parties to turn from history and look to the future. Not all disputes are resolved by defining a future relationship, but the vision of a future without the particular dispute can in itself be a powerful incentive for settlement.

General Comments

It would be wrong to say that the introduction of the new procedure to Greek civil law system adds nothing in substance. Although "compromise" has always been a feasible means for settling a dispute, under the new regime, this is no longer a mere feasibility (which the parties rarely exploited); it has now been institutionalised as an obligatory prerequisite to the judicial process. Further, the new law provides for a new style of a "mutually acceptable solution", in that the dispute now may be examined by the parties/their lawyers "without regard to the substantive law". The new law should therefore be seen by both groups, clients and lawyers, as an opportunity for creative problem-solving, rather than narrow legal-rights-based solutions.

Much of the success of this new dispute-solving concept depends upon the way lawyers may use and refer to it. The  Greek law requires that the parties must be accompanied by their lawyers in ADR/Mediation meetings, recognising thus the vital / creative problem-solving role lawyers are called upon to play. The law provides for a two-fold incentive accordingly. First, both lawyers participating in an ADR meeting are entitled to fees similar to those for appearence in the respective Court. Secondly, if a settlement is arrived, the lawyers are entitled to a set percentage of the settlement amount.

In an ever changing world new services are required and have to be provided. Mediation is a rapidly growing one, and Greek lawyers would rather embrace and develop it, if to maintain a leading role in community.

History

ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem-solving. When the concept was imported in Europe, particularly in the U.K., in early 90's, ADR initially was regarded as a rather amusing, than a really serious diversion. Now it is finding increasing favour in many European countries. In England, after the April 1999 Lord Woolf's reform to the Civil Procedure, judges have been given extensive powers of case management, including: "encouraging the parties to use ADR procedure if the Court considers that appropriate, and facilitating the use of such procedure" [Rule 1.4(2)(e)]. Since then, figures confirm a rapid growth of MEDIATION, as the most popular form of Alternative Dispute Resolution.

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Last modified: ÖåâñïõÜñéïò 07, 2001