What is the current status of mediation market in Greece?
Irrespective of the above, the fact remains that post-modern mediation is not particularly developed in Greece in one way but is in the right path in some other. In particular, the number of mediations in Greece is rather limited. For example, the reported mediations in Athens are in the region of 500. On the other hand, the number of mediators is rather big (around 2.000). Also some mediators have established joint practices or have formed or participate in mediation centres. Also, the Bar Associations of the major Greek cities have established educational centres on mediation. Given the ongoing public debate on mediation, one can expect an enlargement of the mediation market, despite the reluctance of some players.
Which is the now applicable legal framework on mediation?
The current legal framework in Greece is law 4512/2018, articles 178-206 which have replaced law 3898/2010. This new law is also based on directive 2008/52, albeit in a more elaborate manner, in the sense that it also includes a detailed description of the process of mediation, where it allows an open space for the mediator to actually conduct the mediation (art. 183 par. 3 and 4). The mediation process is generally confidential under law, but at the same time, such confidentiality can be raised for questions of public policy and other similar reasons (art. 183 par. 5-7). The parties must be accompanied/ represented by lawyers. This is a provision that is designed to minimise the risk of illegal Mediated Settlement Agreements. At the same time, it can serve as a means of ensuring that lawyers will not stand against mediation (art. 183 par. 1). To the moment though, it does not seem to actually serve this purpose as well. A further critical point is that under art. 185, the time of prescription is estopped for as long as a case is at mediation and for 3 months after the conclusion thereof. This provision aims at ensuring that the parties to it will not be deprived of their rights under law, in case that mediation does not bear fruits.
The new law also establishes the so-called “Central Committee of Mediation” (arts. 186-187). This Central Committee is regulating the mediation market, which may be an acceptable thing to happen, but at the same time it appoints mediators in case that the parties disagree on the person of the mediator. This is a questionable legislative initiative: One wonders which the chances of success of a mediation are, if parties disagree on the person of the mediator at the very outset and a non-agreed upon third mediator, is imposed on them. The current law also includes provisions on disciplinary law of mediators (arts 188-197) as well as on training and accreditation of mediators in a very detailed manner (arts. 198-204).
How are Mediated Settlement Agreements enforced in Greece?
Perhaps the most important provision from a practical point of view is the one on enforcement of Mediated Settlement Agreements (MSAs). Under art. 184, which to a considerable extent, reproduces the relevant previous article on enforcement under law 3898/2010, an MSA which is signed by all parties to it and the mediator, becomes enforcing title by a mere application of any party to it before the competent court. An exclusive jurisdiction for granting enforcing power to an MSA belongs to the court that would have been competent to hear the case that was settled under an MSA, under the applicable rules of jurisdiction.
The same court is essentially rubberstamping the MSA without reviewing it. Notarial deeds are required, if a notarial form is required. This depends on the legal nature of the underlying legal relationship. However, any MSA is open to legal scrutiny by courts at the stage of enforcement and following an application of any of the parties to it by specific reasons of law, especially violation of public policy and duress, undue influence or fraud, under the reservations of confidentiality.
Regarding international enforcement, things are less straightforward. To start with, MSAs reached in other countries do not seem to be open to the above described enforcement procedure by applying to the competent Greek Court for direct enforcement. This is bound to change once Greece ratifies the forthcoming Singapore convention on enforcement of MSAs, under which this type of (direct) enforcement is allowed. This means that an MSA reached in some other country shall be open to direct enforcement in Greece, without it having to already have an enforcing power in the country of origin. For the moment, this is not possible and a foreign MSA may be enforced in Greece, only if it already has enforcing power in the country of origin. In case of an MSA originating from a non-EU member state, this can be done by virtue of art. 905 of the Code of Civil Procedure. Cross-border enforcement is also definitely possible under the various recognition and enforcement regulations of the EU, in relation to MSAs that already have enforcing power in other member states of the EU, as is mentioned in preamble 20 of the Directive. Such Regulations currently are 1215/2001 (Brussels Ia), 2201/2003 (Brussels IIa), 4/2009, 650/ 2012 and 805/2004, 1103/2016 and 1104/2016.
Is there compulsory mediation in Greece?
Compulsory mediation under the Directive (art. 2b) and law 4512/2018 (art. 181) can exist (a) under law (b) by order of the court where a case is pending and (c) by order of a court emanating from other member states of the EU.
The most “emblematic” initiative of the new law 4512/2018 (this was the word used by the then Minister of Justice to describe the new law) has indeed been the entry into force of compulsory mediation on certain types of cases. The law establishes compulsory mediation in diverse cases like car accidents, stock exchange cases, intellectual property disputes and overdue payments to lawyers. This choice is least convincing, since relationship of the parties is literally inexistent in most such cases, while in many of them, a gross imbalance of powers of the parties to them exists. On the other hand, cases like neighbouring disputes, family matters and marginally cases of medical liability seem to be acceptable types of compulsory mediation, as the new law chose to do. Normally, succession cases, other cases between neighbours, disputes of partners and other cases where the relationship matters were excluded. It is our submission that the answer lies to the lack of understanding of the deeper importance of mediation and to its approach only as a tool for reducing court cases.
A distinct issue that has been raised in Greece is whether compulsory mediation creates barriers to justice, if the related fees are excessive. This led to a request of the bar associations of Greece to the Supreme Court (Areios Pagos) to issue an opinion on whether compulsory mediation, as enacted, would violate the right of free access to Justice to all citizens. Interestingly, Areios Pagos opined by a narrow majority (21 against 17 votes) that the law does violate such right, given that it imposes certain expenses on the parties that are considered to be excessive. Such expenses are a minimum payment to the mediator of 170€ for the first two hours of mediation and 100€ for each extra hour of mediation, failing a different agreement. This would be complemented by some amounts for the service of documents (usually around 70€ per service) and a further payment to the representing lawyers. The underlying idea is that the parties to the mediation would also undertake the expenses for the trial that would follow. With this in mind the argument goes, adding an extra “stage of proceedings” would lead to further expenses, thus reducing the financial ability of the parties to mediation to later proceed to trial. This would potentially deprive them from free access to Justice.
This approach is rebuttable though. As a starting point, one needs to say that in most parts of the world, over 50% of the mediations are successful. Definitely a compulsory mediation is less likely to be successful, but again is can be, most probably it will be. This means that the parties to it will eventually pay less, not more for a dispute. But even those who would pay more in case of failure of mediation, would not necessarily pay the above amounts that were considered to be excessive by Areios Pagos. Actually these amounts are objectively not excessive (even for an EU country under serious financial crisis) and in any event they are indicative, as they apply only in case that the mediator and the parties have not agreed differently. For small cases, payment would actually be even smaller, especially given the large number of accredited mediators in Greece and the few mediations that are taking place in this country. Competition would bring prices down. On top, the same law provides that citizens entitled to legal aid would be freed from the obligation to pay for a compulsory mediation.
Following the above Areios Pagos opinion, the application of these provisions is deferred until 16 September 2019. In the meantime, the law shall be revisited by taking into account the above opinion of Areios Pagos. This can only be an opportunity, given that the choice of types of disputes that would be subject to compulsory mediation was unfortunate, as said above. It is suggested that if new categories of types of disputes where the relationship of the parties is critical go to compulsory mediation and if the number of such cases is not particularly big, it may well be that reactions will be less fierce. In such event, if the Supreme Court is asked again, it will most probably be more lenient. This, despite the fact that for Areios Pagos the critical matter is the one of excessive expenses. If a clear and convincing rationale for including certain types of cases were to exist and the number of such cases would not be very big, one could expect a change of focus of the players of the Justice system and of Areios Pagos in particular.
A final point on compulsory mediation is that among the drafting deficiencies of the new law is that it allows the initiating party to choose unilaterally mediator in the compulsory ones. This is done to ensure that the compulsorily mediated cases shall indeed be addressed to mediation, but it is really an unfortunate mechanism to ensure it. This should also be an issue to be revisited in the forthcoming amendment of the law.
What can be the future of mediation in Greece?
As is apparent on the basis of the above discussion, mediation in Greece is in turbulent waters. However, there are some very positive marks ahead: The awareness of the public is on the rise. The ongoing debate of the players of the justice system is hoped to further increase such awareness. The critical questions for the moment are what the new legislative choice regarding compulsory mediation will be and how will this new legal framework be used by lawyers, mediators and courts and how it shall be received by the public. One can only work and hope for the best.
