Mediation in Greece is still in its early steps. One can see the “mediation glass” either as halffull or as half-empty as regards its future in Greece in the coming years. Half-full it can be, if one takes into account that people are starting to show more interest in it and public discussion about mediation is ongoing. Half-empty it can be, if one emphasises on the quite extensive reaction of players of the justice, mostly in fear of the unknown.

When was mediation first introduced in Greece?

The EC Directive 2008/52 (the “Directive”) was first implemented in Greece by virtue of law 3898/2010 which has been by and large a repetition of the Directive. That law did not give considerable boost to mediation in this country. On the contrary, the players in the justice system remained either indifferent or skeptical vis-à-vis mediation. This led to a reluctance in embracing this new institution.

Nevertheless, mediation in Greece in not as new as people may tend to think. It has deep roots in this country. Old fashioned/ pre-modern mediation to settle communal disputes has been present in Greece for centuries, such as “Sasmos”, a word whose approximate translation into in English is “Fixing”. Indeed, the aim of mediation matches the one of traditional post-modern mediation, since both are designed as dispute resolution methods. Of course, the framework of the traditional types of mediation differs, to the extent that it used to place emphasis mostly on the preservation of the status and function of the community. On the contrary, in our post-modern world, mediation emphasises primarily on the parties themselves and their right of self-determination, as is currently perceived. This is not to undermine the prevailing view that mediation also has positive side effects to the well-being of the society, but as said, this is merely a side effect and does not alter the basic idea just discussed.

Albeit not a new concept in the Greek dispute resolution system, mediation in its current, modern form has been introduced into the Greek legal order as a tool for resolution of civil and commercial matters following Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, concerning mediation in cross-border disputes.

In order to implement said Directive, the legislature enacted Law 3898/2010, which further served as a means to introduce mediation as a dispute resolution tool for both domestic and cross-border civil and commercial matters. The provisions of Law 3898/2010 where soon to be complemented by a series of other provisions, concerning among other issues: the establishment of mediator training and certification standards and procedures; a national code of conduct for mediators; judicial mediation; the possibility to file a motion for mediation during lis pendens and the possibility of the judge to suggest mediation; and the obligation of lawyers to name mediation as an option for their clients.

Thus, the legislation in force provides a solid framework for mediation in civil and commercial matters, whereby any private legal dispute concerning civil and commercial matters may be referred to and resolved by mediation, provided that the parties have the power to dispose freely of the subject of the dispute and agree to submit it to a mediator of their choice. The mediator is a trained professional certified by the Greek Ministry of Justice, Transparency and Human Rights, included in the national mediation register, and fully qualified to conduct a mediation which, in principle, is based on the facilitative approach.

Arbitration under the Greek Code of Civil Procedure (CCP)

Title 7, articles 867 et. seq. of CCP regulate domestic arbitration. International commercial arbitration conducted in Greece is regulated by Law 2735/1999. The distinction between the two is to be drawn according to the criteria set out in article 1 par. 2 of Law 2735/1999 which adopts the UNCITRAL’s Model Law, hence incorporates elements pertaining both to the parties, as well as to the subject matter of the dispute and also to the parties’ agreement. Arbitrabillity presupposes that the parties are allowed to dispose of the subject matter of the dispute. Certain categories of disputes, in which said prerequisite is met, are nevertheless excluded from arbitration on the basis of other concerns, pertaining mainly to public policy and to the protection of a presumably week party. Employment disputes fall within the scope of such exclusion.

The principles of party autonomy, separability and competence are either explicitly or implicitly adopted by the provisions of CCP and are generally applicable. CCP provides for both ad hoc as well as institutional arbitration. In the former, parties have broad authority to shape the arbitral proceedings in the way they see fit as long as certain fundamental principles of fairness are satisfied, including equal treatment in procedural terms and right to be heard. Usually parties to a domestic arbitration tend to agree on the application of set or rules already available in CCP, controlling types of State Court proceedings, with which both arbitrators and parties’ lawyers are familiar. Hence, in the vast majority of cases the parties to a domestic arbitration agree to the application of the flexible rules of CCP controlling interim measure proceedings.