“Mediation is primarily a state of mind. It is a way of thinking and behaving differently, with a humanistic regard towards a dispute. Disputes are a regular occurrence of life, and may have good or bad consequences depending on how they are dealt with.”
In 2006, the European Commission for the Efficiency of Justice (CEPEJ) set up a working group on mediation (CEPEJ-GT-MED) that was tasked with implementing recommendations made by the Committee of Ministers relating, among other things, to mediation in both civil and criminal matters. Following a study into these recommendations, the GT-MED drew up guidelines designed to ensure that the recommendations were effectively implemented in Council of Europe Member States.
In 2017, the GT-MED reviewed the guidelines and concluded that they did not need to be amended. Instead, it collaborated with the International Mediation Institute (IMI) and The Council of Bars and Law Societies of Europe (CCBE) to develop a Mediation Development Toolkit that was designed to complement the guidelines and to assist member states in implementing and developing the use of mediation. The Mediation Development Toolkit was subsequently adopted and completed at plenary meetings of the CEPEJ in June and December 2018 respectively. The CEPEJ’s expressed intention was that the Toolkit would continue to be developed and expanded with time.
The Mediation Development Toolkit adopted by the CEPEJ was lengthy and detailed, comprising some 73 pages. It contained a wealth of useful information and guidance aimed at promoting the availability, accessibility and awareness of mediation. Among others, the tools included the following:
– Guide to judicial referral to mediation;
– Basic mediator training curriculum;
– European Code of Conduct for Mediation Providers;
– Standard Mediation Forms;
– Frequently Asked Questions for stakeholders; and
– Guide to mediation for lawyers.
Whilst it is not possible to do full justice to the detailed provisions of the Toolkit in the context of this blog, it is worth highlighting the following content.
The Code of Conduct for Mediation Providers deals with key ethical and practical issues for mediators, namely: quality and competence of the service; transparency and communication; rules and ethics of mediation; independence, impartiality and neutrality; conflict of interests; complaints, disciplinary procedures and resolution of disputes; and confidentiality. Mediation providers are reminded that they must be independent and unbiased towards all disputants and legal practitioners.
The Standard Mediation Forms comprise: an agreement to mediate; a model mediation settlement agreement; a model mediation feedback questionnaire; and a model contract clause for dispute resolution. Pursuant to the agreements, the parties can choose the appropriate governing member state law and jurisdiction.
The Frequently Asked Questions cover a lot of useful ground. Among other things, they define mediation as “a structured process…whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator…”, as well as clarifying that the main objectives of mediation are to help the parties to establish dialogue between themselves and find by themselves a solution based on their common interests. Other topics dealt with include the advantages of mediation, the situations that are most appropriate (and inappropriate) for mediation, the role of the mediator, the role of the lawyer and the cost of mediation. The FQAs provide a reminder that referring appropriate cases to mediation can improve the overall efficiency of the court system because it allows the judiciary more time to manage and rule on the remaining cases. They also highlight the importance of parties entering the mediation process in good faith and for the mediator to be responsible for the good conduct of the process.
The Guide to mediation for lawyers, developed with the CCBE, is an invaluable reference point for lawyers involved in the mediation process. It sets out the lawyer’s role in mediation, specifically on how to advise the client on whether mediation is the most suitable alternative dispute resolution process for him and how to assist the client at or outside of the mediation. This tool also gives guidance on drafting and enforcing the settlement agreement, mediator selection and appointment, how to find a mediator and lawyers acting as mediator. When acting as mediator, lawyers are advised to avoid applying an adversarial and litigious approach and to focus instead on trust-building and on maintaining an impartial and facilitative attitude. This recognises that not all lawyers’ skills translate automatically to those of mediator, although some do: for example, negotiation, communication, analysis, risk assessment, drafting and cost-benefit analysis.
In line with the expectation that the Toolkit would continue to evolve in the future, in June 2019 the CEPEJ adopted Guidelines on Designing and Monitoring Mediation Training Schemes. These Guidelines were produced jointly with the IMI. Their stated aim is to provide guidance to member state governments and mediation stakeholders on how to set and maintain efficient and high-quality mediators training schemes, how to harmonise minimum training standards and how to ensure adequate numbers of well-trained mediators in each member state jurisdiction. They also expand on the Basic Mediator Training Curriculum that formed part of the Mediation Development Toolkit. The Guidelines deal with a range of practical issues, including competency framework, course content and materials, performance assessment and accreditation, as well as quality management and independent monitoring measures. The Training Curriculum provides for knowledge management and practical skills training, as well as acknowledging the peculiarities of specialised mediation training.
No doubt, the CEPEJ will continue to develop these key resources for mediation stakeholders in EU member states over time. However, and significantly, much of the guidance that these materials provide is arguably equally relevant to mediation processes outside of the EU. Particularly in the light of Brexit, UK mediation stakeholders need to consider the future of UK-based mediation. The UK government has already published legislation to revoke its implementation of the EU Mediation Directive after Brexit. In a future blog, we will consider the UK position in the light of these developments.