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Greece: Mediation ‘Ante Portas’

By Giuseppe de Palo and Mary B. Trevor February 15, 2011

Greece is experiencing winds of change in the alternative dispute resolution field. The nation’s Parliament enacted a law on mediation for both domestic and cross-border disputes on Dec. 16, Law 3898/2010, which went into effect immediately.

Before the end of 2010, there were neither specific procedural rules nor case law that demonstrated the importance, or even the existence, of mediation in the Greek legal order. Still, mediation schemes were present, found at various places in Greek legislation. For example, there is mediation at Articles 99–106 of Law 3588/2007 (Bankruptcy Code); Law 1876/1990 on collective bargaining; and Law 2251/1994 on consumer protection, which institutionalized out-of-court resolution panels.

Quite recently, the Parliament added Article 2 of Law 3869/2010 on debt settlement for people with excessive debt, which, more than in any time previously, emphasizes the notion of mediation. The debt settlement law went into effect last month.

Efforts to develop a more structured approach have led to the new mediation law. The Civil Procedure Committee delivered the draft law to the Ministry of Justice at the end of October 2010. The new law tackles ADR issues, with particular emphasis on the introduction of court-annexed mediation, which is mediation conducted by the presiding judge.

THE LEGAL FRAMEWORK

Definitions: The definition of mediation found in the law (Article 4(b)) tracks the wording of Article 3(a) of the European Union’s May 2008 Directive on Certain Aspects of Mediation in Civil and Commercial Matters. (Greece’s new law is designed in part to meet the directive’s requirement for cross-border dispute mediation.) It is a structured process, however named or referred to, whereby two or more parties to a dispute attempt to reach a voluntary dispute settlement agreement with a mediator’s assistance. This definition excludes attempts to settle made by a justice of the peace or judge, pursuant to Articles 208 et seq. and 233, para. 2, of the Greek Code of Civil Procedure (GCCP), in the course of judicial proceedings.

Conciliation, on the other hand, is defined as a process whereby parties—either acting alone or assisted by lawyers or third person(s)—try to settle a dispute out of court. The third person is not a mediator, and, therefore, is not trained or accredited as a mediator.

But the conciliator may play a more active role in the dispute resolution process, not only facilitating the parties’ efforts, but also intervening by openly giving advice to the parties, and suggesting concessions and solutions.

The GCCP and other legislation also provide for court-annexed conciliation procedures. In particular, it is possible for any party to resolve a civil or commercial dispute by means of a conciliation agreement. See Article 871 of the Civil Code, and GCCP Articles 208, 209–212, 214A, 233 para. 2, 293, and 667. The same applies to GCCP Articles 681A, 681B, and 681D concerning, respectively, disputes about traffic accident damage claims, alimony, child custody, and libel.

Confidentiality Issues: Mediation law Article 10 provides that mediation shall be conducted so as not to violate confidentiality, unless the parties agree otherwise, and that before initiating the mediation procedure, all persons participating shall agree in writing to respect the procedure’s confidentiality.

Should they wish to, the parties also can bind themselves to maintain confidentiality as to the content of any agreement reached, unless disclosure is necessary for securing enforceability pursuant to Article 9, para. 3 of the law. See also, in this respect, EU Directive Article 7, para. 1(b).

Furthermore, Article 10 of the mediation law also stipulates that mediators, parties, their attorneys/representatives and any other persons involved in the mediation process are not to be summoned as witnesses, nor may they be compelled to produce evidence in any subsequent judicial or arbitration proceedings.

On this point, the new law appears to differ from the EU Directive, which confines the limits on service as witnesses and production of evidence to civil and commercial proceedings. See Directive Article 7, para. 1. The mediation law does, however, provide for an exception to its prohibition for public policy reasons. Such reasons are addressed in Article 7, para. 1 of the EU Directive and repeated in Article 10, para. 2 of the law.

Recourse to Mediation and Enforceability Issues: As shown by the explanatory report for the law under Article 3, recourse to mediation by means of a commercial contract is permitted. Nevertheless, due to the importance of the parties’ voluntary submission to mediation in order to achieve a successful result, it has been deemed that the above agreement should be confirmed once a dispute arises.

There are two more points included in the explanatory report under Article 2:

a. The agreement to mediate is governed by civil law provisions on the law of contracts, and

b. The provisions of the law with regard to the impact on judicial proceedings of having a mediation agreement are not the same as the impact of having an arbitration agreement. The GCCP provisions on arbitration differ somewhat from the provisions of the draft law with regard to mediation.

If mediation leads to settlement, the mediator draws up a mediation agreement record, which, according to the law’s Article 9, para. 1, should contain the following:

a. The mediator’s full name;

b. The location and time of the mediation proceedings;

c. The names of the mediation proceedings participants;

d. The agreement to mediate upon which the mediation procedure was based; and

e. The agreement reached in the mediation.

At the end of mediation proceedings, the minutes—that is, the proceedings’ record—are signed by the mediator, the parties, and their attorneys. The original agreement can be submitted by the mediator upon the request of one of the parties to the Court of First Instance of the jurisdiction where the mediation took place. See Article 9, para. 2.

Once submitted in this manner, the minutes become enforceable under Article 9, para. 3. Thus, the agreement’s enforceability is secured even in the case of one party’s reluctance to give explicit consent for the agreement to be made enforceable, unlike the EU Directive approach (Article 6, para. 1). The directive, at least in principle, requires the parties’ joint action.

Training and Accreditation: With respect to mediation training institutions, the mediation law opted for the following solution: Pursuant to Article 5, para. 1, a training center has to be founded by at least one Greek bar association and one Greek professional chamber.

Any other mediation training issues, however, will be regulated by presidential decree, following a proposal by the Ministry of Justice and the Ministry of Education, Lifelong Training & Religious Matters (Article 5, para. 2).

Pursuant to Article 7, the accreditation body will be the Department for Lawyers and Bailiffs, as well as the Director General for the Administration of Justice at the Ministry of Justice. By virtue of a decision from that ministry, a number of important issues will be regulated, under Article 7, para. 2, such as:

  • Quality control mechanisms for the assessment of mediators;
  • Accreditation requirements for foreign mediators;
  • A “Code of Deontology,” which accredited mediators must respect, and
  • Any other issues related to accreditation.

The required number of training hours needed will be regulated by means of a presidential decree, according to Article 5, para. 2 of the law. Additionally, the new mediation law provides for the establishment of a commission entrusted with the preparation of necessary rules and regulations related to the certification criteria. The Ministry of Justice will determine the commission members (Article 6).

THE PROVIDERS, THE FEES

There are only two mediation providers in Greece, both of which focus on mediation training. The Hellenic Center of Mediation, in Athens, has a significant number of mediators trained, assessed and accredited by the Chartered Institute of London. Recently, it announced its first cross-border mediation, mediated by a foreign neutral, which concluded with an agreement.

A mediation center also exists in the city of Thessaloniki, in the Macedonia district of Northern Greece, under the auspices of the Thessaloniki Bar. The city’s Chamber of Industry & Commerce and other professional organizations also are involved.

The mediation law provides that the minimum hourly rate of the mediator’s fee is to be defined and amended by a decision of the Ministry of Justice (Article 12, para. 3). A mediator cannot collect an hourly fee for more than 24 hours of work. The 24-hour fee cap includes time spent toward preliminary mediation preparation (Article 12, para. 1).

Unless the parties agree otherwise, each party is obliged to pay half of the mediator’s fees, and each party pays his or her own attorney’s fees (Article 12, para. 2).

* * *

This year will be fascinating for ADR supporters in Greece, as the nation is “ante portas”—at the door—of a great change.

* * *

Coming next month: Portugal.

The Basics

Greece, also known as the Hellenic Republic, lies on the Aegean Sea and is bordered by Albania, Bulgaria, Turkey, and Macedonia. It became independent from the Ottoman Empire in the 1820s. Since then, it has annexed a number of nearby territories and now governs an archipelago of about 2,000 islands.

Made up of 51 prefectures and one autonomous region, it has a population of more than 11 million people according to a 2010 estimate, 93% of which are Greek and the other 7% of which are foreign citizens.

Since 1974, when its monarchy was abolished, Greece has been a parliamentary republic with a unicameral parliament whose 300 members are elected by direct popular vote. Its executive branch is composed of President Karolos Papoulias, Prime Minister Georgios Andreas Papandreo, and a cabinet. The judicial system includes the Supreme Judicial Court and the Special Supreme Tribunal.

After a growth period between 2003 and 2007 due in part to the 2004 Athens Summer Olympic Games, the Greek GDP decreased in 2008 and in 2009, declining more than 3% and causing a recession. The country violated the EU’s Growth and Stability Pact budget deficit criteria. For this reason, the government cut expenses and launched reforms of the labor and product markets, causing many strikes and scattered street violence.

Since 1981, Greece has been a European Union member. A decade ago it became the 12th member of the European Economic and Monetary Union.

This information was gathered principally from the CIA World Factbook at https://www.cia.gov/
library/publications/
the-world-factbook/geos/
gr.html
.

De Palo is cofounder and president of ADR Center, a member of Jams International. He is based in Rome. He also is the first International Professor of ADR Law & Practice at Hamline University School of Law in St. Paul, Minn. Trevor is an associate professor of law and director of the legal research and writing department at Hamline. Flavia Orecchini, of the ADR Center International Projects Unit, is assisting the authors with research. This month’s column was prepared in collaboration with Apostolos Anthimos. Anthimos is the training coordinator at the Mediation Center attached to the Thessaloniki Bar Association, a panelist at the Arbitration Center for ADR.eu disputes, and an attorney at law in Greece. He holds a master’s degree from Germany’s University of Hanover, and a Ph.D. from Aristotle University in Thessaloniki, Greece, in the field of international litigation. He publishes regularly on ADR issues in Greek legal reviews and periodicals. He can be reached at apostolos@anthimos.gr .


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