Q & A for Mediation

Mediation is an out -of-court alternative dispute resolution method. The parties involved in private disputes can voluntarily choose mediation, provided that they have the right of disposal of the subject-matter of their dispute and they agree with the mediation procedure in accordance with the provisions of the Law. Each party attends the mediation together with his/her appointed Attorney at Law. The parties voluntarily remain during the process where they negotiate, assisted by a neutral, independent and impartial Mediator, with the common aim to reach an agreement resolving the dispute in question. The parties’ Agreement is incorporated into the Mediation Minutes signed by the parties and the Mediator, which can become an enforceable title having the binding effect of a court’s decision, provided that specific requirements are met.

Mediation was introduced for the first time in the Greek judicial system with the enactment of Law 3898/2010 implementing Directive 2008/52/EC . Nowadays, Law 4640/2019 is in force titled “Mediation in civil and commercial disputes – Further harmonization of Greek legislation with Directive 2008/52/EC of the European parliament and of the Council of 21 May 2008 and other provisions”, which was approved by vote from the Greek Parliament on 28.11.2019 and has been published in the Greek Government Gazette 190A/ 30.11.2019; such law is effective from its publication date. [Information about the implementation of the  Mandatory Initial Session in Greece falls under the next question]

According to the provisions of articles 6 & 7 of Law 4640/2019, certain expressly provided disputes are subject to the stage of Mandatory Initial Mediation Session where the Mediator informs the parties about the procedure of Mediation, its main principles and the option of an out-of-court settlement of their dispute.
Upon closure of the Initial Mediation Session, the parties can mutually decide to submit their dispute to voluntary Mediation by signing an

Agreement to Mediation. In case the parties do not agree to proceed with Mediation, then the Mediator drafts the Minutes of the Mandatory Initial Mediation Session, which have to be submitted to the competent court together with the claimant’s pleadings; the penalty of inadmissibility of the lawsuit is triggered in case the claimant fails to comply with the aforesaid obligation.
The Law provides that the following disputes are subject to the Mandatory Initial Mediation Session:

 

a) Family disputes , except from expressly provided cases

b) Any dispute subject to the competent Single-Member First Instance Court exceeding the amount of thirty thousand Euros (30,000 €) and all disputes falling under the jurisdiction of the Multi- Member First Instance Court.
c) Disputes arising from written agreements of the Parties including a valid Mediation clause.

The parties can refer their dispute to Mediation at any stage, prior or after the filing of court proceedings. The existing general rule is that the dispute can be referred to Mediation only if the parties voluntarily decide to do so (voluntary Mediation).  Mandatory rules apply only to the disputes mentioned under the above mentioned questions 2 and 3 concerning the Mandatory Initial Mediation Session.

In any case, the parties are subject to Mediation after signing a written agreement and their attendance to the procedure is absolutely voluntary.

Furthermore, the Greek Courts can invite the parties to refer their dispute to Mediation; however the courts  have no right to oblige the parties to do so,  if they do not agree.  A different approach can probably apply to the courts’ jurisdiction in other E.U. Member-states.

Mediation is applicable to all Civil and Commercial Disputes if the parties have the right of disposal of the subject-matter of their dispute, that is, disputes where issuing court judgment is not mandatory by Law  (e.g.  delivery of divorce is provided only by judgment). Mediation is not applicable to disputes ruled by Public Law.

The Mediator is a neutral, independent and impartial third party, assisting the parties’ negotiations, who is specially trained in law, negotiation techniques and psychology and is also accredited by the Greek Ministry of Justice. The Mediator’s role is to help the parties vent their emotions, to restore and moderate the dialogue between the parties and also to facilitate the parties’ negotiations so that they can reach an agreement. The Mediator acts in conformity with the provisions of the Law, including the Code of Ethics for Accredited Mediators.

 

In practice, the interested party can  address a Mediator of his/her choice or can call upon a Mediation Center , such as RESOLVE, to further suggest or appoint a Mediator. The Mediator’s appointment is based upon prior  inquiry on his/her fields of expertise, experience etc. You can find more about RESOLVE Mediators’ fields of expertise in this website.

The Mediator, once appointed by the interested party, contacts with the other party asking for a relevant written approval on his/her appointment.   Alternatively, the interested party can contact directly the other party so that they mutually choose and agree on the appointed Mediator.

 

Once the Mediator’s appointment is agreed by the parties, the Mediator conducts informative meetings with the parties of the dispute in case of a voluntary  Mediation /or in cases where the mandatory Initial Mediation Session is provided by Law (i.e. family disputes, court claims exceeding 30,000 euros and contracts including Mediation clause, as analytically described under Question 2 above)

In any case, upon completion of the Mandatory Initial Mediation Session /or after the parties’ have been informed by the Mediator about voluntary Mediation, the parties have the right, if they want, to appoint another Mediator in order  to continue with the process of Mediation.

In the Mandatory Initial Mediation Session the parties participate/attend the session in-person (legal entities are represented by their legal representatives /or a representative authorized by proxy) together with their Attorneys at law.

Exceptionally, the party’s  representative by proxy can attend alone the above session only in cases where the attendance of the party-natural person is not possible, mainly due to transportation difficulty because of serious illness /or when the party is residing in a foreign country and  teleconference is not feasible.

 

In Mediation, the parties of the dispute in question participate in the procedure together with their Attorneys at law and the Mediator, who is mutually appointed by the parties. Third parties can attend/participate in Mediation only when this is deemed necessary and upon relevant agreement between the parties and the Mediator. In small size claims and consumers’ claims the parties can attend Mediation on their own , that is without an Attorney at law.

 

The decisive authority in Mediation lies with the parties, which are assisted by their Attorneys at law, and the Mediator being specially trained in psychology and negotiation techniques, facilitates the parties via joint and private sessions to reach an agreement resolving their dispute.

 

The Mediator does not decide for the dispute’s outcome neither judges the parties’ positions.  The procedure of Mediation is absolutely confidential, no minutes are kept, and any information shared during the private sessions held by the Mediator with one party is not disclosed to the other party if there is no relevant consent by the party delivering such information. The fact alone that Mediation has been performed can also remain confidential.

In case the dispute in question is forwarded to the courts or to arbitration tribunal, the Mediator, the parties, their Attorneys at law and any third party involved in Mediation are exempted from witness examination and  are not permitted to file-submit to the courts or the arbitration tribunal any document or oral information deriving from /or related with Mediation.

Mediation is usually completed within one working day, however this is not restrictive. The time, venue and the relevant  practical details of  the Mediation procedure are arranged by the Mediator in cooperation with the parties.

In case of voluntary Mediation,  there is a preparatory stage prior to the actual Mediation, during which the Mediator contacts with each party and his/her respective Attorney at law separately, informing them about Mediation and its procedure and an Agreement to Mediation is signed.

Subsequently, the parties’ Attorneys at law forward to the Mediator their memorandums including the positions-arguments of the party they represent.

The Mediator’s fee is freely agreed between the Mediator and the parties upon relevant written agreement and it is paid by the parties in advance, usually shared equally between them, unless otherwise agreed.

If no such written agreement exists, then the provisions of Law 4640/2019 are applicable providing the following:

1. In Mandatory Initial Mediation Sessions the accelerating party pays in advance to the Mediator a fee of fifty euros (50,00 €), which is after shared equally by the parties, as provided by law,

And

1. In Mediation, the Mediator’s Minimum fee is eighty euros (80,00 €) Per hour, which is shared equally between the parties.

Each party bears the fees of his/her Attorney attending Mediation; such fee is freely agreed between each party and their Attorney at law, respectively. There is, though, a legal obligation for each participating Attorney at law to issue a relevant cash receipt voucher paid in advance.

There are benefits for the parties, if they choose Mediation to resolve their dispute, as follows :

• They can resolve their dispute rapidly without delays
• They can negotiate assisted by the Mediator within a civilized environment that they have selected themselves
• The whole procedure is ruled by confidentiality
• The faster dispute resolution is achieved, the lower the dispute resolution cost
• The parties’ agreement on their dispute resolution (which is included in the Mediation Minutes) constitutes an enforceable title having the legally binding effect of a court’s decision provided that specific requirements are met
• The parties can maintain their good relationship and (why not) expand their cooperation
• They can reach an agreement based on a realistic resolution, which is in conformity with the existing conditions (party’s financial and actual data), and is totally different from the one they could eventually request from the court.
•  

The parties’ lawyers play a significant role throughout the procedure of Mediation. Initially, each lawyer has to inform in writing the party of the dispute that he/she represents  about Mediation, as an option for dispute resolution. Same applies in case of Mandatory Initial Mediation Session, when this is provided according to the subject matter of the dispute.

Each lawyer accompanies the party being his/her client to attend the informative meetings with the Mediator, or to attend the Mandatory Initial Mediation Session in order to be informed on the procedure.

In addition, each lawyer prepares the party /client about his participation in Mediation and they jointly draft their strategy and argumentation, that will be used during  the procedure, as well as their negotiating tactic. The lawyer also drafts the informative memorandum for the Mediator and provides egal assistance to the party with regard to the egal issues involved in the process.  In the end of Mediation, the  lawyers are the ones who will draft the parties’ agreement-that the parties themselves have reached-, which is included in the Mediation Minutes. The Mediation Minutes can be filed with the competent First Instance Court, under certain conditions, and become an enforceable title.

 

RESOLVE, in cooperation with the Athens Mediators’ Training Center “AKKED PROMETHEUS”, of the Athens bar Association, provides a specialized Training Program for the Legal Counsels-lawyers attending Mediation, which is adapted to the Greek reality and legislation. During this training program, the lawyers-legal counsels have the opportunity to understand their role throughout the Mediation process given the adequately and thoroughly delivered information about the existing legislative framework and via role playing exercises.

According to the provisions of Law 4640/2019 (art.11) , Mediators must be:

1. graduates of higher education (AEI, TEI) or holders of an equivalent degree by a foreign institution with certified professional standing,
2. trained by a Mediators’ Training Organization recognized by the Central Mediation Committee, or holders of an accreditation title from another member state of the European Union, and in addition
3. participate in the official exams held by the Greek Ministry of Justice in order to be accredited and registered with the official Register of Accredited Mediators of the Ministry of Justice, as provided under the provisions of article 29 of law 4640/2019.

Any holder of a higher education degree or an equivalent degree from abroad, who is also a holder of a master's or doctorate degree from a university or an equivalent foreign institution on the object of mediation, can directly participate in the aforesaid exams without prior training by a Mediators’ Training Organization.