What makes politicians supportive to mediation ? They perceive mediation as superior instrument for conflict resolution; They perceive mediation as superior instrument for conflict resolution; They subscribe it only because it is a fashionable, innovative step; They subscribe it only because it is a fashionable, innovative step; They hope that it will serve their own interest. They hope that it will serve their own interest.

State of mediation policies in Europe Early developmental stage (infancy); Early developmental stage (infancy); Increasingly recognised added value of court related mediation; Increasingly recognised added value of court related mediation; Bottom up initiative (pilot schemes) or national policies (top down approach); Bottom up initiative (pilot schemes) or national policies (top down approach); Mediation supply is higher than demand; Mediation supply is higher than demand; Future trends depend on the attitude of key players (governments, courts, lawyers, end users). Future trends depend on the attitude of key players (governments, courts, lawyers, end users).

To regulate mediation or not ? Advantages: Educational effects; Educational effects; Public trust and confidence; Public trust and confidence; Minimum quality standards; Minimum quality standards; Incentive for public funding Incentive for public funding

To regulate or not ? Disadvantages: Threat to the process flexibility and private autonomy; Threat to the process flexibility and private autonomy; An obstacle for efficient market developments; An obstacle for efficient market developments; Attorneys would take over the process; Attorneys would take over the process; Objectives will compete rather than complement one another. Objectives will compete rather than complement one another.

What is existing regulation on mediation in Europe? General statutory legislation; General statutory legislation; Court procedural laws; Court procedural laws; Case law; Case law; Professional codes; Professional codes; Court rules or programs; Court rules or programs; Private providers rules; Private providers rules; Model laws; Model laws; Policy papers; Policy papers; Regulation of mediator’s fees. Regulation of mediator’s fees.

What can be regulated? To encourage the use; To encourage the use; To regulate the process; To regulate the process; To regulate the profession. To regulate the profession.

Legal incentives for mediation demand Duty of disputants to consider mediation; Duty of disputants to consider mediation; Duty of courts to pay attention to mediation. Duty of courts to pay attention to mediation.

Regulatory issues of mediation process Definition of mediation; Definition of mediation; Voluntary or compulsory nature; Voluntary or compulsory nature; Confidentiality; Confidentiality; Admissibility of evidence; Admissibility of evidence; Limitation periods; Limitation periods; Mediation clause; Mediation clause; Enforcement of mediated settlements. Enforcement of mediated settlements.

Definition of mediation Mediation shall mean any process, however named or referred to, where two or more parties to a dispute are assisted by a third party to reach an agreement on a settlement of the dispute and regardless of whether the process is initiated by the parties, suggested or ordered by a court or prescribed by the national law.

Voluntary versus compulsory mediation Invitation (South – East Europe); Invitation (South – East Europe); Seduction (Netherlands, Slovenia): Seduction (Netherlands, Slovenia): Full coercion (Malta, Norway, partly Germany). Full coercion (Malta, Norway, partly Germany).

Get your mediation ticket punched first! Higher uptake; Higher uptake; Declining success rate; Declining success rate; Not affordable for everyone (North Carolina example). Not affordable for everyone (North Carolina example).

Duty of confidentiality It may arise: From the agreement between the parties and mediation provider; From the agreement between the parties and mediation provider; From the code of mediation practice; From the code of mediation practice; From the statutory law; From the statutory law; From the courts rules. From the courts rules.

Inadmissibility of evidences of judicial proceedings An obligation of the parties not to rely on certain type of evidence; An obligation of the parties not to rely on certain type of evidence; An obligation of the courts to treat such evidence as inadmissible. An obligation of the courts to treat such evidence as inadmissible.

Limitation periods The running of any period of limitation regarding the claim is suspended as of when, after the dispute has arisen: The parties agree to use mediation; The parties agree to use mediation; The use of mediation is ordered by a court; The use of mediation is ordered by a court; An obligation to use an mediation arises under the national law. An obligation to use an mediation arises under the national law.

The mediation clause Directly enforceable in UK and in France. Indirect enforcability through arbitration clause worldwide.

Enforceability of mediated settlements Court approved; Court approved; Notary approved; Notary approved; Direct enforcement; Direct enforcement; Summary enforcement; Summary enforcement; Arbitration award; Arbitration award; o Contractual enforcement.

Self regulation bodies NMI (Netherlands); NMI (Netherlands); IMI (Europe); IMI (Europe); Civil Mediation Council (England and Wales); Civil Mediation Council (England and Wales); Council for ADR (Poland). Council for ADR (Poland).

Practice what you preach! UK Governmental pledge (2001); UK Governmental pledge (2001); US Presidential memorandum (1998). US Presidential memorandum (1998).

Funding of mediation Court funded (Slovenia); Court funded (Slovenia); Government (partly) funded (Netherlands); Government (partly) funded (Netherlands); Low cost schemes (England and Wales); Low cost schemes (England and Wales); Legal aid (Finland). Legal aid (Finland).

What are objectives for court – related mediation ? Efficiency (quantity) goal prevails; Efficiency (quantity) goal prevails; Self determination (quality) goal rare. Self determination (quality) goal rare.

Challenges for marketplace mediation models Supply higher than demand; Supply higher than demand; Quality of mediation provider; Quality of mediation provider; Ethics of neutrals; Ethics of neutrals; Appearances of corruption (post- communist societies). Appearances of corruption (post- communist societies).

Referral criteria Confidence enjoyed by mediation provider; Confidence enjoyed by mediation provider; Costs of mediation; Costs of mediation; Expertise and enthusiasm of the referring judge. Expertise and enthusiasm of the referring judge.

Timing of court related mediation After discovery (common law countries); After discovery (common law countries); Earlier in litigation (civil law countries); Earlier in litigation (civil law countries); Appealate mediation (only in common law countries). Appealate mediation (only in common law countries).

Who shall be mediators? Lawyers; Lawyers; Cameleon judges; Cameleon judges; Non-lawyers. Non-lawyers.

Lawyers as key players Shall we spend energy on lost generation? Shall we spend energy on lost generation? ADR – alarming diminished revenues: ADR – alarming diminished revenues: Challenge of self interest; Challenge of self interest; Smart sanctions; Smart sanctions; Issue of satisfied client; Issue of satisfied client; Challenge of subtle pressure; Challenge of subtle pressure; Two different training programs for lawyers; Two different training programs for lawyers; Business risk and mediation; Business risk and mediation; Litigation costs and mediation; Litigation costs and mediation; Between turnover and profit. Between turnover and profit.

End users Different approaches needed; Different approaches needed; Repeat players versus one-shooters; Repeat players versus one-shooters; Informed consent; Informed consent; Public awareness campaign; Public awareness campaign; Duty to consider; Duty to consider; Legal aid and mediation; Legal aid and mediation; Reduced court fees for mediated settlement; Reduced court fees for mediated settlement; Cost sanction; Cost sanction; Tax incentives (bizarre Italian model); Tax incentives (bizarre Italian model); Case dismissed. Case dismissed.