Snowy mountains and warm waters
Most people do not think of snow, snowballs or avalanches when contemplating sun-kissed countries such as Italy, Turkey and Greece. Similarly, outside of the European Union (EU) the legal community at large still appears to believe that mediation use is more frequent in its northern Member States. Mountain-lovers, however, know very well that the Italian Dolomites and Mount Ararat in Turkey, for example, are a skier’s delight. Likewise, mediation experts world-wide are starting to realize that Italy is the country where the highest number of mediations take place in the EU, and by far.
Since the beginning of 2018, the “Bel Paese” is no longer the sole country of the south where mediation helps settle a significant number of disputes before they reach notoriously overcrowded and slow courts. Hakan Öztatar, head of the Mediation Department of the Ministry of Justice of Turkey, informed the author that 30,828 mediation requests have been filed in January of this year. Already 6,423 concluded with 4,637 of them resulting in an agreement: that is a settlement rate of 72%! It should be noted that this number of mediations, in just one month, is higher than that of all the mediations that have taken place in several certain EU countries over the ten-year period since, and despite, the 2008 EU Mediation Directive.
Now Greece is poised to increase mediation use exponentially (and again, from virtually zero) since it passed a mediation law based on the Italian model requiring a mediation attempt in certain types of disputes before a litigation can be filed. Disputes covered under the law include: condominium, medical malpractice, car accidents, and a very few other types. Elena Koltsaki, a member of the Law Drafting Committee on Mediation at the Greek Ministry of Justice estimates that the number of mediations could immediately reach several tens of thousands or more if the scope of the law is later expanded beyond of disputes currently falling within the scope of the law.
The new Turkish “Labor Courts Law”
The main reason for this mediation avalanche is not the consequence many years of mediation education and promotion. The single most important reason, for such an instantaneous change of the landscape is article 3 of the new Turkish “Labor Courts Law” titled “Mediation as precondition to file a case”, which came in force on 1st of January 2018 as result of a well designed and implemented project “The Development of Mediation Practices in Civil Disputes in Turkey” co-funded by the Swedish International Development Cooperation Agency (Sida) and the Republic of Turkey, and implemented by the Council of Europe. Based on the Italian mediation model of 2013, the Turkish law essentially requires litigants, in employment disputes, to first attempt to settle the case via mediation. After experimenting with this model, Turkey’s plan is to extend it to civil and commercial disputes. This could mean well over a million mediations taking place every year.
Quality mediation exported
Just like any (and I underline, ANY) good regulatory model that requires a mediation attempt before litigation begins, the Turkish law also imposes training standards for mediators and quality control mechanisms over the mediation process. It is intellectually painful to have to emphasize this aspect, but part of the mediation community appears to be still trapped in a Manichean mindset where any sort of mediation requirement automatically translates into lower quality of service. This conclusion would be particularly wrong in Turkey where scores of international mediation experts have trained mediators, given lectures, and spoken at countless conferences over the last 15 years. Such enthusiastic and messianic cohort includes the author, who has been accrediting mediators there as early as 2004, including through several projects funded by the European Commission, and. has been in Turkey a dozen times between 2016 and 2017, to work also as expert in the mentioned project of the Council of Europe and with all key stakeholders in the country, leading up to the adoption of the new law.
Low quality in mediation, like in any other professional activity, is mainly the consequence of lack of practice. Turkey is showing, as Italy did and Greece soon will show, that a well-balanced mediation regulatory framework generates cases, and even a culture, much faster than culture alone could ever generate a significant amount of mediated cases.
The new system might take some adjustments, but then it is likely to expand further …
The Turkish model might well need some adjustments soon, whether by a change in the law itself or by the emerging of jurisprudence, as it was the case in Italy. Indeed, the first few weeks of experience in Turkey has already shown the delicacy of the pivotal mechanism in the entire regulatory framework, i.e., how to strike the right balance between allowing litigants to withdraw during the first mediation meeting (without penalties and at a limited cost), and making sure that participation in that meeting is meaningful – not just a way to avoid sanctions for not showing up. Indeed, litigants entirely uninterested in mediation may pay the modest fee to attend the first mediation meeting and leave immediately. There is no perfect solution to this problem. A “good faith” participation requirement puts confidentiality at risk, if judges are then allowed to scrutinize the actual behavior in that meeting. Objective criteria, such as setting a minimum time duration for the first meeting, run the risk of being a collective waste of time if the parties are determined not to give mediation a chance.
An analysis of the complex and ever evolving Italian case law on this issue is beyond the scope of this “breaking-news-kind-of” short piece. It might suffice to say that even in the legal context the best should never become the worst enemy of the good. And by all accounts, at least in Italy virtually everyone now agrees that the net results of the current mediation model have been positive, despite the ongoing debate as to how to optimize the mechanism of the first mediation meeting.
… and the massive savings of the new system have already been estimated
When it comes to legislation, the issue should not be: “you can lead the horse to water, but you cannot make the horse drink”. For several decades now, some people have argued that mandating mediation is an oxymoron as settlement can only be voluntary. But nobody has ever tried to argue the opposite! In fact, while deciding to settle or not should remain a fully voluntary decision, the timing for making a more serious effort at settlement via mediation can be mandated. In any event, going back to (or, on) the horses, from a policy point of view the right frame should be the following: “lead all your horses to water, count the system’s overall gains when the horses drink, subtract the costs when the horses do not drink, and then it is simple math”. In 2014, the reiteration of two studies initially conducted for the European Commission in 2009 and 2011 showed that the “math” above would mean savings in the range of 20-40 billion of Euro per annum, EU-wide, if all civil and commercial disputes went to mediation first and only 50% of them settled. The same studies showed that, again at the EU-wide level, the minimum settlement rate for the costs of all failed mediations to be no greater than the savings of all successful mediations was a mere 24%.
How about a challenge or two?
As was the case in Argentina and then Italy, it is finally likely that the required mediation model might be legally challenged in Turkey. This might cast a serious shadow on a fast-growing mediation industry. Still, in my view a legal challenge to the Turkish law is likely to fail, for at least two reasons. First, the process leading up to the adoption of the law has been conducted very carefully by the legislator. Second, while Turkey is not a EU member state, the jurisprudence of the European Court of Justice (ECJ), which Turkey has been closely monitoring of the past years, is now settled in that a requirement to mediate is fully compatible with EU law, if the process is non-binding, fast, inexpensive and suspends the statute of limitations (actually, in the 2010 “Alassini” case the ECJ’s Advocate General went even further, stating that a voluntary mediation model is doomed to be less effective, but this is something for another article).
As for practical challenges, experience has shown that mediation takes little time to be not only accepted, but even positively embraced, once people have experimented with it on a larger scale. In Italy this was so true that the National Bar Association (which in 2012 was opposed to require pre-litigation mediation efforts) titled its 2016 annual congress ‘Justice without Trial’ and, in the congress final motions, asked the government to both strengthen and expand the scope of mediation. The government responded right away making the pre-litigation requirement permanent (that requirement had initially a sunset clause, which would have otherwise expired in 2017), and appointing a ministerial committee that has already proposed how to further expand the scope of mediation.
No mediation avalanche from Brussels, at least for now
The foregoing EU jurisprudence as well as the results of the Italian mediation model were before the EU Parliament, between 2016 and 2017, as the EU Institutions faced the continuance of what years ago I termed the “EU Mediation Paradox”, i.e., the Mediation Directive’s amply demonstrated lack of impact in generating a significant number of mediations, where the Member States decided not to require that litigants make serious mediation efforts before litigation.
Along with Giuseppe De Palo, I was invited by the European Parliament to present a report before its Legal Affairs Committees right after the report of the European Commission. While the Commission argued that the Directive was ok, with numbers and numerous empirical studies at hand we argued the contrary. We thus proposed that a key provision in the 2008 Directive, merely allowing EU Member States to make mediation mandatory, be changed with the following:
Mediating amongst the mediators (well, you try that, then please let us know …)
Our report put the proposed legislative solution in the broader context of a simple and yet thus far missing taxonomy, in the attempt to stop what has been referred to as the “tribalism” between supporters of pure voluntary and pure mandatory mediation models (none of which are good, in our opinion).
In its resolution of 12 September 2017 on the implementation of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters, the European Parliament cited four studies, three of which were written and directed by the two of us, but fell short of endorsing the model requiring at least a first mediation meeting.
In conclusion, at least in the foreseeable future, there will be no mediation avalanche generated by the EU institutions. EU citizens and businesses, however, are likely to witness the development of a new mediation movement in Europe, coming from its warm south and growing bigger and stronger as experiences and results roll from one country to the other.
Metaphors can help visualize, internalize and thus better remember concepts. Metaphors can have negative effects, too, though. Aside from being impossible in terms of orography, for example, the very image of a mediation avalanche originating from Brussels to some might sound scary, negative, or just lame. Same would have been the case if, for example, I decided to talk about a mediation tsunami coming out of the waters of the Mediterranean basin (something I am not ruling out to do, especially if Greece, too, will start generating the numbers I alluded to above). Readers who might have issues with either metaphor are kindly invited to reserve the same treatment to the metaphor we in the field are all up against, i.e., the “litigation explosion” ??.
 Giuseppe De Palo and Leonardo D’Urso, “The implementation of the Mediation Directive–Achieving a Balanced Relationship between Mediation and Judicial Proceedings” (2016); Giuseppe De Palo, Leonardo D’Urso, Mary Trevor, Bryan Branon, Romina Canessa, Beverly Cawyer and L. Reagan Florence, “Rebooting the Mediation Directive: Assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU”; and Giuseppe De Palo, Ashley Feasley and Flavia Orecchini, “Quantifying the cost of not using mediation–a data analysis” (2011).
Our concepts of our environment do not die slowly. They neither crumble and rot into oblivion nor do they grow beautiful with old age. They are systematically killed by men...By Joseph Dean Klatt