Overview on the Mediation in Cross-Border Conflicts – Sources and Application Areas

The second portion of this study is available here.

This study was authored by:

Zeno Daniel SUSTAC,
Romania Dr. Jamie WALKER, Germany
Claudiu IGNAT, Romania
Anca Elisabeta CIUCA,
Romania Sanda Elena LUNGU, Romania

1. Introduction.

Short history

Globalization and quasi-ubiquity of technologies associated to these have led to an exponential increase of interhuman and interinstitutional communication, with the consequence of rapidly escalation of differen- ces, disputes or misunderstandings, often transformed in litigations sent to the courts of law, according to historically established social practices. But, sometimes the act of justice rendered by the magistrates has the major disadvantage that it leaves one or more involved parties in a cause being unsatisfied with the decision; thus, it generates the image of a resolution formulated based on the “loser-winner” binomial. The consequence of this type of perception of litigants is often, besides the preservation of their conflicting status, the prolongation of judicial dispute; this is due to the will of revenge, with additional costs in time and money for both the parties and the judiciary. The mediation as an alternative method of conflict resolution, starts, right from the beginning, from the principle of counterbalancing the parties’ interests, of the remanence of an agreement obtained based on their free will, sustainable and perceived as mutually beneficial. This fact, in the context of the globalization phenomenon, confers mediation the quality of being a cross-border and often cross-cultural method with a universal value, of conflict approach and resolution.

The citizen’s guidelines concerning cross-border disputes in the European Union suggests, as a prioritary method of the resolution thereof, an amicable manner of approach, a resolution way alternative to justice, whenever such a step is possible.

The concern for establishing certain criteria off balancing gains and losses must exceed, for the involved parties, the barrier of their own interests with their common interest in the first place. In this context, mediation as an alternative dispute resolution method brings the possibility of introducing a neutral and impartial third-party who draws up the general lines in the conflict between parties, in the attempt to identity a beneficial resolution for all parties involved, all the more in the field of cross-border conflict mediation. The mediator’s role, as a facilitator of the discussions, is to bring in the center of negotiations the parties’ wishes, in order to encourage the shaping of an agreement between the parties involved.

On the European Union level, mediation was constantly stimulated by the passing of certain efficient implementation mechanisms. The right to free movement of the citizens of the member states significantly multiplies the perspectives of intercultural bridging and it implicitly increases the possibility that conflicts arise between persons in different member EU states.

The resolution of cross-border conflicts by methods alternative to classic justice is of high interest to each member state of the European Union. Over time, international instruments were adopted, on the level of both the European Council and the European Union.

An overview on the chronology when the various documents concerning alternative dispute resolution methods show the increasing concern for this area, first of the European Council and then, especially after the consolidation in its current form, of the European union. Starting with the 80s, the continental level approach of the ADR methods grew in intensity – from Recommendations of the Committee of Ministers concerning the access to justice (1981) or diminishing the tasks of courts of law (1986) to the level of the European Council – until the most important document of the European Union concerning mediation: Directive 2008/52/EC. One must note the fact that from simple recom- mendations, the trend is towards a European level unification, by means of Directives which, according to their programmatic value, set forth the goals that need to be attained by member states, leaving the choice of means to the national authorities. In order for the principles provided by the directives to become effective at a citizen level, the national legislator must pass transposition acts to the national legislation, whereby the latter shall be adapted to the goals defined in the directives. Thus, we witness a historical process with predictable development and implementation consequences in the field of alternative dispute resolution solutions, at both a European and national level, to the continuous increase of the ADR methods impact in the field of culture and jurisprudence of the general public.

Most of the European Union countries have adopted a specific legislation concerning mediation; at an internal level, there are tither a mediation law, or specific provisions included in codes which encourage the resort to mediation. In this respect, mediation in cross-border conflicts is of high interest, already materialized since 2000, when the European Commission presented a Green Card on the alternative dispute resolution methods in civil and commercial matters. The green card was intended as a case study in performing alternative dispute resolution methods in the European Union; this study was resulted from counseling with member states and other parties involved, in order to improve the general framework in the field of mediation.

The foreign element is the one that confers mediation with cross-border mediation values. This results in a factual circumstance due to which a legal report sis connected to two or more than two law systems; in this case, law systems of certain member states of the European Union. In cross-border environments, the parties are law students, natural or legal persons, pertaining to several member states.

2. Sources of cross-border mediation

If we make an analogy with the sources of law, the following may be considered as sources of the mediation institution:

a. Legislative Act, a unilateral manifestation of will of a body with competences in the field, which comprises rules of conduct producing “erga omnes” effects; these cannot be performed by using coercion. These normative acts that regulate a field of interest may have a national or international nature. A national law concerning an obligatory mediation or a European directive (a source of European Law), which is to be transposed by the member states to a certain deadline may be considered as sources of mediation (imposed mediation).

The following normative acts show relevance for the cross-border mediation:

– At the level of the European Council, various international instruments have been adopted, including Recommendation R (81) 7 of the Committee of Ministers on the access to justice, Recommendation R (86) 12 of the Committee of Ministers concerning measures to prevent and reduce the excessive workload in the courts, Recommendation R (93) 1 of the Committee of Ministers on effective access to the law and to justice, Recommendation R (94) 12 of the Committee of Ministers on the independence, efficiency and role of judges, and Recommendation R (95) 5, concerning the improvement of the functioning of appeal system and procedures in civil and commercial matters, Recommendation no. (98) 1 of the Committee of Ministers on family mediation, Recommendation no. (2002) 10 of the Committee of Ministers on mediation in civil matters, Recommendation no. (2001) 9 of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties, Guidelines for a better implementation of the Recommendation concerning family mediation and mediation in civil matters, CEPEJ, 2007, as well as instruments concerning mediation in penal matters.

– At the level of the European Union, one must note Directive no. 2008/52/EC of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters, Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court set- tlement of consumer disputes, and Commission Recommendation 2001/310/EC of 4 April 2001 on the principles applicable to out-of- court bodies involved in the consensual resolution of consumer disputes.

b. The contract containing provisions concerning mediation undertaken by the parties may give rise to mediations and not litigations (conventional mediation). At an European level, there is a certain tendency to introduce certain contractual provisions that refer to mediation, as a resolution method of choice for certain potential conflicts that may arise from the construction or enforcement of such contracts.

c. The Judicial practice may be a source of mediation in case the cases are submitted to mediators in certain concrete situations (judicial mediation). In several European states, jurisprudence is favorable of the attempt to resolve litigation by mediation, at the magistrate’s recommendation, even in default of express legal provisions that would compel the said to carry out mediation.

d. The Custom, the unwritten source of law and, at the same time, the oldest source of law.

The proven custom of court action in case of conflict, developed by democratic countries, especially by the United States, led, some decades ago, to the occurrence of an excessive overload of the courts; this is an increasing phenomenon not only in the Western world. It became a problem of judicial practice, but also of resolution of certain trends of traceable magnitude at the level of the entire society and of introducing to public conscience the alternative conflict resolution methods. Currently, one may discuss with solid arguments about the occurrence and persistence of the habit to solve disputes out-of-court. In the United States, the birth place of European mediation, the cases related to consumers’ rights, to malpractice or family, to quote but these three situations, has already been solved for many years, as a habit, by methods alternative to classic justice, especially by out-of-court mediation. In Europe, especially in the Netherlands and Germany, under the influence of the American school of mediation, we recorded evolutions that signal the set of the custom to approach, by means of cross-border mediation, the so-called cases of child-abduction, where the parents are residing in different countries. Also, outside the European continent, in South Africa, where the elimination of apartheid regime led to the situation where the workforce comprised of majoritarian ethnics was managed by the white minority, mediation became the current practice of work conflict resolution, in order to avoid the occurrence of new interracial conflicts. The practical needs of the society reaffirm, with reference to the field of mediation, the rule of continuous adaptation and transformation of customs, which confirms the appreciation that these are notable sources of law.

Outside the instruments at the level of European Council and European Union, in each member state there are national mediation-related instruments. Some states have laws dedicated to mediation; other member states have provisions on mediation in general normative acts. The mediation process in member states and the specificity of national legislation in the field of mediation may be referred to by accessing the European e-Justice Portal (www.E-Justice.eu) developed by the European Union. In Romania, the mediation and mediator were regulated by the passing of Law no. 192/2006, starting from the idea that mediation is one of the important topics of the justice reform strategy, being a priority within the Action Plan to implement the Reform Strategy of the judicial system between 2005 and 2007. The passing of this law aimed at reducing the workload of courts and, consequently, the relief thereof from as many cases as possible, thus trying to increase the quality of the justice act by satisfying the parties’ interests. Mediation is regarded as an elaborate process, where the conflicting parties have the opportunity to express their wishes, needs, aspirations, expectations and interests, also helping to individual and group reflection, in view of making the best decision for themselves.

According to a study carried out for the European Commission and made public in Leuven on 17th January 2007, each state has its own ADR mix, for there is no ideal combination. In a certain state, the imposition of a certain type of ADR is reached by the multitude of factors including historical, judicial, political, socio-economical, educational and cultural factors.

A major success at a European level in the field of mediation may also be considered the passing by the European Commission on 4th July 2004 of the mediator’s code of conduct, which numerous associations of mediators have already applied to, in the attempt to unify the guidelines that the mediators across the European Union abide by.

3. Application areas of cross-border mediation

According to Directive 2008/52/EC, a cross-border dispute shall mean the dispute in which at least one of the parties is domiciled or habitually resident in an EU member state other than that of any other party or parties the former is in dispute with. The time we report to this case may be the date when the parties agree to use mediation, the time when the mediation is ordered by a court, the time when an obligation to use mediation arises under national law, or the time when an invitation to mediation is made to the parties.

The Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Directive on consumer Alternative Dispute Resolution) defines the cross-border dispute as a “contractual dispute arising from the sale of goods or provision of services, in case the consumer, when ordering such goods or services, is domiciled in a member state other than that of the trader”.

For the purpose of the directive, cross-border disputes are also referred to in the case when, following the mediation, judicial or arbitrary proceedings are engaged in a member state other than the one where the parties are domiciled in.

The resolution of cross-border conflicts by mediation may be carried out at the initiative of the parties involved, at the request of the court in cases when the latter requests the parties to use mediation or when the national law provides mediation.

The application areas of mediation in cross-border conflicts are various, and the European Union actively promotes mediation as a resolution method of this type of disputes. This is addressed both to natural and legal persons willing to get proactively involved in the resolution of their own disputes by referring to a qualified specialist to run the mediation process.

a. Types of cross-border mediation in civil matters, lato sensu

Mediation in cross-border disputes may not be restricted only to certain fields or situations, as it may be used whenever the interested parties have the capacity of disposing thereof with regards to the rights subject to mediation in such case.

In such cases, mediation is a voluntary procedure. The parties may organize the mediation as they find fit, by setting forth their own rules and having the possibility to terminate it at any time. One must note the fact that mediation appeared as an alternative to the judicial system and it is not a component thereof. The solution obtained by mediation is not a solution inferior to the one ruled by the court of law. But it must observe the legislation in force and not breach the ethics.

Both natural and legal persons, of private or public law, may use mediation. The object of cross-border mediation may aim at malpractice, the field of insurances, employment agreements or any other field. Cross-border mediation may also be carried out online by using modern communication technologies in the mediation process, with the observance of rules and principles used in a common procedure. Co- mediation (the presence of two or more mediators) is possible in the case of cross-border dispute mediation. Usually, it is a voluntary, informal procedure, where the parties have the possibility to settle their development framework in accordance to their needs and interests, being able to discard the initiated mediations at any time.

The difference between cross-border mediation and the national cross- border is given by the presence or absence, respectively, of the foreign element. As for the rest of it, the procedure is similar, with certain particularities generated by a different legislative framework.

Upon analyzing the international mechanisms dealing with mediation, we can refer to the following types of cross-border mediation in civil matters, lato sensu:

• Cross-border mediation in civil and commercial matters

• Cross-border family mediation

• Cross-border mediation in matters of consumer protection

• Cross-border mediation in penal matters

b. Cross-border mediation in civil and commercial matters is dealt with by Directive 2008/52/EC. This applies to all procedures in which the parties to a cross-border dispute take efforts in reaching an amicable agreement, with the support of a mediator. Cases concerning precontractual negotiations, quasi-judicial procedures, certain systems of judicial counseling, systems of consumer complaint resolution, arbitration, expert decisions and procedures within which the individuals or bodies running the procedure issue an official recommendation, be it compulsory or not are exempt from the use of mediation in civil and commercial matters; mediation may be applied in any other situation.

The main source of mediation in cross-border conflicts is Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 concerning certain aspects of mediation in civil and commercial matters, the framework legislation prepared since 2002, following the consulting of the member states. The Green Card with respect to ADR in 2002 proposed the future creation of a predictable judicial environment, proper for encouraging the use of mediation.

Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 concerning certain aspects of mediation in civil and commercial matters aimed at encouraging a different type of justice, by simplifying these dispute resolution methods.

The directive provides that there is nothing that would prevent the member states from applying its procedures also in the internal mediation procedures, although it is not especially dedicated cross- border disputes. The text of the directive recommends that a framework provision is inserted in the legislation of national states, which would also comprise aspects of civil procedure.

The role of the Directive is not to modify national legislation in the field when they provide a regulated framework with provisions over those provided in the directive (the use of mediation is compulsory or is subject to certain incentives or sanctions). Neither the self-regulation systems in the field of mediation should suffer any changes with respect to non-regulated aspects in this directive. National legislations in the field shall not comprise provisions that restrict free access to justice. The essence of the directive consists in ensuring a harmonious relationship between mediation and judicial procedures. The directive is dedicated to the resolution of those disputes that are based on rights on which the parties may dispose and validly conclude mediation agreements concerning to the said.

Cross-border mediation is defined as a structured process in which the parties to a dispute try, out of their own will, to reach an amicable agreement, with the existence of a qualified mediator, able to run the mediation process. This excludes the course’s proceedings of solving the dispute during the judicial procedures. By referring only to the parties to a dispute, the regulation only considers the pursued conflicts and disputes. The mediator is in its turn defined as a third-party able to run the mediation process in an efficient, unbiased and competent manner. Although provisions are vague with respect to both cross-border mediation and the notion of mediator, several aspects are noticed:

• Cross-border mediation is a structured process

• It is a voluntary process

• It refers to disputes on the dockets of the courts, but it does not exclude the mediation of non-pursued disputes

• The mediator is a competent and unbiased person Article 4 in the Directive stresses upon ensuring the mediation quality:

• Establishing control mechanisms in the member states of the quality of the mediation service

• Adoption of national codes of conduct for mediators

• Encouraging the initial and continuous training of mediators

The use of mediation in the case of civil or commercial cross-border conflicts is also detailed:

• The courts may invite the parties in certain situations to use mediation for dispute resolution

• The courts may invite the parties to take part in a briefing session concerning the use of mediation (if this sessions are organized and easily accessible)

• National legislation may prove the compulsoriness of the use of mediation

• National legislation may comprise incentives or sanctions for the use or non-use of mediation

• National legislations concerning mediation may not restrict the parties’ right to free access to justice

  Another concern of the European Parliament and of the Council of the European Union shown in the directive is related to the confidentiality of mediation in cross-border disputes. Thus:

• Mediation shall be carried out in a confidentiality-compliant manner

• The parties taking part in mediation may decide on the contrary, by having the possibility to agree if and under what circumstances will they make public the details of the agreement they reached following the mediation process

• The mediators and the other parties involved in the mediation procedure may not use information collected during mediation within the judicial or arbitrary procedures; this obligation is valid without a time limit

• There are a few exceptions:

  – overriding considerations of public policy (when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person)

  – disclosure of the content of the agreement is necessary in order to implement or enforce that agreement.

  The effects of mediation on Effect of mediation on limitation and prescription periods show interest from the perspectives of the Directive. Thus, the use of mediation as a means of dispute resolution shall not prevent the parties to use a judicial or arbitrary procedure subsequently. For this reason, during the development of mediation, the running of the prescriptive or limitation terms shall be suspended.

  The mediation for the purpose of the Directive is organized with the observance of the following principles:

• It is dominated by the public or private system

• May take place inside or outside the judicial procedure

• The use of mediation does not limit the access to justice

• Shall ensure a balance between the duration of required procedures, in order to address to justice and the promotion of the mediation procedures

• The mediation procedures shall be quick and easily accessible

• Useless delays and the use of mediation as a delay tactics shall be avoided

• Mediation shall be used mainly in situations where judicial procedure entails high costs or when it becomes a procedure of an excessive formality

• Mediation shall mainly maintain dialog and relationships between the parties

• The states are encouraged to create full or partial free mediation systems

• The states are encouraged to prove judicial assistance in cases when the interests of certain parties require a special protection

• The mediation costs shall have to be reasonable

• The mediation costs shall take into account the actual workload

  taken by the mediator and no other criteria

  Necessary actions shall be taken in view of selection, empowerment, training and qualification of mediators, including those involved in international mediations. It is recommended that at the end of mediation, there is a written document concerning the object, the length and resolution of the agreement. The mediators shall notify the parties in respect with its enforcement methods, since it is important that these agreements are not contrary to public order.

  Mediation-related information that shall be supplied by the state shall comprise the following:

• At least a general information on mediation

• Detailed information on mediation in civil matters, including with respect to costs and the efficiency of mediation

• Regional and/or local information centers shall be created

• A special briefing shall be held for the professionals involved in the functioning of justice

Also, the states should create mechanisms that would allow the use of mediation, in order to solve the problem with foreign elements and to promote collaboration between services interested in civil mediation, with the purpose of using international mediation.

Conclusions

Statistic and qualitative analysis of the casuistry of cross-border conflicts imposes the conclusion that mediation does not cover, like the ADR method, only the type of disputes contained in the European recommendations or directives. Starting from this statement, we may conclude that cross-border mediation may be used for any type of dispute, in case the following conditions are concomitantly met:

There is a foreign element

The parties accept mediation voluntarily

The parties have a disposition capacity

The dispute may be settled by mediation and may be used in mediation

The settlement between the parties is not contrary to the national or international legislation

The resulted agreements are enforceable

It became obvious that mediation in the field of cross-border disputes shows a high complexity element due to different legislations in the case, as well as due to different national jurisdictions. As a result, one must notice that the mediators involved in such cases shall have to make sure that the settlements that the parties shall reach do not breach the legislations in their originating states, inasmuch as the parties may wish to enforce the mediation agreement at a later time. The unanimously accepted conclusion at a European level stresses on the fact that such cases require specialized mediators and a clear framework legislation in the field of cross-border mediation. Directive 2008/52/EC take a first step in this respect, which imposes the argumentation that in the near future, there will be a need for other regulations that would refer to a much broader variety of disputes. With respect to the qualification of the mediators involved in cross-border mediations, it turns out that this is a fundamental requirement for outlining, at the level of the European Union, a favorable practice for the establishment and development of this area. The European mediator certificate is yet to happen but, we draw the conclusion that it is also a necessary thing, especially in the field of cross-border mediation, where the professional qualities of mediators should be at the highest standards in order to cope with the requirements from the beneficiaries of this alternative dispute resolution method. An additional difficulty element present in this type of mediations is given by the pertaining to different cultures of the parties involved in the procedure, of inherent language barriers, of different customs, etc. So, it shall be assumed that the degree of qualification of the mediators in the EU member states and the existing codes of conduct for mediators is proof of their performance, both by initial training at a high standard and by a uniformization of the training standard at an European Community level, especially in the case of professionals focusing on cross-border mediations. After having noted these remarks, we may still see that, in the member states, there are currently enough judicial guarantees in the field of mediation to consider that the mediators in the European Union may cope with cross-border mediation.

It is obvious that the notion of cross-border mediation does not refer only to the disputes mediated in the European Union member states. In contrast, we see that one must not misinterpret cross-border mediation for the purpose of European regulations (especially, Directive no. 2008/52/EC of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters), as the cross-border mediation defined in the general meaning.

Such a conclusion is similar to the mistake of identifying by synonymy of completely different concepts, such as “international” and “European”. We strongly believe that the literature, currently under expansion and further research, shall deal in detail with these differentiations, which is also to be expected at the level of the following European regulations in the field. We start from the prerequisite that the directive on mediation in civil and commercial matters is just a first step in the field of cross-border mediation and under no circumstances is it a final legal framework, impossible to improve. We consider that the constant concern of the European institutions in the field of uniformization is a good sign for the development of mediation and alternative dispute resolution methods across the continent, with the observance of certain high standards. It is advisable that, in the near future, the notion of cross-border mediation acquires, apart from the theoretical valences under consolidation at this time, the especially practical value, which is so necessary at a large scale in the European Union member states.

                       

Zeno Daniel Sustac

Zeno Daniel Sustac, PhD (born March 05, 1976)  is an arbitrator, attorney, insolvency  practitioner and mediator, Vice President of the Romanian Mediation Council, Co-President of the National Union of Mediators from Romania and Co-President of the National Union of Negotiators from Romania. He is an european expert in the field of cross-border mediation,… MORE >