Rita Pereira
Sara Garcia
Mediation
 A form of alternative dispute resolution (ADR)
 A way of resolving disputes between two or more
parties (which yields actual results)
 Participation of a third party: the mediator
 The mediator assists the parties to negotiate a
settlement
The mediator
 The mediator acts as a neutral third party and
facilitates rather than directs the process
 He/she must be: independent and impartial, neutral
Key Words
 Empowerment
 Interests
The solution lies within the parties
 Facilitate (eased) mediation: the mediator
helps the parties achieving a settlement,
without suggestion or personal interference
of any kind (“real mediation”)
 Interventional mediation: the mediator
has an active role, proposing possible
solutions and influencing the parties
Mediation: what are we talking
about?
Mandatory
mediation
Induced
mediation
 Mandatory mediation: legal imperative
There is a legal disposition that imposes mediation
before you go to court.
 Induced mediation: sanction
If you do not choose mediation you have to pay a fine or
the court fees.
Attention: we should distinguish this theme from that of
“mediation conventions”.
Directive 2008/52/EC of the European
Parliament and of the Council of 21 May
2008
On certain aspects of mediation in civil and
commercial matters
2
The principle of access to justice is fundamental and,
with a view to facilitating better access to justice, the
European Council at its meeting in Tampere on 15 and
16 October 1999 called for alternative, extra-judicial
procedures to be created by the Member States.
12
This Directive should apply to cases where a court refers
parties to mediation or in which national law prescribes
mediation.
Article 3
Definitions
“Mediation” means a structured process, however named
or referred to, whereby two or more parties to a dispute
attempt by themselves, on a voluntary basis, to reach
an agreement on the settlement of their dispute with the
assistance of a mediator. This process may be initiated by
the parties or suggested or ordered by a court or prescribed
by the law of a Member State.
 Is there a contradiction?
 The directive does not take position.
 Mandatory mediation: one of the possibilities
Peace Courts Law
Art. 35.º
(Of mediation and the functions of the mediator)
1 - Mediation is a form of extrajudicial dispute resolution, of
private, informal, confidential, voluntary and non judicial
nature, where the parties, with their active and direct
participation, are aided by a mediator in finding, by their
own, a negotiated and friendly solution to their dispute.
The portuguese solution
 Art. 3.º, n.º 5 of the Penal Mediation Law
The mediator contacts the accused and the victim in
order to obtain their free and informed consent to
mediation. He/she informs them of their rights and
duties and of the nature, purpose and rules applicable
to the mediation process, verifying if they gather the
necessary conditions to participate in that process.
Family mediation
 The parties that have a family dispute can submit it to
mediation, voluntarily and through a joint decision.
The judge can also determine mediation, at the parties
request or of his own motion after obtaining their
consent.
Portuguese Civil Procedure Code
 Art. 447.º - D
(Custas de partes – Parties costs)
It establishes that the plaintiff’s own costs are supported
by him if, being able to resort to alternative dispute
resolution methods, he chose not to do it.
ATTENTION: However, this norm does not apply yet
because there is still no Ministerial Order to materialize
it.
Portuguese Civil Procedure Code
 Art. 279.º-A
(Mediação e suspensão da instância – Mediation and
stay of proceedings)
1 - At any stage of the cause, and whenever he/she deems
appropriate, the judge may decide to refer the case to
mediation, suspending the proceedings, unless any of the
parties expressly opposes such a referral.
2 - Notwithstanding the preceding paragraph, the parties
may jointly elect to resolve the dispute by mediation (...)
Two questions to consider:
A) Is mandatory mediation
unconstitutional?
B) Is it a productive/useful method?
Principles in danger…
 Acess to Justice
 Right of action
Article 20.º – The portuguese Constitution
Article 6.º - The European
Convention on Human Rights
a) Constitutional perspective
 Some political systems where mandatory
mediation is not considered
unconstitutional:
Germany
Italy
USA
Germany
 Section 15a of the Introductory Act to the Code of Civil
Procedure (EGZPO)
A state (Land) law can determine that the filing of the
action in minor cases is not permissible before an
attempt has been made by a conciliator set up or
recognised by the Land administration of justice, to
resolve the dispute by mutual agreement.
Some political systems where mandatory mediation is
considered unconstitutional:
 Austria – Supreme Court - 1997
 UK – Supreme Court of Judicature – 2004
Halsey case
 Mozambique
Mandatory mediation:
 Is it a restriction of a fundamental right?
 According to article 18 of the Portuguese constitution:
Principle of proportionality: 3 aspects
- Need
- Adequacy
- Proportionality strictu sensu
KERN – Core of the
right
b) Is it a productive/useful method?
 Approaching citizens and the justice system
 Celerity of the process and low costs
 An incentive to learn/be informed about it
 Evolution on mediation methods
 Preservation of social and family relations
 Free the justice legal system of legal trifles
 Avoiding pressure from public trials
 Guarantee of a fair solution
On the other hand…
 Waste of time and money
 The parties are forced to mediate and probably the
result will not be successful
 Seen as a step until court, delaying the process
 There is a huge risk: agreeing to a bad agreement
because of a bad mediator
 Information will not be made public
 Mandatory mediation as a “temporary fatality”:
creating a mediation culture.
 But: until when?
Conclusion: possible solutions
 Mandatory mediation restricted to some legal areas
and excluding the possibility of resorting to the justice
legal system
 A mediation “try-out” as a necessary step before
resorting to the justice legal system
 Mandatory session of information on mediation before
being able to resort to the justice legal system (Ursula
Caser)
— Incentives: trial fees and costs
Summarizing
Mandatory mediation is a legitimate possibility provided
that certain requirements are met:
 Short maximum terms and reasonable costs
 Impartiality and independence of the mediator
 Confidentiality (protection of the content discussed at
the mediation sessions)