The Odyssey of Mediation in Greece
The Odyssey of Mediation in Greece
In May 2018, the profile of mediation in Greece suddenly rose with the enactment of mandatory mediation for certain civil disputes, a development considered by some to be a contradiction to the voluntary nature of mediation. Theoretically, mediation was not new: the well-known EU Directive 2008/52/EC was incorporated into the national legal system with Law 3898/2010, thereby laying down the legal framework for out-of-court dispute resolution. However, the number of mediations carried out in Greece since then has been disappointingly low, especially compared to the number of litigations that followed the court path and could have been mediated. The ordinary citizen did not have sufficient knowledge of mediation, given the lack of information from the state and from legal professionals; last year’s newspaper and news headlines spoke of compulsory mediation, without further explanation. Most lawyers treated the institution as a threat that would reduce their work during a long period of economic crisis in the country, thus creating negative publicity. Before mediation could have the chance to become part of our lives, many legal practitioners identified it as something negative and unconstitutional, arguing that it prevents citizens from appealing before the courts—a constitutionally-guaranteed right. Yet, no one spoke of the fact that mandatory mediation, as introduced by Law 4512/2018, simply established mandatory attendance of the parties at a first joint session to be informed about mediation and to explore the possibility of mediating their dispute: no obligation to participate further in the procedure was required. That way, the voluntary character of the procedure was legally ensured.
Pressures from the legal world, though, led the Ministry of Justice to suspending the implementation of the controversial article referring to compulsory mediation for a year, until September 2019. Nonetheless, mediation professionals (mediation bodies, entities that promote mediation, etc.) continued their efforts to inform the public and legal professionals about the advantages of mediation through seminars and workshops. The Ministry stated that the reason for suspending the implementation of Article 182 of Law 4512/2018 introducing compulsory mediation was to revise it to cover all aspects and problems pointed out by the legal world. Nonetheless, during this suspension period, the Greek Banking Association introduced an independent body to resolve financial disputes through mediation, in an attempt to respond to the need to settle debtors’ financial disputes amid a prolonged period of economic crisis in the country. After a year of waiting, this November the Greek Ministry of Justice introduced the new, revised Mediation Law 4640/2019, coming into effect gradually from 15 January 2020, which broadens the application of mandatory mediation to most civil and commercial disputes before Greek Courts. Law 4640/2019 provides that civil and commercial disputes of a national or cross-border nature, existing or future, may be subject to mediation, provided that the parties have the power to dispose of the subject matter pursuant to the provisions of substantive law. Prior to appealing to the Court, Law 4640/2019 introduces an obligation for the lawyer to inform her/his client in writing on the option of resolving the dispute, or part of it, through mediation before seeking recourse to the courts, as well as about the obligation to attend a mandatory first joint session to be informed about the possibility of mediating her/his dispute. This document must be signed by both the lawyer and the party and is submitted together with the civil action in order to be admissible. The above obligation is effective immediately following the enactment of the new Law, meaning after 2 December 2019. Civil and commercial disputes under the standard civil procedure falling under the competence of the Single and Multi-Member Courts of First Instance and certain family disputes will have to go through a mandatory first joint mediation session. This session shall take place no later than twenty (20) days after the mediator has received the request of a party seeking to recourse to mediation. If any of the parties resides abroad, the said deadline shall be extended up to thirty (30) days, following the day on which the request is sent to the mediator. The mandatory initial mediation session shall be confidential, and records shall not be kept. After the completion of the initial joint session, a report is drawn up by the mediator, signed by the mediator and all the participants, and if a lawsuit is filed or if it has already been filed, this report is submitted together with the action to the court. If not, the lawsuit is rendered inadmissable. This record shall indicate the manner in which the mandatory initial meeting was notified to the parties and whether they attended the meeting. The Law provides for certain monetary penalties in case one of the parties does not appear in the first joint mediation session. The Law came into force on 30 November 2019, however, states that the provisions on a first joint session will apply as from 15 January 2020 for family disputes and as from 15 March 2020 for lawsuits under the competence of the Single and Multi-Member Court of First Instance. Mandatory mediation as foreseen by Law 4640/2019 (mandatory participation in a first joint session) should not be treated as a panacea for the overcrowded Greek justice system and the Greek Courts. Indeed, positive results could be noticed in the long-term, but the so-far lack of information about mediation and the lack of a corresponding mentality are the main issues that need to be considered, following the introduction of mediation into our lives.