Transcript DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY

Cardozo Journal of Conflict Resolution
Jed D. Melnick Annual Symposium 2014
New York City, 3 November 2014
Sleeping? Comatose? Only Mandatory
Consideration of Mediation Can Awake
Sleeping Beauty
in the European Union
Giuseppe De Palo
President, ADR Center – member of JAMS International (Rome, ITALY)
Professor of Alternative Dispute Resolution Law & Practice, Hamline University School of Law 1(St. Paul, USA)
DIRECTORATE GENERAL FOR INTERNAL
POLICIES
LEGAL AFFAIRS
‘Rebooting’ the Mediation
Directive: Assessing the Limited
Impact of its Implementation and
Proposing Measures to Increase the
Number of Mediations in the EU
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf
European Union Mediation
Directive (2008/52/EC)
Art. 1 of the Mediation Directive
The objective … is to facilitate access to alternative dispute
resolution and to promote the amicable settlement of disputes by
encouraging the use of mediation and by ensuring a balanced
relationship between mediation and judicial proceedings.
3
Key Features of the
Directive

Ensuring the Quality of Mediation- Article 4

Referral to Mediation - Article 5

Enforceability of agreements resulting from
mediation - Article 6

Confidentiality of Mediation - Article 7
4
Number of Mediations in 2011 (in
Top Performing Countries)
Bulgaria: 472
 Romania: 300
 Hungary: < 2000
 UK: < 8.000
 Italy: < 2000

The European Mediation Paradox
… a beautiful but dormant process
(despite the 2008 EU Mediation Directive)
5
5
The 2012 Hearing of European
Commission on Mediation
Pursuant to the balanced relationship requirement
shouldn’t the Commission take legal action against
the Member States, since they have failed to
achieve the balance between mediation and
judicial proceedings is actually attained?
http://www.europarl.europa.eu/sides/getDoc.do?type=OQ&reference=O-2012-000169&language=EN
6
Balanced Relationship Target
Number Theory
Each Member State must determine its
own BRTN = minimum percentage of cases
to be mediated to arrive at “balanced
relationship” with that of litigated cases.
Each Member State is free to choose the
appropriate policy tools to reach its BRTN
(mandatory mediation, information
sessions, financial incentives etc.)
Failure to set and reach BRTN = failure to
comply with the Directive
7
Subtitle
Main Rebooting Study Issues




The Directive’s rules on confidentiality are by some
Member States deemed not to be strict enough
Differing opinions on the role of legal professions
involved in mediation procedures
Uncertainty as to the precise scope of the exceptions to
the duty of secrecy and confidentiality;
How the provisions of the Mediation Directive giving the
possibility for courts to refer the parties to mediation
may have affected national procedural law
9
“It is regrettable that …. ADR has not been correctly
established and is not running satisfactorily in all
geographical areas or business sectors in the Union.”
10
The Rebooting Study Team
Giuseppe DE PALO, ADR Center – member of JAMS International;
Hamline University School of Law
Study co-authors
Leonardo D’URSO, ADR Center - member of JAMS International
Mary TREVOR, Hamline University School of Law
Bryan BRANON, Benjamin N. Cardozo School of Law, J.D.
Romina CANESSA, Benjamin N. Cardozo School of Law / ADR Center member of JAMS International
Beverly CAWYER, Pepperdine University, J.D.
L. Reagan FLORENCE, Hamline University School of Law, J.D.
11
The EU Parliament’s Study Goal:
Resolving the “EU Mediation Paradox”
1) Update the “Costs of Non Mediation” survey
2) Analyze the legislation implementing the Mediation
Directive in a number of Member States
3) Propose legislative measures to increase the use of
mediation across the EU
4) Propose non-legislative measures to increase the use of
mediation across the EU
12
Copertina Studio
http://www.europarl.europa.eu/document/activities/con
t/201105/20110518ATT19592/20110518ATT19592EN.pdf
13
13
14
Litigation vs. Mediation in Italy,
Belgium and EU
Litigation
Mediation
BELGIUM
Time
505 days
45 days
Cost
€ 16.000
€ 7.000
ITALY
Time
1.210 days
47 days
Cost
€ 15.370
€ 4.369
EU
Time (average)
548 days
Cost (average)
€ 10.499
88 days
15
€ 2.497
If All Cases Go to Mediation First …
and 50% Settle
Savings
BELGIUM
Time
207 days
Cost
€ 1.000
ITALY
Time
558 days
Cost
€ 3.315
EU
186 days
Time
Cost
16
€ 2.722
Time and Costs: Break-Even Point
in Belgium
Time Savings
9% of Success
Rate
Cost Savings
44% of Success
Rate
17
17
Time and Costs: Break-Even Point
in Italy
4%
Success
Rate
Cost Savings
Cost Savings (Euro)
Time Savings
€ 12,000.00
€ 10,000.00
€ 8,000.00
€ 6,000.00
€ 4,000.00
€ 2,000.00
€ 0.00
-€ 2,000.002%
-€ 4,000.00
-€ 6,000.00
3% 10%25%29%30%40%50%75%80%
Success Rate of Mediation
18
18
28%
Success
Rate
Time and Costs: Break-Even Point
in the European Union
19% of Success
Rate
Time Savings
24% of Success
Rate
Cost Savings
19
19
High Performance Even
at Low Success Rates
Savings of successful
mediation are much greater
than extra costs (i.e.,
mediation then litigation)
when mediation fails
20
Estimated Annual Number
of Mediations in the EU
Over 10 000: DE, UK, IT, NL
Between 5 000 and 10 000: HU, PL
Between 2 000 and 5 000: BE, FR, SL
Between 500 and 2 000: AT, DK, IE, RO,
SK, ES
Less than 500: BG, HR, CY, CZ, EE, FI,
GR, LV, LT, LU, MT, PT, SE
21
Estimated Annual Number
of Mediations in the EU
Over 10 000: DE, UK, IT, NL
Over 200
000
Italy
A bit more than 10 000 Germany
United Kingdom
Netherlands
22
Average Time of a Dispute in Days
566
Savings
240 days
326
Savings
354 days
212
Average time of
litigation in the EU
Average time of
mediation then
litigation (with 50%
mediation success rate)
23
Average time of
mediation then
litigation (with
70% mediation
success rate)
Average Cost of a Dispute in Euros
9 179
7 960
Savings
Savings
1 219
3 055
6 124
Average Cost of
Litigation in the EU
Average cost of
litigation if trial is
preceded by
succesful mediation
in 50% of the cases
24
Average cost of
litigation if trial is
preceded by
succesful mediation
in 70% of the cases
Legislative Measures That Have
Not Made Mediation Happen
1)
2)
3)
4)
5)
6)
Strong confidentiality protection
Judges pro-activity
Easy enforceability
Financial incentives
Lawyer duty to inform clients
Robust mediator accreditation systems
25
The Single Most Effective
Legislative Measure
270
Mandatory mediation in certain cases
Mandatory mediation info sessions
212
Financial incentives to mediate
188
Require counsel to inform parties of
mediation
142
105
Economic sanctions
Judges power to order mediation
90
Mandatory mediation with opt-out
85
26
The Single Most Effective
Legislative Measure
270
Mandatory mediation in certain cases
Mandatory mediation info sessions
212
Financial incentives to mediate
188
Require counsel to inform parties of
mediation
142
105
Economic sanctions
Judges power to order mediation
90
Mandatory mediation with opt-out
85
27
297
Organ Donations Graph, by Country
By Eric J. Johnson and Daniel Goldstein
https://www.academia.edu/5104501/Save_default_save_life
28
The Key is the DMV Form
Peopleif don’t
checktothe
box --- and
Check the box below
you want
participate
in the donor program
don’t join
Check the box below if you don’t want to participate in the donor
program
People don’t check the box --- and
do join
29
The Single Most Effective
Non-Legislative Measure
4,3
Mediation advocacy education
Pilot projects
4,2
EU-wide ‘settlement week’ programs
4,2
EU-wide mediation pledge
4,0
National mediation «champions»
4,0
3,9
EU ADR agency to promote mediation
3,8
EU certification of mediators
30
Will a «Culture of Safe Driving»
Alone Do it?
32
The Two «Fs»
Fight
Flight
32
33
The Italian Mediation Roller Coaster
Mandatory mediation
ends, number of
mediations plummets
Features of the Italian
System:
•Mandatory first meeting
in certain types of cases
•Nominal fee if parties
stop there
•Sanctions for not showing
up
• Tax incentives for settling
2012
2011
Mandatory
mediation
introduced,
numbers exceed
200,000 annually
2013
Mandatory mediation with optout introduced, number of
mediations back to over 200,000
33
Legislative Measures to Solve
the «EU Mediation Paradox»
1) Introduce “mitigated mandatory mediation” in
Mediation Directive and other EU legal instruments on
ADR (in force and being proposed), albeit on a
temporary basis, as a trial.
2) Insist that the Member State of the EU accept the
“Balanced Relationship Target Number” theory (given
the poor results of all other pro-mediation legislative
measures, alone or combined, it should lead the
Member States to do the same as above)
34
JAY FOLBERG PIC
35
Alternative Dispute Resolution: An Empirical
Analysis, Joshua Rosenberg and Jay Folberg
(46 Stanford Law Review 1538, July 1994)
"[T]his indicates that litigants and their attorneys often
followed the path of least resistance, simply staying on the
[ADR] track into which they were initially slotted regardless of
their judgments about the suitability of that track for their case.
What may appear to be complete freedom of choice to
participate in alternative dispute resolution may actually result
in no real choices being made at all."
36
36
37
The Study shows that the EU needs to learn from
this new Italian model and do more to encourage
mediation as an alternative to legal proceedings.
38
The UK Following the Rebooting Study?
National Family Mediation:
“If you are in dispute with your ex, or are having difficulties settling your separation,
you may be thinking about court proceedings. But before an application can be
made to court, you are now required to attend a Mediation Information
Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be
used to resolve your difficulties, rather than going straight to court.”
- http://www.nfm.org.uk/index.php/family-mediation/mediation-informationmeeting-miam
Lord Faulks QC, Minister of State for Justice, CMC 2014 Conference:
“The Ministry of Justice is also willing to reconsider compulsory
mediation information and assessment meetings – or MIAMs – in
civil claims”
39
Critique of ‘Rebooting Study’
1) The study methodology is flawed
2) Then number of settlements alone does not count
3) Mandatory mediation is forcing solutions down the throat of
litigants
4) And these poor litigants pay for court services
5) Mediation marketing, not Mandatory mediation, is the
solution
40
1) The Study Methodology is
Flawed

An entire chapter of the study is devoted to the
methodology

The Study does not recommend mandatory mediation but
only experimentation with mandatory elements, and on a
temporary basis

Need to look at the number of mediations taking place
where certain policies are (ore are not ) in place
41
Estimated Annual Number
of Mediations in the EU
Over 10 000: DE, UK, IT, NL
Between 5 000 and 10 000: HU, PL
Between 2 000 and 5 000: BE, FR, SL
Between 500 and 2 000: AT, DK, IE, RO,
SK, ES
Less than 500: BG, HR, CY, CZ, EE, FI,
GR, LV, LT, LU, MT, PT, SE
42
2) The Number of Settlements
Alone Does Not Count
Size (of the number of mediated settlements) does
matter, and users’ satisfaction matters, too
43
3) Mandatory Mediation is Forcing
Solutions Down the Throat of Litigants
Compulsion to mediation is different from
compulsion in mediation
44
4) And Litigants Pay For Court
Services

Not really, and certainly not in full:
• Italy litigants contribute 10.7%
• Romania litigants contribute 13%
• The EU average is 30%

The non-litigants, who pay 87% of the litigation tab,
have the right to ask litigants to try something else first
Data from the 2014 CEPEJ Report on «European Judicial Systems – edition 2014: efficiency and quality of justice»
(http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf)
45
5) Mandatory Mediation is Not
the Solution
It actually is, and a certainly better one than mediation marketing
46
47
Me and Mrs. Jones …
From: Giuseppe De Palo [mailto:[email protected]]
Sent: Thursday, October 02, 2014 3:53 PM
To: [email protected]
Subject: New York
Ciao Ivan
How are you? I know you are looking for good stuff. You’ll thus like the
attached. Sorry for my long silence re: Afghanistan. All is good and I will send a
long message shortly.
Best,
G
48
Da: ivan verougstraete [mailto:[email protected]]
Inviato: giovedì 2 ottobre 2014 22:24
A: 'Giuseppe De Palo'
Oggetto: RE: sleeping beauty
As far as I remember, the Prince gave only a gentle kiss and did not exert any authority. But I liked
the stuff anyway!
Yours ever,
Ivan
From: Giuseppe De Palo [mailto:[email protected]]
Sent: Thursday, October 02, 2014 3:53 PM
To: [email protected]
Subject: New York
Ciao Ivan
How are you? I know you are looking for good stuff. You’ll thus like the attached. Sorry for my long
silence re: Afghanistan. All is good and I will send a long message shortly.
Best,
G
49
Da: Giuseppe De Palo [mailto:[email protected]]
Inviato: venerdì 3 ottobre 2014 08:53
A: ivan verougstraete
Oggetto: R: sleeping beauty
EXACTLY! He kissed her without consent (or assuming her consent). Also, the magic required some physical
contact. This is what happens with mandatory mediation with opt out: you must physically meet with the
mediator and the other side, but you can walk away without paying for mediation, ie, without keeping on
kissing the beauty (ie, conducting a full-blown mediation), let alone marrying her (ie, settling the case.)
I rest my case against you, but maybe I have none. You liked this, in fact!
Have a great day!
Yours,
G
Da: ivan verougstraete [mailto:[email protected]]
Inviato: giovedì 2 ottobre 2014 22:24
A: 'Giuseppe De Palo'
Oggetto: RE: sleeping beauty
As far as I remember, the Prince gave only a gentle kiss and did not exert any authority. But I liked the stuff
anyway!
Yours ever,
Ivan
50
Thank you for your Princely Job!
[email protected]
51