In 2008 the EU approved Directive (2008/52/EC) (the Directive). The purpose of the directive was to facilitate greater access to dispute resolution across all member states and, to promote the use of mediation by requiring that all states make mediation a key part of legal proceedings. The Directive is especially focused on the amicable resolution of cross border disputes of a civil or commercial nature.
In response to the Directive the Czech Republic enacted the Czech Mediation Act in 2012 (Mediation Act). The goal of the Mediation Act is to require that parties to a dispute communicate with each other via an impartial third party who would assist the parties in reaching a voluntary settlement. The advantages of the Act include that it will give parties greater self-determination of the outcome. The Act also seeks to reduce the amount of cases taken to court and to reduce the financial burden placed on the parties. Prior to the implementation of the Mediation Act, mediation was governed by the probation and mediation service law which was concerned with criminal victim-offender matters.
Those who conduct the mediations must be registered mediators and the court requires the attainment of a university education to at least a master’s degree level. Additionally, prospective mediators must pass a mediators exam and meet other stringent criteria set out in section 16 of the Mediation Act.
The Czech Mediation Act does not govern agreements conducted by private mediators. Those who choose to use a private mediator will not be able to rely on the protections provided by the regulated form of mediation covered by the Act. The Act essentially creates a new form of contractual relationship, parties must both agree upon a suitable mediator and any other terms and conditions regarding the method of mediation and whether the mediation will run for a set time or indefinitely.
The Mediation Act empowers courts to order mandatory mediation where they deem it necessary, this push towards mandatory mediation has not been popular in Europe with most countries favouring a more voluntary approach. Prior to the EU Directive in 2008, there was reluctance by member states to have mediation or any form of ADR in domestic law. In Italy the EU Directive was incorporated into domestic law via a legislative decree, this decree gave the courts the power to authorise mandatory mediation and this power was challenged as unconstitutional. The Decree was ruled unconstitutional in 2012, but this ruling was overturned in 2013. To prevent the Decree from being ruled unconstitutional again, the Italian government made changes to the Decree which allow parties to withdraw from mediation earlier than previously allowed.
The Mediation Act has been met with much concern as there is a perception that engaging in mediation is a sign of weakness, for mediation to be successful it requires a degree of compromise amongst the parties and where this is not present the entire process is futile. In order for mediation to be more widely accepted by the business and legal community in the Czech Republic, more education is needed. There needs to be a greater focus on the advantages of mediation and its ability to truly meet client needs.
In 2014 the EU Parliament’s Committee for Legal Affairs published a Report into the effectiveness of The Directive. The Report concluded that after 5 years of the Directive being in force, mediation remains underutilised in many Member States and that the Directive is still some way off from achieving its objectives.Australia, and in particular Queensland has much to offer in terms of an effective approach to mediation.
Presently in Queensland mediation is a voluntary process, however many courts and tribunals offer compulsory mediation and the Family Court is one example. Section 60I of the Family Law Act 1975 (Cth) requires that parties attend compulsory family dispute resolution before a custody order can be made. One benefit of this is that it allows parties a method of resolving their dispute before embarking on a long and often expensive court process.
An advantage of the mediation process in Queensland is that it gives parties control over the outcome and provides for the possibility of a relatively harmonious relationship going forward, which is especially important in Family matters that involve children. The mediation process in Queensland is well developed and well-regulated and serves as an example of world’s best practice for our European counterparts.
Please find below some of the research material used and more information on this topic:
1 DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008.
2 Act on Mediation and Change of Some Laws (Mediation Act), 2012 (2)(a).
3 Morek, R. (n.d.). Mediation in the Czech Republic – Way forward: Act No. 202/2012 | Kluwer Mediation Blog.kluwermediationblog. Kluwer Mediation Blog. Retrieved from http://kluwermediationblog.com/2012/10/09/mediation-in-the-czech-republic-%E2%80%93-way-forward-act-no-2022012/
4 Act on Mediation and Change of Some Laws (Mediation Act), 2012 (16).
5 Morek, R. (n.d.). Mediation in the Czech Republic – Way forward: Act No. 202/2012 | Kluwer Mediation Blog.kluwermediationblog. Kluwer Mediation Blog. Retrieved from http://kluwermediationblog.com/2012/10/09/mediation-in-the-czech-republic-%E2%80%93-way-forward-act-no-2022012/
6 Drummond, I. (n.d.). Should mediation be mandatory? - Lexology. lexology. Lexology.com. Retrieved from http://www.lexology.com/library/detail.aspx?g=68019975-f314-4d43-8966-483af9e95667
7 European Parliament . 2014. European Parliamentary Committees. [ONLINE] Available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf. [Accessed 01 October 15].
8 Queensland Law Society. 2015. Mediation. [ONLINE] Available at:http://www.qls.com.au/For_the_community/Dispute_resolution_services/Mediation. [Accessed 01 October 15].
9 Family Law Act 1975(Cth) s60I.
Please note any views or opinions presented in this piece are solely those of the author and do not represent the views of the Rotaract Club of Brisbane Rivercity or Rotary International and its subsidiaries.