Mediation in Greece – How the “Journey” started and the Current Situation

Posted 16 Dec 2020

The Date, on which Greek Law 4640/2019 was passed. Almost 10 years after the first appearance of the Institution of Mediation in Greece^[1] and almost two years after a previous greek legislative effort^[2], that never entered into force. This new legislative initiative took place at a particularly crucial timing, that exists the last decade, through socio-economic changes in Greece and through a long economical crisis.

The changes that brings the new Mediation Law, are milestone in the promotion of a complete system of out-of-court dispute resolution. The structured promotion globally of this popular Institution, aims that the citizens will have the access to a quick, easy and economic method of dispute resolution. That is important because citizens gave up the efforts of claiming their right, up to now, because they couldn’t afford to reaching Courts, either for economic or for social reasons, and now they face a suitable for them alternative.

However, this ADR also aims to speed up the times that a resolution of disputes needed, and aims to decongest and stop overloading the courts, since, such an option, aspires to lead to the resolution of cases outside the courtrooms.

Due to all the above, the timing is considered appropriate, for Mediation to move forward. After all, the European but mainly the International trends and best practices, contribute to a promotion of alternative ways in resolving disputes.

Before examining the new Law for Mediation, there is a necessity to look back and understand what happened, all these 10 years, from the introduction of Mediation in Greece in 2010 until today. Why this Institution faced such a strong reaction all these years and how is Mediation faced today.

Historical reference

The European Directive 2008/52 /EC, was ratified in Greece with the enactment of Law 3898/2010. This Law introduced for the first time the concept of Mediation, as an alternative way of resolving disputes, in our country but also in cross-border disputes, ie disputes arising between human or legal personalities between at least two countries.

Unfortunately, at that time, Mediation couldn’t deliver the expected results, mainly for the reasons below:

– because of Mediation’s voluntary nature and

– because of non existing incentives in the application and preference of this ADR.

The numbers of concluded Mediation in Greece from 2010 until 2018, showed that the evaluation, that Mediation had not succeeded was not arbitrary.

Almost 10 years had passed and the cases that were concluded through this ADR were almost 50 in Greece. There was no willing of using this out-of-court method for resolving disputes, there was no public knowledge and awareness for Mediation, there was no willing from lawyers but also from judges to cast an eye to this ADR.

A very useful instrument for offering solution for many problems, was almost abandoned without having any chance.

Some small changes to the first Mediation Law, were occurred^[3]. One more positive thought, in favor of Mediation was that all the cases, that faced this ADR, even this small number of cases, had a successful outcome.

The academics who examined the application of this Institution, wondered strongly, why Mediation was inactive all these years, though the results proved that was a very successful ADR^[4].

At the same time, Courts were overwhelmed with cases, fact that caused the result that expensive Justice was slowing down.^[5]

As most of the countries, Greece faced and suffered, and has not recovered yet, from the global economical crisis. One of the reasons^[6], that has not been found any solution yet for recovering from that crisis, solution as the attraction of foreign investors, who will be willing to take the risk and invest in Greece, is the Justice case and its malfunction and disorder.

It had to be found a secure solution for this problem. The culture had to been changed.

And this change had already begun.

The last 3 years though, since 2017, some private entities have started to promote the Institution of Mediation. This “voice” started to be heard, and motivated and mobilized the gears of the Institution’s promotion mechanism.

Mediation started to move forward.

In 2018, Greek Legislator tried to transfer in Greek law system the Italian Model: Mediation had not to be completely voluntary. It had to be somehow “mandatory”. Of course it could not be selected a system that would promote mandatory mediation, because it was contra Constitutional Right to appear before a natural Judge^[7]. The first effort to transform the voluntary mediation to “somehow mandatory”, was held in January 2018, with the article 182 of the Law 4512/2018.

The obligation consisted to the below: Before the in court discussion of a case, the parties were obliged to TRY to resolve their dispute through Mediation. If the parties wouldn’t pass through that phase, the penalty was the claim would be considered/judged as inadmissible and the claimant would lose the case for typical reasons.

This provision was not for every case. There were limited cases that the provision would had applied, as:

Disputes between owners of intangible assets,
Disputes concerning claims of car damage,
Disputes for fees of article 622A of the Greek Procedural Code.
Family disputes, except those of paragraph 1 cases a΄, b΄ and c΄ and paragraph 2 of article 592 of the Greek Civl Code and Greek Procedural Code.
Disputes concerning claims for compensation of patients or their relatives against doctors, which arose during the exercise of the professional activity
Disputes arising out of infringement of trademarks, patents, industrial designs &
Disputes from stock exchange contracts and Financial Disputes in general.

Though that Law was a groundbreaking change, contributing the establishment of Mediation, and a huge innovation, there were strong reactions and disputes regarding the implementation of that Law. The most thunderous arguments against the implementation of Mediation Law of 2018, from lawyers and from judges, were the following:

Mandatory Mediation is contra its Nature as free willing & voluntary procedure, since this voluntary participation of the parties is the precondition for the proper implementation of mediation.
Compulsory Mediation jeopardizes Justice, and there is a risk of Justice privatization
Mediation removes cases from lawyers and from Justice.
It opposes article 20 par. 1 of the Constitution of Greece, according to which it is defined that “everyone has the right to be provided with legal protection by the courts…”.

According to the opposite justification, any issue of unconstitutionality was not raised by the introduction of a mandatory phase of an out-of-court effort, nor the Principle of free access to the natural Judge was violated with the new provision of article 182. After all it would be only an effort and not a complete procedure of Mediation. And that effort would be low cost and quick in time.

The above strong reactions, caused the 2 times suspension of that Law of 2018, and finally the Law was amended^[8].

The 7th of July 2019, was a date of elections in Greece, and there was a change to political field. The new Government passed immediately after being elected, the new Law of Mediation that is in action today, the final new Mediation Law 4640/2019, which was unanimously approved even be the Administrative Session of the Supreme Court.

Modern trends have shown that we live in a globalized environment, that individuals and businesses are moving fast and at the same time efficiently. There are great expectations, also in the field of Justice: the disputes that arise must be resolved in the shortest possible time and at the lowest possible cost.

Greece, as a country trying to monitor developments and adapt to greek mechanism, must become a competitive State, giving an additional incentive to any entity that wants to invest in its territory.

A quick overview of the new Mediation Law 4640/2019

Mediation is globally considered as a very popular institution, exactly because the cases are in the hands of parties, and the neutral third, the Mediator, only helps the disputed parties to reach their true interest and not being attached to their position.

In Greece Mediator has to be accredited by Ministry of Justice. That means that s/he must participate to a 80-hours compulsory course, having passed exams to the training entity and also having passed oral and written exams of the Ministry. No legal background is necessary but the candidates must retain a Degree of Higher Education. After achieving all these, mediators take a number of registry and are listed to the Mediators’ catalogue of the Ministry and of course can be selected for any civil -commercial etc mediation. Mediators must attend to lifelong mediation learning programs, every 3 years.

There are 2 kinds of Mediation:

There is the voluntary Mediation for any civil- commercial case, apart those who are not Mediatable, and
there is the mandatory First Attempt Session of Mediation^[9]. In that case the compulsory stage is limited only to one initial session with mediator ONLY for 2 kinds of cases:

The Family cases, apart from those marital disputes that cannot been mediated, such as divorce, recognition of the existence or non-existence of marriage, parent-child relationships regarding infringement of paternity, etc., parental responsibility, voluntary recognition of a child (recognition of existence / non-existence / invalidity, etc., infringement);
Claims-dispute with price over 30,000 euros and finally
Disputes originated from Contracts WHERE there is a written Mediation agreement, a valid Mediation clause.

A key Benefit of Mediation is, that in case of a successful dispute resolution, a MINUTE OF SUCCESSFUL RESOLUTION is drawn up, and this record can be submitted by any of the parties and at any time to the Registrar of the Court of First Instance, at the place of the dispute, and with a low cost procedure of Mediation and a small fee of 50 euros for the Mediation Minutes registry at the above court, the parties hold an Enforceable Title due to article 904 of Greek Procedural Code.

The Mediation procedure is described in articles 5-7 of the new Law. There are some written typicalities that must be performed, lack of which will lead to the loss of the cases if the Mediation will not end up with success and the Procedure in-courts will take place. If the parties cannot choose the common approval Mediator, there is a Central Committee of the Ministry of Justice that appoints the neutral third, the Mediator, from the Catalogue that all greek mediators are listed, due to their professional residence.

There are time limits for Mediation as the main procedure but also the Initial Mandatory Session. It cannot last forever it must ends up very quick because that is the key reason for a successful Institution: Resolves disputes very quick and with a low cost procedure.

Mediation’s key point: Qualified Mediator

Once again, Mediation is relied upon a qualified Mediator. On her/him the institution is depended. Her/his role, skills, abilities and personality can be the subject of a separate study, as these points are many and crucial.

There is no Mediation if there is no Mediator. But also there no Successful Mediation if there is no Capable Mediator.

Through her/his special mediation techniques, on which is initially trained but also continuously retrained, is called upon to communicate effectively with the parties who have a Dispute. Mediator does not guide the parties, at least in Greece. Does not propose solution, at least if s/he is not asked from the parties to do so.

S/He listens to the parties, s/he observes them, shows sympathy, helps them to realize their real problem, which is often overshadowed by various factors, such as selfishness.

S/he helps the parties to see their real interest and cuts them off from their positions.

The key point for a qualified Mediator, is Education and Experience. But also concentration, dedication, communication, immediacy, neutrality, objectivity.

How Mediator manages the characteristics of a dispute and chooses the adequate skills to each dispute, makes the difference of one Mediator from another. It is her/his stigma.

The fascinated point of the whole process, has to do with the fact, that any Mediation is never the same with another. Even if both Mediator and the parties are the same, still can be differences to the outcome of each case and how each case is developed.

It’s like many games of Chess between two same players: each game is different

Mediator, likely performs the role of “philosopher” in the allegory of Plato’s “Cave”:

Imagine a group of people, who live their whole lives being chained to the wall of a Cave, in such a way that they can only look in front of an empty wall. Not in other direction. These people look at the shadows, formed by the objects that pass behind them and think that their reality is what they face: the shadow. They don’t know the object only their shadow.

Finally, Mediator is called upon to untie the parties from their shackles and make them believe that reality is not the “shadows” that they think as real. Because the shadow was simply the image, of what they saw all the time they were chained. These bonds are their Positions. And their Positions ARE NOT THEIR INTERESTS! And the only one that can make them realize that is the Mediator.

^[1] The 1st Greek law by which Mediation was first introduced in Greece was 3898/2010, with which Greece was finally harmonized with the European Directive 2008/52 / EC.

^[2] The initial law of Mediation in Greece, in 2010, was amended for the first time in 2018, with the Greek law 4512/2018, which for the first time introduced Mediation as a mandatory stage for specific procedures (such as family cases, torts, medical errors, car accidents, financial disputes, etc.) Article 182. However, this law was suspended twice (first suspension until September 2019 and second until November 2019), because of the reactions both by the Lawyers and by the Judges in Greece. Eventually the law was never implemented and was replaced by the newer 4640/2019, which is finally in force.

^[3] as the accreditation of Mediators, for not only persons with legal background, but also other professionals, as psychologists, mechanics etc.

^[4] and though Arbitration, especially in Investment cases, in commercial cases etc, was preferred by the parties and their Lawyers.

^[5] many even simple civil cases had an average time for reaching an award (court decision), even for first instance’s cases, the 2 years and of course many of them faced the Appeal with further delays.

^[6] other is the taxation, the complexity in law system, the bureaucracy etc

^[7] Similar to Mediation, another practice existed, in article 214 A of the Greek Procedural Code, which was introduced by Law 2298/1995, but this practice was amended. This article concerned the attempt of the lawyers to find an out-of-court solution, with the presence of a neutral third party (if the parties wished that 3rd party), of common acceptance. Of course in practice the effective application of the provision had been weakened and this procedure remained inactive.

^[8] it was the first time that a greek law was so soon amended and particularly without having been in action. In particular, there was issued a decision by the Administrative Session of the Supreme Court, the decision No 34/2018, which had reached a majority judgement (21-17 members), that the provisions of Law 4512/2018 on compulsory mediation in civil and commercial matters were contrary to the provisions of Article 20 par. 1 of the Constitution, 6 par. 1, 13 of the ECHR and 47 of the Charter of Fundamental Rights of the EU.

https://drive.google.com/file/d/1AUBOpwCeaTKSPcQv9kn8GzIBlsbx1g2w/view Decision in greek

^[9] YAS is called in the new mediation law 4640/2019