SUPREME PEOPLES COURT OF VIET NAM EUROPEAN UNION UNITED NATIONS DEVELOPMENT PROGRAMME REPORT ON ASESSMENT OF THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN VIETNAM (bao cao danh gia thi diem hoa giai tai

2 Mediation and dialogue in civil and administrative procedure Vietnam's Civil Procedure Code stipulates that mediation is a basic principle of civil proceedings, conducted to resolve c

SUPREME PEOPLE’S

COURT OF VIET NAM

DEVELOPMENT PROGRAMME

REPORT

ON ASESSMENT OF THE PILOT MODEL

ON COURT ANNEXED MEDIATION AND DIALOGUE IN VIETNAM

May 2020

2

THE RESEARCH GROUP

1 Assoc.Prof.Dr Nguyen Ba Binh – Team leader – UNDP’s consultant

Dean of Faculty of International Trade and Business Law,

Hanoi Law University (Vietnam)

Arbitrator at Vietnam International Arbitration Centre (VIAC)

2 Assoc.Prof.Dr Tran Anh Tuan – Team member – UNDP’s consultant

Vice Dean in Charge of Faculty of Civil Law

Hanoi Law University (Vietnam)

3 Prof Michael R Schuetz – Team member – UNDP’s consultant

Head of Rule of Law

Organization for Security and Cooperation in Europe

Mission to Bosnia and Herzegovina

4 LL.M Hoang Thi Thuy Vinh – Supporter

Deputy Director General

Department of Legal Affairs and Research Administration

The Supreme People's Court (Vietnam)

5 PhD Candidate Phan Thi Thu Ha – Supporter

Deputy Head

Department of Legal Affairs and Research Administration

The Supreme People's Court (Vietnam)

6 LL.M Ha Le Thuy – Supporter

Department of Legal Affairs and Research Administration

The Supreme People's Court (Vietnam)

7 PhD Candidate Pham Thi Hang – Supporter

Department of Legal Affairs and Research Administration

The Supreme People's Court (Vietnam)

Chart 4: Data on successful mediation of marriage cases;

Chart 5: Ages of divorce in 2019;

Chart 6: Marriage case with children under 18 years old;

Chart 7: Source of Mediators and dialoguers;

Chart 8: Enforcement percentage of successful mediation and dialogue; Chart 9: Time to carry out a case of mediation or dialogue;

Chart 10: Benefits received by the parties after successful mediation and dialogue;

Chart 11: Contact method between the mediator/dialoguer and the parties;

Chart 12: Location for conducting mediation and dialogue;

Chart 13: Reasons for choosing to be mediators and dialoguers;

Chart 14: Desires of mediators and dialoguers;

Chart 15: Case of mediation, dialogue with the assistance of prestigious people;

Chart 16: Mediators and dialoguers’ choice of remuneration methods;

Chart 17: Mediators and dialoguers’ need of training and retraining

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TABLE OF CONTENTS

Page

I THE PILOT MODEL ON COURT ANNEXED MEDIATION AND

DIALOGUE IN RELATION TO EXISTING COURT PRACTICES …… 6

1.1 Background ……… ………… … 6

1.1.1 Situation of resolving civil and administrative cases in Court …… … 6

1.1.2 The operation of current mediation and dialogue mechanisms in Vietnam……… … 7

1.2 Basic contents of the pilot model……… ………… …………9

1.2.1 Scope and object ……… ………… ……….……… 10

1.2.2 The subjects which carry out mediation and dialogue ……… …….…10

1.2.3 Role of Court ……….……….…… …10

1.2.4 Time limitation for mediation and dialogue ……… ….11

1.2.5 Information confidentiality in mediation and dialogue ………….… 11

1.2.6 Procedure for mediation and dialogue ……… ….11

1.2.7 Recognition of successful mediation and dialogue ………….… … 12

1.2.8 Handling unsuccessful mediation and dialogue ……… ….…14

II INTERNATIONAL BEST PRACTICES IN COURT ANNEXED MEDIATION ……… … 14

2.1 Court Annexed Mediation in Context ………… ………14

2.2 Case Studies……… ……….……16

2.3 A Review of Court Annexed Mediation Characteristics ……… … …25

2.3.1 The Role of the Court and the Judge in CAM……….………25

2.3.2 Judicial Conciliation and Settlement in Relation to CAM ……… 27

2.3.3 Competencies and Accreditation of Mediators ……… …… 28

2.3.4 Procedural and Administrative Issues ………29

III FINDINGS BASED ON AN ASSESSMENT OF IMPLEMENTION OF THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE ……….……… ………34

3.1 Summary of survey program …………34

3.2 Achievements of the pilot ……… ……… … …35

3.2.1 Regarding the mediation and dialogue results according to case types … 35

3.2.2 Mediation and dialogue results for disadvantaged groups ……… … 36

3.2.3 Capacity of mediators and dialoguers ……….40

5

3.2.4 Illustrations of successful mediation and dialogue……… … …41

3.2.5 Enforcement of successful mediation and dialogue ……… …46

3.2.6 Saving of time and costs for parties in mediation and dialogue and the proceeding agencies ………46

3.3 Basic factors for success ………48

3.3.1 Flexibility in mediation and dialogue procedures … ………48

3.3.2 The capable and dedicated mediators and dialoguers ………….… …49

3.3.3 Support of the Court and other authorities and institutions …… ……50

3.4 Some difficulties and challenges ……… …52

3.4.1 On selection, appointment and management of mediators and dialoguers……… ……… ……52

3.4.2 On procedures for mediation and dialogue ……….……… ……52

3.4.3 On trust and support of the people …….……….………53

3.4.4 On funding and infrastructure ……….53

IV RECOMMENDATIONS ………54

4.1 On some contents of a draft Law on court annexed mediation and dialogue in Vietnam ……… ………54

4.1.1 Scope and subjects ……… …54

4.1.2 The subjects which carry out mediation and dialogue………54

4.1.3 Role of Court ………56

4.1.4 Procedures for mediation and dialogue ……… …….57

4.1.5 Recognition of successful mediation and dialogue ……… 58

4.1.6 Handling of unsuccessful mediation and dialogue ………59

4.2 On implementation of the Law ……… ……….……… 59

4.2.1 Dissemination of the Law and public awareness ……… ….59

4.2.2 Selecting, fostering and managing mediators and dialoguers …….… 59

4.2.3 Getting assistance from relevant agencies and organizations …… …60

4.2.4 On the development of mediation and dialogue centers in the future 61

4.2.5 Other issues ……… ……61

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I THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN RELATION TO EXISTING COURT PRACTICES

1.1 Background

1.1.1 Situation of resolving civil and administrative cases in Court

In 2013, Vietnam promulgated a new Constitution1, which stated that: People’s courts are the agencies that adjudicate and exercise judicial power People’s courts have the duty to safeguard justice, human rights, citizens’ rights, the socialist regime, the interests of the State, and the lawful rights and interests

of organizations and individuals2 According to the above functions and duties the People's Court, together with the amendments and supplements of the new laws, the 2015 Civil Procedure Code and the Administrative Procedure Code were born with more extended authorities for the Courts3, for example, adding the recognition authority to successful mediation outside the Court - Article 27, the resolution authority to land without use right certificate - Article 26, surrogacy related requirements in accordance with the law on marriage and family - Article 29, Article 43…; along with the economic and social development, the Courts have to accept and handle increasing disputes and lawsuits both in quantity and complexity In 03 years of 2016, 2017 and 2018, the district and provincial People's Courts solved 1,035,478 civil, marriage and family, business, commerce and labor cases out of a total of 1,196,487 accepted cases; in which, in 2017: 394,970 cases were accepted (increased by 41,521 cases, up 11.8%, compared to 2016), in 2018, 448,068 cases were accepted (increased by 53,098 cases, up 13.4%, compared to 2017))4

Meanwhile, the current number of staffs on the payroll does not meet the requirements compared to the organizational structure, apparatus, duties and competence of the Courts Besides, from the end of 2017, all levels of the People's Court had to reduce the number of staffs on the payroll according to the Party's general policy5

In this context, to keep up with the workload while reducing staff improving the resolution effectiveness of mediation in civil cases, dialogue in administrative complaints is one of the central solutions to enhance court work quality, create a fundamental change in the performance of work tasks in general and the settlement and adjudication of civil and administrative cases in particular

(1) Mediation and dialogue out of civil and administrative procedure

Vietnamese current laws stipulate a number of non-procedural mediation mechanisms such as: (i) Grassroots mediation in accordance with the Law on Grassroots mediation; (ii) Mediation of labor disputes in accordance with the Labor Code6; (iii) Commercial mediation in accordance with the Commercial Law7; (iv) Mediation of land disputes by commune-level People's Committees in accordance with the Land Law8 and some other types The common feature of these mediation mechanisms is that they are conducted by individuals and organizations outside the court, for disputes that have not been accepted and settled by the court in accordance with the proceedings, therefore such mediation mechanisms are also known as out-of-court mediation The results of successful mediation outside the Court by the above-mentioned agencies, organizations, individuals and competent persons shall be considered and recognized by the Court upon issuance of the decision as requested9 Regarding

to dialogues, the laws also provide out – of – court dialogue mechanisms such as: Dialogue between the complainants, respondents and relevant agencies, organizations and individuals in accordance with the Law on Complaints10 If the above process of mediation and dialogue ends unsuccessfully, people have the right to sue and request the Court to resolve

The average successful rate of grassroots mediation mechanism is 82.06% (323,046/ 393,649 cases)11 However, the number of cases conducted by grassroots mediators only accounts for 32.9% of those handled by the courts (393,649/1,196,487 cases), mostly for small conflicts and disputes At the same time, the number of successful mediation cases at grassroots level tends to decrease over the years (there were 115,651 cases in 2016, 108,757 cases in

2017 and 98,638 cases in 2018, respectively)12 The labor mediators conduct a small number of labor disputes and have just begun to participate in resolving several individual labor disputes in some big cities and provinces such as Ho Chi Minh City, Dong Nai and Binh Duong (on average, each mediator deals

Mediation at the People's Committee of the commune where the land related to land disputes is located - Article

202 of the 2013 Land Law; Labor mediators conduct mediation for individual labor disputes - Article 201 of the

8

with about 10 cases/year)13 In addition, there are 08 commercial arbitration centers that have trade mediation function since April 201714 Up to now, there has been no official report on trade disputes resolved by trade mediation.15 However, due to being in operation for a short time16, these centers have very few cases of mediation, even typically Vietnam Mediation Center (VMC) of Vietnam International Arbitration Center (VIAC - a major and prestigious arbitration center in Vietnam), successfully managed to settle only 05 commercial disputes after one year of operation (from April 27, 2018).17 But it should be noted that the value in controversy in those cases is very large18

Thus, the out-of-court mediation mechanism has achieved certain results, contributed to the reduction of cases brought to the Court However, the number

of out-of-court mediated disputes accounts for only a small portion compared to the number of disputes accepted and resolved by the Court every year

(2) Mediation and dialogue in civil and administrative procedure

Vietnam's Civil Procedure Code stipulates that mediation is a basic principle

of civil proceedings, conducted to resolve cases of civil disputes, marriage and family, business, commerce, labor and request on recognition of divorce, agreement on child custody, asset division upon divorce (hereinafter referred as civil cases) Accordingly, the judge assigned by the Chief Judge to resolve civil cases is responsible for conducting mediation in the stage of preparation for first-instance trial19 The judge performs two main tasks when conducting mediation, which is (1) to inform involved parties about the legal provisions related to the case resolution and (2) to analyze legal consequences of successful mediation for the parties20 The mediation/dialogue plan is on the parties’ initiative

The Administrative Procedure Law stipulates that the Court is responsible for conducting dialogues and creating favorable conditions for involved parties

to talk to each other about the administrative case resolution in accordance with this Law21 The role of judges in administrative complaint dialogue is similar to that in civil dispute mediation The difference between "mediation" and

"dialogue" originates from the nature of "agreement" in resolving civil disputes

Report No 56/BC-TANDTC - p.12

16 Decree No 22/2017/ND‐ CP on commercial mediation promulgated in mid-2017, it was not before the end

of December 2018 that commercial licenses were awarded to qualified commercial mediation centers, and May

2019 that the Ministry of Public Security provided seal samples for the centers to officially come into operation

Provisions on dialogue in administrative proceedings prescribed in Article 20, from Article 134 to Article 139

of the 2015 Law on Administrative Procedure

9

and the nature of "non-negotiability" in resolving administrative lawsuits as the defendant is governmental administrative management agency Therefore, the result of successful dialogue is limited to the parties' agreement on the legality

of administrative decisions and administrative acts

Up to now, the average rate of successful mediation in resolving civil cases of the Court has reached 50% of cases which referred to mediation annually22 Meanwhile, the average successful dialogue rate is 10% (13.63% at district level, 6.21% at provincial level)23 These figures show a certain success

of mediation and dialogue in proceedings However, practices of civil disputes and administrative lawsuits resolution at the Court also reveal several limitations, shortcomings in the current mediation and dialogue mechanism in proceedings, typically two following issues:

Firstly, regarding subject who conducts mediation, dialogue: A judge who conducts the mediation or dialogue is also the person who adjudicates the case if the mediation or dialogue fails, therefore he is bound by the procedural regulations, such as verification and collection of evidence as required24, mediation is only limited to informing the involved parties about legal provisions related to case resolution for a reference to their own rights and obligations, analyzing legal consequences of successful mediation for voluntary agreement with each other on case resolution25, hard to play an active role in propose mediation and dialogue plan for the parties On the other hand, the involved parties often have a cautious mentality when presenting to the Judge because their presentation may become detrimental evidence for them Therefore, the causes of contradictions and disputes are difficult to be solved thoroughly, thereby the effectiveness of mediation and dialogue is limited

Secondly, regarding the mediation order and procedures: mediation and dialogue are conducted by strict and public order and procedures at the court headquarters and during office hours, therefore the flexibility in procedures, time, location and information security in mediation and dialogue are not provided

Given the increasing number of cases in both quantity and complexity, and in the context of downsizing, as described in the above subsection 1.1.1, the renovation of mediation and dialogue mechanisms is an appropriate solution proposed by the Supreme People's Court

1.2 Basic contents of the pilot model

The pilot model on court annexed mediation and dialogue is based on the renovation of two important factors, namely, the subject who conducts mediation, dialogue and the order, procedures for mediation and dialogue, as follows:

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1.2.1 Scope and object

Under the pilot model, the mediation of civil, business, commercial, marriage and family, labor disputes (hereinafter referred to as civil disputes), dialogue of administrative complaints in People's courts are conducted before the courts accept and settle them except for disputes and lawsuits which are not subjects for mediation, dialogue or unable to conduct mediation, dialogue in accordance with the provisions of the Civil Procedure Code, the Law on Administrative Procedures.26

Mediators and Dialoguers are selected from retired judges; those who used to be Procurators, Investigators, legal experts in Courts, procuracies, Police offices, Judicial Execution agencies, other Party and State agencies of the internal affairs division; lawyers, jurists, people's jurors or other people with legal knowledge, good health, good moral qualities, competence, experience in mediation, dialogue and prestige in the community

Mediation and dialogue centers have been established in a number of district and provincial People's Courts of 16 pilot-selected localities28 The Chief Judge or Deputy Chief Judge of the pilot-applied Court is the Director of the Mediation and dialogue Center at the Court

1.2.3 Role of Court

The court performs the following main role:29

- Select, appoint and train skills and knowledge for mediators and dialoguers; provide guidance on mediation and dialogue activities; assign the mediators and dialoguers to specific cases

- Assign people to perform administrative and judicial tasks, record mediation, dialogue minutes (when required);

- Recognize the successful mediation results according to the civil procedure, recognize the divorce agreement, agreement on children custody, assets division upon divorce if requested; return the petition when the petitioner withdraws the application; receive and consider case acceptance when mediation

PC of April 16, 2018 (hereinafter referred to as Official Dispatch No 48/TANDTC-PC) - p.3

27

Official Dispatch No 308/TANDTC-PC of October 9, 2018 of the Supreme People's Court guiding a number

of activities to prepare for pilot implementation of innovating, strengthening mediation and dialogue in 16 provinces and municipalities - p.3

28 Hà Nội, Hải Phòng, Bắc Ninh, Vĩnh phúc, Quảng Ninh, Thái Bình, Thanh Hóa, Quảng Nam, Nghệ An, Đà Nẵng, Khánh Hòa, Đồng Nai, Hồ Chí Minh, Bình Dương, Long An, Cần Thơ

29

Official Dispatch No 48/TANDTC-PC – p.3

11

pay remuneration for activities of mediator and dialoguers

Within 20 days after being assigned, the Mediator and Dialoguer must conduct mediation and dialogue In case of complicated cases where there is a need of documents and evidence supplementation from parties participating in mediation and dialogue or at their legitimate requests, this time limit may be extended but not exceeding 10 days

The time limit for mediation and dialogue is 30 days from the assignment

by the court until the mediation/dialogue minute is made by mediator/dialoguer;

In case of necessity, it may be extended, but not exceeding 2 months

(1) The testimony of one party or others participating in mediation, dialogue must not be used as evidence in civil procedures, administrative proceedings or other proceedings, except for the case that the parties participating in mediation, dialogue agree in writing about not requiring confidentiality during mediation, dialogue or there is information related to crimes or other serious legal violations

(2) Any information exchanged between a party and the mediator, dialoguer in a private meeting is confidential and must not be disclosed to any other party participating in the mediation or dialogue, unless the information provided party agreed in advance

(3) No audio, video recording or official minute recording at any stage of the mediation, dialogue procedure, except the mediation minutes, dialogue minute at the conclusion of the mediation, dialogue session and the notes of mediator, dialoguers to serve the conduct of mediation and dialogue

(4) Mediator and dialoguer must not participate as witnesses in the process of court proceedings or administrative complaints to settle disputes and lawsuits they have conducted mediation or dialogue

(1) Procedures for receiving and transferring lawsuit petitions to the Mediation and Dialogue Center in Court

Right after receiving the civil lawsuit petition, the administrative lawsuit petition and accompanying documents and evidences, the Court must forward the petition to the Mediation and Dialogue Center at the Court; except the cases which do not fall under the Court’s jurisdiction, the cases which are not allowed

30

Official Dispatch No 310/TANDTC-PC of October 11, 2018, of the Supreme People's Court, guiding the pilot implementation of innovating, strengthening mediation and dialogue in resolving civil disputes and administrative complaints at the People's Court (hereinafter referred to as Official Dispatch 310/TANDTC-PC) - p.7

31 Official Dispatch No 310/TANDTC-PC – p.8

32

Official Dispatch No 310/TANDTC-PC – p.1-7

12

for mediation or dialogue under the provisions of the Civil Procedure Code, the Administrative Procedure Law or when filing lawsuits petition, the petitioner disagrees with mediation or dialogue at the Mediation and Dialogue Center at the Court At the same time, the Mediation and Dialogue Center at the Court can accept the parties’ request for mediation, dialogue to the dispute and the lawsuit

Within 03 working days from the case file receipt, the Director of the Mediation and Dialogue Center at the Court must assign a mediator or dialoguer

to consider and conduct mediation or dialogue in accordance with his knowledge and experience

(2) Preparation for mediation, dialogue

In order to prepare for the mediation or dialogue, the mediator or dialoguer must carry out specific activities, including: setting up and studying case files; developing a mediation or dialogue plan; Inviting participants to take part in mediation or dialogue session

(3) Mediation, dialogue sessions

Mediation and dialogue session shall be conducted according to the following procedures:

- Starting a mediation or dialogue session: Before conducting mediation

or dialogue, the mediator or dialoguer checks the presence and identity of participants in mediation and dialogue sessions; announce the presence and absence of the parties; introduce participants in mediation and dialogue session

- Conducting a mediation or dialogue session: the mediator, dialoguer analyzes the benefits of successful mediation, dialogue at the Mediation and Dialogue Center at Court compared to the Court's acceptance and settlement according to legal regulations (court fees, other procedural expenses, costs of judgment execution, information confidentiality ), follows the developed mediation, dialogue plan to conduct; use his skills and experience to ask questions, guide, explain and persuade the parties to reach agreement on solutions to settle disputes and complaints

- Making a mediation, dialogue minutes: At the conclusion of mediation, dialogue session, the mediator or dialoguer makes a mediation or dialogue minutes clearly expressing the results of successful mediation or dialogue, unsuccessful mediated or dialogued contents (without stating the reason for the unsuccessful mediation or dialogue) with signatures or fingerprints of the parties and of the mediator or dialoguer

Through mediation, if the parties reach an agreement on issues that must

be resolved, the successful mediation minutes must be clearly stated the agreed

33

Official Dispatch No 310/TANDTC-PC - p.8

13

issues If a party or parties in dispute request the Court to recognize the successful mediation result, the mediator shall guide that person to make an application to request Court’s recognition of successful mediation result and transfer the dossier, application and mediation minutes for the Court The Court shall consider accepting and handling civil matters on the recognition request of successful mediation result outside the Court in accordance with Chapter XXXIII of the Civil Procedure Code

In case of divorce, dispute about children custody, asset division upon divorce but after mediation, husband and wife disagree with reunion, but have agreement of divorce, child custody, asset division upon divorce and request the Court’s recognition, the Center shall transfer case files and minutes to the Court The Court shall consider the case, if the dossier is complete under the provisions

of Chapter XXVIII of the Civil Procedure Code regarding procedures for settling requests for recognition of divorce, child custody, and asset division upon divorce, the Judge (who was assigned to witness and sign the records) immediately accepts the civil matter After accepting, the Judge will check the dossier and issue a recognition decision of the divorce, child custody and asset division agreement upon divorce according to Article 212 of the Civil Procedure Code if he finds the agreement on divorce, child custody, asset division upon divorce completely voluntary, not violating the legal prohibition, not contrary to social ethics and there is no involved parties’ opinion change on such agreement after 7 days of records made (Judges shall not conduct mediation again)

If by dialogue, the defendant commits to amend, supplement, replace, cancel the decision being sued or terminate the administrative act being sued and the petitioner commits to withdraw the petition, the dialoguer shall make a minutes of their commitment Within 15 days from the date of making the minutes, the defendant must send to the Centre a new administrative decision or notify the termination of the administrative act being sued and the petitioner must send to the Centre a petition withdraw document If either of the parties fails to fulfill its commitments after the time limit, the dialoguer will notify the Director of Centre, transfer the dossier and the dialogue minutes to the Court for consideration and acceptance according to provisions of the Administrative Procedure Law In case of receiving a new administrative decision, the Center must notify the other party Within 03 days after receiving the Centre’s notice, if the other party does not have any objections, the dialoguer will notify the Director of Center, transfer the dossier, the dialogue minutes, and the new administrative decision to the Court The court will issue a recognition decision

of successful dialogue result

14

If there is no agreement on issues needed to be resolved after mediation or dialogue session, the mediation or dialogue minutes must specify the disagreed contents Mediator, dialogues conductor shall notify the Director of the Mediation and dialogue Center at the Court, transfer the dossier and mediation

or dialogue minutes of mediation to the Court for consideration and acceptance according to provisions of the Civil Procedure Code, the Law on Administrative Procedure

The statute of limitations for initiation of a civil or administrative lawsuit shall comply with the provisions of the Civil Code, the Civil Procedure Code and the Administrative Procedure Law The time for mediation and dialogue at the Mediation and dialogue center suspends of the statute of limitations for initiation of a civil or administrative lawsuits.35

II INTERNATIONAL BEST PRACTICES IN COURT ANNEXED MEDIATION

There exists a wide variety of different forms of Alternative Dispute Resolution (ADR), which states can and should consider, to support and supplement their adjudicative processes In recent years there is near global consensus that sole reliance on courts for dispute resolution is not enough While formal judicial mechanisms must exist in all jurisdictions, it is commonly agreed that alternatives to judicial procedures, such as ADR including mediation, should also be made available to parties in need of dispute resolution.36 Given the variety of acceptable approaches that different states take with respect to mediation, it is not always possible to clearly establish what are the ―best practices‖ in this field It is probably more accurate to suggest that what is presented in this study are the results of an attempt to identify ―good practices‖, viable options, worthy considerations, and lessons learned Thus, in this section we attempt identify and analyze a variety of principles that are generally agreed upon with respect to mediation and dialogue, while also presenting different options for consideration, including identifying areas where state practices are not harmonized This section also shows that expanding of the number of available option or alternatives from which parties can chose when engaging in dispute resolution is itself generally seen as a positive state aim

2.1 Court Annexed Mediation in Context

There are multiple definitions of mediation applied by various states, though the definitions contain similar elements Mediation can be loosely defined as a structured process, however named or referred to, whereby two or

34

Official Dispatch No 310/TANDTC-PC - p.9

35 Official Dispatch No 310/TANDTC-PC – p.10

36

See, e.g., Prodigalidad, Patricia-Ann T., Building an ASEAN Mediation Model: the Philippine Perspective, p

1-2; see also, Directive 2008/52/EC of the European Parliament and of the Council, 21 May 2008, para 1-10

15

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.37 It is distinguished from arbitration and adjudication Unlike an arbitrator or judge, a mediator has no legal power to force acceptance of his or her decision but relies on persuasion to reach an agreement.38 Mediation can also

to be distinguished from other forms of ADR, such as conciliation, where a neutral third party takes a more active role in providing potential solutions to the parties so as to resolve the issue As discussed below, however, conciliation and mediation can often look similar in practice, depending on the context According to common state practices, mediation processes can be initiated by the parties, or suggested or ordered by a court, or prescribed by the law

Court annexed mediation (or CAM) is generally understood as a subset of mediation, and usually refers to any mediation process conducted under the auspices of the court, usually after such court has acquired jurisdiction of the dispute It is an enhanced pre-trial procedure that involves settling mediatable cases filed in court with the assistance of a mediator There is a lack of a globally accepted definition of what ―court annexed‖ means, within CAM, in terms of the level or type of court involvement In this regard it is common to distinguish three types of mediation, when considering the relationship between

court proceedings and mediation: (1) Private mediation is completely

independent from judicial proceedings, and often takes place without any

subsequent court proceeding; (2) Court-annexed mediation is initiated by the

court, but then takes place without any further involvement of the court; and (3)

terms of venue and personnel.39

If we accept this distinction of types of mediation, then closely related to

this would be what is commonly referred to as judicial conciliation, or sometimes judge-led settlement This is a process whereby a judge attempts to

resolve a dispute, in a matter before him or her, prior to trial This is in fact the current system reflected in the code of civil procedure (CCP) and administrative

procedure law (APL) of Vietnam, where it is referred to as judicial mediation

As stated in CCP Article 10, ―the Courts have the responsibility to conduct mediation and create favorable conditions for the involved parties to reach agreement with one another on the resolution of civil cases under the provisions

of this Code.‖ In this case it is the judge who is to engage in the mediation It is expected that a draft law on court annexed mediation will be submitted to Parliament for adoption in 2020

Not all systems agree on these definitions of court-annexed and judicial mediation In some state systems, court-annexed mediation refers to mediation

37

See Ibid, para 10 on certain aspects of mediation in civil and commercial matters, Article 3

38 ―Mediation‖ in The Business Dictionary, http://www.businessdictionary.com/definition/mediation.html (accessed on 21 September)

39

Steffek, F., Mediation in the European Union: An Introduction, Cambridge, June 2012, p 1

16

where active judges and judicial officers act as mediators to litigating parties after they have filed their action in the courts.40 In other states, judges do not engage in mediation While it is not possible to locate a uniform definition of CAM, the important point is that it must be defined consistently within a given state system In attempting to identify best international practices in CAM and dialogue, it will be essential to examine the various roles that courts and judges can have within the process Before analyzing the full range of issues pertaining

to CAM and dialogue, however, we will first introduce a handful of case studies

2.2 Case Studies

Beginning with the Asian continent, it is clear that many states have been exploring ways to introduce and institutionalize CAM and other types of ADR into their systems At the international level, the Association of South East Asian Nations (ASEAN) has been recognizing the need for enhanced forms of dispute resolution measures While arbitration may have been the more favored form of ADR in Asia, now mediation is being turned to by many states The ASEAN Law Association looks to mediation as the possible, if not more feasible, mode of ADR in the resolution of cross-border disputes in view of mediation’s innate ―consensual‖, ―non-adversarial‖ and ―peaceful‖ nature. 41

While ASEAN, like the EU, may be more focused in cross-border dispute resolution, the same principals normally apply also within states

In Malaysia, a system of CAM, understood to refer to the use of active judges and judicial officers as mediators, has been recently introduced by the judiciary.42 One of the main drivers of the process was to reduce backlogs of cases due to procedural delays Recently, Malaysia has also launched the Kuala Lumpur Court Mediation Centre (KLCMC) as its official premises for mediation While cases were originally mediated in judges’ chambers, the KLCMC is now responsible for the mediation of court referred cases Under this free-of-charge system of judge-led mediation, the general rule is not to have the judge hearing the case to be the mediating judge, except in exceptional situation and when the disputing parties agree If parties do not agree, then the hearing judge should then pass the case to another judge for mediation In addition to mediation, judges should generally encourage the parties to settle their disputes

at the pre-trial case management stage or at any stage, whether prior to, or even after a trial has commenced, and other forms of ADR should also be encouraged One of the major controversies in this system has been whether sitting judges should be able to mediate their own cases, though this is normally done only as an exceptional practice.43 In Malaysia, the CAM system also exists

40

Choong Yeow Choy, Tie Fatt He and Christina Ooi Su Siang, Court-Annexed Mediation Practice in Malaysia:

What the Future Holds, University of Bologna Law Review, Vol.1:2 2016, p 273

41

Prodigalidad, Patricia-Ann T., Building an ASEAN Mediation Model: the Philippine Perspective, p 4-6

42

Choong Yeow Choy, Tie Fatt He and Christina Ooi Su Siang, at 274 (Information in these paragraphs on the

Malaysian system are drawn mostly from this article

43

Id., at 275-279

17

in tandem with a private mediation system If the disputing parties agree to mediate their matter, they may also choose to resort to mediation by a third party instead of through court annexed system While private mediators are accredited

by the Malaysia Mediation Centre, there exists no mediator accreditation for sitting judges and judicial officers.44

The Philippines has been rolling out an CAM system which relies on judges There, CAM is defined as an ―enhanced pre-trial procedure that involves settling mediatable cases filed in court with the assistance of a mediator who has been accredited by the Philippine Supreme Court‖.45

In this system, cases are diverted from the usual litigation process for the purpose of encouraging the litigants to explore an amicable resolution of their disputes and hopefully come

to a settlement With the success of the pilot implementation of a CAM system

in 2001, CAM was institutionalized under the auspices of the Philippine Mediation Center (PMC) Office, which was to be set up and governed by the Philippine Judicial Academy.46 Under the guidance of the PMC, several mediation units were established in various parts of the country More recently, the Supreme Court put in place the so-called Judicial Dispute Resolution program, which serves as a secondary tier of ―mediation‖ conducted, not by a mediator accredited by the PMC, but by an active judge of the first instance courts In court-related mediation, parties may select a mediator only from a list

of PMC accredited mediators After a case is settled, the mediated settlement agreement is filed with the Clerk of Court of the Regional Trial Court for enforcement by that said court in accordance with the Special ADR Rules.47

Mediation has also had an important role in dispute resolution in the Peoples Republic of China Various forms of mediation have included: People’s mediation, which refers to the process where civil disputes are mediated by the people’s mediation commissions; administrative mediation, where mediation is conducted by administrative bodies upon the requests of parties; and court mediation, where judges undertake dual roles as both mediator and ultimate adjudicator in the same dispute and are able to switch back and forth between those two roles.48 To mediate a dispute, the judges will often meet with the parties separately, and then may suggest settlement proposals that they think are just or indicate to the parties the specific weaknesses of their claim or defense so

as to give them cause to reevaluate their position’s strength Mediation efforts

by judges to bring about a mutually agreed upon settlement will be made at various points of the civil proceeding regardless of whether the disputants

44

Id., at 286-287, 293-294

45

Herrera, Hon A M., Court-Annexed Mediation (CAM) – Making it Work: The Philippine Experience,

presented at the International Conference and Showcase on Judicial Reforms, Parallel Session C, 29 November

Lee, Jeffrey, Mediation in Mainland China and Hong Kong: Can They Learn from Each Other?, 104

Asian-Pacific Law & Policy Journal Vol 16:1, p 104-105 (Information in the paragraphs on the China and Hong Kong systems is drawn mostly from this article.)

18

already attempted mediation before an action was brought Generally, the court invites the parties to attempt mediation at the preparatory stage before trial If mediation outside the court is unsuccessful, the court will try to mediate again upon the voluntary will of the parties before it makes a judgment A dispute can

be mediated by the court at any level of the litigation process, irrespective of whether it is a first instance trial, an appeal, or a retrial.49

Various forms of mediation are also relied upon in Hong Kong, including

a typical form of CAM.50 Only once disputing parties have resorted to litigation can the court-annexed mediation system come into play If parties take their dispute to court without attempting mediation, but then later indicate their willingness to mediate after commencing an action, the system allows the court

to channel a case to mediation The mediator is an independent third party private or community mediator, who is unrelated to the dispute A judge who adjudicates a dispute will not serve as mediator As in many other states systems, parties in Hong Kong are strongly encouraged to attempt mediation If parties agree to mediate, they are required to coordinate the mediation process

by serving a Mediation Notice and a Mediation Response to each other Like private sector mediation, the fees for court-annexed mediation are payable by the parties, and disputants are allowed to select their own mediator.51

In Japan52, the civil mediation at the Court regime is defined in the Civil mediation law of 1951, amended in 1974, 1999 and 2011, whereby mediation is

an activity of resolving disputes between involved parties through the intermediary known as the Court's mediation committee Mediation is aimed at resolving disputes ethically, close to reality, through mutual agreement and concessions between the involved parties53, an opportunity for the involved parties to resolve the dispute in a win-win manner

The characteristics of mediation are: (1) quick dispute resolution with simple procedures, costs less than proceedings; (2) people's participation as mediation committee members, (3) mediation conducted by the Mediation Committee to which the Judge is also a member; (4) non-public procedures; (5) satisfactory settlement, flexibility, in accordance with the situation; (5) Effective and enforced mediation minutes as court judgment

On the basis of the nomination list of the local People's Committee, the local Bar Association or the mediation committee member self-nomination application, the Supreme People's Court shall consider and appoint a mediation committee member The mediation committee members are selected from those with standards such as fairness and righteousness, flexible and harmonious way

Report No.43/BC-TANDTC dated 18-07-2019 of the Supreme People's Court Civil on mediation of some

countries in the world, p1-5 (Report No.43/BC-TANDTC)

53

Article 1 of Japan's Civil Mediation Law

19

of thinking, connecting people with each other, good personality, extensive knowledge and relative professional experience in resolving civil or family relations disputes, extensive experience in social life, in particular lawyers, doctors, university professors, engineers, architects, bank accountants, real estate appraisers, retired civil servants, ordinary citizens The age of the mediation committee members is from 40 to 70 years old There has not been a specific regulation on the nationality issue of the mediation committee member, however, the civil mediation committee members are currently appointed from Japanese nationals The office term of mediation committee members is 03 years and may be reappointed or dismissed by the Supreme Court Basically the work of the mediation committee members is voluntary; there is a commendation regime for the mediation committee members who have been working for many years

The mediation committee members are considered as part-time public servants during the case resolution (contract officer) Depending on each specific case, the judge should choose the mediator in accordance with his/her specialty and mediation field (for example: a bank accountant is selected for credit mediation, a real estate appraisers is selected for a real estate leasing case, an architect is chosen for a construction case; a doctor is selected for a medical case )

Regarding family relations, consideration should be given to appoint 01 male and 01 female to act as mediation committee members, in many case, the mediation committee members include social welfare officers and housewives There is also the participation of Family Court investigators to investigate the cause of the dispute, the context of the case, the relationship between the parties

Mediation includes mediation conducted at the Court and mediation conducted at out-of-court offices, in particular: Mediation conducted at the Court includes civil mediation under the Civil mediation law and family relation mediation according to the Family Relationship Procedure Law Mediation carried out outside the Court includes mediation by the Labor Commission over disputes between the labor union and the employer (Article 20 of the Labor union law) or mediation by the Environmental disputes coordination Commission on disputes related to industrial pollution (Article 31 of the Law on handling industrial pollution disputes, etc.) The mediation committee consists

of 01 Judge and 02 members

There are many mediation rooms at the courts (Tokyo Family Court has

84 mediation rooms) with round tables and brightly painted walls to create a friendly and comfortable feeling; The mediation room is decorated with landscape paintings (the involved parties will sit opposite the picture to reduce the pressure and stress for both parties), with a wall clock (The mediator will sit opposite the clock for time control) In the Family Court, apart from the mediation rooms, a children's room (with toys) is provided so that the parent (who is not living with the children) has space to contact his/her children

20

South Korea54 conducts both ―Court-dependent mediation‖ and court link mediation (court dependent ADR - conducted within the Court and out-of-court link ADR – conducted outside the Court through the Court) Mediation is not regulated in the Civil Procedure Law but in the Law on civil dispute judicial mediation effective from September 1, 1990 (amended by other laws, currently this is conducted according to Law No 13952 dated February 3,

out-of-2016, effective from February 4, 2017) and the Law on marriage and family procedure issued on December 31, 1990 55 The Law on civil dispute judicial mediation clearly indicates its purpose as to resolve civil disputes according to a simple procedure based on mutual concessions between the parties, common awareness and practical context All disputes involving civil matters (all cases with small dispute value, cases under the jurisdiction of the one Judge Council and three Judge Council) can be resolved by mediation (Article 1 and Article 2)

There are two types of cases in which mediation is allowed to be conducted in South Korea: cases requested by the parties and cases decided by Judicial Council if necessary

For cases requested for mediation, when the cases are accepted, the Judges in charge of mediation shall classify according to their contents then divide them into cases he will directly handle and cases handled by the permanent mediator Cases handled directly by mediation-in-charge judge will

be classified into the following cases and then resolved: (1) cases to which the mediation-in-charge judge directly conducts mediation procedures, (2) cases mediated by mediation committee, (3) the cases mediated by 01 mediator, (4) cases mediated by external dispute settlement agencies

Cases that while resolving, the Judicial Council finds necessary to make a decision on mediation and then proceeds to mediation procedures are considered

as brought-to-mediation cases Judicial Council’s decision does not require the involved parties’ consent (Article 6 of the Law on civil dispute judicial mediation) This is also a provision to encourage and create opportunities for mediation, thereby increasing the number of mediated cases There are no regulation, standard or principle to choose a case for mediation Considered and evaluated factors often are the mediation rate of the case type, the case content, the will of the involved parties and their relationship Korean statistics show that, in types of cases, mediation for cases involving leasing, traffic accidents compensation has a high successful rate In terms of the case contents, the case has a precedent created in relation to the case issues, the case does not need further consideration due to no dispute about the case circumstances are suitable

The Law on Marriage and Family mostly applies the Law on Civil Mediation (Clause 1, Article 49 of the Law

on Marriage and Family) to mediation of marriage and family cases

21

for mediation In terms of the relationship between the involved parties, disputes

in the family, between those who have a long-term relationship or have a relationship that they must continue to conduct future transactions are suitable for mediation For cases having the meaning of precedent creation, such precedents must be quickly established through adjudication without mediation Because only so, the Court can conduct mediation for other cases according to those precedents

The majority of the mediation cases are brought-to-mediation cases (In

2017, the number of cases decided to bring to mediation was 44,734 cases, accounting for 86.5% of the total number of mediated cases, the successful mediation rate of cases requested mediation and of cases decided to bring to mediation are the same, over 30%) South Korea applies the principle of compulsory mediation prior to imitating lawsuits for marriage and family cases However, when the plaintiff has not followed the mediation procedures but initiated the divorce petition, the Court does not dismiss the petition immediately and bring the case to mediation When the judicial council take the case to mediation, they may directly resolve the case or assign to a judge in charge of mediation (Clause 3, Article 7 of the Law on civil dispute judicial mediation) The judicial council shall directly conduct mediation procedures or set up a mediation committee to conduct mediation The case assigned to a judge in charge of mediation is resolved in the same manner as the case requested for mediation

In India56, in 1999, India amended Article 89 of the Civil Procedure Code

of 1907 In India Article 89 and Order X of Rule 1A of the Civil Procedure Code require the Court to choose one of five selected dispute resolution methods and transfer the case to arbitration, negotiation, court settlement, people's judgements (Lok Adalat) or mediation Dispute resolution through mediation or negotiation shall comply with the Law on mediation and negotiation 1996 People's judgments shall comply with the 1987 Law on legal services57

Regarding mediation at Court annexed mediation and dialogue center: in

2005, the Chief Justice of the Supreme Court of India decided to develop a mediation project, establish the Court-annexed mediation center Each court’s chief judge issued a decision on court-annexed mediation center establishment According to principles of Article 89 of the Civil Procedure Code, the High court of each state issued its own Code of Mediation applicable to that state’s courts58 Indian Supreme Court’s statistics showed that, as of March 31, 2018, the country received 2,831 cases, 731 cases were successfully mediated (particularly in New Delhi Court, the successful mediation rate reached 67-

56

Information collected from Report No.43/BC-TANDTC of July 18, 2019 of the Supreme People's Court on the Civil mediation regime of some countries in the world (hereinafter referred as Report No 43/BC-TANDTC) - p.21-26

22

69%) Mediation has helped reduce the large number of cases brought to the court by proceedings Through practical review in India, some easily successful mediated disputes are: disputes over contracts, marriage and family, claims for damages in traffic accidents, disputes on service supply Practices also show that the trained and retrained mediators in mediation skills will have more successful mediated cases59

Each court’s chief judge issues a decision to court-annexed mediation center establishment The center’s operation expense shall be granted by the Government through the Court where the center is established The center has its own seal and operates independently in its expertise As of May 2018, India has

577 Court-annexed mediation centers and 85 others are underway Typically, the New Delhi High Court established court-annexed mediation center led by the Executive Council, including 04 judges and 04 lawyers deciding policy issues; mediators conducting mediation60

The Supreme Court of India established a mediation committee to act as a focal point for mediation, such as drafting a Handbook, promulgating a set of general rules and related documents, organizing training, conducting surveys, etc.61

Mediators are selected from sources of retired judges, lawyers, legal experts, experts in specialized fields (for example, in Delhi High Court, the mediators are retired judges, law practitioner, or specialist with at least 10 years

of experience62)

Skills training for mediator is highly focused in India with many training programs for professional mediators Mediators are trained to understand the procedure, mediation procedures, and mediation skills63

After accepting the case, the judge will decide whether to bring the case to mediation or other dispute resolution options For cases brought to mediation, the parties have the right to reach an agreement on the choice of mediator, which may be the mediator outside the mediation center If the parties fail to reach an agreement on the choice of mediator, the Court shall appoint the mediator it finds appropriate64

When the mediation is successful, the Court must set a date for considering and recognizing the mediation results within 7 days, in special circumstances not exceeding 14 days, from the date of receiving the settlement

59

Information provided by Indian Supreme Court Judge Arun Kumar Mishra at "Workshop on Law and practice

of mediation in India", held by the Supreme People's Court in Hanoi on June 11- 2018

60

Information provided by the Chief Justice of the Supreme Court of India and the Chief Judge of the High Court of Delhi - India during the working visit the Supreme People's Court of Vietnam to India in November 2017

61

Information provided by Indian Supreme Court Judge Arun Kumar Mishra at "Workshop on Law and practice

of mediation in India", held by the Supreme People's Court in Hanoi on June 11- 2018

62

"Rules of Mediation and Negotiation", High Court of Delhi: New Delhi, Rule 4

63

Information provided by Indian Supreme Court Judge Arun Kumar Mishra at "Workshop on Law and practice

of mediation in India", held by the Supreme People's Court in Hanoi on June 11- 2018

64

Information provided by Indian Supreme Court Judge Arun Kumar Mishra at "Workshop on Law and practice

of mediation in India", held by the Supreme People's Court in Hanoi on June 11- 2018

23

agreement On the consideration day, if the Court finds that the parties have resolved their dispute, it must issue a decision on mediation recognition If the settlement agreement only resolves a number of issues arising in the case or proceedings, the Court must continue to decide the remaining issues65

Turning to Europe, we see a combination of both well-establish and new mediation or ADR systems, in nearly all states Many of these states have engaged in reform activities in recent years, including expansion or experimentation with various forms of CAM One of the leading drivers in these reforms has been the Directive 2008/52 of the European Parliament and Council

of 21 May 2008, ―on certain aspects of mediation in civil and commercial

matters‖ (hereafter: EC Directive) The EC Directive has encouraged the use of mediation by member states, with its overall purpose ―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.‖66

While encouraging mediation, it

is also a loose framework, which provides member states wide flexibility in experimenting with their own models

While nearly all states in Europe have been advancing some forms of mediation, we can first turn to Italy, where, in response to inefficiency in the civil justice process, the government has been engaged in a variety of forms of court related ADR and mediation The Italian government took the implementation of the EC Directive seriously, and has introduced several legislative decrees focusing on subject of mediation and conciliation in the civil and commercial fields.67 A version of court annexed mediation has become obligatory in Italy, when a judge orders mediation before a neutral third party in certain types of disputes Law provides that those who want to bring action relating to a dispute over certain subjects (joint ownership, inheritance, family agreements, rental agreements, certain damages, etc.) are obliged to attend a first meeting before a mediation body recognized by the Ministry of Justice.68Mediation may also be obligatory when judges invite or order the parties to mediation or when it is mandated by a contractual provisions At the start of the process the mediator explains the aim and the few rules of the proceeding to the parties and their lawyers, in order to evaluate together whether to solve the dispute through mediation or not If the ―defendant‖ does not accept to participate to mediation, he or she may receive sanctions later in court In Italy, mediation services may be offered only by public or private bodies registered with the Ministry of Justice, which sets the standards for mediation providers, determines the means of registration, sets mediation fees, and maintains the

Romualdi, G., Problem-Solving Justice and Alternative Dispute Resolution in the Italian Legal Context,

Utrecht Law Review, volume 14:3, 2018, p 55 (Information in these paragraphs on the Italian system is drawn mostly from this paper.)

68

Id., at 55-56 Legislative Decree no 28/2010

24

register of mediation providers Judges are also encouraged to attempt conciliation in some cases When seeking to reconcile the parties through conciliation, the judge simply investigates and explains to them the possibility of reaching an agreement, without playing an active role If an agreement is reached, the parties sign a conciliation report before the judge, and the report constitutes an enforceable order.69

In Finland, recent changes in the system mandate judges to engage in mediation in certain cases In the 2006, the Act on Court Mediation of Finland entered into force, as did the amended civil procedural provisions, to introduce

the idea of court mediation modelled on the experiments carried out in Norway

and Denmark.70 Here the parties may file a request for mediation, which is attached to an action for a regular civil procedure action In this system, the court decides whether mediation is to be undertaken If the case is pending also

as a regular adjudicative matter, the court proceedings are interrupted for the duration of the mediation A judge sitting in the court where the case is pending serves as the mediator.71 In order to obtain necessary expertise or to further the progress of the mediation, the mediator may enlist an auxiliary mediator, but the use of an auxiliary is subject to the consent of the parties The parties bear the costs arising from the mediation as well as the expenses of the auxiliary.72 The mediation procedure is informal, and the role of the judge mediator is facilitative

in nature

Germany has also recently been in the process of implementing the EU directive on mediation, through enacting a mediation act and amendments to its code of civil procedure In the German model, there are now three main types of mediation: the standard out-of-court mediation, out-of-court mediation upon proposal by the court, and mediation in judicial conciliatory proceedings.73 The first two options are relatively straightforward and reflects private mediation and court referred mediation in other systems They are governed by the German Mediation Act, which avoids establishing a precise code of conduct for mediation procedures, though it does set out certain principles and obligations.74The third alternative – mediation within judicial conciliation – provides for the possibility to enter or re-enter conciliatory proceedings before the court upon the referral of the court at any time during the court proceedings The conciliatory proceedings are conducted by a judge acting as judicial conciliator who is not

69

Id., at 58

70

Ervasti, Kaijus, Conflicts Before the Courts and Court-annexed Mediation in Finland, Scandinavian Studies in

Law, p 194-196 (Information in these paragraphs on the Finnish system is drawn mostly from this paper.)

25

authorized to render binding decisions The judge need not be different from the judge conducting the court proceeding.75

2.3 A Review of Court Annexed Mediation Characteristics

The case study excerpts in Part 2 above should lead us to conclude that there is no universally accepted ―best‖ or ―perfect‖ model of CAM In fact, there

is not even a universally accepted definition of ―court annexed mediation‖ It would be safe to suggest that, besides recognizing some basic international standards pertaining to CAM and dialogue, such as confidentiality and impartiality (discussed more thoroughly below), states should not feel duty bound

to adopt a certain model, and should consider what sort of system would best fit their currently situation This Part attempts to go beyond individual case studies and review in more depth some various CAM characteristics or elements

2.3.1 The Role of the Court and the Judge in CAM

As emphasized in the different cases studies above, states take a variety of different approaches to the role of the courts and judges in relation to appointing mediators With regard to the court selecting mediators, some states deem it the responsibility of judges, whereas others the court administration Of course it most systems it is always possible for the parties to seek mediation prior to filing

a case In Finland, the court decides whether mediation is to be undertaken, and

if the case is pending also as a regular adjudicative matter, the court proceedings are interrupted for the duration of the mediation.76 In Hong Kong, a judge can decide to send a case for mediation after filing the case, if it is later determined that mediation would be appropriate.77 In many countries such as Germany a case could be either mediated privately, assigned a mediator by a court, or actually mediated by a judge.78

Steffek points to the Netherlands as a good example of integrating mediation institutionally Incoming cases there are screened by the judges with regards to their suitability for mediation In order to do this all judges have been trained for one or two days to become familiar with mediation The judges receive the necessary specific information for each case especially through a short questionnaire which the parties receive at the start of the civil court procedure The questionnaire asks the parties questions which will reveal so-called mediation indicators Mediation indicators are facts related with the dispute that indicate whether mediation is likely to be successful and will offer a better solution to the conflict than a court decision If the court considers a case

to be suitable for mediation, it will issue a proposal to the parties to try mediation.79

26

An issue related to the role of the court in choosing a mediation is the proper role of the judge in relation to the mediation process – that is, whether judges should mediate It is currently a subject of heated debate in many states

It is helpful to break down the fundamental policy question into two questions:

first, whether judges should engage in mediation at all; and second, whether judges should attempt to mediate cases that they are responsible for

adjudicating

There are many reasons to question the role of the judge as mediator According to the traditional model, judges are to apply the law in a formal manner, and make an evaluation and ultimately a decision based on the law Mediators on the other hand are to engage in facilitation and accommodation of the interests of the parties, in order to reach an agreed upon settlement From the perspective of some, the job of a mediator requires a completely different skill set than that of the judge, and we cannot assume that a first rate judge will turn out to be a decent mediator Mediation, from this view, should be understood as

a unique craft, which requires specific training, accreditation, competency assessment and regular professional development Mediation differs from adjudication process, as mediation requires a more personal inquiry into the nature of the dispute and the positions of the parties From this perspective, judicial skills of identifying issues, applying law and coming to a determination are not relevant in mediation.80

Others however take the position that there is nothing inherently wrong with judges also engaging in mediation While judicial training does not necessarily include mediation skills, there is nothing preventing judges, or retired judges (or anyone else) from learning and developing mediation skills and becoming successful mediators Experience has shown that it is common for court annexed mediation to consist of pre-approved lists of mediators, many of whom may be former judges and other legal professionals, and these systems function quite well Furthermore, judicial experience does arguably help to develop skills relevant to mediation, and the public generally respects judges.81

Generally speaking however, few would hold the extreme view that judges or retired judges should never be allowed to mediate Many judges turn out to be fine mediators The major current debate is over the second issue –

whether judges should attempt to mediate cases that they are responsible for

attempting to mediate the cases under their docket, can act consistently with the principles of mediation and adjudication at the same time Some would argue that mediation in court is in fact something of a culture clash The risk is that both modes of operation — adjudication and mediation — become tainted.‖82

27

Some states have taken a clear stand to prohibit trial judges from mediating their own trial list, and for mediating judges to hear the same case if mediation fails One of the standard reasons given for these prohibitions is that trial judges who had acted as mediators may be prejudiced or have pre-conceived notions of the facts or evidence which they were privy to during mediation which could influence their delivery of the judgment

On the other hand, also from the case studies above, we see that the Finnish justice system does not prevent judges from attempting to mediate their own cases In fact, in this system it is only the judge which can mediate in CAM When the new system was devised, it was not without controversy in the Finnish parliament, but at the end of the day the parliament decided not to be adamant about separating the mediation and adjudicative functions Some of the cited advantages of judge-led mediation over other forms of mediation were the perceived independence and impartiality of the courts, as well as the trust they enjoy Another specific advantage was that judge driven agreement can be certified as binding on the parties and that it can be enforced at once

2.3.2 Judicial Conciliation and Settlement in Relation to CAM

It is also worth drawing a distinction between court annexed, or judge-led mediation, with judicial conciliation, or settlement Whatever view one has regarding the role of the judge in mediation, this should not necessarily rule out

the possibility for judicial settlement or conciliation, once a civil or

administrative procedure commences Some states, for example, while not allowing for judicial mediation, would at the same time support a type of judicial conciliation or settlement Here the terminology can become tricky, and the definitions of mediation and conciliation can indeed overlap Generally speaking, ―conciliation‖ is a process where an impartial conciliator assists the parties by driving their negotiations and directing them towards a satisfactory agreement,83 whereas mediation is more party driven ―Settlement‖ on the other hand can be reached by the parties themselves, with or without a third party such

as a judge, and the role of the judge is not strictly defined

The essence of the idea of a negotiated settlement is that the parties should

be able to try to come to an agreement and resolve a dispute at any time prior to trial The parties can come to an agreement, either bilaterally, or under the auspices of the presiding judge This has the usual benefits of ADR, such as unclogging the judicial docket and avoiding expenses, while at the same time bypassing the controversies with judge-led mediation considered above In a negotiated settlement, the judge does not put on the hat of the mediator, but simply brings the parties together to determine whether it is really necessary to

go to trial Settlement is strongly encouraged in many systems The legal and judicial culture in the USA, for example, is often seen as flexible and non-

83

Sgubini, A., Preidities, M and Marighetto, A., Arbitration, Mediation and Conciliation: Differences and

Similarities from an International and Italian Business Perspective, mediate.com, August 2004

28

formalistic in these regards In most USA jurisdictions cases can be resolved in a variety of ways, including by the lawyers themselves, at the outset of litigation, and before the intervention of judicial administration; or by the trial judge intervening personally, through conferences with the parties and their lawyers This is different from mediation, as the judge in the process of a settlement conference will often have a discussion over the likelihood of success or failure based on the facts of the case Whether the process is labelled negotiated settlement or conciliation becomes less important than achieving the goal of coming to an agreement and disposing of the dispute

Negotiated settlement or conciliation is also encouraged in most civil law jurisdictions Returning to the case of Italy, for example, we see that during proceedings there, judges are called to encourage the conciliation of the parties When seeking to reconcile the parties, the judge simply investigates and explains to them the possibility of reaching an agreement, without playing an active role If an agreement is reached, the parties sign a conciliation report before the judge, and the report constitutes an enforceable order In fact, the code of civil procedure now provides that, in order to prevent the parties from filing a motion for recusal based only on the fact that the judge has made a settlement or conciliation proposal, a judge’s proposal cannot constitute grounds for his or her recusal or abstention The code makes clear the dual role of the judge: he or she can make a proposal of settlement or conciliation (similar to a mediator in the evaluative mediation process, described below) but, in the event that the parties refuse the proposal, the judge shall maintain the power to decide the dispute.84

2.3.3 Competencies and Accreditation of Mediators

Leaving aside for a moment the role of the judge in mediation or other forms of ADR, in designing a CAM system a determination will have to be made as to who (else) should be able to mediate and what competencies are required It is normal for CAM systems to favor reliance on retired judges and other legal professionals to engage in court annexed mediation, but many systems are flexible, and allow for a broad range of professionals to qualify to mediate In consideration of qualifications, most state CAM models consider such factors as levels of education, preparatory training, continuous professional development and relevant experience In designing a system, the state must also consider whether to create an accreditation system, and to maintain of a roster of qualified mediators If there is a roster system, then selection and appointment of mediators would normally be done on either randomly (drawing of lots), or on a rotating basis, according to the roster However, some courts may have preferential lists of mediators, based on previous experience in that court or others, or based on degree of qualifications

84

Romualdi, at 58

29

International best practices would suggest some basic required qualifications In the USA, jurisdictions differ, but many would require that court appointed mediators would possess a number of hours of approved mediator training For inclusion in a roster, a state may also require that the mediator carry out a certain number of private mediations Educational requirements differ from state to state Law degrees are not generally required, but a bachelor degree of some sort would be standard In matters such as family law, a degree in a field such as psychology, social work or counselling may be required In Germany, the German Mediation Act only establishes general guidelines According to the Act, mediators are independent and impartial persons, without decision-making power, who guide the parties concerned through the mediation procedure Access to the profession in not restricted The law requires that mediators are trained in basic knowledge and procedures, and any person with basic training may work as a mediator.85 The Italian system, on the other hand, is more detailed A mediator must hold a degree or diploma at least equivalent to a university degree following three years of study, or in the alternative be a member of a professional association or organization and have completed at least two-yearly refresher courses with training providers accredited

by the Ministry of Justice In the course of their two-year training period they must have taken part as trainees in at least twenty cases of mediation.86

Given the range of possibilities, it may be suggested that a general best CAM practice would be a to consider some basic qualifications for mediators, but not to restrict it too narrowly, allowing for flexibility in professional backgrounds A generic qualification such as a bachelor’s degree in a relevant field (such as social work, psychology, counselling, law, etc.) is common Some mediation training should also be required; but the type and quality of such training can only be established depending on the institutions that exist within a country, and what resources are available to offer such training

2.3.4 Procedural and Administrative Issues

There are a variety of procedural and administrative issues that need to be considered when designing a CAM system These include: the degree of procedural details that should be regulated with respect to mediation; the manner

by which mediation referrals halt the civil and administrative procedures and the effect on time limits; the recognition and enforcement of mediation decisions; and mediation fees

(1) Specification of Procedures

Mediation by nature is informal and flexible, so it is not usually advisable

to create a set of rigid mediation procedures by law Some basic identification of the procedural stages however could be noted Many jurisdictions have identified the following general stages of mediation: 1) preparation; 2) opening;

85 ―EU-EAA Legislation on Mediation‖, International Mediation Institute

https://www.imimediation.org/resources/eu-eea-legislation-on-mediation/ (accessed on 16 September)

86

Id

30

3) exploration; 4) negotiation; and 5) agreement.87 The extent to which these stages are defined by law or regulation various amongst different states The more a state encourages mediation autonomy, the less detailed these definitions will be The length of mediation cases can differ among jurisdictions and types

of cases In court referred cases, the judge (or court) would normally want to provide time limits on cases Determination of time limits can be provided by law, court rules, or else determined unilaterally by a judge on a case-by-case basis As mediation sessions are normally quite short, taking only a few hours, the entire process from commencement to resolution should be able to be

completed within a month, unless the court is experiencing a backlog of cases

In relation to specification of procedures, it is worth noting that there are different approaches to, or styles of mediation These distinctions can have an impact on impartiality and confidentiality, and they may be subject of mediation training, but again it is probably not necessary to specify these approaches in the procedures Much of the literature specifies three different approaches to mediation: facilitative, evaluative and transformative In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution The facilitative mediator does not make recommendations

to the parties Evaluative mediation is a process modeled on settlement conferences held by judges An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness There is thus some overlap with conciliation Transformative mediation is based

on the values of "empowerment" of each of the parties as much as possible, and

"recognition" by each of the parties of the other parties' needs, interests, values and points of view.88

(2) Suspension, Resumption and Completion of Court Proceedings

Some additional important considerations with respect to mediation procedure include the manner by which mediation suspends the court proceedings, the impact the suspension has on time limitations, and how cases are resumed in court if necessary These aspects should not normally present many challenges, but the law and administration must be clear about the details For example, the court administration must be diligent about calculating dates if

87

European Commission for the Efficiency of Justice (CEPEJ), Basic Mediator Training Curriculum, Mediation

Development Toolkit, P 20-21, 27 June 2018

88

Zumeta, Zena Styles of Mediation: Facilitative, Evaluative and Transformative Mediation, https://www.mediate.com/articles/zumeta.cfm (accessed on 16 September 2019) The literature abounds with such descriptions and analyses For the sake of system design, it is probably not advisable to choose a specific style and adopt it On the other hand, it is helpful to have a general understanding of the differences For example, as noted above, some versions of judicial conciliation (Italy) could be also be labelled an ―evaluative‖ type of mediation When it comes to different types of ADR and different styles of mediation, it is probably better understood as a continuum rather than a set of discrete types