Mediation ("Mediation") is an alternative way of resolving disputes. It has been effectively applied internationally for decades and leads to the successful extrajudicial resolution of civil and commercial matters.
In Greece, mediation is regulated according to the provisions of law 3898/2010 (Mediation in civil and commercial matters), which transposed the EU Directive 2008/52/EU into the national law.
According to law 3898/2010, mediation is defined as a structured process, however named, in which two or more parties of a dispute attempt voluntarily to resolve through a mutually accepted agreement the dispute they are involved in, with the help of a third neutral, the Mediator.
Mediation is different to the conciliation attempt made by the Magistrate or the Court during the hearing, in accordance with Articles 208 et seq. And 233 paragraph 2 CCP.
Private disputes may be subject to mediation following the agreement of the parties, provided the parties have the power to dispose of the object of the dispute.
A document or, in case of paragraph 2 of Article 3 of Law. 3898/2010, a court record serves as proof that a mediation is about to take place.
Parties involved in a dispute or the legal representative when legal persons are involved, together with their lawyers (article 8 para. 1 n. 3898/2010) attend the mediation sessions.
The mediator is appointed by the parties or by a third party of their choice.
The process and structure of the mediation is determined by the mediator in consultation with the parties, who can terminate the process freely, any time they wish. The process of mediation is confidential and no official records are kept.
The mediator may communicate with the parties separately and meet privately with each one of them. Information that the mediator draws in these private discussions cannot be disclosed to the other party without their prior consent.
The mediator is not obliged to accept his/her appointment and he/she is accountable during mediation only for fraud.
It is a voluntary, flexible, confidential and interest based process. The parties seek to reach an amicable settlement of their dispute with the assistance of the mediator who acts as a neutral third party.
The mediator will in principle and in most cases refrain from making a proposal regarding the solution of the case. The ultimate decision to reach a settlement remains with the parties and is formulated not only on the basis of the parties’ legal positions, but also their commercial, financial and / or personal interests.
Referring a case to mediation. Initiation of the proceedings
Under Article 3 para. 1 of the l. 3898/2010, parties may refer their dispute to mediation before or during judicial proceedings. The initiative lies with anyone bearing a legal interest and is involved in a dispute. Then, usually through his lawyer, they get in contact with one of accredited mediators registered with the public directory of the Ministry of Justice Transparency and Human Rights.
The mediator provides the party and his lawyer with general information on mediation (procedure, duration, cost, etc) and confirms that the party intends to initiate the process. The mediator following the party’s consent communicates with the other party (and his lawyer) in order to inform them on the process and on the intention of the other party to initiate mediation proceedings. Similarly, the judge that is entrusted with a case may propose resorting to mediation but the final decision lies with the parties.
The parties agree and jointly select their mediator, place and time of the procedure. When done, the lawyers inform the mediator that he has been assigned with the case so that he can prepare for the day they all meet together for the actual mediation.
Enforceability of settlement agreement
According to Article 9 of Law. 3898/2010, the written agreement resolving the dispute by the parties is concluded in the form of what is called as “a record” of successful completion of mediation, which, if at least one of the parties so requests, the mediator files with the Secretariat of the competent First Instance Court (the venue of Mediation) in order to become an enforceable title. There is a fee of 100 Euros for the filing of this record and the agreement which then can become enforceable in accordance with Article 904 Greek CCP.
Benefits for the parties: The main advantages are the speed of resolving cases, lower costs, confidentiality and restoration or even strengthening of the relationship of the parties.
Benefits for the lawyer and mediator: Anyone interested be trained and accredited as Mediator as referred to in n. 3898/2010, will acquire an additional very important professional title.
Mediation is a new field of activity, which is relatively new but rapidly developing in Greece. Many discussions have already started to initiate changes in current laws and include mediation as an optional step between banks and debtors before the filing of the application before the competent courts.
Ministerial decision 1460/2012 (Official Gazette B 13.02.2012) specifies an indicative hourly Mediator's fee of 100 Euros per hour, which can be equally split between the parties of the dispute. The Mediator's fee is paid in advance. Lawyers - legal counsels can freely negotiate their remuneration and agree to their advance payment too, if they so wish. They should be able to help their clients understand the specific features of the new process and use it efficiently. By assisting their clients in a mediation process and by helping them reach a satisfying solution, one that meets their real interests and needs, they offer their clients quality services and they increase their reputation.
Benefits for justice: Decongestion of the caselog, acceleration of judicial proceedings and savings for the State are only some of the benefits for Justice, the State and the taxpayers of the many resulting from the application of mediation.