Mediation: The Greek ADR Journey Through Time

Abstract

Traditionally, amicable dispute resolution methods have been recognised and often promoted by the Greek legislator. Various forms of conciliation and ‘mediation’ in the broad sense have been provided by the GrCCP and other special laws. In 2010, the GrMA was enacted in order to implement Directive 2008/52/EC, introducing a coherent framework for the regulation of mediation in civil and commercial matters. In the same spirit, two years later, Art. 214B was added to the GrCCP providing for judicial mediation, which is conducted exclusively by judges. Both institutions are currently applicable on a totally voluntary basis. Despite the adequacy of the existing legal framework, mediation is still treated with certain scepticism by both legal professionals and the parties. One can note, however, that since the enactment of the GrMA and Art. 214B GrCCP an increasing number of professionals appear to be interested in learning about the new institution. Given also the significant delays in the state-administered justice, one can expect that in the long term more interested parties may be drawn to mediation and other ADR forms.

Sections 1, 2, 3, 4, 5, 6, 7, and 8 were prepared by Prof. G. Dianmantopoulos while Sects. 9, 10, and 11 were prepared by Ms V. Koumpli.

The initial version of the Greek report was published in Revue hellénique de droit international 2014, 361 et seq.

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

1 The Existing Situation of ADR

In modern societies civil law dispute resolution is guaranteed by the rule of law and entrusted to civil courts. In this sense, the constantly increasing number of such disputes has been welcomed as a sign of democratisation and a decisive step towards the cultural and social emancipation of citizens (Nίκας2012, § 59 I, p. 338). In the last decades, however, effective delivery of justice has been adversely affected by the workload of courts, the frequent abuse of procedural rights and infrastructure shortcomings. This has given rise to the development of ADR. As highlighted by the Scientific Committee of the Parliament in its report of 8 December 2010, issued on the occasion of the enactment of the GrMA,¹ ADR processes aim at a private solution, which will restructure the relationship of the parties and the issues that may have arisen between them. Such processes are based on the principle of private autonomy and the freedom of contract (Art. 5(1) of the Constitution; Art. 361 GrCC; Xριστoδoύλoυ 2010, 288, 293; Kourtis 2013, 194).²

The Greek legislator has traditionally regarded conciliation as the best ADR method (Nίκας 1984, § 1 III, pp. 30 et seq.; Xαμηλoθώρης 2000, 31).³ In popular consciousness, the worst settlement equals the best judgment. In this framework, the Greek legislator has assigned wide conciliatory tasks to judges. For instance: (a) justices of peace shall attempt to conciliate disputes falling within their competence before the hearing of the particular case; they can also conduct voluntary conciliation, upon request of the parties, in civil law cases falling outside their competence (Arts 208 and 209 GrCCP)⁴; (b) civil judges⁵ are encouraged to conciliate disputes at any stage of the proceedings, according to Arts 233(2)-(4)⁶ and 524(1) GrCCP; (c) Art. 667 GrCCP⁷ provides for the judge’s duty to attempt to conciliate labour law disputes (Mακρίδoυ 2009, 139); (d) in the field of public law, Art. 23 of Law 2882/2001 provides for the judge’s duty to attempt conciliation in cases of expropriation.⁸

Particular mention should be made of the mandatory out-of-court procedure for dispute resolution that was introduced by Art. 214A GrCCP, which was added by Law 2298/1995.⁹ Without having produced the expected results, Art. 214A GrCCP has been recently amended by Law 3994/2011, providing for the optional conciliation on the parties initiative.¹⁰ Admittedly, this amendment has significantly enlarged the importance of such conciliation (Aπαλαγάκη 2012, 572) by (a) giving this a universal character; (b) inciting the judge to encourage conciliation at any stage of the proceedings (Art. 233 GrCCP); and (c) giving the minutes of such conciliation an effect similar to notarial act (Art. 293(1) GrCC P; Διαμαντόπoυλoς 2013, 72 et seq.). Those elements considered, authoritative representative of legal doctrine notes that “[…] without exaggeration, conciliatory dispute resolution could be embodied in the objectives of the civil trial […]” (Nίκας 2012, § 59 I, p. 339; as to the purposes of the civil trial, see Διαμαντόπoυλoς 1996, § 3 II, pp. 87 et seq., notes 102 et seq.).

ADR methods have also been provided by special laws, such as Art. 15 of Law 4013/2011 on the settlement committees for commercial leases (Kατράς 2011, 193 et seq.; Koτζαμάνη 2012, 361 et seq.) or, even earlier, Art. 11 of Law 2251/1994 on the committee for the amicable settlement of consumer disputes (Koυτσoυράδης 2005, 353 et seq., 372 et seq.; Παπαϊωάννoυ 2005, 139 et seq.). The latter committee was one of the entities entrusted with the out-of-court conciliation process under the former wording of Art. 2 of Law 3869/2010 on over-indebted individuals (Kρητικός 2012, 302 et seq.). In this case, the failure of the out-of-court conciliation constituted a formal condition for the filing of the application of an indebted individual (not for the hearing) for the judicial settlement of their debts (Aρβανιτάκης 2010, 1464, 1467; Kατηφόρης 2013, 9 et seq., notes 23 et seq.). After its amendment by Law 4161/2013, Art. 2 of Law 3869/2010 provides for the optional mediation before the filing of the application of an indebted individual. In case of failure of mediation, the application of an indebted individual is filed with the competent justice of peace and only after such filing can the process of out-of-court conciliation take place. Last but not least, one should mention the mechanism of the Directorates of Labour Inspection, which are entrusted – among others – with “[…] the mediation between employers and employees for the amicable resolution of disputes emerging during labour relationships, towards the consolidation of social peace” (Oρφανίδης 2006, 454; Xαμηλoθώρης 2000, 44, 2011, 57).¹¹

Prevailing ADR method in Greece is still arbitration, which is governed by Arts 867–903 GrCCP (Koυσoύλης 2004, passim; Άνθιμoς 2010, 472).¹² Arbitral expertise (Oρφανίδης 2006, 454) as well as preliminary evidence¹³ may similarly be considered as ADR processes, given their deterrent effect on the commencement of proceedings.

Mediation has been officially included in the ADR methods provided by Greek law since the enactment of the GrMA in 2010.¹⁴

2 The Basis for Mediation

Greece has been one of the first EU member states to implement Directive 2008/52/EC by enacting the GrMA (Kλαμαρής 2010, 473 et seq.; Bαλμαντώνης 2013, 353; Άνθιμoς 2012, 278; Παντελίδoυ-Koυρκoυβάτη 2012, 1509, who argues – exaggerating – that there have been delays in the implementation of Directive 2008/52/EC).¹⁵ According to Art. 4 GrMA “[M]ediation means a structured process, however named or referred to, whereby two or 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. It does not include attempts made by the justices of peace or the courts to settle a dispute in the course of judicial proceedings according to Arts 208 et seq. and 233 GrCCP”.¹⁶ Mediation obviously differs from any other out-of-court or conciliatory dispute resolution process due to the mandatory participation of the mediator, namely a third person in relation to the parties, who is asked to conduct mediation.

According to Art. 3(1)(a) GrMA, the parties may in principle agree to have recourse to mediation before or during the pendency of a suit (mediation ex voluntate). The parties may also be invited by the court to do so during the pendency of a suit, as provided by Art. 3(1)(b) GrMA (mediation ex juditio). In this case, the recourse to mediation is registered in the record of the court.¹⁷ Mediation may further be ordered by another EU court (Art. 3(1)(c) GrMA)¹⁸ as well as be imposed by another provision of law (Art. 3(1)(d) GrMA, mediation ex lege).¹⁹ One can note that even though Art. 3 GrMA defines when recourse to mediation is possible, it does not define what ‘recourse’ means and, subsequently, when the mediation process begins. Legal doctrine has dealt with this question stating that “what is critical is the time when the mediation procedure actually begins, i.e. the time when the parties appoint a mediator in order to start the mediation procedure to solve their dispute” (Klamaris and Chronopoulou 2013, 593). According to the current legislative framework, recourse to mediation is made on the parties’ or on the court’s initiative. In both cases, mediation remains a non-binding and clearly private dispute resolution scheme. State justice is neither disputed nor ‘privatised’, given that access to the judicial system is not excluded, on the one hand, and mediation cannot be imposed on the parties, on the other hand; the parties are still free to choose the suitable scheme for the resolution of their dispute.²⁰

A judicial mediation procedure for private law disputes is provided by Art. 214B GrCCP, which was added by Art. 7(1) of Law 4055/2012 (Θάνoυ-Xριστoφίλoυ 2013, 937 et seq.; Φράγκoυ 2014, 15 et seq.; Παντελίδoυ-Koυρκoυβάτη 2012, 1509, who seems to be cautious, considering judicial mediation as a distortion which may hinder the evolution of mediation in Greece). Such ADR scheme is also voluntary (Aπαλαγάκη (−Mπαλoγιάννη) 2013, Art. 214(B) nr. 2; Mαργαρίτης and Mαργαρίτη 2012, Art. 214B nr. 4)²¹ and conducted by judges. For this reason, at every court of first instance and court of appeal of the country, one or more of the presidents or senior judges shall be appointed as full-time or part-time mediators for a term of 2 years, which may be extended for one more year.²² Recourse to mediation may take place before filing a suit or during lis pendens. The parties or their attorneys shall file the relevant application in writing. During lis pendens, the court – when it considers it appropriate and having taken account of all circumstances of the case (e.g. nature of the dispute, evidence difficulties etc., see Nίκας 2012, § 59 V, p. 344) – may invite the parties at any stage of the proceedings to use judicial mediation. Once the parties agree, the court shall adjourn the case for a hearing on a short date, which shall not exceed six months. The procedure of judicial mediation contains separate and joint hearings and discussions among the attorneys of the parties and the mediator judge, who may offer the parties non-binding suggestions as regards the resolution of the dispute. Mediation shall be conducted in such a way as to respect confidentiality, unless the parties agree otherwise. In this respect, before the opening, all persons involved are bound in writing to observe the confidentiality of the procedure. Judicial mediation under Law 4055/2012 has met strong criticism. Legal doctrine argues against the discretion of the judge to refer a case to judicial mediation instead of himself attempting to conciliate the parties during the hearing, in accordance with Art. 233 GrCCP. The referral of the case to another judge – who may act sometimes as mediator and sometimes as judge, depending on his appointment as full-time or part-time mediator – cannot be easily justified (Aπαλαγάκη 2012, 573; Aπαλαγάκη (−Mπαλoγιάννη) 2013, Art. 214B, nr. 9; cf. Hλιακόπoυλoς 2012, 28 et seq., on the occasion of the relevant discussion in the field of German law).²³ It is further noted in this respect that such mixed role of the judge may give rise to constitutional law concerns, given that the referral of the case to judicial mediation during lis pendens may put into question the principle of natural judge (Art. 8 of the Constitution; Art. 108 GrCCP), undermine personal and functional guarantees concerning the administration of justice and lead to delays.²⁴ It has been also argued, nevertheless, that such initiative actually constitutes an aspect of active management of the case by the court (case management). The judge becomes a manager who directs each case to the appropriate procedure, applying the innovative concept of the ‘Multi-Door Courthouse’.²⁵

Art. 2 GrMA, in conformity with Arts 1 and 867 GrCCP concerning arbitration cases, provides that “private law disputes can be referred to mediation upon agreement of the parties, provided that the latter have the right to dispose of the relative rights and obligations”.²⁶ Family law disputes (e.g. matrimonial disputes and disputes concerning the relationships between parents and children; see Kόμνιoς 2007, 49; Mαργαρίτης and Mαργαρίτη 2012, Art. 867 nr. 2.)²⁷ as well as rights concerning the protection of personality (e.g. religious conscience and worship)²⁸ cannot, thus, be referred to mediation (or arbitration). According to the right view, such right of disposal is wider than the relevant right to compromise (Koυσoύλης 2004, Art. 867, p. 8; contra K. Kαλαβρός 2012, § 31 III, p. 25; cf. Σαρίδoυ 2012, 281).²⁹ It should be noted, however, that this condition is not provided as regards judicial mediation under Art. 214B(1) GrCCP, probably due to legislative oversight, rather than conscious choice.

It should be highlighted that at the moment only in the field of over-indebted individuals does mediation in the strict sense, as it is established by the GrMA, explicitly apply by reference of Art. 2 of Law 3869/2010 as amended by Law 4161/2013. Of course, mediation in the strict sense is expected to apply to other areas, too.³⁰ Nonetheless, ‘mediation’ processes in the broad sense have also been provided by special rules concerning particular fields and institutions. Such is the case of (a) Art. 102 of the Greek Bankruptcy Code (Law 3588/2007), as recently amended by Law 4013/2011³¹; (b) Presidential Decree 190/2006 on the insurance mediation³²; (c) the Hellenic Ombudsman for Banking-Investment Services, a private, non-profit entity, initially set up in 1998 by virtue of decision of the Hellenic Bank Association, which deals with disputes arising from the provision of banking and investment services (Kαράκωστας 2004, 454 et seq.; Mπώλoς 2004, 1130 et seq.; Aλικάκoς 2005, 1682; Xαμηλoθώρης 2007, 217, 218); (d) in the field of public law, Art. 1(1) of Law 2477/1997, as amended by Art. 1(1) of Law 3094/2003, on the Greek Ombudsman, an independent administrative authority conducting a form of mediation between citizens and government departments or public services in the wide sense in cases where personal rights or legal interests of the citizens may have been violated; (e) in the field of criminal law, Art. 11 of Law 3500/2006 providing for the criminal mediation in case of crimes involving domestic violence; (f) similarly in the field of criminal law, Art. 308B of the Greek Criminal Code, which was added by Law 3904/2010, providing for the criminal conciliation (Mυλωνόπoυλoς 2011, 53 et seq.; Hλιακόπoυλoς 2012, 27). So far there are no official statistics available as regards mediation under the GrMA. With regard to judicial mediation under Art. 214B GrCCP (in force since 2 April 2012 as to Courts of First Instance and 20 Mars 2013 as to Courts of Appeal), 9 out of 16 cases have been settled in the Athens Court of First Instance, while 4 out of 7 cases have been settled in the Thessaloniki Court of First Instance.³³

3 The Agreement to Mediate

Art. 2(b) GrMA stipulates that “the agreement to submit a dispute to mediation is evidenced by virtue of a written document or the court records in case of Art. 3(2) and is governed by the provisions of substantive contract law”. By contrast with arbitration agreements, where Arts 868 and 869 GrCCP provide for the written form as a condition for the validity of such agreements, in mediation the written form has only the role of documentary evidence, with no particular form being required for the validity of the agreement to mediate.³⁴ As noted in the Explanatory Report to the GrMA, this provision contributes to the legal certainty as regards the agreement to mediate as well as to the protection of the parties, who may be obliged to attend the mediation process and to participate in good faith.³⁵

According to the general principles of Greek civil law, such agreement is valid, unless its content is contrary to prohibitive provisions of law or good morals (Arts 174 and 178 GrCC). However, apart from the substantive law effects, the said agreement has also procedural law effects, given that it is designed – in case of success – to prevent recourse to civil justice. It is argued that the mere fact that provisions of substantive contractual law regulate such contracts does not necessarily transform them into substantive law contracts, since their fundamental element is not the resolution of substantive claims, but the submission of a dispute to another procedure, along with the simultaneous relinquishment of the state judicial procedure. They can, consequently, be considered as procedural law agreements governed by substantive law only as regards their validity (Klamaris and Chronopoulou 2013, 597, 591, 592; contra K. Kαλαβρός 2012, § 31 III, p. 26; Anthimos 2012, 159; Aγγoύρα 2014, 23 et seq., who are clearly in favour of the substantive nature of such agreement).³⁶ In other words, the argumentation concerning the twofold legal nature of judicial settlement may equally be applied to the case of mediation (Nίκας 1984, § 2, p. 36 et seq., particularly at p. 82 et seq.).

All disputes arising from a particular legal relationship between the parties – regarding either their rights and obligations or the interpretation of the terms of the specific contract as well as its validity and its termination – can be subjected to mediation.³⁷ In the same spirit, claims of both parties arising from relationships, actions or omissions can equally be subject to mediation.³⁸

The agreement to mediate can be concluded either separately or jointly, in the same document with the main contract (as mediation clause). Even in the latter case, however, it constitutes a separate agreement, distinguished from the main contract, and is independent and autonomous, without being affected by this. This autonomy of the mediation agreement as regards the main contract normally entails its validity even after the termination of the main contract.³⁹

The principle of freedom of the parties in mediation presupposes, under Art. 2(a) GrMA, that they have full knowledge of the merits and the legal dimension of their dispute in order to agree on its referral to this process.⁴⁰ This does not exclude the contractual provision of referral to mediation of future disputes arising in the framework of a specific legal relationship,⁴¹ provided that such agreement is also repeated after the dispute has arisen.⁴²

Even in the latter case, however, such mediation clause cannot prevent recourse to state justice once the said dispute arises, as provided by Arts 8(a) and 20(1) of the Constitution and Art. 6 ECHR. As noted in the Explanatory Report to the GrMA, the mediation clause does not entail procedural effects as those arising in case of an arbitration clause (Klamaris and Chronopoulou 2013, 592, 594; Kourtis 2013, 204; in the same direction Oρφανίδης 2006, 459, as regards mediation clauses included in regulations of apartment blocks; contra Hλιακόπoυλoς 2012, 25; as to an intermediate position see Anthimos 2012, 159, who argues that “there is some room for debate in this area” regarding Art. 3(1) GrMA). In this framework, the agreement to mediate constitutes a ground for a genuine dilatory objection under substantive law, which refers to the legality of the claim and not to the admissibility of the filing of the lawsuit or the hearing (under Art. 263 GrCCP; Xριστoδoύλoυ 2010, 294; Άνθιμoς 2010, 477; Hλιακόπoυλoς 2012, 25; Γραβιάς 2012, 248).⁴³ Adopting this position, the legislation is in conformity with the case law of Greek courts. For example, in 1971 Areios Pagos (confirming past case law⁴⁴) refused to recognise procedural effect to ‘mediation’ (in the broad sense) or conciliation clauses on the ground that access to justice can be prevented only in the case where a third person, empowered by a relevant agreement of the parties, makes a legally binding decision on the case, as happens in arbitration.⁴⁵

The breach of the mediation agreement may give rise to the contractual obligation of the parties to attempt to settle the dispute.⁴⁶ In any case, the agreement on recourse to mediation after the commencement of the trial does not constitute contractual waiver of the document of the claim under Art. 294 GrCCP (Kόμνιoς 2007, 41), given that in this case the court is obliged to suspend the hearing (Art. 3(2)(b) GrMA; cf. Art. 214B GrCCP).

In order to protect and ensure the validity of the parties’ claims, the compatibility between procedural and substantive rules regarding limitation and prescription periods is required, so that the parties will not be discouraged from referring to mediation due to the risk of extinction of such claims. In this respect, Art. 11 GrMA stipulates that the recourse to mediation interrupts the statute of limitations and the prescription period for as long as the mediation procedure lasts. Without prejudice of Arts 261 et seq. GrCC, limitation and prescription period that has been interrupted, restarts once the report of failure is drafted or a party serves the statement abandoning the mediation to the other party and the mediator or the procedure is in any other way terminated (Γρ.-E. Kαλαβρός 2010, 181 et seq.; Klamaris and Chronopoulou 2013, 594,).⁴⁷

4 The Mediator

Art. 4(c) GrMA defines the mediator as “a third person in relation to the parties, who is asked to conduct mediation in an effective, competent and impartial way, regardless of the way in which that third person has been appointed or requested to conduct the mediation”.

Initially, it was provided that in domestic disputes mediators should be attorneys accredited pursuant to Art. 7 GrMA. After the amendment of the GrMA by para. IE.2 of the first Article of Law 4254/2014, it is provided that also in domestic disputes the parties are allowed to appoint any person accredited according to the GrMA,⁴⁸ as has been provided with regard to cross-border disputes. Under Art. 8(2) GrMA, the mediator may be appointed by the parties or by a third party of their choice.

As already mentioned, in case of judicial mediation under Art. 214B GrCCP, mediators are judges of the court of first instance or the court of appeal, provided that they have not been involved in the particular dispute (Mανιώτης 2012, 711).

The involvement of mediators may be based – usually – on a contract between them and the parties, on a public law instrument (judgment) or even de facto, without any existing relationship with the parties (Xριστoδoύλoυ 2010, 297, noting that the agreement to mediate may relate the mediator with only one of the parties). The GrMA refers to only one mediator (singular) and never to mediators. Nor is the term co-mediation found anywhere in the relevant provisions. It cannot be ruled out, however, since no explicit exclusion is made (Klamaris and Chronopoulou 2013, 598). Mediators are not obliged to accept their appointment (Art. 8(4) GrMA); if they accept it, however, they have to act in compliance with the powers and duties given to them by the parties. Before accepting their appointment, mediators must verify that they have the appropriate expertise and premises to conduct mediation and, upon request, they must disclose information concerning their knowledge and experience to the parties (Art. 1.2. of the Code of Conduct).

The law does not provide for the possibility of expelling or discharging the mediator. Maybe a forthcoming ministerial decision will regulate the issue (Klamaris and Chronopoulou 2013, 598; Kourtis 2013, 206, aptly points out that “the mediator must immediately declare any possible conflict of interest, because a late disclosure might jeopardise the mediation. Articles 52 et seq. CCP which set out the reasons and procedures for the exception of a judge from the panel hearing of a case could be applied mutatis mutandis”).

Art. 5 GrMA provides that mediators training institutions shall be civil non-profit organisations founded by at least one bar association and at least one chamber, and working after being licensed under Art. 7 GrMA. Particular issues concerning such organisations (e.g. licensing process, conditions of operation, programme and content of the training, professional qualities of trainers, sanctions etc.) are regulated by Presidential Decree 123/2011.

Furthermore, Art. 6 GrMA provides for the establishment of the Mediators Certification Commission under the auspices of the Ministry of Justice, Transparency and Human Rights, which is entrusted with the certification of mediators, the supervision of training organisations, the supervision of mediators as regards their compliance with the Code of Conduct and the proposal to the Minister of Justice, Transparency and Human Rights as regards the imposition of sanctions to training organisations.⁴⁹

According to Art. 7 GrMA, the Department of Advocates and Bailiffs of the General Directorate of Administration of Justice of the Ministry of Justice, Transparency and Human Rights is entrusted with the accreditation of mediators, the issuance of the relative administrative acts, the drafting of records containing the names of accredited mediators and licensed training organisations, and their distribution to the courts (Γιαννoπoύλoυ 2014, 79 and seq.).

In the event that a mediator violates the Code of Conduct, the Minister of Justice, Transparency and Human Rights has the power, with the consent of the Mediators Accreditation Commission, to revoke the accreditation temporarily or permanently according to the severity of the violation or the repeated behaviour of the mediator (Art. 5 Code of Conduct).

Art. 4(c) GrMA reiterates part of the wording of Art. 3(b) of Directive 2008/52/EC, stating that the mediator shall conduct in an effective, impartial (Koλτσάκη 2014, 79 and seq.) and competent way. Under Art. 8(4) GrMA, mediators are not obliged to accept their appointment.⁵⁰ They are only liable for fraud, by contrast with arbitrators, who are also liable for gross negligence (Art. 881 GrCCP).

Art. 9 GrMA provides for the duty of the mediator to draw up a mediation agreement record containing: (a) the mediator’s full name; (b) the location and time of mediation proceedings; (c) the names of the participants; (d) the agreement to mediate upon which the mediation procedure was based; (e) the agreement reached in the mediation or the failure of the mediation and the cause of the dispute.

After the end of the mediation proceedings, the minutes are signed by the mediator, the parties and their attorneys. Upon request of at least one of the parties, the original document of the agreement can be submitted by the mediator to the Court of First Instance of the jurisdiction where the mediation took place.⁵¹

By virtue of Art. 7 GrMA, Ministerial Decision Nr. 109088 oικ./12.12.2011 of the Minister of Justice, Transparency and Human Rights on the accreditation requirements for foreign mediators (see Σκoρδάκη 2012, 184, 185, as regards the criticism against the exclusion of recognition of accreditation titles acquired outside EU, such as in the USA),⁵² as well as the Code of Conduct which accredited mediators shall respect, have already been issued.

The mediator is obliged under the Code of Conduct to ensure that prior to the beginning of the mediation the parties have understood and expressly agreed on the terms and conditions of the agreement to mediate, including any provisions relating to obligations of confidentiality of the mediator and the parties (Art. 3.1. Code of Conduct).

Obviously, the Greek legislator took significant measures in order to ensure the quality of mediation as provided in Art. 4 of Directive 2008/52/EC. It has been argued, however, that complexity, bureaucracy and difficulties in the implementation of the existing legal framework unfortunately contribute to the maintenance of the limited interest in ADR methods in Greece (K. Kαλαβρός 2012, § 31 III, p. 23, argued in favour of the establishment of strict criteria as regards the option of lawyers-mediators).

5 The Process of Mediation

Mediation procedure is basically governed by Art. 8 GrMA in a spirit of flexibility, given that the relative details are to a large extent determined by the mediator after consultation with the parties. The parties are free to agree with the mediator on the manner in which the mediation is to be conducted either by reference to a set of rules or otherwise (Art. 3.1. Code of Conduct). The lack of formality should not, however, be considered as introducing an out-of-law process. Mediation is not over and above the law. On the contrary, fundamental procedural achievements, such as the equality of the parties, the independence and impartiality of mediators etc., are necessary in order to ensure its success (Mανιώτης 2012, 716, argues that the regulatory framework of mediation must not be determined exclusively by the parties).⁵³

An important element of the mediation procedure is its confidential character. As stipulated in Art. 10 GrMA, mediation shall be conducted in such a way as to respect confidentiality, unless the parties agree otherwise. The parties may bind themselves in writing to maintain confidentiality as to the contents of any agreement reached between them, unless the disclosure of its content is necessary for the enforcement of such agreement.

None of the persons involved in the mediation procedure (e.g. mediators, parties, their attorneys etc.) shall be heard as witness in the future (they are exempted according to Art. 400 GrCCP).⁵⁴ Nor shall they be compelled to disclose information concerning the mediation procedure in subsequent court or arbitration proceedings, unless it is imposed by public policy rules and in particular when it is required in order to ensure the protection of children or to prevent harm to the physical or psychological integrity of a person.

As regards judicial mediation (Art. 214B(6) GrCCP), it is also expressly provided that all persons involved bind themselves in writing to maintain confidentiality. The procedure shall be similarly conducted in such a way as to respect confidentiality, unless the parties agree otherwise.

Despite the objective of the flexibility, as stated above, mediation procedure is also regulated by framework provisions. In this respect, Art. 8(1) GrMA provides that the parties shall attend the mediation procedure accompanied by authorized attorneys.⁵⁵ By virtue of Art. 8(2) GrMA the mediator shall be appointed by the parties or a third person of their choice.⁵⁶ It is subsequently stated that the parties are free to terminate the mediation procedure whenever they wish.⁵⁷ Art. 8(3)(b) GrMA stipulates that no minutes or records are kept.⁵⁸ The mediator can, moreover, communicate and meet in private each party. Similar provisions are introduced by Art. 214B(3)(a) GrCCP as regards judicial mediation.

Neither the GrMA nor Art. 214A GrCCP provide directly for the duration of the mediation procedure. This could be determined by provisions concerning the court procedure. In this respect, Art. 3(1)-(2) GrMA stipulates that the recourse to mediation results in a temporary stay of court proceedings up to the termination of the mediation, which cannot exceed the period of 6 months. Similar provision can be found in Art. 214B(4) GrCCP concerning judicial mediation.

One should note that the main mediation procedure may finish even within 1 or 2 days, reaching an agreement or not (Παντελίδoυ-Koυρκoυβάτη 2012, 1513). In this direction, Art. 12(1) GrMA provides that the mediator is remunerated on an hourly basis and for a period of time not exceeding 24 h, including the time necessary for preparation for the mediation procedure.⁵⁹

6 Failure of Mediation and Its Consequences

As already stated, Art. 8(3) GrMA provides that the parties can finish the mediation procedure at any time they wish, meaning that they can declare their will not to reach an agreement and, thus, the mediator himself proceeds immediately to the termination of the procedure. GrMA does not contain specific provisions in case of an unsuccessful mediation. The last paragraph of Art. 9 GrMA only stipulates that in case of unsuccessful mediation the mediator shall draw up and sigh the minutes alone. He shall not, however, mention the cause of such failure and the party responsible for it (Klamaris and Chronopoulou 2013, 596).

Even though the GrMA does not explicitly enumerate the consequences following an unsuccessful mediation, its spirit makes it clear that at least on some occasions there shall be consequences of a substantive or procedural nature. For instance, the prescription period that was interrupted shall be renewed. If the mediation was ordered by the court, the latter continues the proceedings after summons by any of the interested parties. If the parties refer to mediation before the commencement of the court proceedings, they can file a lawsuit concerning their claim (Klamaris and Chronopoulou 2013, 596). Contrary to the initial proposal,⁶⁰ neither the GrMA nor Art. 214B GrCCP eventually prohibit a second attempt to mediate in case of failure; in this sense no judicial review procedures are provided in such case, since mediation may only result either in a conciliatory settlement or in failure (Hλιακόπoυλoς 2012, 32; Tίτσιας 2012, 318).⁶¹

According to an apposite remark (Παντελίδoυ-Koυρκoυβάτη 2012, 1511), both the mediation process and the final outcome often allow the parties to express their negative emotions and the tension that they may feel due to the bad development of their entrepreneurial, private, family or other relationships. This mere fact, even in case of failure,⁶² may lead both parties to mature in a short period of time, to reassess the advantages and disadvantages of their positions, to re-evaluate the goodwill of the other party and the suggestions made during the mediation and to discuss their case and the available options in the presence or their attorneys, even in the absence of the mediator, coming to an agreement. It is stated, in the same framework, that sometimes, 1 or 2 months after the first unsuccessful mediation, the procedure is repeated on the parties’ initiative and in the presence of the mediator, eventually resolving the dispute by signing the final agreement.

7 Success of Mediation and Its Consequences

As stated in Art. 9 GrMA, after the successful conclusion of the mediation procedure the mediator, the parties and their attorneys sign the minutes, that is the proceedings record. Upon request of at least one of the parties,⁶³ the mediator submits the original document of the minutes to the court of first instance of the jurisdiction where the mediation took place.⁶⁴

The Explanatory Report to the GrMA highlights that the mediation procedure, from its very beginning, during its course and until its – successful or not – termination, constitutes a consensual and voluntary process. In this respect, given the nature and the purpose of mediation one may think that mediation agreements are probably more suitable for voluntary execution, so that the maintenance of an amicable and workable relationship between the parties is ensured to the benefit of their individual and professional as well as the social interest. It has been considered necessary, however, that certain conditions for the enforcement of such agreements shall be established, so that recourse to mediation is further encouraged and the involved parties rely on a predictable legal framework.⁶⁵

By virtue of Art. 9(3) GrMA, since their filing to the clerk of the one-member court of first instance the minutes recording a mediation agreement concerning a claim subject to enforcement constitute an enforceable title under Art. 904(2) GrCCP, which contains a list of instruments that may constitute enforceable titles, including the minutes of court proceedings embodying conciliation.

As clearly stated, in order to be enforceable, the mediation agreement shall concern a claim capable of being materialised through enforcement proceedings (Klamaris and Chronopoulou 2013, 595).⁶⁶ This means that an obligation to provision, action or omission shall be assumed or imposed through such agreement (cf. among others Nίκας 2010, § 18 II, p. 367, 368; Areios Pagos (Full Bench) 2092/1986). Without doubt, the Greek legislator has expressed himself in a narrower way than he wanted so that the view under which the said provision does not apply to formative rights (as is, for instance, the case of distribution of immovable property), cannot be welcome (K. Kαλαβρός 2012, § 31 III, p. 28). Therefore, the creation, the alteration or even the abrogation of real rights can take place by virtue of the minutes recording a mediation agreement (Διαμαντόπoυλoς 2013). The Explanatory Report to the said Article of the GrMA supports this view, stating that this provision ensures the immediate execution of the mediation agreement with no further recourse to other legal proceedings and without neglecting the voluntary nature of the whole process; the inscription of the executory formula is made according to Art. 918(2)(b) GrCCP, namely by the judge of the one-member court of first instance.

On the occasion of the comparison between the legal provisions concerning the minutes recording the conciliatory dispute resolution under Art. 214A GrCCP and the minutes recording a mediation agreement under Art. 9 GrMA, it has been argued that the former equal to judicial settlement as regards their effects, resulting in the quashing of the proceedings (under the wording of Art. 214A(3)(d) GrCCP), while the latter do not carry this quality (K. Kαλαβρός 2012, § 31 III, p. 28, 29). This view cannot be welcomed if one considers that this difference in the wording accrues from the essential distinguishing feature of the two cases. The minutes recording the conciliatory dispute resolution under Art. 214A GrCCP always involve commencement of the court proceedings, whereas the minutes recording a mediation agreement do not involve such commencement of the court proceedings. In this sense, the minutes recording a mediation agreement clearly fall within the scope of the out-of-court settlement under Art. 293(2) GrCCP (Kόμνιoς 2007, 51; cf., however, Klamaris and Chronopoulou 2013, 595, who talk about ‘simple agreement’).⁶⁷ One should accept, however, that once filed with the clerk of the court of first instance and, thus, explicitly become enforceable under Art. 904(2)(c) GrCCP (and not under Art. 904(2)(g) GrCCP), the minutes recording a mediation agreement equal to judicial settlement, resulting, thus, in the quashing of the proceedings that may have already commenced, as well as to the form of notarial act, being, thus, able to be used as title to be registered, when the mediation concerns the creating, transfer, alteration or abrogation of real rights on immovable property. Both the wording and the spirit of the Greek legislator moves towards this direction, if one also considers that such provision for the quashing of the proceedings under Art. 214A(3)(d) GrCCP is not even included in Art. 214B GrCCP on judicial mediation, although Art. 293(1)(b) explicitly equates judicial mediation with judicial settlement; consequently, judicial mediation certainly implies the quashing of the proceedings. The opposite approach, i.e. that the quashing of the proceedings is only possible when the minutes recording a mediation agreement are included in the minutes of the proceedings under Art. 293(1) GrCCP so that a judicial settlement subsequently takes place (K. Kαλαβρός 2012§ 31 III, p. 29; Kόμνιoς 2007, 51; Tζινoπoύλoυ 2007, 174; Hλιακόπoυλoς 2012, 31), is regarded as purely formalistic – particularly if one considers that the latter usually happens when the mediation did not take place according to the institutional framework set out by the GrMA.⁶⁸ In other words, an invalidly conducted mediation would be considered as equal to a validly conducted mediation.

8 Costs of Mediation

Pursuant to Art. 12(1) GrMA, the mediators’ remuneration is to be calculated on an hourly basis. Under the same provision, the occupation of mediators cannot exceed 24 h, including preparation time. The parties and the mediator, however, can agree otherwise as regards the mediator’s remuneration method (Klamaris and Chronopoulou 2013, 592; Kourtis 2013, 213, noting that the parties and the mediator may agree to apply a mode of mediator’s remuneration different from the one based on an hourly rate; See also Xριστoδoύλoυ 2010, 51, who argues that when the mediator is an attorney lawyers fees regulations should apply; such approach cannot be easily justified, however). By virtue of Art. 9(2) GrMA, the mediator’s remuneration shall be borne by the parties in equal shares, unless otherwise agreed by them. The parties shall also bear the fees of their attorneys. Art. 12(3) GrMA provides that the particular determination and adjudication of the hourly based mediator’s remuneration shall be made by the Minister of Justice.⁶⁹

It is to be noted that there is no particular provision as regards the mediator’s remuneration in case of judicial mediation under Art. 214B GrCCP (Άνθιμoς 2012, 283).

It is to be also reminded that, apart from the mediator’s remuneration, in both cases of mediation (GrMA and Art. 214B GrCCP), when the mediator submits the original document of the minutes to the court of first instance of the jurisdiction where the mediation took place, the interested party shall pay a relevant fee, as stipulated in Art. 9 GrMA.⁷⁰

Neither the GrMA nor other special legislation contains provisions dealing with legal aid for the mediation process in particular.

Legal aid in civil and commercial matters is governed by the provisions of Arts 194 et seq. GrCCP on the ‘benefit of poverty’ and Law 3226/2004, which was promulgated to implement Directive 2002/8/EC.⁷¹ It introduced a complete system of legal aid for civil and commercial matters covering both internal disputes as well as disputes with cross-border implications when the parties are citizens of a Member State of the European Union or have their domicile or residence in a Member State. After its enactment, the application of the provisions of Arts 194 et seq. GrCCP in case of civil and commercial disputes has been limited to legal entities as well as to individuals who are not citizens of a Member State of the European Union and have their domicile or residence outside the European Union (Yessiou-Faltsi 2011, 206).

It has been argued that such provisions can hardly apply to legal aid for the mediation process covering its costs as well as the remuneration of attorneys and mediators.⁷² However, given that according to Art. 196(1) GrCCP and Art. 8(1) of Law 3226/2004 legal aid can also be granted for actions not associated with “trial”,⁷³ one could conclude that under the existing legal framework legal aid can cover all the costs of mediation, including the remuneration of attorneys and mediators. Of course, legal aid can be granted under the provisions of Arts 194 et seq. GrCCP and Law 3226/2004 for the enforcement of authentic instruments embodying a mediation agreement.

9 Cross-Border Mediation

9.1 Notion and Main Features

The notion of ‘cross-border mediation’ in the Greek legal order shall be deducted by the provision of Art. 4(a) GrMA, which defines the term ‘cross-border dispute’. Almost repeating the wording of Art. 2 of Directive 2008/52/EC, Art. 4(a) GrMA provides that a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date on which: (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by a court of a Member State; (c) an obligation to use mediation arises under national law; or (d) an invitation is made to the parties by the court before which an action is already brought. The said provision further states that a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date on which the circumstances mentioned above under (a)-(c) occurred. So far the GrMA constitutes the only regulatory framework concerning cross-border mediation. This does not mean, however, that a mediation process cannot take place when one of the parties is, for instance, domiciled outside the EU. Such process may of course be defined as ‘cross-border mediation’; however, this case is not regulated by Greek law and none of the provisions of the GrMA shall apply.⁷⁴

The provisions of the GrMA apply to both internal and cross-border mediation within the EU, which are, thus, regulated in a uniform way. The only exception to such rule of uniform or ‘monistic’ regulation was introduced by the provision of Art. 4 GrMA, which required that particularly in domestic disputes mediators should be only attorneys accredited according to the GrMA, while in cross-border disputes parties are allowed to appoint any person accredited according to the GrMA. Such differentiation was seemingly unjustified and could give rise to constitutional law concerns on grounds of infringement of the principle of equality (Art. 4 of the Constitution).⁷⁵ As already mentioned, after the amendment of the GrMA by para. IE.2 of the first Article of Law 4254/2014, it is provided that also in domestic disputes the parties are allowed to appoint any person accredited according to the GrMA, as provided with regard to cross-border disputes.

Ultimately, particular mention should be made of certain conflict of laws issues that may arise concerning cross-border mediation. This is the case of the law applicable to contracts that are related to the mediation procedure, such as: (a) the agreement to mediate; (b) the agreement between the mediator and the parties; and (c) the agreement settling the dispute between the parties (cf. in this respect Alexander 2013, 170–171). In case of a cross-border mediation the law applicable to the relevant contracts – particularly in case of an agreement under (a) or (b) – shall be governed by the Rome I Regulation.⁷⁶ As to agreements that escape the ambit of Rome I Regulation⁷⁷ – which might be the case of an agreement under (c) – the old provision of Art. 25 GrCC is still applicable (for an overview see Vrellis 2009, 81 et seq.).

9.2 Recognition and Enforcement of Foreign Mediation Settlements

In spite of the voluntary character of the mediation process, there is currently no doubt that this comprises the freedom to resolve a specific dispute by a binding and enforceable agreement (Hopt and Steffek 2013, 3 et seq., at 45 et seq.). This is of particular importance at the level of cross-border mediation, where the effectiveness of a given enforcement regime for foreign mediation settlements may be a decisive factor for the success of the institution of mediation itself.

In this respect, foreign mediation agreements that have been made enforceable in a Member State of the European Union shall be recognised and declared enforceable in Greece as follows⁷⁸: (a) by virtue of Arts 57 and 58 of the Brussels I Regulation,⁷⁹ which apply to authentic documents and court settlements respectively in civil and commercial matters; (b) by virtue of Art. 46 of the Brussels II Regulation,⁸⁰ which applies particularly to authentic instruments and agreements in matrimonial matters and matters of parental responsibility; (c) by virtue of Art. 48 of Regulation EC No 4/2009,⁸¹ which applies particularly to authentic instruments and court settlements relating to maintenance obligations; (d) by virtue of Arts 59–61 of Regulation EU No 650/2012,⁸² which applies particularly to authentic instruments in matters of succession; (e) by virtue of Regulation EC No 805/2004,⁸³ which provides for the issuance of a European Enforcement Order in case of uncontested claims. In the latter case, in fact, a foreign mediation agreement may be recognised and enforced even when it would be inadmissible if reached in Greece, given that Greek courts shall not be able to invoke the public order clause to prevent enforcement in such cases (Kόμνιoς 2007, 51, 52; Γρ.-E. Kαλαβρός 2010, 176 et seq.; Άνθιμoς 2010, 480; Anthimos 2012, 152).⁸⁴ Mediation agreements reached within the European Union, which have not been recorded in an authentic instrument and are not enforceable in a Member State, can be made enforceable according to Art. 904 GrCCP, namely: (a) by being incorporated in a notarial act; (b) after the issuance of an order of payment when the agreement concerns the recognition of a money claim; (c) when they are incorporated in the minutes recording court proceedings embodying the settlement of the parties under Art. 293(1) GrCCP.

Foreign mediation agreements reached outside the European Union, which are registered as an authentic instrument and are enforceable according to the law of the country of origin, shall become enforceable in Greece in accordance with the provisions of Art. 57 of the Lugano Convention of 2007⁸⁵ (with regard to Norway, Switzerland and Iceland) or any existing bilateral treaties, otherwise in accordance with Art. 905 para. 2 GrCCP, provided that they are not contrary to good morals and the Greek public order. If such agreements have not been recorded in an authentic instrument, they can be made enforceable according to Art. 904 GrCCP, as mentioned above, i.e. (a) by being incorporated in a notarial act; (b) after the issuance of an order of payment when the agreement concerns the recognition of a money claim; (c) when they are incorporated in the minutes recording court proceedings embodying the settlement of the parties under Art. 293(1) GrCCP (see also Kourtis 2014, 198).

10 E-Justice

The application of (e)justice instruments to the mediation process is currently provided by Directive 2013/11/EU,⁸⁶ which shall be transposed to Greek law by 9 July 2015, and Regulation (EU) No 524/2013,⁸⁷ which is applicable from 9 January 2016. Both legal instruments provide for the establishment of online dispute resolution mechanisms for consumer disputes (Kόμνιoς 2013, 419 et seq.; Kόμνιoς 2014, 31 et seq.).

The GrMA does not regulate the application of e-justice instruments to the mediation process. At the same time, the application of such instruments cannot be excluded, given also the absence of any provision explicitly requiring the physical presence of the parties at specific stages of the process (Klamaris and Chronopoulou 2013, 599).⁸⁸ The use of online technology may facilitate the mediator and the parties when direct meetings are not possible due to geographic distance or other barriers. Therefore, it could be an advantage in case of certain cross-border mediation processes or even when the value of the dispute does not justify the costs of physical presence (Mακρής 2009, 157 et seq., passim).

11 Concluding Remarks

Mediation is, above all, a philosophical concept known to almost all civilisations. Without doubt, nevertheless, its promotion nowadays is based on a certain political choice about the governance of the state, aiming at important economies on the budget concerning the function of justice and, of course, taking account of the cost of the latter for the whole society. This trend necessarily implies a new interpretation and understanding of the principle of access to justice, as provided by Art. 20 of the Constitution and Art. 6 of the European Convention on Human Rights. Towards this direction, it is explicitly stated in the Recital (5) of Directive 2008/52/EC that the “objective of ensuring better access to justice should encompass access to judicial as well as extrajudicial dispute resolution methods”, which should be offered and organised by the state. Such methods should be considered as ‘complementary’ and not ‘alternative’ dispute resolution methods.

With the exception of arbitration, ADR methods have been treated with certain scepticism in Greece for a number of reasons, such as the fear before the unknown or even the famous Mediterranean mentality (Polyzogopoulos 2013, 1759). As happened in many other jurisdictions, the majority of lawyers in Greece still regard ADRs as ways of ‘Accelerated Decrease of Revenue’. Given, moreover, the relatively low court costs, interested parties have not been prevented from referring to court proceedings even when the possibilities of winning the case are limited (Makridou 2010, 127).

The promotion of mediation in Greece depends on the awareness of its advantages as an innovative tailor-made process which allows the parties to discover the core of their conflict and reach solutions that only satisfy their interests, but could not be obtained in a court room. A curriculum reform in law schools seems to be necessary in this respect. Furthermore, the quality of the mediators’ training as well as the compliance with high ethical standards will definitely play an important role. Admittedly, a first step towards a positive familiarisation with mediation processes is being made through judicial mediation due to the institutional authority and reliability of judges in the minds of the parties in Greece. This is a great advantage, which, at least at the moment, outweighs disadvantages such as the burdening – or the failure of disburdening – of courts and the lack of mediation training requirements as regards judges-mediators. Despite the limited application of the existing legal framework, one can note that since the enactment of the GrMA and Art. 214B GrCCP an increasing number of professionals appear to be interested in learning about the new institution. Given also the significant delays in the state-administered justice, one can expect that in the long term more interested parties may be drawn to mediation and other ADR forms.