This study requires making a distinction between the effects of mediation itself and the effects of the agreement reached by the parties. Although the completion of the mediation does not necessarily imply an agreement, the procedure itself does cause certain positive effects that cannot be ignored.
II. Mediation effects
Avoidance of conflict escalation and reduction in judicial litigation are the first outcomes from mediation. It has been found that the mere fact of initiating a mediation procedure, which requires the willingness of the parties to participate in good faith, produces a notable reduction in conflict escalation. It is also well known that the cost of any legal proceedings far exceeds the mediation. Those facts have contributed to the consideration of adopting measures for increasing mediation.
The latest report published by the Directorate General of internal policy on the rights of citizens and constitutional affairs (EP 493 042) shows some diverse measures which prove to be effective in implementing mediation. For example, the establishment of mandatory mediation in certain categories of cases or mandatory pre-mediation sessions provides incentives for the parties to mediate. In addition, incentives such as requiring legal assistance at the mediation procedures, promoting referral from the courts, establishing sanctions on parties who fail to attend the mandatory mediation, or applying tax benefits to using mediation have also been useful means to increase mediation in some Member States.
After a comparative analysis of existing legal frameworks in twenty Member
States, it appears that only a certain degree of compulsory mediation can generate
a significant increase in the number of mediations. Moreover, the introduction of
mandatory mediation in some areas has caused a positive effect even within voluntary
mediation. In addition to this, the provision of certain legal consequences should one
of the parties refuse to participate in a mediation attempt has been successful in
some States. Some laws attempt to mediation as a prerequisite for admitting a
claim in court.
III. Effects of mediation agreements
We have focused our research on the effects of agreements reached through mediation. From this particular perspective, the first legal effect is the novation of the relationship which arises with the new agreement, with new bonds or commitments replacing the previous ones.
The second effect is that the agreement has the binding force of a new contract and – if the regulations so provide – in some cases enforcement effects as well. With respect to the enforceability of the agreements, most Member States attach to the results the same authority as a judicial decision when the agreement is subject to certain controls or filters of “legality”. In brief, three different tracks are observed:
(i) the agreement reached after a referral from a court or tribunal, which is subject to the approval of the judge or court and embedded into a judicial decision, thus, enforceable.
(ii) the agreement reached out of courts: a public authority may provide such enforceability (e.g. Notary).
(iii) Some countries have also provided a third fastest and expeditious route: the agreement signed by the parties and their lawyers certifying the compliance and respect of the law and public order may become enforceable.
The United Nations Commission on International Trade Law (UNCITRAL) has also compiled some optional instruments of private enforcement currently available online, e.g. scoring systems, trust seals, chargebacks or escrow accounts. A clear example of this result is Italy, where mediation attempt became mandatory from March 2011 until October 2012 and, during that period, the number of voluntary mediations increased
exponentially. The Italian paradigm shows a clear pattern in which the brave and determined will of the legislature, combined with successful legislation has led, overall, unparalleled results to date.
Lege ferenda insights and conclusions. As a brief summary of the research work developed, we hereby outline certain regulatory measures that may be embedded into national laws of Member States in order to improve the effects of electronic mediation and agreements.
(i) The European experience has shown so far that only by introducing a certain degree of obligation will parties agree to mediate. Not surprisingly, a recent report from the Directorate General of Internal Affairs of the European Union in 2014 shows that the only mechanism really effective in increasing the use of mediation among Member States has been the introduction of some mandatory mediation into their judicial systems. It also notes that these measures are now viewed with favor, and unlike at other times, they are currently accepted by most member countries. It thus seems quite clear that we should reconsider Directive 2008/52 / EU in order to introduce a compulsory attempt to mediate in some areas of law and in certain categories of cases, such as in the consumer sector -probably the one most in need of rapid, low-cost solutions. In short, the
attempt to mediate as a procedural requirement for certain categories of conflicts is necessary.
(ii) Furthermore, the introduction of “multistep” processes in which the mediator may recommend or propose formal solutions for the settlement of disputes, such that if a party rejects the proposal and goes to the court and the judge makes a decision according to that proposal, the party which rejected the recommendation may be ordered to pay the full cost of the mediation and conciliation. There is some successful evidence of scalable procedures linked to court proceedings in this regard among European Union member States.
(iii) Another useful measure may be the introduction of expeditious mechanisms for the approval of agreements. Most States already have approval systems, albeit only linked to the mediations carried out by court referral – there are no regulatory provisions allowing for direct application to court approval of an agreement reached by the parties outside a judicial process. This approval may be requested by the expert, the mediator or the
institution which administered the mediation.
(iv) The modernization and standardization of the rules for judicial enforceability of mediation agreements. Interoperability of ADRs / ODRs and as with the awards, a review mechanism or control in the State from which the agreement was reached, as a precondition of execution (exequatur) should be established the courts and a common procedural legal framework to facilitate the enforceability of agreements.
(v) Standardization of formal and substantive requirements applicable to all mediation agreements. As the document would become enforceable before any court or tribunal, it shall be accessible, ready to be downloaded or printed and shall include explicit agreement, with clear wording. The European Small Claims Procedure 3 provides a good example of a dynamic standardized and multilingual form available on various portals and linked to a system of automatic translation of the contents -revisable by qualified
translators. This would also avoid the financial costs and time associated with the translation of the agreement.
(vi) It also appears quite reasonable to require that the parties involved (the mediator, the mediation institution and, if applicable, also the lawyers) shall be fully identified and the agreement shall contain all their signatures. The standardization of a model would greatly facilitate these requirements. The document shall also state that all the guiding principles and procedures of mediation have been adhered to during the procedure, in accordance with the law of the Member State where it took place, together with, when applicable, a statement to ensure that all the rules applicable to consumers have been observed.
Finally, the document shall include a statement to the fact that the parties are aware of the commitments and the consequences of such an agreement as well as the enforceability effects before the courts and/or acceptance to be subject to private enforcement measures.
(vii) To avoid uncertainty, opposition to the execution of agreements may be conditioned to it being filed within a reasonable time once the content of the agreement is known. If we consider again the European Court Order, the court before which a request for execution is submitted shall examine as soon as possible the eligibility requirements (competence to carry out the execution, the cross-border nature of the dispute in civil matters, and so on) and whether the petition is founded to initiate the execution. The
court proceedings should be governed by the laws of the State which effectively executes the agreement. The person enforced could then file a notice of opposition within a short period of time – 30 days maximum.
(viii) Listing the reasons allowing the parties to oppose the enforceability of the agreements, taking into account the existing European and international instruments and applicable law governing the enforcement procedures. In order to prevent the execution from accruing a new venue where the terms of the new agreement are discussed, it is desirable for the system to be limited to economic conflicts.
(ix) Stablishing a system of judicial approval of agreements resulting from mediation. A quick and effective procedure to obtain judicial enforcement and benefit from existing instruments for the enforcement of judicial decisions. This would require standardized procedures, online filing options before the courts.
(x) A less ambitious but more feasible international approach could consist of a title becoming enforceable through arbitration, that is to say, the possibility of converting an agreement on an arbitration award through a simplified arbitration procedure. This mechanism would provide a “filter of legality” and benefit from the New York Convention. Although from a purely theoretical point of view it may raise some concerns – as the award issued under the terms agreed by the parties before the filing of the case to arbitration lacks the pre-existence of a dispute – the agreement resulting from the mediation procedure embedded into the arbitration award would be recognized as enforceable at international level.
(xi) To conclude, another last and final measure that may be adopted by State Members —ultima ratio in our view— would be to impose sanctions or penalties on those who repeatedly breach agreements or decisions, similar to the existing sanctions on businesses which do not comply with the requirements of information to consumers.
In particular Regulation (EC) no. No 44/2001, Articles 38 et seq. Lugano Convention of 30
October 2007, EU Regulation 1215/2012: Recognition and enforcement of judgments in civil and commercial matters in the EU, Article 8. 1 of the UNCITRAL Model Law on International Commercial Arbitration. By way of example, the following: (i) payment or compliance (ii) that the dispute cannot be subject to mediation; (iii) that the procedure has not complied with the principles and procedure of mediation in accordance with the law of the State where it took place. (iv) that the agreement does not respect the general principles of law or good faith. (v) that the agreement constitutes abuse or fraud; (vi)
that its content violates the public order or the rules of ius cogens. (vii) that the agreement does not meet the minimum formal requirements to become enforceable (ix) that the agreement does not reflect the consent of the parties or their will (x) that the agreement has been obtained by error, fraud, intimidation or violence, or have disability or minority of either party. (xi) that the agreement was subsequently amended by agreement of the parties; (xii) that there is a court decision on the subject matter. Needless to say that the respondent may seek review of the enforcement procedure when notification has not been made sufficiently in advance to enable him to arrange his defense or could not defend himself for reasons of force majeure.
See more at: A.E. Vilalta (2017) “The Effect of Electronic Mediation Outcomes”, Electronic Mediation and E-Mediator Proposal for the European Union. Ed. Comares ISBN: 978-84-9045-405-3. Pp 151-155. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2914923