In June 2012 the Hong Kong Legislative Council passed the Mediation Ordinance (MO), the first piece of legislation on mediation in Hong Kong SAR. The MO was a much awaited and highly anticipated law and some mediation advocates have been disappointed in what they see as much ado about nothing. After all the MO appears as a very thin document containing only 11 provisions.

However the MO must be seen as part of Hong Kong’s broader mediation landscape. As a member of the Mediation Taskforce that was responsible for the content of the MO, I can report that the Ordinance was the subject of serious international research and deliberation. It forms the pivotal piece of a broader legal landscape [...]

The Czech Republic joined the EU Member States that have put the necessary rules in place to transpose the Directive 2008/52/EC on mediation in civil and commercial matters. The new Mediation Act (Act No. 202/2012 Coll., “the Act”) became effective on 1 September 2012. Whereas the Directive’s implementation was significantly delayed (Article 12(1) required Member States to complete it before 21 May 2011), the Act belongs to the most comprehensive and detailed mediation laws in Europe.

While mediation has been by no means unknown in the Czech Republic, the Act aims to establish a proper legal framework and thus significantly increase the amount of cases settled through mediation. Until [...]

Many have tried but all have failed to implement a definitive single enforcement mechanism for cross-border mediated settlement agreements.

This lack of any coherent method of enforcement is widely seen as a major impediment to further globalisation of mediation, the argument being how can we expect parties involved in large international commercial disputes to embrace mediation if there is a risk that any outcome might be, to all intents and purposes, unenforceable.   Why would international parties not simply default to arbitration where the New York Convention of 1958 -  Convention on the Recognition and Enforcement of Foreign Arbitral Awards with its 146 member states ensures the enf [...]

Finally, after a long parliamentary struggle, the German Mediation Act (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was signed into law by the President of the Federal Republic (Bundespräsident) on July 21, 2012. Four days later it was published in the Federal Gazette (Bundesgesetzblatt) BGBl. I, 2012, S. 1577, and came into force on July 26, 2012.

When I reported in early January that the law was passed in Bundestag, it might have appeared that just a couple of weeks are needed to finalize the legislative process. However it soon turned out that the Mediation Act required the Mediation Committee (Vermittlungsausschuss) of the upper [...]

In a previous post, I had briefly described how mediation is now embodied in the Swiss legislation and whether this may contribute to its development in Switzerland.

Regarding mediation within the Judiciary, I had mentioned the lack of significant development in this field. I identified two main causes.

The first one is the principle of party autonomy established in the Swiss Code of Civil Procedure (Art. 216 CCP: see text in French at http://www.admin.ch/ch/f/rs/c272.html) pursuant to which mediation is considered as being independent from the Courts (Court ordered mediation being thus not known in Switzerland) and does only vest with the free will of parties interested therein.

Second, ju [...]

In the Romanian Parliament there has been submitted a draft to amend the legislative framework regarding mediation.

Thus, according to the draft, prior to referring the case to the court of law or the criminal pursuit body, Parties or any of these are bound to try and settle the conflict by mediation, under penalty of prematurely filing the lawsuit or the precursory pursuit.

The interested Parties and/or the interested Party, as the case may be, are bound to provide evidence of the fact that they had tried to settle their litigation by mediation within conflicts arisen in the following fields:
a) In the field of consumers’ safety, if a consumer claims damages as result of having purchased [...]

Picking up where I left off last post, I want to discuss what I consider to be a major problem with the Ontario Commercial Mediation Act, 2010 (OCMA) relating to the admissibility of evidence of what occurred during a mediation.

Generally (with some exceptions) at Common Law anything said or done in mediation is inadmissible in subsequent proceedings. This “mediation settlement privilege”, as it is sometimes referred to, is understood to be critical to the success of the process because it permits frank and open discussion at the mediation.

However this concept has been seriously eroded the Province of Ontario, Canada, by the enactment of section 9(3) of the OCMA which says, “Informati [...]

On December 15, 2011, the Act for the Promotion of Mediation and other Procedures of Extrajudicial Conflict Settlement (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was passed in the “lower chamber” of the German parliament (Deutscher Bundestag).

The adoption of the Act was based on the recommendation of the Legal Committee (Beschlussempfehlung und Bericht des Rechtsausschusses), which – as stressed in the official release – was made unanimously by all five political factions in the Bundestag (i.e. in a truly mediation-like manner!). The Committee agreed on a number of amendments to the original draft presented in April 2011 (1 [...]

It has been nearly a year since the Federal Code of Civil Procedure (“CCP”) has entered into force in Switzerland (text available, in French, at: http://www.admin.ch/ch/f/rs/c272.html). The purpose of this post is to briefly describe how mediation is now legally embodied at the judicial level and whether this contributes to the development of mediation in Switzerland.

First of all, it must be recalled that due to the legal system prevailing in Switzerland – the federalism -, the civil procedure was within the sphere of competence of the “cantons” until the end of 2010. This meant that each canton had its own rules of procedure, irrespective of the fact that the law on the substance is gener [...]

CNJ, the National Justice Council created on December 31st, 2004, and set up on June 14th, 2005 is an organization of the Brazilian Justice Department, with headquarters in the Federal District. It covers the whole national territory aiming at the coordination, administrative control and improvement of public services as far as Justice is concerned. Its Mission is to contribute to the ethics, efficiency and effectiveness of Justice on behalf of society.

CNJ’s work consists of: (i) strategic planning and suggestions as to judicial policies; (ii) technological improvement of the Justice system; (iii) expansion of access to Justice, social pacification and responsibility; (iv) guarantee of ef [...]