Greek Mediation Legislation

Act n. 3898[1] Mediation in civil and commercial cases

The President of the Greek Republic

We issue the following act, voted by the Parliament

 

Article 1

Purpose

 

This law serves a) to adapt the Greek Legislation to the provisions of the European Parliament’s and Council’s Directive n. 2008/52/EC of May 21st 2008 on certain aspects of mediation in civil and commercial cases in cross-border disputes and b) to institutionalize national procedures for mediation.

 

Article 2

Disputes subject to the Law

 

Private law disputes may be subject to mediation upon agreement of the parties, if they have the power to dispose of the object of the dispute. The agreement to take the dispute to mediation can be evidenced by a document or by the Court’s minutes in the case of paragraph 2 of article 3 and is ruled by the provisions of Contract Law.

 

Article 3

Resort to mediation

 

  1. Mediation is possible:
  2. a) if the parties agree to resort to the mediation process before or during a court pending case
  3. b) if they are called to resort to mediation according to paragraph 2 of the present article
  4. c) if mediation is ordered by the Court of another member State or
  5. d) if mediation is obligatory by law.

Resort to mediation temporarily excludes, until its completion, the process before the Courts.

  1. The Court before whom the case is pending may at any moment of the trial, depending on the case and after taking into consideration all the circumstances of the case, invite the parties to resort to mediation in order to solve the dispute. If the parties agree the Court obligingly adjourns the hearing of the case and sets a trial date at least three but no more than six months later.

 

Article 4

Definitions

 

For the purposes of the present act the following definitions apply:

  1. a) a cross-border dispute is one during which at least one of the parties permanently resides in or usually inhabits a member State different from the one of the other party, at the date where the dispute arose
  2. aa) the parties agree to resort to the mediation process after the dispute has arisen
  3. bb) mediation was ordered by the Court of a member State
  4. cc) there lies an obligation for mediation according to national law or
  5. dd) the parties are called upon for the purposes of paragraph 2 of article 3.

For the purposes of articles 10 and 11, a cross-border dispute is one for which judicial procedures or arbitration commence after mediation between the parties in a member State other than this of the permanent domicile or temporary residence of the parties, on the prescribed in the above provision a sub-element aa, bb, or cc date.

The concept of residence is defined according to articles 59 and 60 of Reglement n. 44/2001 (EC).

  1. b) mediation is defined as a structured process, regardless of its name, in which two or more parties in a dispute voluntarily attempt to resolve the dispute by an agreement with the help of a mediator. This definition does not include the attempt for a compromise that is initiated by a Peace Court Judge or by the Court during the trial, according to articles 208 etc and 233 paragraph 2 of the Code of Civil Procedure.
  2. c) a mediator is defined as a third, with regard to the adversaries, person, who is asked to undertake mediation in an appropriate, effective and impartial manner, regardless of the way he was appointed or charged with the above mediation. The mediator shall be a lawyer accredited mediator according to the previsions of article 7. If the dispute is cross-border, according to provision a of the present article, the parties can appoint a non-lawyer accredited mediator.

 

Article 5

Training Institutions

 

  1. Institutions for training mediators may be civil non profit companies founded jointly by at least one Bar Association and at least one of the (professional) Chambers of the Country and operate after being granted a license from the services of article 7.
  2. A presidential decree, issued after proposal of the Ministers of Justice, Transparency and Human Rights, Finance, Competition and Maritime Affairs and Education, Perpetual Learning and Religion, defines more specifically the terms and conditions of the license and operating of the training Institutions for mediators, the content of the program for basic and advanced training, their duration, the location for the training, the qualifications of the trainers, the number of participants, as well as the sanctions inflicted to the training institutions for mediators, in case of non observance of their responsibilities. Those sanctions consist of a monetary forfeit or a temporary or permanent revocation of their operating license. The criteria for selecting and determining the sanctions shall be defined by the above presidential decree.
  3. For the granting of the license for establishment, the training institutions of paragraph 1 make a deposit for the State, the amount and the readjustment of which is determined by a joint decision of the Ministers of Finance and Justice, Transparency and Human Rights.

 

Article 6

Accreditation Institution

 

  1. A “Mediator’s Accreditation Committee” is formed under the surveillance of the Ministry of Justice, Transparency and Human Rights. Under the jurisdiction of the Committee fall especially the accreditation of the candidate mediators, the inspection of the training institutions for the observance of their obligations, the inspection of accredited mediators with regard to their compliance to the Code of Conduct, as well as the recommendation to the Minister of Justice, Transparency and Human Rights with regard to the enforcement of sanctions provided in articles 5 and 7. The Committee is formed by the President and four (4) members, as well as an equal number of alternates. The term of office is three years.
  2. By decision of the Minister of Justice, Transparency and Human Rights, three (3) accredited mediators with full training and sufficient experience in mediation matters and two (2) lawyers, recommended by the plenary session of the Presidents of the Bar Associations, are appointed as president and members of the Committee and their alternates. For each session, the president and the members of the Committee receive remuneration, set by a joint decision of the Ministers of Finances and Justice, Transparency and Human Rights.
  3. The accreditation of the candidate mediators takes place after examination before an examination committee which is formed by two members of the Committee of paragraph 1, appointed by its President, and a Judge, appointed according to the disposition of paragraph 2 of article 41 of Law 1756/1988, who chairs this committee. The committee evaluates if the candidate possesses the knowledge, skills and sufficient training from the training institutions of article 5 in order to provide his mediation services and the committee’s conclusion is put in writing and shall be fully reasoned. For the secretarial support for the tasks of the Committee of article 1 and the examination committee, the plenary of the Bar Associations is obliged to have the personnel provided in the Reglement of paragraph 5 of this article. A joint decision of the Ministers of Finance and Justice, Transparency and Human Rights specifies:
  4. a) the way and amount of the remuneration of the examination committee’s members
  5. b) the examination fees paid in advance by the candidates to the examination committee[2]
  6. The decision of the Committee referred in paragraph 1 for the accreditation or not of the mediators shall be written and issued according to the decision of the examination committee.
  7. A decision of the Minister of Justice, Transparency and Human Rights:
  8. a) approves the Regulation for the operation of the Committee of paragraph 1 and the examination committee
  9. b) defines, more specifically, the procedure, the way, the criteria, the terms and conditions for examining the candidate mediators before the examination committee
  10. c) defines the procedure for the inspection of the mediator’s training institutions and the accredited mediators
  11. d) regulates every related issue.

 

Article 7

Accreditation

 

  1. The Department for the lawyer’s function and bailiffs of the General Direction Of Justice’s Administration of the Ministry of Justice, Transparency and Human Rights is in charge of the accreditation of mediators and the issuance of administrative acts necessary for the accreditation, and also is responsible for creating inventories of the licensed training institutions and accredited mediators and for distributing these to the Courts.
  2. A decision of the Minister of Justice, Transparency and Human Rights
  3. a) defines the specific terms and conditions for the accreditation of the mediators as well as the procedure for recognizing the accreditation that mediators have received in another member State of the European Union. For this recognition, as well as for the temporary or permanent revocation of the accreditation a prior assent of the Committee of article 6 paragraph 1 is required
  4. b) a Code of Conduct for the accredited mediators is adopted
  5. c) sets out more specific requirements for the infliction of sanctions for violating the previsions of the above Code of Conduct. The sanction, inflicted after the assent of the Committee of article 6 paragraph 1, is the temporary or permanent revocation of the accreditation and
  6. d) any related issue is regulated

 

Article 8

Procedure

 

  1. In the mediation process the parties or their proxy or their plenipotentiaries, where legal persons are concerned, shall be present with their attorney.
  2. The mediator is appointed by the parties or by a third person of their choice.
  3. The mediation process is determined by the mediator after consulting with the parties, who can terminate the mediation process whenever they wish. The mediation process is confidential and no minutes are kept. The mediator may communicate and meet, within the frame of mediation, with each one of the parties. Information that the mediator might become knowledgeable of during these meetings with one party shall not be communicated to the other without his/her assent.
  4. The mediator is not obliged to accept his appointment and is responsible, during the mediation, only for willful misconduct.

 

Article 9

Enforceability of mediation’s settlement agreements

 

  1. The mediator shall draw up the Mediation’s Minutes which shall include:
  2. a) the name and surname of the mediator
  3. b) the location and time of the mediation
  4. c) the names and surnames of those who participated in the mediation process
  5. d) the agreement for mediation, based on which the mediation was carried out
  6. e) the settlement agreement of the parties or the confirmation of failure of the mediation as well as the cause of the dispute.
  7. After the end of the mediation process, the Minutes are signed by the mediator, the parties and their lawyers. The original document, at the request of at least one of the parties, is tabled by the mediator at the secretary of the Court of First Instance of the district where the mediation took place. At the time of tabling the person concerned pays a fee to the State, the amount and readjustment of which is defined by a joint decision of the Ministers of Finance and Justice, Transparency and Human Rights[3]. In case of failure of the mediation, the Minutes can be signed only by the mediator.
  8. With the tabling at the secretary of the Court of First Instance, if it includes an agreement of the parties concerning a claim that can be enforceable, the Mediation’s Minutes is an enforceable title according to article 9 paragraph 2 passage c of the Code of Civil Procedure.

 

Article 10

Confidentiality of mediation

 

The mediation must be conducted in a manner that does not violate its confidentiality, unless the parties agree otherwise. Before the commencement of the process all the participants commit in writing to respect the process’s confidentiality. The parties, if they wish to do so, commit to safeguard the confidentiality as to the content of the settlement agreement which they may reach during mediation, unless the disclosure of the agreement’s content is necessary for its enforceability, according to article 9 paragraph 3.

Mediators, parties, their proxies and all those participating in the mediation process shall not be questioned as witnesses. All of the above persons may not present, in following court cases or arbitrations, evidence that came from the mediation process or is relevant to it, with the exception of matters of Public Order, especially in order to secure the protection of minors or to avoid the danger of harming the physical integrity or the mental health of a person.

 

Article 11

Consequences of mediation with regard to the statute of limitations and deadlines

 

The resort to mediation according to the provisions of article 3 interrupts the statute of limitations and deadlines throughout the mediation process. With reserve of the provisions of articles 261 etc of the Civil Code, the statute of limitations and other deadlines that have been interrupted start again the moment the Minute for the mediation’s failure is written or when one of the parties and the mediator is served with a statement of withdrawal from the process of any of the parties or when the mediation is abandoned in any way.

 

Article 12

Fees

 

  1. The mediator is paid by the hour for a maximum of 24 hours, which include his time for preparation of the mediation process. The parties and the mediator may agree to a different way of payment.
  2. The mediator’s payment is bared equally by the parties, unless the parties agree otherwise. Each party shall bare the fees of their respective attorney.
  3. The amount of the by-the-hour fee of paragraph 1 is set and readjusted by a decision of the Minister of Justice, Transparency and Human Rights[4].

 

Article 13

Notifying the public

 

The Ministry of Justice, Transparency and Human Rights is burdened, in any appropriate way, especially via Internet, with providing information to the public concerning the ways of having access to mediators.

 

Article 14

Transitional provision

 

For the first synthesis of the Committee of article 6 paragraph 1, at the exception of what is provided in article 7 paragraph 2, mediators who have received their accreditation in another member State of the European Union may be appointed.

 

Article 15

Commencement of applicability

 

This Act becomes applicable with its publication at the Official Journal.

 

We order the publication of the present act at the Official Journal and its application as a Law of the State.

 

Athens, December 15th 2010

The President of the Republic

 

The Ministers

 

 

Stamped and sealed

Ministerial Decree 109088[5] Procedure for the certification of mediator’s accreditation titles. Adoption of the Code of Conduct for accredited mediators and Determination of sanctions for its violation

The Minister of Justice, Transparency and Human Rights

 

Considering:

  1. The provisions of article 7 paragraph 2 of Law 3898/2010
  2. The fact that the provisions of the present decree do not produce any expense on the detriment of the state budget, we decide:
  3. We define the procedure for the certification of mediator’s accreditation titles issued by foreign training institutions as follows:

The mediator’s accreditation title issued by a foreign training institution is certified as equivalent by the Mediator’s Accreditation Committee according to the following procedure:

  1. All those interested submit a request for certification of the mediator’s accreditation title. Such request is submitted in a specific form, defined by the Mediator’s Accreditation Committee and constitutes a statutory declaration on the accuracy of the real facts that are mentioned in it. The Mediator’s Accreditation Committee may request for additional data and may call the interested party for supplementary explanations.
  2. The request form shall be accompanied by the following documents:
  3. a) a validated copy of the accreditation title
  4. b) an analytical curriculum vitae, with extensive mention of studies, foreign languages, attendance of seminars, conferences, research programs etc as well as further training and experience in mediation procedures
  5. c) a certificate from the training institute addressed to the Mediator’s Accreditation Committee of article 6 paragraph 1 of Law 3898/2010, which ascertains:
  6. aa) the total number of training hours
  7. bb) the curriculum
  8. cc) the location of the training
  9. dd) the number of participants
  10. ee) the number and qualifications of trainers
  11. ff) the candidate’s examination and evaluation procedure and the way to ensure its fairness.
  12. If the training and evaluation took place in Greece by a foreign training institution, aside from the above documents, a certificate of the training institution is required, addressed to the Mediator’s Accreditation Committee of article 6 paragraph 1 Law 3898/2010, which shall ascertain that the quality of the provided training and evaluation is equivalent to the training’s quality had it taken place in the State where the training institution operates.
  13. The President of the Committee charges a member of the Committee with the file, who, after gathering the necessary documents, writes a recommendation and submits it to the President. The recommendation, accompanied by the file, is introduced, by the President, for discussion before the Mediator’s Accreditation Committee within 15 days from the submission of the recommendation and the Mediator’s Accreditation Committee shall reach a decision within 15 days.
  14. The Mediator’s Accreditation Committee shall accept the equivalence of the title if the above title is issued by an acknowledged foreign training institution and the candidate has certified experience of participation in at least three mediation procedures as mediator, assistant mediator or as the attorney of one of the parties. Otherwise, the Committee may, at its discretion, request that the candidate be submitted to further examination, particularly if his/her training has taken place in Greece by a foreign training institution.
  15. The request for certification shall be accompanied by a fee for the State, defined at 150 €[6].
  16. We adopt a Code of Conduct for accredited mediators as follows:

 

Article 1

Competence and appointment of mediators

 

  • Competence

Mediators shall be accredited by an authorized training and accreditation institution. Aspects that are taken in consideration are, among others, the appropriate professional training and the continuous up-to-date training and practice on mediation skills, according to the accreditation models or systems.

  • Appointment

The Mediator must confer with the parties regarding suitable dates on which the mediation may take place. Before accepting the appointment, the mediator must verify that he/she has the appropriate knowledge and competence to conduct mediation and he/she shall provide to the parties, upon their request, information concerning his/her knowledge and experience.

  • Promotion of the mediator’s services

Mediators may promote their services in a professional, truthful and dignified way.

 

Article 2

Independence and Impartiality

 

2.1 Independence and neutrality

The mediator shall not accept the appointment, and if he/she has already accepted it shall not continue with it, if he/she has not already disclosed any information that may or may be seen to affect his independence or give rise to a conflict of interests. The duty to disclose such circumstances is a continuing obligation throughout the process of mediation.

Circumstances as mentioned above include:

  1. a) any personal or business relationship with one of the parties
  2. b) any financial or other interest, direct or indirect, in the outcome of the mediation
  3. c) the fact that the mediator or a member of the company he works for has acted in the past in any capacity other than mediator for one of the parties.

In such cases the mediator may accept his appointment or continue to act as mediator only if he is certain of being able to carry out the mediation in full independence and neutrality in order to ensure complete impartiality, and with the explicit consent of the parties.

2.2 Impartiality

The mediator shall act and shall be seen to act (by any third person), at all times, with impartiality towards the parties and shall be committed to serving each party equally within the mediation process.

 

Article 3

The mediation agreement, process, settlement and fee

 

3.1 Procedure

The mediator shall ensure that the parties to the mediation understand the characteristics of the mediation process to be followed and the role of the mediator and the parties.

The mediator shall in particular ensure that prior to commencement of the mediation, the parties have understood and expressly agreed the terms and conditions of the mediation agreement including especially any applicable provisions relating to obligations of confidentiality on the mediator and on the parties.

Upon request of any party, the mediation agreement may be drawn up in writing.

The mediator cares to conduct the process in an appropriate manner, taking into consideration the circumstances of the case, for example the possible power imbalances, any wishes the parties may express and the need for a prompt settlement of the dispute. The parties are free to agree with the mediator on the manner in which the process will be conducted, either by reference to a set of rules or otherwise.

The mediator may hear each party separately, if he deems it useful.

3.2 Fairness of the process

The mediator shall ensure that all parties have adequate opportunities to participate in the process.

The mediator, if he deems it useful, informs the parties and may terminate the mediation if:

  1. a) a settlement is being reached that for the mediator appears non-enforceable or illegal, with regard to the circumstances of the case and the competence of the mediator for making such an assessment, or
  2. b) the mediator considers that continuing the mediation is unlikely to result in a settlement

3.3 The end of the process

The mediator shall take all appropriate measures to ensure that a potential settlement agreement that resolves the dispute will be reached by all parties through knowing and informed consent and that all parties understand the terms of the agreement.

The parties may withdraw from the mediation process at any time without any justification.

The mediator shall, upon request of any of the parties and within the limits of his competence, inform the parties as to how they may formalize the agreement and how they can make it enforceable.

3.4 Fee

The mediator shall always provide the parties with compete information as to the mode of remuneration he/she intends to apply, unless this information has already been provided. The mediator shall not accept his appointment before all parties concerned have agreed on the applicable principles concerning his remuneration.

 

Article 4

Confidentiality

 

The mediator shall keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled to act differently by law or by reasons of Public Order.

Any information communicated in confidence to the mediator by one party shall not be disclosed to the other parties, unless permission is given or the disclosure of the information is obligatory by law.

 

Article 5

Sanctions

In case of violation as to the mediator’s obligations imposed by the Code of Conduct, the Minister of Justice, Transparency and Human Rights, with the assent of the Mediator’s Accreditation Committee, may proceed to a temporary or permanent revocation of the accreditation, depending on the gravity of the violation or the recurrent conduct of the mediator.

 

This decision is to be published in the Official Journal.

 

Athens, December 12th 2011

 

The Minister

[1] Translated from greek and adapted for the english language by Dimitra GAVRIIL, accredited mediator and lawyer with the Athens Bar Association. All rights reserved, May 2013

[2] Currently set at 300 €, according to the Minister’s Decision 2693/2012

[3] Currently set at 100 €, according to Minister’s Decision 2693/2012

[4] Currently set at 100 € per hour according to Minister’s Decision 1460/2012

[5] Translated from greek and adapted for the english language by Dimitra GAVRIIL, accredited mediator and lawyer with the Athens Bar Association. All rights reserved, May 2013

 

[6] Currently set at 300 €, according to the Minister’s Decision 2693/2012