Friday, 26 January 2018

New law on mediation in civil and commercial maters - Some cross border issues

In the course of yet another effort of the Greek Government to fulfil the promises made to its creditors, a new ‘tutti-frutti’ law has been approved by the Parliament. A wide range of open issues has been regulated by Law 4512/2018, published on January 17, one of which is a radical reform of the 2010 law on mediation in civil and commercial maters. There are a number of issues which have been discussed before and after promulgation. This short article will exclusively deal with some intriguing cross border issues, which may arise as a result of the recent reforms.

Articles 178-206 of the law regulate the new mediation landscape. We shall focus on Article 182, which introduces compulsory mediation for a number of disputes. These are in a nutshell: condominium, car accident cases, fees, some family matters, medical liability, industrial property rights (trademarks, patents, designs), and stock exchange transactions. Failure to engage in a mediation attempt is sanctioned with inadmissibility of the proceedings.

First of all, it is the lawyer of the claimant who is required to inform the party about the possibility or the obligation to resort to mediation. Regardless of the result, a respective document signed by the party and the lawyer must be submitted to the court, otherwise the latter will not enter into the merits of the dispute, and order a reopening. 

With respect to the cases falling under the scope of compulsory mediation, the claimant (or his/her lawyer) is obliged to trigger the mediation process by selecting a person from the list of accredited mediators. Once appointed, the mediator shall notify the other party/parties about the date and venue of mediation. Notice may be effected by registered letter, electronically, or by any other legal means. The mediation session has to take place within 15 days following notice, during which both parties shall have to be present with their lawyers. Consumer disputes and small claims are excluded from the party’s duty to attend the session with a lawyer.

The above may work smoothly when all parties are residents of Greece. Still, what if one or (sometimes) both parties are living abroad? 

Regarding the first point (document certifying that the lawyer informed the client on mediation alternatives to litigation), the problem of distance is solved by digital technology: The lawyer sends the document to the client living abroad (fax, e-mail with a scanned copy attached), he prints, signs and sends it back by post. Then the lawyer signs and submits the document to the court. 

The second case however may cause problems. Should the party always travel to Greece, even if there are no visible signs of a settlement? The law stipulates two exceptions: the first one refers to parties of unknown residence. The second allows for the use of digital tools, i.e. online mediation, however only if presence is not possible. It is open to interpretation when a party is actually hindered to attend the mediation session. In addition, digital channels should secure a faultless conduct of the mediation session. Hence, there is still a lot of work in this respect. 

Finally, there is one more issue related to the forms of notification selected by the legislator, regarding the notice of the mediation session to the other party. Is it compatible with the Service Regulation or the 1965 Hague Service Convention to serve documents “electronically”? And what if notice is sent by registered letter to a party residing in a country-signatory member of the Hague Convention, which does not accept postal service? Or should one exclude this notice form the ambit of the above international instruments? 

These, and many more issues, have come to the surface after the enactment of the new mediation law. Fortunately, there is still time to improve things, taking into account that Art. 182 will become effective nine months after publication of the law.


At 26 September 2018 at 21:33 , Blogger charlos john said...

All your hard work is much appreciated. Nobody can stop to admire you. Lots of appreciation. Lawyer


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