Implementation of the Mediation Directive (2008/52/EC) in Greece – Law on Mediation 3898/2010
Greece has implemented the EU directive by enacting Law 3898/2010, which came into force on December 16th, 2010. This law, which bears the title “Mediation in Civil and Commercial Matters” (hereinafter referred to as “Greek Mediation Law”) has already undergone two reforms and was soon to be followed by a series of other legislative acts including Presidential Decree 123/2011 on “the licensing and operation of mediation training providers” and several ministerial decisions regulating particular aspects on mediation.
In addition to this main legislative initiative taken in response to the Directive, Greece went on to introduce judicial mediation in 2012 by adding a new article to its Code of Civil Procedure (art 214B CCP) that grants the right to courts to appoint judges to serve as full or part time mediators for a term of two years. It was in July 2015 that another article was added in CCP, art 214C CCP, especially targeted to mediation and that one will come into force from the beginning of 2016.4
Law on Mediation 3898/2010 – Scope
Although the Directive is limited to cross border mediations and applies to civil and commercial matters – expressly excluding those rights and obligations which are not at the parties’ disposal under the relevant applicable law-, Greece extended the application of the directive to apply also to its domestic disputes on civil and commercial matters as paragraph 8 of the preamble of the directive seemed to suggest.
Law on Mediation 3898/2010 – Definition
(i) Cross border disputes
The Greek Mediation Law has included in its article 4 a definition of cross border disputes similar to the one prescribed in art.2 of the Directive.
(ii) Mediation / Mediator /Judicial Mediation
The Greek Mediation Law reiterates in its art 4 the definition regarding mediation and the mediator as these are stated in art 3 of the Directive and defines accordingly mediation as “a structured process however named or referred to whereby two or more parties to a dispute attempt by themselves to reach an agreement on the settlement of their dispute with the assistance of the mediator”.
The same applies also to what is called in Greece “judicial mediation” following the introduction of art.214B to CCP. Art 214B specifically refers to mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question excluding also attempts made by the court in the course of judicial proceedings (as prescribed exactly by art 3(a) second para of the Directive). Furthermore, according to the same provision, as already mentioned above, each first and second instance court in Greece has the right to appoint one or two presidents of the respective court to serve as full time or part time mediators for a term of two years. So far most of the courts in the country have appointed judges to serve as mediators but the mediation activity has not been remarkable. It is furthermore to be noted that interested parties who opt for judicial mediation are only to be burdened (with the exception of their lawyers fees) with the sum of 20 euros prescribed as a stamp duty and payable only in case of a settlement agreement.
Quality of mediation
The standards set by the Greek legal framework to ensure quality in mediation in accordance to the Directive’s requirements refer to (a) the regulation of the training and accreditation of mediators (b) adherence to a specific code of conduct and (c) the existence of effective quality control mechanisms concerning the provision of mediation services.
There exist detailed legal rules that regulate all the above. More specifically:
- According to art. 5 para 1 of the Greek Mediation Law training can only be provided by not for profit organizations set up by at least one Greek Bar association and one Greek professional chamber (public bodies). Presidential Decree 123/2011 further provides for details regarding the specific conditions for the licensing of mediation training providers by the Department of Lawyers’ Function and Bailiffs (which operates at the Justice Administration General Directorate of the Ministry of Justice), the minimum number of training hours (40h for the initial training with additional 10h of updating every two years), the minimum content of the training agenda, the maximum number of delegates per course (18) and minimum number of trainers per course (one trainer for every nine delegates) their minimum required qualifications and other specifics. Up to date five public training institutes have been set up and are licensed to operate in Greece, most of them with the cooperation of private foreign training providers, and so far they have delivered the basic 40h training on civil and commercial mediation leading to accreditation to more than 1200 delegates.
- Accreditation/ Certification Criteria. Mediators are accredited by the Administration Directorate General of the Greek Ministry of Justice, Transparency and Human Rights. Under the supervision of the MOJ there exist two Committees (i) the Mediators’ Examination Committee established for the needs of the written and oral examination of the trained mediators according to the standards prescribed by law and (ii) the Mediators’ Accreditation Committee entrusted among other things with the accreditation of the mediators upon successful completion of their exams.
(b) Mediators Code of Conduct. The Greek Mediators’ Code of Conduct is very similar – almost identical- to the European Code of Conduct for Mediators.
(c) Control Mechanisms. As previously mentioned, the Mediators’ Accreditation Committee is entrusted mainly with the accreditation of the mediators upon successful completion of their exams but also with the supervision of the mediation training providers and the adherence of the mediators to the Code of Conduct and is responsible to propose sanctions (both monetary and disciplinary) to be imposed through a decision issued by the Minister of Justice in case of any proven infringement.
It is notable also to mention the mandatory presence of lawyers during the mediation process who are required to assist their clients (art 8 para1 of the Greek Mediation Law). It has been argued in the Explanatory Note of the law that such a provision instills trust in mediation as an alternative dispute resolution method and further reinforces the quality of the process.
Recourse to mediation
As the legal framework of mediation stands now for Greece one can distinguish that it provides for three types of mediation: voluntary, recommended (not ordered by the court) and imposed by law. Voluntary mediation, that is mediation freely chosen by the parties, is now regulated mainly by the Greek Mediation Law and art 214B of the CCP. As regards mediation recommended by the court the Greek Mediation Law (art. 3 para 2) repeats art 7 para 1 of the Directive and provides that the court before which an action is brought, having regards to all the circumstances of a case, may invite the parties to use mediation to settle their dispute. Should the parties agree, the court suspends the hearing of the case for a minimum period of three months, which in no case can it exceed a maximum period of six. Although there is a reference in art 3 para 1(d) to the possibility for a mediation to be initiated through an obligation provided by law, there is yet no such provision in the Greek law providing for mandatory mediation. Similarly there is no provision for the courts to order mediation either. Greek legislation has also failed to introduce any specific provisions regarding voluntary or mandatory attendance of information sessions and missed the opportunity to boost mediation practice through the introduction of incentives and sanctions as provided in art 7 para 1 line b and para 2 of the Directive.
Enforceability of agreements
The Directive’s request for enforceability is respected by the provision of article 9 of the Greek Mediation Law whereby it is stated that once the settlement agreement is signed by the mediator, the parties and their attorneys, the mediator may, upon request of one of the parties -even without the consent of the other (unlike art 6 of the Dir)- submit it to the court of first instance of the jurisdiction where the mediation took place and then it becomes an enforceable title.
To ensure protection of confidentiality, the Greek Mediation Law provides in its art 10 that mediation should be conducted in a way that should not compromise confidentiality, unless the parties agree otherwise. All persons participating in mediation commit themselves in writing, before attending, to respect the confidentiality of the process and, should they also wish so, they may additionally commit themselves to preserve the confidentiality that relates to the content of the agreement they might reach during the mediation. It is furthermore provided that mediators, parties, their attorneys and anyone attending the mediation proceedings are not to be summoned as witnesses nor may they be compelled to give evidence in any subsequent legal or arbitration proceedings regarding information resulting from or in connection with the mediation process (unlike the respective provision of the Directive, where the scope is limited to civil and commercial proceedings). Nevertheless, as exactly prescribed in the Directive, the Greek law provides for a few exceptions, namely where it is necessary for overriding considerations of public policy, in particular (a) for ensuring the best interest of children or to prevent the harm to physical or psychological integrity of a person and (b) where disclosure to the courts of the content of the agreement arising from mediation is necessary in order to enforce or implement the agreement.
Effect on limitation and prescription periods
In line with the Directive’s provisions on limitation and prescription periods, article 11 of the Mediation Law ensures that parties who use mediation as an alternative way of resolving their dispute are not prevented from initiating court proceedings by the expiry of limitation or prescription periods during the mediation process. More particularly the Greek law provides that the initiation of a mediation process has the effect of suspending the prescription period for the right of action by either party during the mediation process. The limitation period is resumed once the mediation attempt has been unsuccessful either by virtue of a unilateral termination served by one party to the mediator and to the other party or of the minutes signed by the mediator testifying the termination or by any other way.
Information for the general public
Information regarding mediation, the list of accredited mediators in Greece and how to contact them can be obtained primarily through the website hosted by the Ministry of Justice (www.diamesolavisi.gov.gr). Privately owned websites have also been set up by individuals, training institutions and associations of mediators in an effort to further promote the use of mediation by the general public.
Last but not least, special reference should be made to few other legislative initiatives that make direct or indirect reference to ADR methods and Law 3898/2010, such as the process for commercial rent review disputes, the over-debted household procedure and the pre insolvency proceedings, which unfortunately have failed so far to provide any tangible benefits resulting from the use of voluntary mediation. What is remarkable though is the explicit support given to mediation – at least in terms of intentions- through new Code of Conduct for Lawyers (Law 4194/2013) which provides for an obligation for the lawyers to inform their clients on alternative dispute resolution and for the Bars the right to establish mediation centers and promote awareness to their members as well as to the general public.
It should also be noted that Law 3898/2010 is again under reform. In an attempt to make mediation practice take off the ground, the Working Group for the reform of the Mediation Law submitted in Jan 2015 a draft proposal to the MOJ whereby, among other things, it suggested a) mandatory mediation in certain categories of cases (such as disputes arising out of infringements of personality rights, flat ownership, child and spouse maintenance issues and others) b) the right of the judge to ask parties to go to mediation c) the licensing of subsidiaries of training providers d) the setting up of a state registry of accredited mediators. No action has taken place in this regard since.
 Government’s Gazette (Fyllo Efimeridos tis Kiverniseos–FEK A 211/16.12.2010)
 Act of Legislative Content (FEK A 237/5.12.2012) and Law 4254/2014 (FEK 85/7.4.2014)
 See Annex 1.
 By art. 7 Law 4055/2012, later amended by art.102 para 2 Law 4139/2013.
 See below under 2 (ii)
 The previous provision that drew a distinction between accredited lawyers –mediators and any other than lawyers – accredited mediators that allowed only the first to assume mediator duties for both domestic and cross border disputes is now abolished following the latest amendment by Law 4254/2014 (FEK 85/7.4.2014).
 As opposed to the fee of 100 Euros required as a stamp duty if mediation is conducted by individual mediators pursuant to law 3898/2010, which should furthermore be added to the mediator’s fees (100 Euros per hour) plus the lawyers’ fees, making this process appear more costly, thus less attractive compared to judicial mediation. It is also noteworthy that the law provides for a maximum charge of 24 hours per mediation, equally split between the parties, unless otherwise agreed.
 Presidential Decree 123/2011 on “the licensing and operation of mediation training providers”
 Training fees for a 40h basic mediation course range from 1,450 to 2,200 Euros.
 There is no training or accreditation requirement for the judges who are appointed to serve as mediators pursuant to art. 214B CCP.
 Ministerial Decision Prot.No 109088 oik/12.12.2011 “Mutual recognition of accreditation titles – Code of Conduct of mediators and applicable sanctions”
 Minimum content of the minutes is also provided by law and requires the name and surname of the mediator, the time and place of the mediation proceedings, the names and surnames of all participating in the mediation proceedings, the agreement to mediate which confirms the parties decision for the mediation to take place and the settlement agreement.