Comparing Mediation Practices: The UK and Greece

Gain insights into the dynamics of cross-cultural mediation and its role in resolving disputes across different jurisdictions. In this insightful article Dr Georgina Tsagas [CMC Associate Mediator 2023; Solicitor England & Wales (practising) and Greek Mediator Hellenic Ministry of Justice accredited] delves into the cultural and legal nuances of mediation practices in the United Kingdom and Greece, emphasising the importance of effective communication, public awareness, and consistent guidelines. Learn more about the evolving landscape of cross-cultural mediation.

BY DR GEORGINA TSAGAS

In the past decade London has become the Babel of the modern world, with more than a third of Londoners now being foreign born – that’s around 2.5 million people. Services that cater for these cross-cultural ties between resident and country of origin thus become essential.

Legal and natural persons identified as UK domicile and resident respectively and originating from Greece or Cyprus, or with ties to Greece or Cyprus, are increasing in number. Such persons are and will unavoidably be faced with disputes or conflict throughout their residency and overall stay. Effective resolution of such disputes may require an understanding of the respective cultures, legal frameworks of both countries and a good command of both languages, Greek and English. Our mediation practice caters for those needs and mediates such cross-cultural disputes with a deep understanding of the cross-cultural overlaps, supported by dual legal qualifications, experience and education and training in both countries.

What becomes evident to mediators, such as myself, having qualified and trained in several jurisdictions and managing a mediation practice that operates in a cross-border and cross-cultural context, is that mediation, albeit its flexible nature, is a process, which is not entirely devoid of cultural norms and jurisdictional legal developments. A simple undertaking of comparing how two jurisdictions ‘regulate’ mediation, that of the United Kingdom and that of Greece, a common law and civil law jurisdiction respectively, exemplifies this point.

Principles know no-borders

To date it is safe to state that the principles on which mediation as a process is based on know no borders.  Mediation as a process is characterised by its voluntary nature. Parties are given the freedom to decide on whether they wish to jointly opt in by making a conscious choice to elect mediation as the process that will attempt to address the handling of their dispute.  Mediation is also defined by the fact that it is conducted by an impartial third-party neutral – the mediator –. Key to sustaining the integrity of this dispute resolution process is that mediation guarantees confidentiality.

The case of Greece: what is mandatory and how helpful is it?

The latest legislative initiative in Greece regulating the process of mediation is Law 4640/2019 (ΝΟΜΟΣ 4640/2019). Greek attorneys-at-law have rather abruptly been compelled to familiarise themselves with the term ‘mediation’, with the implementation of Law 4640/2019. The said law sets forth the requirement, within the context of civil procedure rules, that for certain cases outlined in its provisions, one must produce evidence to the court that a ‘Mandatory Initial Session’ regarding mediation has taken place prior to the hearing of the case. If such evidence is not produced by the time of the hearing of the claim the consequence will be that the claim is inadmissible. If the parties of the opposing side called to this session do a ‘no-show’, then they are likely to be fined by the court at the hearing. Mediators recognised as Accredited Greek Mediators are to be found on a List of the Hellenic Ministry of Justice, which includes mediators that have trained and certified via providers recognised by the Hellenic Ministry of Justice and ones with varied prior educational and professional backgrounds, including but not limited to law and the legal profession. A rotation applies in terms of the accredited mediators that are to be appointed for the Mandatory Initial Sessions, as described above, with legislation providing for a suggested minimal fee for that service, which mediators can vary slightly, but which on average remains minimal. The use of the word mandatory out of context is deceiving and much has been written and said to confirm the common misinterpretation of the word mandatory in relation to the mediation process per se. The mandatory nature of the session relates to the fact that parties are mandatorily informed of mediation. Parties are not mandatorily required to engage in mediation. The mediator elected to inform parties of and about the process leaves the door open for parties to consider mediating to resolve their dispute, but by no means imposes mediation on them.

One of the objectives of the legislator imposing this requirement on parties was for them to be given an opportunity to become informed of mediation and to be placed in a better position to not only understand what the process of mediation entails as an alternative to the court process, but to consider the benefits that this avenue may offer by comparison. Bad practice followed however is that parties may in fact not be informed about mediation by the mediator directly via this avenue, when the attorneys that are appointed by the clients to represent them, attend this session instead of their clients rather than with their clients. When legal representatives do in fact attend the meetings with their clients, as should be the case, the norm is that an advocate’s take on mediation in general and in that instance is a key variable that affects whether mediation will be an avenue that the client will consent to.

The civil law cultural tradition with reference to Germany and its impact on mediation sheds light on our comparison between the approach towards mediation in the United Kingdom and in Greece. As scholarly work has already identified regarding mediation practice in Germany, it is the case that, among others, the system: (i) restrains the development and acceptance of mediation as part of the civil law cultural tradition; (ii) discourages lawyers from embracing mediation as an alternative to litigation due to the fact that the legal profession is highly regulated and (iii) adopts a highly theoretical and rigid nature of civil law education, which has hindered the integration of mediation skills into law curricula [N. Alexander 2001]. Experientially, it appears that one can also draw on some of the above findings when referring to Greece as a civil law jurisdiction. To avoid black and white thinking and the idea that the grass is greener on the other side of the fence however, it is also true to state that similarly, if one takes a closer look at mediation in the United Kingdom, the process may well be plagued by similar problems, but perhaps to a lesser extent and of a slightly different nature.

The case of the United Kingdom: Status quo and the debate on ‘mandating’

In England & Wales, the Government’s website encourages and refers to civil mediation as an alternative to court way of resolving disputes, thus directing citizens to the list of mediators to choose from on the Civil Mediation Council website list should they opt for mediation prior to engaging in court processes. Mediation is also an option that comes up in the drafting and submission of the online small claims petition for the party making the claim, which enables the party to tick the box if he or she is open to suggesting mediation to the other party and is as a consequence of this and to that end automatically referred to a free one-hour mediation appointment. There also exists a fixed fee scheme presented via the Civil Mediation Council website which CMC accredited mediators can opt to be a part of and this is indeed a cost-effective way for parties or advocates facing a financial dilemma regarding using mediation at a cost that is not market lead but rather pre-defined. In the United Kingdom, unlike in Greece, it is not mandatory to have legal counsel when opting for mediation. This is optional. Both sides or either side can opt in or opt out of having legal representation at mediation as they deem fit. The mediator is also given discretion as to whether she or he will accept to mediate in cases with or without legal representation. In the case where no legal counsel is present, it is customary that parties will sign to terms and conditions, that make sense to them from a commercial standpoint. In this case the mediator does not provide legal advice and this may leave parties weary of the process and what they are signing up to.

Mandating mediation has been a topic I have reflected on within the context of sustainability related disputes and in doing so it became apparent that the notion of a mandatory mediation meeting is accepted and recognised in dispute areas, such as those of family cases, and not in others. In the United Kingdom, attending a MIAMs – Mandatory Information and Assessment Meetings is conditional to making an application to family courts.

The issue of mandating mediation has gained even more traction, following the government introducing the Small Claims Mediation Scheme (SCMS) and with the Government announcing its intention in July 2022, to implement mandatory mediation in all contested claims under £10,000 in the county courts in its published its Consultation on ‘Increasing the use of mediation in the civil justice system’ with views sought by the general public by the set deadline of October 2022 and pending announcements on whether and how this plan will be implemented.

Different means, same problems?

A common problem identified when comparing the two jurisdictions is that there is limited public awareness around what mediation actually is and its use and utility within the civil justice system. In this respect, an improvement suggested for the UK paradigm, is to make amendments to detail the specifics of how mediation forms parts of the Civil Procedure Rules. In this respect the paradigm of Greece as a civil law jurisdiction and how it has approached outlining how and when mediation is to take place in terms of informing participants is worth examining. Greece however would benefit from the UK paradigm in terms of better directing parties and their legal representatives to explore the mediation process by offering more practical guidance as to how this can be done, overcoming the ‘tick the box’ exercise which is on average followed via the procedural rules. In the United Kingdom there appears to remain an imperative need to engage more meaningfully with the public on the step by step process to be followed when a party wishes to engage in mediation with another party with the help of an accredited mediator and without legal counsel.

Both in the United Kingdom and in Greece, the pool of mediators from which a selection is made is an issue which deserves further attention. On what basis are mediators selected and is there guidance on the process that will be followed so as to better ensure consistency across the board relating to ‘how this process is to be observed’? An example worth looking at is the process followed in relation to employment tribunal claims via ACAS (the Advisory, Conciliation and Arbitration Service) which provides a structured process to be followed with certain deadlines that need to be observed and the introduction of case workers in place to review aspects of the case and liaise with each party involved in the dispute. Something similar could take place regarding other areas depending on their characteristics.

In comparing the United Kingdom to Greece in their ‘regulating’ of the mediation process, it is considered important to recognise that mediation as a process has not been left unaffected by their accession to the common law and civil law cultures respectively. The ‘Darwinian evolution-like’ adaptive soft-law/guidance approach that characterises key parts of the English legal system can easily be contrasted with the ‘Laws of Physics – like’ fixed hard law/regulation approach that characterises key parts of the Greek legal system.

The promotion of mediation to resolve disputes in cases in which this is seen to be a viable option is part of our mission and one of our main objectives at GT Mediation | Dispute Resolution. It is our hope that delving into the comparison of the two jurisdictions and building an awareness around what rules and practices serve this end will help promote mediation more widely as part of the Sustainable Development Goal 16 ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. Mediation as a process may indeed now be seen from a regulatory perspective to be in the eye of the beholder, but seeing-eye-to-eye when it comes to the need to promote mediation as an alternative form of dispute resolution is not.

This article was first published in the newsletter Conflict No More.