Strasbourg, 3 May 2007 CEPEJ (2007) 12
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)
working group on mediation (CEPEJ-GT-MED)
Analysis on assessment of the impact of
Council of Europe recommendations concerning mediation
Acknowledgement
My first words naturally go to Daria SOLENIK, legal scholar at the University of Nancy Law School, member of the Centre of Private Law Studies (Nancy-Université). The ideas developed on these pages have been nourished by her counsel and scientific support in multiple discussions and debate. This study owes to her much of its value, and I’m extremely grateful for her contribution and her competence.
I would also like to thank every member of the working group for the way that they welcomed my remarks. The debate thus engendered proved to be very enriching.
At last, I would like to express my profound gratitude to Muriel DECOT, Stéphane LEYENBERGER and all the other members of the CEPEJ Secretariat. Their trust and readiness to help, despite the busy schedule and workload, are indispensable and precious to me.
Julien LHUILLIER
First part
How the questionnaire was filled in
(country-by-country study)
Objectives: - To find out whether the four parts of the questionnaires were invariably fully filled in, whether the quality of the answers was generally satisfactory and whether there were technical problems making it difficult to process the replies.
- To consider, in the light of the replies received, what improvements could be introduced in any future CEPEJ-GT-MED exercise in order to make the questionnaire more effective (reply rate, quality of the replies).
Partners and project participants
To enable us to assess the impact of the recommendations concerning mediation in the various countries and use this information as food for thought, on the basis of a rigorous working paper, states were asked to reply to a questionnaire on chosen topics. These topics are related more or less explicitly to the mediation principles that emerge from the recommendations. This approach ensures that the specific features of each type of mediation will be taken into account and that the various states’ legal traditions will be respected.
In the light of its assessment and optimisation objectives, the Working Group on Mediation (CEPEJGTMED) decided to involve practitioners closely in the exercise.
The people asked to reply to the questionnaire[1] are from diverse professional backgrounds. These key local partners, who were contacted by the CEPEJ Secretariat or direct by the CEPEJ-GT-MED experts, work in their country as lawyers, judges, prosecutors, representatives of non-governmental organisations, senior officials in the various Ministries of Justice and, of course, mediators and representatives of associations of mediators.
In most countries, a concern for accuracy prompted the authorities to entrust the different parts of the questionnaire to different correspondents when necessary. Where appropriate, the working group experts and the Secretariat co-ordinated the replies.
A shortcoming has, however, emerged and could usefully be remedied in future CEPEJ studies in this area: it would seem that the proportion of mediators who filled in the questionnaire could be much improved.
Some GT-MED experts drew attention to the difficulty of the exercise. Germany provides an instructive example in this respect, since only 18 out of 118 questionnaires were returned, despite a reminder.
Moreover, the posting of the questionnaire on the CEPEJ website[2] was not a success. The idea was to allow any mediator from a Council of Europe member state to take part spontaneously in the exercise, but the questionnaire was hardly used at all.
We should not, however, be over-hasty in concluding that mediators have no opinions to express. There may be many reasons for the lack of response. Many were probably unaware that a questionnaire was available, and others may not have had the time to fill it in or understood what purpose it served. If its terms of reference are renewed, the CEPEJ-GT-MED could no doubt usefully make itself better known to practitioners. There are three means by which this could probably be done in the short to medium term.
Firstly, it will in future be possible to make use of the addresses of the Ministries’ main mediation partners, as provided in the returned questionnaires.
Secondly, by drawing the Ministries' attention to the need to take account of specific national features when drafting future instruments, it will be possible to encourage them to urge mediators, in the various places where they work, to contact the CEPEJ.
Thirdly, early in 2007 the CEPEJ could take advantage of any meeting of mediators drafting the code of conduct under the aegis of the European Commission to contact these practitioners and urge them to publicise the questionnaire in their own circles.
A technical difficulty inherent in the wording of certain questions
As in the case of the CEPEJ-GT-EVAL questionnaire, the CEPEJ-GT-MED questionnaire was not systematically filled in when it was a question of answering “yes” or “no”. In the large majority of cases, only positive answers were provided. This makes it impossible to distinguish between the lack of an answer and a negative answer.
For instance, question 3b. of the questionnaire on family mediation reads as follows:
«3. INFORMATION ON MEDIATION
[…]
b. Do you implement any measures to raise this awareness and confidence? If yes, what is its content?”[3]
When no reply has been provided, it is impossible to tell whether the question has not been addressed or whether the correspondent wished to indicate, by not answering, that his or her reply was negative. It was sometimes possible to overcome these problems by asking the correspondents to elaborate on their replies afterwards. If not, we refrained from interpreting the absence of a reply: in other words, we considered that the question had not been answered. These technical problems considerably slow down and complicate the task of processing and analysing the data.
For this reason, it might be useful, in the case of future exercises, to reword certain questions[4] on a more systematic basis.
One could, for example, write:
“3. INFORMATION ON MEDIATION
[…]
b. Do you implement any measures to raise this awareness and confidence? (YES/NO)
If yes, what is their content?”
Breakdown of replies by country
It should be made clear from the outset that, in our analysis, we have opted to call the answers to the questionnaire returned to the CEPEJ “replies”, whether they were complete or not, on the understanding that four replies were expected to the same questionnaire: 1) on family mediation; 2) on mediation in civil matters; 3) on mediation in penal matters; 4) on alternatives to litigation between administrative authorities and private parties.
This terminology was necessary because of the very different arrangements made in the various countries. In some cases, several correspondents shared the job of replying. Sometimes, for instance, they took it in turns to assess the same recommendation, even if it meant leaving the questions on other recommendations unanswered. For the same reasons as prompted the CEPEJ-GT-MED to separate the recommendations in its questionnaire, we decided to count and assess the different assessments separately.
In short, if, in a given country, one correspondent filled in the whole questionnaire in respect of the four recommendations, four replies will be counted. Similarly, if, in a given country, four national correspondents shared the task of replying to the questionnaire, with each correspondent assessing one of the recommendations, four replies will likewise be counted.
It should be noted, however, that in several cases (Austria, Bosnia and Herzegovina, Hungary, Portugal), the correspondents appended to their replies a draft law or a letter explaining why they had not answered the sections on one or more recommendations in the questionnaire.
This information is not counted as a reply to the questionnaire in the strict sense of the term, but will obviously be analysed with the same care. A small number of replies from a particular country must not therefore, a priori, be interpreted as a lack of information making it impossible to do any comparative work. The most we can do is express satisfaction when states have replied to the whole questionnaire and assess the scope for improvement open to the CEPEJ-GT-MED in any future exercises.
Table : Total number of replies (= 52 replies) broken down by country
1. Germany : 18 replies
The information previously supplied to the CEPEJ on mediation in Germany, both for the 2002 pilot exercise and for the CEPEJ-GT-EVAL’s 2006 report, was limited.
As no particular form of registration is required to become a mediator in Germany, no reliable statistics for the number of mediators are available. Because of the way the justice system is organised in this federal state, it was not possible to provide any information on the total number of mediation procedures either. There are neither statistics nor statutory rules at federal level that provide a reliable basis for calculation. Statistical estimates have been made only on the basis of piecemeal information from certain Länder, and there is no guaranteeing that they are accurate.
For the same reason, it is not possible to indicate a federal budget for mediation.
These obstacles did not, however, prevent the German correspondents, who were contacted direct by Dr Peter Eschweiler (Chair of the CEPEJ-GT-MED working group), from providing the CEPEJ with specific information on the basis of the questionnaire.
The German replies represent the largest total number of replies returned (18 out of 52). They can be broken down as follows:
Questionnaire on family mediation / 6Questionnaire on mediation in civil matters / 2
Questionnaire on mediation in penal matters / 4
Questionnaire on alternatives to litigation between administrative authorities and private parties / 6
Before we even consider the substance of the replies, the German example is particularly instructive for the CEPEJ-GT-MED from a methodological viewpoint: some CEPEJ-GT-MED experts stressed that their task was difficult because they received very little response to their requests. In Germany, for instance, in response to 118 requests, only 18 replies were returned, even after a reminder; this represents a reply rate of about 15%.
In anticipation of future exercises, the CEPEJ-GT-MED should consider whether it wants a larger number of replies from the same country to work with (my view is that this is desirable, as certain correspondents admit that they have limited knowledge of certain specific matters). If so, the CEPEJ-GT-MED must consider how best to elicit more replies. The countries in which mediation is based on a single centralised system will, of course, be more likely to be able to provide information easily.
2. Slovenia : 7 replies
Although there are official lists of mediators in Slovenia, the number of registered or accredited mediators does not seem to be accurately known. It emerged from the CEPEJ-GT-EVAL pilot exercise in 2002 that there were 22 mediators for a population of 1,964,036. The 2006 report is less definite: the correspondent considers that no figure is available, but specifies that major reforms are in progress and that 100 mediators are currently working for the District Court of Ljubljana alone.
Even though figures for the number of mediation procedures are not compiled at national level, the Supreme Prosecution Office does, at least, provide a figure for the number of mediation procedures in criminal matters, which is estimated at 2283 for 2004 alone.
In the CEPEJ-GT-EVAL’s 2002 pilot exercise, the public mediation budget quoted by the Slovenian correspondent was 10,148 euros, the lowest figure in absolute terms of the figures that could be obtained, but one that stands comparison with the figures for other countries if it is put in perspective (if, for instance, one looks at the public mediation budget in relation to the number of inhabitants, Slovenia spends nearly twice as much per capita on mediation as France).
Over the last five years, the public have been offered a growing number of mediation procedures, particularly in civil (since 2001), family (since June 2001), penal (Article 161a of the Code of Criminal Procedure) and commercial (since 2003) cases.
The work of the CEPEJ-GT-MED will therefore receive direct attention in Slovenia, where there is a definite drive to regulate mediation.
It is probably no coincidence that mediation is flourishing, given the considerable number of replies received and the detail into which they went. The replies can be broken down as follows :
Questionnaire on family mediation / 2Questionnaire on mediation in civil matters / 4
Questionnaire on mediation in penal matters / 1
Questionnaire on alternatives to litigation between administrative authorities and private parties / 0
3. Austria : 4 replies
While the CEPEJ-GT-EVAL was not informed of the exact annual number of mediation procedures in Austria, it is at least apparent from the 2006 report that 3,500 mediators are accredited in the country.
The authorities spent a total of 5,240,000 euros in 2004 on alternatives to litigation. The absence of figures for the number of procedures and the number of mediators prevents us, however, from putting this figure into proper perspective.
The lack of data is all the more unfortunate as mediation seems, from the replies to the present questionnaire, to be a procedure that is highly regulated in Austria and widely applied: in addition to the very detailed replies to the questionnaire, we received a covering letter from the Bundesministerium für Justiz providing details of the various kinds of disputes in which alternatives to litigation between administrative authorities and private parties may be envisaged. Indeed, the Bundesministerium für Justiz stresses the growing importance of procedures of this type and refers on several occasions to the documents and work of the Council of Europe. There is no doubt that the CEPEJ-GT-MED’s contribution will be carefully followed in Austria.
The replies to the questionnaire can be broken down as follows:
Questionnaire on family mediation / 1Questionnaire on mediation in civil matters / 1
Questionnaire on mediation in penal matters / 2
Questionnaire on alternatives to litigation between administrative authorities and private parties / 0
4. Lithuania : 4 replies
Previously, the CEPEJ had been sent very little information on mediation in Lithuania by its national correspondents. The CEPEJ-GT-EVAL’s 2002 pilot exercise did not mention a budget, and simply reported that no mediators were registered or accredited in Lithuania, while the CEPEJ-GT-EVAL’s 2006 report did not provide any information about the number of procedures relating to the various types of mediation, as the national correspondents had been unable to obtain such information from the Ministry of Justice.