Free movement of mediators across the European Union: a new frontier yet to be accomplished?
A comparative study of the mediation procedure in Ukraine and Western Europe. The search for similarities and differences in professional standards, regulatory models and practices of accreditation of mediators in the member States of the European Union.
| Рубрика | Международные отношения и мировая экономика |
| Вид | статья |
| Язык | английский |
| Дата добавления | 20.07.2024 |
| Размер файла | 43,7 K |
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A sample of those requirements that can be considered when establishing uniform rules is the Guidelines on designing and monitoring mediation training schemes adopted by CEPEJ on 14 June 2019. Guidelines on Designing and Monitoring Mediation Training Schemes (n 31). They seek to harmonise the minimum training standard to ensure an adequate number of well-trained mediators in each Member State jurisdiction by effectively outlining the desirable practices for the training programmes, regulation of mediation trainers and training providers, incl. quality management and their accreditation, course content, unified competency framework, course duration and group sizes, teaching methodologies, performance assessment and accreditation of future mediators.
The need for moving towards greater unification of the applicable training requirements is further confirmed in point 20 of the European Parliament resolution of 13 September 2011 on the implementation of the Directive on mediation in the Member States, its impact on mediation and its take-up by the court, Directive on Mediation in the Member States P7_TA(2011)0361, European Parliament Resolution of 13 September 2011 on the Implementation of the Directive on Mediation in the Member States, its impact on mediation and its take-up by the courts (2011/2026(INI)) [2013] OJ C 51E <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52011IP0361> accessed 4 November 2023. which acknowledges the importance of establishing common standards for accessing the profession of mediator to promote a better quality of mediation and to ensure high standards of professional training and accreditation across the Union. Achieving the above would inevitably enable the free movement of mediators whose services can be offered across the Union without encountering restrictions stemming from the divergent national regulations.
The lack of a specific accreditation process, whether deliberate or a legislative gap, on a national level (as evidenced in the example of Bulgaria) may be interpreted as an indirect hindrance towards the provision of mediation services from mediators established in another Member State. Indeed, it may be argued that upon triggering the direct effect of the right to provide services, mediators may still be able to render their services across borders.
Notwithstanding the above, though, the obstacles that practically are in place would serve rather as a discouraging factor for the professionals willing to exercise this right and, as such - lead to the distortion of the common mediators' market.
Challenges under the existing patched regulations on practicing mediation in the EU
The above national regulatory discrepancies highlight the absence of a single EU mediators' market, preventing certified meditators from one Member State from automatically having the right to render their services in another state. This notion can further be reaffirmed by the lack of unified standards and regulatory requirements that apply across borders.
In fact, the only attempt to amalgamate these existing differences has been the adoption of the European Code of Conduct for Mediators, Code of Conduct (n 8). as promulgated with the support of the EU Commission. The Code sets out a number of principles towards mediators. However, being a voluntary commitment, it functions more as a high- level policy document rather than a practical solution, especially in addressing challenges faced by mediators in cross-border situations.
Hence, despite efforts to improve regulatory coherence, the challenges faced by mediators in the EU remain unanswered or lack concrete solutions. More recently, on 4 December 2018, during its 31st plenary session, CEPEJ adopted its Code of Conduct for Mediation Providers, European Code of Conduct for Mediation Providers (adopted by CEPEJ on 4 December 2018) <https://rm.coe.int/cepej-2018-24-en-mediation-development-toolkit-european-code-of-conduc/ 1680901dc6 > accessed 4 November 2023. which sets out a number of principles to which mediation centres, institutes or other mediation providers may decide to adhere to.
However, the adopted provisions lack specific requirements for which training, certification and/or subsequent supervision should be bound. Even if they were more elaborate, these provisions would still lack binding force as they constitute a mere part of the soft law provisions in the field of mediation. Therefore, they do not offer immediate answers to some of the most pressing challenges experienced in the field. Those challenges can be summarised in the following subchapters.
Absence of unified international standards in regard to international mediation practice. The development of a national credentialing system for mediators has been on the rise ever since 2000. Nadja Alexander, `Ten Trends in International Commercial Mediation' (2019) 31(Spec) Singapore Academy of Law Journal 405. Its emergence is a direct result of adopting various national mediation schemes to strengthen the promotion of ADR. Those specific models under development were designed to correspond to the peculiar socio-economic environment and the legal system within which they were being established. Hence, each system introduced its own set of criteria and requirements towards practising mediators. Some schemes involve legislative regulations; others rely on promulgating soft-law measures, and still others offer a combination of those two. All these trends led to the inevitable patching of the requirements that should be met by mediators wishing to provide their services in more than one jurisdiction. The complications that stem from this are enhanced further when considering practising mediation internationally. Today, a number of international mediation service providers International Mediation Institute (IMI) <https://imimediation.org> accessed 23 May 2023; Singapore International Mediation Institute (SIMI) <https://www.simi.org.sg> accessed 23 May 2023. have developed a roster of mediators based in numerous countries and from various backgrounds simply by recognising mediators' previous experience and/or acknowledging the national or institutional standards under which such individuals were trained. Notwithstanding the above, though, the shift from national to international practice is not coherent and does not provide practising mediators with a single path to follow when wanting to expand their field of practice. Najda Alexander has formulated that usually this may take one of the following four forms:
• Recognition of prior (foreign) training and/or credentials;
• Systems of cross-recognition of national or institutional mediator standards;
• Requirements that foreign and local mediators undertake the same credentialing procedure;
• Development of international standards for mediator credentialing. Alexander (n 57) 421.
As evidenced by the above, the lack of a unanimous cross-recognition process makes it difficult and, in some cases, practically impossible for mediators from certain jurisdictions to practice in other countries. Analysing this issue from an EU perspective, the challenge remains as no specific regulatory or practical measures have been put in place to overcome such barriers. Trying to overcome this, certain Member States have established bilateral arrangements to tackle this issue and allow for an enhanced exchange of professionals able to render their mediation services across borders. One of the few examples of this is the arrangements reached between the German, Swiss and Austrian training organisations Bundesverband Mediation <https://www.bmev.de> accessed 23 May 2023. which allows for the cross-border recognition of mediator standards between Austria and Germany at an institutional level and facilitates the enhanced movement of mediators across borders. The narrow scope of application of this, though, indicates the magnitude of the problem and the effective lack of measures to tackle it.
Inconsistencies in the recognition process allowing mediators to practice in the EU. The challenges outlined above also lead to numerous discrepancies and inconsistencies in the cases where there is a recognition process in place to allow mediators from one jurisdiction to practice in another. One such example is the Mediators' Institute of Ireland (MII) recognition of equivalent training procedure, `Recognition of Equivalent Training' (Mediators' Institute of Ireland (MII), 28 March 2022) <https://www.themii.ie/membership/general-information/recognition-of-equivalent-training> accessed 25 October 2023. which stipulates for recognition of all trained outside of Ireland mediators to evidence the following:
• Certificate for completion of a minimum of 60-hour mediation training;
• The close resemblance of the curriculum of the said training with those of MII.
The cost of the assessment is EUR 100 and, if successful, would allow proceeding to an indepth MII assessment for an additional EUR 375, allowing the respective professional to receive MII membership.
Another example of a differently organised scheme is the one provided for in Portugal, `Conflict Mediator - Provision of Temporary and Occasional Services in Portugal (first time)'
(ePortugal, 2023) <https://eportugal.gov.pt/en-GB/inicio/espaco-empresa/balcao-do-empreendedor/ mediador-de-conflitos-prestacao-de-servicos-temporarios-ou-ocasionais> accessed 25 October 2023; Ana Maria Costa e Silva, and Patricia Guiomar, `Mediators in Portugal: Training, Status and Professional Recognition' (2023) 6(1) Journal of Social and Political Sciences 32,
doi:10.31014/aior.1991.06.01.391. whereby mediators providing temporary and occasional mediation services are only required to declare such activities to the Directorate-General for Justice Policy in case the mediator shall be working as part of the national institutional framework, i.e. as a mediator equal to those registered in the list of mediators under the auspices of the Ministry of Justice or part of the public mediation system. However, in case a professional wants to permanently establish him/herself and work as a mediator, the full procedure for recognition of professional qualification should be conducted. According to the prescribed procedure, though, a mediator should be able to show the certificate evidencing mediation qualification. Given the patched EU mediation landscape, this requirement alone may prove problematic, considering that no such training is required in some Member States. Additionally, even if passing the recognition process is obtained, the mediator should be able to prove a good command of the Portuguese language. `Lista de Mediadores Privados' (Diregao-Geral da Politica de Justifa (DGPJ), 2023)
<https://dgpj.justica.gov.pt/Resolucao-de-Litigios/Mediacao/Lista-de-mediadores-privados> accessed 25 October 2023. This requirement of a good command of the local language, though based on the assumption that most parties to mediation would want a local, could be deemed, at minimum, discriminatory. Separately, the introduction of such an additional requirement cannot be justified on other grounds, given that no true public interest or another socially significant value could be established to be sought through this. Curtailing the existence of the internal market on non-justifiable grounds, therefore, cannot be supported and as such - it should be deemed as yet another burden before mediators wishing to exercise their profession in numerous Member States. From a practical perspective and with the increase of online mediation and the integration of technologies as means of enabling distant communication, it is not unthinkable that a highly skilled professional mediator may be providing his/her online mediation services regularly in a number of Member States irrespective of the non-command of the corresponding national language. The existing local regulations for recognition of professional qualifications, though subject to the harmonisation under the Directive on the recognition of professional qualifications, 66 have proven inefficient in solving this.
Another example of the recognition process of mediators having been certified in another Member State is the case of the Czech Republic, administered by the Ministry of Education, Youth and Sports. `How to Proceed - Information for Applicants and Providers of Services' (Ministry of Education Youth and Sports, 2023) <https://www.msmt.cz/eu-and-international-affairs/jak-postupovat?lang=2> accessed 25 October 2023. All recognitions of professional qualifications (including those for mediators) are stipulated in Act No 18 /2004 Coll. on the recognition of professional qualifications and other competencies of nationals of the Member States of the European Union and on the amendment of some acts. According to it, however, to practice mediation in the country, the professional mediator should not only be licensed as such in another country but should also hold a Master's university degree. `Recognition of Professional Qualifications: Database of Regulated Professions and Professional
Activities' (Ministry of Education, Youth and Sports, 2023) <https://uok.msmt.cz/uok/ ru_detail.php?id=674&flet=&forg=&ftype=&fpg=1&ftxt=medi%E1tor&lang=en&dl=en> accessed
on 1 November 2023. Even if such a requirement per se is not unreasonable, it may hinder some mediators from other Member States who wish to practice there. For instance, this could affect mediators from Bulgaria, Latvia, Lithuania, Austria, and Italy, where no such requirement for a Master's degree exists under national rules. Therefore, they may be deprived of the chance to exercise their profession in the Czech Republic merely on such educational grounds.
The above examples prove that even when Member States are seeking to establish concrete measures to recognise mediators' qualifications gained in another jurisdiction, there is a risk of creating or deepening the already existing differences in the way the mediators' profession is 101rganized. This ultimately leads to the conclusion that the only way to overcome those barriers to the free movement of mediators in the EU is by regulating the field on a pan- European level, including by suggesting specific terms for the recognition process of mediators. As a general conclusion, though, it can be noted that for the time being, not only in the EU, but globally there has not been an unanimous understanding of the qualifications that mediators must have to be effective in their work. Sarah R Cole and others, Mediation: Law, Policy & Practice (2022-2023 edn, Trial Practice Series, Thomson Reuters 2023) § 1:1. One reason for this is that studies have indicated that more qualification requirements or longer training hours do not necessarily lead to improved mediation. Kimberlee K Kovach, Mediation: Principles and Practice (3rd edn, West Academic 2004) 23-7. That being said, though, is without prejudice to the earlier assertion that uniformed training requirements are needed to open the market on mediators' services and ultimately trigger the natural processes for increasing the quality fo the mediations provided.
Cross-border enforceability of mediation settlement agreements resulting from the work of mediators meeting different professional requirements. The existing polyphony of national legislation in terms of recognition and enforceability of mediation settlement agreements (MSAs) currently complicates the EU mediation landscape. Haris P Meidanis, `Enforcement of Mediation Settlement Agreements in the EU and the Need for Reform' (2020) 16(2) Journal of Private International Law 275, doi:10.1080/17441048.2020.1796226 According to Art. 6 of the Mediation Directive, an MSA may be enforced by means of a judgement, decision or other authentic document. Namely, enforceability shall be sought of the actual instrument to which the MSA shall have been incorporated. To be able to do so, though, the agreement should have been achieved due to a mediation process conducted by a professional considered a mediator under the respective jurisdiction. In a cross-border environment, though, and if the mediation is taking place in a Member State where the mediator is not licensed, the ultimate MSA may be considered as lacking one of its main characteristics - i.e. the fact that it has been the ultimate result of mediation. Directive 2008/52/EC (n 3) art 6. This additionally complicates the context for providing cross-border mediation services. At the same time, it can be perceived as a risk for the parties who may be acting under the assumption that they are receiving all benefits of the mediation service while being deprived of one of the key benefits of mediation.
The above is specifically valid within the context of an ever-growing trend for mandatory mediation models across the EU, especially family mediation. Specific examples of the problems that may occur here are depicted in the categorical mandatory family mediation models, where litigants are forced to mediate before filing their petitions. Such, by way of example, are the models applied in Lithuania, Greece, Croatia, Malta, Estonia in child access cases, and Italy in family business disputes. Agne Tvaronaviciene and others, `Mediation in the Baltic States: Developments and Challenges of Implementation' (2022) 5(4) Access to Justice in Eastern Europe 68, doi: 10.33327/AJEE-18-5.4- a000427. The common characteristic of all these models is that they require litigants ahead of filing their court claim to attend mediation or a mediation information session and to furnish evidence for this to the court. The fact that other countries, ibid. like Germany, Spain, Portugal, and Bulgaria, do not have such a requirement effectively leads to the risk of parties to family disputes being left with the choice to seek a more favourable forum that effectively does not require from them compliance with such procedural obligation.
Given the massive migration processes that are still on the rise, this problem is not merely of a theoretical nature but may have some practical implications of turning certain jurisdictions into `mediation heavens' with no mandatory mediation for some cases or where the provisions for its conduct are of a relaxed nature. The same risk also exists in the field of recognising mediation settlement agreements as an enforceable title in all Member States, which may result from the work of various mediators, all of whom are subjected to different national regulations. This gives the parties the chance to pursue the conclusions of settlements via mediation in jurisdictions with a more lenient regulatory framework towards mediators and to seek to subsequently enforce them in the desired jurisdiction where they would not have been enforceable in the first place. All of the above represents some of the challenges that forum shopping and bad faith use of the patched mediator regulations may result in and further stress on the need for urgent reform suggesting uniform criteria and professional regulations of all EU mediators.
Conclusions and recommendations
The analyses of existing national legislation in the field of mediators' professional regulations on an EU level has brought to light the consderiable challenges or nearly impossibility for mediators trained in one EU Member State to render mediation services in other Member States. Keeping in mind the essence of the mediation process and its universal nature, this limits mediators from exercising their EU-guaranteed freedom of services and, as such, ultimately leads to the shrinking of the mediators' market and indirectly decreases the quality of the mediation services due to limited competition.
However, a few tools for recognising mediation licenses and training requirements have been implemented, but in their bigger part, they fail to truly foster a single mediators' market in the Union. These tendencies are further strengthened by the uptake of mandatory mediation models, which dramatically raises the number of mediated cases and results in the additional polarisation of the requirements towards practising mediators. Considering the high number of cross-border disputes, the situation becomes even more complicated and creates additional formal obstacles to the development of mediation and its wider usage.
The existing regulatory, coupled with the diverse training requirements applicable nationally, call for a need to adopt uniform training requirements with curriculum that is synchronised and applicable across all states. Unifying the systems of mediation training and certification around the EU requires discussions as it may increase the trust that the quality of the mediation service offered in the numerous Member States meets a certain fixed standard. However, moving towards such unification shall necessitate careful deliberations within the professional community of mediators in the EU to synchronise the advancement and agree upon content specifics that need to be adopted. In addition, such a harmonised approach towards the qualification of the mediators would be highly beneficial to mandatory mediation schemes in cross-border disputes as there will be no more space for the latter discussion on the suitability of the mediator, who was assisting parties in such a dispute resolution process. The latter would also serve as a benchmark for the quality that needs to be maintained across accrediting organisations in the EU. The overarching objective of this would be to increase the credibility of the mediation institute by ensuring it meets an impeccable quality coupled with utmost professionalism.
Separately, the authors propose initiating a discussion about creating a uniform EU registry of mediators and mediators' service and training providers. This might be the next step towards creating a truly European single market of mediation services.
However, prior to their implementation, all of the above notions require a truly European discussion that involves all stakeholders in a process that seeks to and adopts a unified standard of mediation conduct that is applicable throughout the entire European Union.
References
1. Alexander N, `Global Trends in Mediation: Riding the Third Wave', in N Alexander (ed), Global Trends in Mediation (2nd edn, Kluwer Law Intl 2006).
2. Alexander N, `Ten Trends in International Commercial Mediation' (2019) 31 (Spec) Singapore Academy of Law Journal 405.
3. Alexander N, Walsh S and Svatos M (eds), EU Mediation Law Handbook: Regulatory Robustness Ratings for Mediation Regimes (Kluwer Law Intl 2017).
4. Cole SR and others, Mediation: Law, Policy & Practice (2022-2023 edn, Trial Practice Series, Thomson Reuters 2023).
5. Furlan F, Blumstein E and Hofstein DN, `Ethical Guidelines for Attorney-Mediators: Are Attorneys Bound by Ethical Codes for Lawyers when Acting as Mediators?' (1997) 14(2) Journal of the American Academy of Matrimonial Law 267.
6. Hanks M, `Perspectives on Mandatory Mediation' (2012) 35(3) UNSW Law Journal 929.
7. Hopt KJ and Steffek F (eds), Mediation: Principles and Regulation in Comparative Perspective (OUP 2013).
8. Jaspers C, `Mandatory Mediation from a Europen and Comparative Law Perspective' in Boele-Woelki K and Martiny D (eds), Plurality and Diversity of Family Relations in Europe (Intersentia 2019) 341, doi:10.1017/9781780689111.016.
9. Korsakoviene I, Radanova JB and Tvaronaviciene A, `Mandatory Mediation in Family Disputes - An Emerging Trend in the European Union?' (2023) 53(2) Review of European and Comparative Law 67, doi:10.31743/recl.15707.
10. Kovach KK, Mediation: principles and practice (3rd edn, West Academic 2004) 23-7.
11. Meidanis HP, `Enforcement of Mediation Settlement Agreements in the EU and the Need for Reform' (2020) 16(2) Journal of Private International Law 275, doi:10.1080/17441048.2020.1796226.
12. Quek D, `Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program' (2010) 11(2) Cardozo Journal of Conflict Resolution 479.
13. Rewald R, `Mediation in Europe: The Most Misunderstood Method of Alternative Dispute Resolution' (2014) 2 World Arbitration Report 14.
14. Silva AMCe and Guiomar P, `Mediators in Portugal: Training, Status and Professional Recognition' (2023) 6(1) Journal of Social and Political Sciences 32, doi:10.31014/aior.1991.06.01.391.
15. Silver C, `Models for Third Parties in Alternative Dispute Resolution' (1996) 12(1) Ohio State Journal on Dispute Resolution 37.
16. Steffek F, `Mediation in the European Union: An Introduction' (European e-Justice, 2012) <https://e-justice.europa.eu/fileDownload.do?id=b3e6a432-440d-4105-b9d5- 29a8be95408f> accessed 1 November 2023.
17. Tvaronaviciene A and others, `Mediation in the Baltic States: Developments and Challenges of Implementation' (2022) 5(4) Access to Justice in Eastern Europe 68, doi:10.33327/AJEE-18-5.4-a000427.
18. Wissler RL, `Court-Connected Mediation in General Civil Cases: What we Know from Empirical Ressesarch' (2002) 17(3) Ohio State Journal on Dispute Resolution 641.
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