ALTERNATIVE DISPUTE RESOLUTION AT APPELLATE LEVEL
REPUBLIKA SLOVENIJA
APPEAL COURT OF LJUBLJANA
GORDANA RISTIN
Senior Appeal Court Judge
Head of ADR division
Tavčarjeva 9
SI-1000 Ljubljana
ALTERNATIVE DISPUTE RESOLUTION AT APPELLATE LEVEL
(Representation of a project by the Appeal Court of Ljubljana)
Contents:
1. Amicable dispute resolution (ADR) in Slovenia
2. Review of the project by the Appeal Court of Ljubljana
3. Reasons for ADR at the Appeal Court of Ljubljana
4. Conclusion
1. Amicable dispute resolution (ADR) in Slovenia
Resolving disputes in court is long past being the only option of dispute resolution in the Republic of Slovenia. Through practical development, new proceedings emerged which are jointly called amicable dispute resolution (ADR). Of all theoretically known ADR proceedings, it was mediation that established itself in Slovenia (in addition to arbitration). Early neutral evaluation (ENE) of disputes has also been tested in practice, but has not presented notable successes. Mediation in Slovenia has started to blossom particularly since the establishment of court-annexed programmes, which are organised and led by the court. Consequently, the District Court of Ljubljana started with organised implementation of mediation in 2001. It needs to be stressed that at that time, the Republic of Slovenia had no laws on mediation or alternative dispute resolution. Only in procedural law, a clause was approved by which the judge may intermit the proceeding for three months, should the parties decide to try and resolve the dispute by mediation.
Subsequently, clauses regarding ADR have been approved in certain laws, particularly those harmonised with EU law or directives. This is why mediation proceedings have been introduced on the basis of Insurance Law, Financial Instruments Market Law, Employment Relationships Law, Inspection Law, Collective Agreements Law, Copyright and Related Rights Law, and Patient's Rights Law. After adopting “Directive on certain aspects of mediation in civil and commercial matters”, Mediation in Civil and Commercial Matters Law was approved in 2008 (Ur. l. RS No. 56/2008). The law was predominantly approved on the basis of UNCITRAL rules and Directive 2008/52/EC of the European Parliament and of the Council (OJ L 136, 24.5.2008, p. 3–8).
At present, there are five courts of first instance in Slovenia with organised mediations. Especially the project by the District Court of Ljubljana is highly successful, having celebrated two thousand productively resolved matters already. Mediation is available in family, civil and financial matters; and success rates are higher than fifty percent on average. Mediation is the most effective in family matters, where about 66 percent of all cases are resolved by consent, meaning that the parties voluntarily accept the offer for mediation.
Since 1 September 2009, our court runs the project of mediation at appellate level.
A law proposition of Alternative Legal Dispute Resolution Law is already being discussed by the parliament these days. According to this law, all courts of first instance will have to manage ADR proceedings. They will be allowed to execute the proceedings themselves as court-annexed programmes, or to give trial court records to external, court-related organisations, regarding the contracts. In comparison, appeal courts will decide themselves, whether to include these proceedings or not.
2. Review of the project by the Appeal Court of Ljubljana
On the basis of Court Rules of the Ordinary Courts Law, the president of the Appeal Court of Ljubljana approved “Rules on Mediation Proceedings at the Appeal Court of Ljubljana”. He decided in favour of a court-annexed programme. Mediation will be held on a voluntary basis and offered in: civil, financial, family, executive and all other property relationships where claims of parties are available for disposition. The court will offer mediations, whereas other forms of ADR will be possible through a special contract between the court and the parties (ad hoc ADR implementation). At the moment, the expenses of mediators are covered by the court, so mediations mean no cost for parties. According to the proposed Alternative Legal Dispute Resolution Law, the state will account for mediation expenses in family disputes and three meetings in civil disputes. In other matters, the parties will be required to pay for mediation themselves.
The court formed an ADR division, which is lead by a judge. The division is further composed of a professional co-worker, a registrar, and heads of other divisions, whose judicial records might be involved in mediation. No one is assigned solely into this division, since they are all simultaneously acting as judges in other divisions.
By means of a yearly schedule, the court president appointed a register of mediators working at the Appeal Court of Ljubljana. It comprises of experienced mediators with long-term practice and of diverse professional orientations: judges, lawyers, notaries and psychologists. Among them are also retired judges. In order to stay in the court’s register, they have to supply certificates of additional advance training every two-year periods.
The court offers parties mediation, but they may already state a wish for mediation in the complaint as well. The parties may consent about who the mediator will be; otherwise they are assigned one by the court. All mediation proceedings are voluntary.
The person reading through the records considers, whether the given matter is appropriate for mediation. Before deliberation, judges may also assess and offer the parties mediation as a better solution. After this decision, a mediation record is opened and a proposition sent to the parties. They have to reply in eight days; otherwise the offer is taken for refused. The mediator has to call the first meeting in thirty days after the parties consent. Mediation may last three months, but may be extended by parties’ consent.
Mediations take place on the court premises. When the mediator announces that the parties have reached a draft settlement, the administrator is notified. Then the judge responsible for the records is informed, and leads the settlement of the parties. In case of family disputes where special attention is paid to the benefit of the child, the main sitting takes place on the second instance. Consequently, after an initial test the settlement summary is taken into consideration for the decision or court settlement.
Basic principles of mediation are set in Mediation in Civil and Commercial Matters Law. Besides, these principles and all the necessary information come in a brochure, given to the parties together with the court’s proposition for a mediation proceeding. Therefore, mediation is an effective procedure which can be fast and very economical, and which at the time still runs at no cost for the parties. It is an informal, yet structured procedure. Particularly at appellate level, it is crucial that the mediator take special care whether draft settlement intrudes into the decision of the court of first instance. Before deciding for settlement, the judge once again tests the parties’ will and finally approves the settlement.
In the procedure, the parties will also get an anonymous questionnaire on satisfaction with the proceeding and the mediator. The proceedings are already running with electronic sign-in, counting statistical data (records number, mediation time, the number of meetings, and the number of successful, partly successful and unsuccessful mediations). In line with the rules, head of ADR division has to write an annual report and proceedings’ analysis.
3. Reasons for ADR at the Appeal Court of Ljubljana
While following up mediation proceedings of first instance as a mediator and trainer for mediation, I realised that parties’ willingness for mediation sometimes grows only after the decision of the first instance. Accordingly, the reasons for mediation during appeal proceeding are the following: only by solving a legally important fact can the parties start negotiating; neither party is contented with their success in the lawsuit; the parties wish to include other open disputes as well; the parties wish to continue business cooperation and do not want a win-lose situation; the parties wish to end uncertainty because of a dispute or financial status of one of the parties, e.g. bankruptcy; before or during judgement and appeal, circumstances have changed as to important facts or the relationship between parties has changed.
4. Conclusion
The project only started on 1 September 2009 and at the time of this writing not even the first fifteen days have passed in order to see whether any propositions have returned with consent. We do not expect more than a couple of individual cases this year. It needs to be said, though, that experiences at the District Court of Ljubljana also show that only in about a period of five years time did the parties start accepting mediation propositions on a larger scale.
President of the Appeal Court of Ljubljana does not expect to solve many cases by mediation. In addition, there are no court delays at the Appeal Court of Ljubljana, and hence no particular need to offer mediation proceedings because of delays. On the contrary, this is about offering parties to think about what they want even after the court of first instance has reached a decision. This is about consistently stressing the viewpoint that dispute resolution in court is not the only option for resolving disputes. Prior to the decision of the appeal court, the parties have the possibility to come to a solution on their own, yet with the help of a neutral third person in an effective, confidential and voluntary proceeding. The Appeal Court of Ljubljana will be monitoring the proceedings and overseeing their quality. In that aspect, a proceeding for resolving potential appeals by unsatisfied parties is also foreseen together with monitoring of the whole project.
Ljubljana, 12 September 2009
