COURT ANNEXED PROGRAMMES OF ALTERNATIVE DISPUTE RESOLUTION
COURT ANNEXED PROGRAMMES
OF ALTERNATIVE DISPUTE RESOLUTION
Since the beginning of 2001 the District Court in Ljubljana has been offering parties alternative ways of dispute resolution within the program of solving backlogs.
Since 2001 the Court has been offering court-annexed alternative dispute resolution with mediation - mediation in classical civil cases. Since June 2002 the program of mediation in family-law cases has been implemented, and at the beginning of 2003 parties were offered also the program of mediation in commercial disputes.
The program of mediation in classical civil cases, the program of family mediation and the program of commercial mediation have become regular Court programs. All programs are constantly closely monitored, analyzed and adapted to the needs, reflected in practice.
1. MEDIATION
At the District Court of Ljubljana mediation is a voluntary, confidential, fast, free of charge (for the parties) ADR procedure in which a neutral third party helps the parties to find a consensual resolution of their dispute. The procedure if fast, non-binding and confidential and does not affect an eventual later litigation in any way.
Sessions are informal, and mediators talk to parties during separate and joint sessions. When the parties have signed the agreement in front of the judges, this agreement becomes a final judicial decision. Due to its nature mediation procedure may, unlike the regular procedure, lead to solutions which are quicker, cheaper, more creative and more adapted to the interests of the parties.
1.1. Mediation in classical civil cases
The Court guarantees for the implementation of mediation in classical civil cases within three months after the consents expressed by both parties to the dispute have been received. The procedure is as long as the parties or the mediator agree that it is sensible. At the end of mediation the parties may agree about a binding solution in the form of court or out-of-court settlement. In spite of unsuccessful mediation the court guarantees the parties the order of dealing with their case regarding the date of bringing the suit. In case mediation is not successful, the court guarantees secrecy also in relation to the adjudicating judge. The procedure is free of charge for the parties as the court does not charge mediation. Eventual other costs are born by each party itself.
1.2. Family mediation
Family mediation is court and administrative procedure-annexed procedure of alternative resolution of family law disputes and disputes about property relations between the spouses. The idea of family mediation is based on International conventions and abroad it is well established. The purpose of family mediation is not only to accelerate procedures, but also and particularly more complex solving of all open questions between former spouses, reducing the number of future judicial proceedings and greater satisfaction of parties. It is particularly for the benefits of children that it is important to encourage former spouses or partners who lived in cohabitation to agree about all open questions.
Due to the nature of these disputes the periods of time to express consent, commencement and duration of the procedure are very short. In case parties reach agreement, the mediator will write it down and forward it to the judge, dealing with the case. Then the judge examines whether the agreement concerning upbringing, care and support of the child is in accordance with the child’s benefits. Also the opinion, expressed by Department of social security, will be taken into account. Then the judge will make a decision about the dissolution of marriage, and write a court settlement about other questions.
1.3. Commercial mediation
Commercial disputes are particularly suitable to be solved with the help of mediation, as they usually originate from long-term and complex relations between the parties. An individual commercial dispute reflects a conflict in a narrow segment of relationships, however, it can adversely influence the long-term relationships among the parties, or the party's reputation or market position. In addition to this, parties do not have much possibility to influence the final decision in regular judicial proceedings, and due to the final judicial decision at least one party, and very often both, feel deprived. The positive effect of mediation is that the parties, who were not able to solve the conflict in negotiations, are offered a new opportunity to create the solution themselves with the help of a trustworthy and independent mediator. Such solution allows the conflict to end without the defeated, the secrecy of business relations is kept, and it also eliminates obstacles for further business relations, which may be the major motive for commercial subjects.
Also here the periods of time to express consent, commencement and duration of the procedure are very short. One or two sessions are anticipated. However, the parties and mediator may explicitly agree about more sessions, but the procedure may not last longer than three months.
All communication regarding mediation procedure is confidential, which is particularly important for the parties in commercial disputes. Like in all other programmes, only the mediator knows all the oral and written statements. No information, originating from the mediation procedure, is available to other natural or legal persons or to public. The judge, who took part as mediator in the mediation procedure, never tries the case as the judge.
2. MEDIATORS
At the moment about 80 mediators participate in the mediation procedures at the District Court in Ljubljana. Among them are supreme, higher and district court judges as well as the Deputy Human Rights Ombudsman, who carry out mediations free of charge in addition to their regular work. In addition to them, retired judges with wide experience in civil field and advocates participate in mediation procedures on contract basis. All of them have attended specialized training in the field of alternative dispute resolution and use of special communication and negotiation techniques, and have been included on the list of mediators at the District Court in Ljubljana.
Family mediation procedures are conducted in co-mediation by specially trained experts. When the purpose of mediation is only to solve property disputes, the procedure is conducted by a mediator, who is a judge or an advocate. At the moment in addition to judges and advocates also four comediators participate in family mediations.
In an individual case mediator is selected from the list of mediators at random and he/she is completely impartial. In case parties doubt about mediator's impartiality, they can require another mediator on the same grounds as provided for the exclusion of a judge in litigation.
As the number of mediation procedures is increasing, new mediators are being trained within our own training programmes, particularly judges and advocates.
3. RESULTS & ANALYSIS
Implementation of all alternative dispute resolution programs is monitored in the quantitative way with regular monthly and annual statistics, as well as in the quality way with the help of questionnaires, filled in by parties and advocates.
3.1. Quantitative analysis
It is interesting to note that within all alternative dispute resolution programs District Court in Ljubljana carries out about 30 to 50 mediation sessions a week.
The following is monitored in the quantitative way:
· number of disputes referred to mediation
· number of consents by (all) parties to the dispute
· number of successfully finished cases
· number of cases finished during the first hearing
Number of disputes referred to mediation and number of consents by (all) parties to the dispute
Only in 2005 mediation was offered to parties in 3723 cases, in 806 cases mediation was concluded, in 419 cases the mediation was finished with court settlement or withdrawal of the suit.
The share of consents expressed by both parties to the dispute has now stabilized at cca 27 %. It has been noticed that the highest percentage of consents by both parties has been noticed in the program of family mediations (31,1%).
Number of successfully finished cases
The share of cases, where at the end of mediation the parties concluded a court settlement or abandoned action, is in general increasing every year.
In 2004 in classical civil disputes mediation was finished in 257 cases, out of which in 122 or 47,5% of cases successfully (with court settlement or abandonment of action). In 2005 in classical civil disputes mediation was finished in 325 cases, out of which in 132 or 40,6 % of cases successfully. In 2006 218 mediation were concluded and 66 or 30,3 % of cases were finished successfully.
The best success is recorded in the field of family mediations. In 2004 family mediation finished in 83 cases, out of which 62 or 74,7% successfully. In 2005 family mediation finished in 135 cases, out of which 95 or 70,4 % successfully. In 2006 mediators have finished 212 family mediations and 150 or 70,7 % have finished successfully.
In the program of commercial mediation in year 2004 mediation has finished in 165 cases, out of which in 69 or 41,8% successfully, and in year 2005 mediation has finished in 130 cases, out of which in 52 or 40% successfully. In 2006 there were 203 or 54% successful mediations out of 376 mediations that were concluded that year.
Number of cases finished during the first session
For parties mediation should imply saving of time and consequently also money, and therefore we checked in how many successfully finished mediations the dispute is resolved already during the first session.
In 2006 mediation in classical civil cases successfully finished during the first session in 25 or 37,9 % of cases. For the remaining cases two or more sessions were needed.
Family mediations deal with disputes involving strong emotions and therefore more sessions are required so that the parties can express their positions and feelings and that they really "have their day at court". In 2006 85 or 56,7% of cases finished after the first session.
Parties in commercial cases are legal entities or entrepreneurs in disputes regarding their operation and the speed of the procedure is extremely important, as it is generally known that business relations are very fast and intensive. Out of 203 successfully finished cases 134 or 66 % finished successfully during the first session.
3.2. Qualitative analysis of the success :
When measuring the success of mediation not only the share of settlements or abandonment of action is important, but also the satisfaction of parties, which is measured by questionnaires that the parties and their advocates hand in after mediation procedure has been finished. Filling in questionnaires is not compulsory and they are anonymous.
In 49,2 % of cases parties were very satisfied with mediation, and in 44,7 % of cases satisfied. It cases when settlement is achieved, parties are enthusiastic about mediation.
Most parties think that mediation saved time (87,7 %) and money (73,1 %). It is interesting to note that 71,4 % of parties stated that in spite of the fact that this mediation was unsuccessful, they will use mediation in other disputes.
In 95,4 % of cases the parties and their advocates answered that they were very satisfied or satisfied with the way the mediator conducted the procedure.
