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A Proposed Mediation Model for Civil Law Countries

Table of Contents

  1. What is Mediation?
  2. Who is Qualified to Mediate in Such Matters?
  3. How and When Should They Mediate?
  4. How can ethics/rules be applied/enforced?
  5. The Model
  6. Conclusion

What is Mediation?

This paper defines Mediation as a Court annexed or connected procedure that is entered into in connection with Court orders and statutory guidelines.

Any similar process that occurs with a neutral, but without a Court's Order is defined as conciliation -- this includes neighborhood and other mediation methods.  Any process that occurs without a neutral is defined as negotiation -- this includes facilitated negotiation where parties hire specially trained individuals to negotiate for them.

Neither conciliation or negotiation is regulated by the model act.

Proposed Text:

This is an act for the regulation, certification and control of the process of Mediation defined as a procedure entered into at the Order of the Court for Alternative Dispute Resolution under the auspices of a certified Magistrate Neutral. The act does not apply to negotiation or conciliation.

Who is Qualified to Mediate in Such Matters?

Proposed Text:

Mediation shall be conducted by dependent magistrates approved by the Court and licensed by the bureau of _________ as properly trained and experienced Mediators.  Each Court shall appoint its own Mediator Magistrates from those so properly trained and experienced.  The training of a Mediator shall include at a minimum the professional degree and title of _____________, and shall also necessarily include the certification of a training program in Mediation under the terms of the Mediation Certification Act.  All Mediators shall be required to attend at least eight (8) hours of continuing education classes in mediation every year and/or provide at least six (6) hours of training to others in mediation every year for a total of at least 14 hours of education and training every year.

How and When Should They Mediate?

There are three very successful time periods for the referral to mediation.  They are:


Proposed Text:

A Court may establish a diversion program wherein all contested cases filed before the Court are referred to mediation. A Court may also chose to divert to mediation only those cases prepared for trial which the parties and the Court feel are appropriate for mediation.  A Court may also divert to mediation those cases whose trial indicates that mediation would be an appropriate measure.

How can ethics/rules be applied/enforced?

In a Civil Law System, the same bureau that certifies mediators would be responsible for disciplining them and revoking certification of those who fail in their duties.  In addition, the Court that approves and appoints a mediator as a Magistrate Mediator, may revoke that appointment and may discipline the mediator for direct or indirect contempt.

Proposed Text:

The ____________ bureau, which licenses mediators for appointment as Magistrate Mediators, shall have authority to review the qualifications of mediators and to revoke their credentials.  In addition, each Court may, upon good cause, revoke the appointment of a Mediator Magistrate assigned to that Court and otherwise assume jurisdiction over the Mediator.  No Mediator whose credentials have been revoked shall serve as a Magistrate Mediator.

The Model

A Magistrate Mediator acts as an officer of the Court.  A Conciliator is not an officer of the Court.

The role of a Magistrate Mediator is to be active, to see that justice is done.  A Conciliator shall explore and discuss values and needs with parties, but shall otherwise be a withdrawn neutral.

A Magistrate Mediator shall seek to see that equity is done, without attempting to impose his or her desires, opinions or values upon the parties.

Proposed Text:

A Magistrate Mediator is an officer of the Court, with the duty to be active in seeking that justice is done and to aid the parties in exploring their values and positions, yet with the obligation not to impose the Mediator's desires, opinions or values upon the parties.

Conclusion

The Civil Law System allows for two types of ADR to function smoothly under the umbrella of the legal system.  Magistrate Mediators can be appointed to aid the parties in reaching a settlement with the direct annexed power of the Court and Conciliators may be sought out by parties to aid them in reaching settlements outside of the Court's orders, but in deference to its power.

It is my hope that these proposals aid in the adaptation of mediation to Civil Law Countries.

Stephen R. Marsh

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Link to Dispute Resolution Related Book Reviews


Copyright 2000 Stephen R. Marsh

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