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SITUATION OF MEDIATION IN LITHUANIA. FIRST STEPS TOWARDS MEDIATION. First initiatives to promote mediation came from the growing non-governmental sector. In 1998 first mediators were trained In 1999 first seminars on mediation were organized
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FIRST STEPS TOWARDS MEDIATION • First initiatives to promote mediation came from the growing non-governmental sector. • In 1998 first mediators were trained • In 1999 first seminars on mediation were organized • New Code of Civil Procedure in 2003 provided obligatory stage of judicial conciliation in the preliminary hearing of every civil case.
FIRST ATTEMPTS IN COURTS • on 20th of May 2005 the first court-annexed mediation rules were adopted by the Judicial Council • Pilot project started in 2006 in Vilnius City II local Court • Results encouraged the Council of the Judiciary of Lithuania in 2007 to vote unanimously for prolongation of the project and its extension to other courts
LAW ON MEDIATION • Came into force 1st of January 2010 • Adopted according to EU Directive 2008/52/EC • applied to non-judicial and judicial conciliatory mediation in civil disputes • civil dispute means a dispute that is or may be heard by way of civil procedure by a court of general jurisdiction.
CODE OF CIVIL PROCEDURE • From the 1st of October 2011 mentions court-annexed mediation • Article 231 (1) of Code says that with the consent of the parties court-annexed mediation can take place in the preliminary stage of the court hearing. • No prohibition on conducting mediation in appeal proceedings
TYPES OF MEDIATION • Out-of-court mediation • Court-annexed mediation
AGREEMENT ON MEDIATION • Almost not regulated • Only written agreement • If parties agree to resolve the dispute by way of mediation, they must attempt to resolve the dispute by this procedure before they refer to court or arbitration. • If no time limit for termination of mediation has been set in the agreement, the party can refer to court or arbitration one month after proposing to the other party to the dispute in writing to resolve the dispute by way of mediation.
MEDIATORS • There are no requirements for the mediators in out-of-court mediation. • No official Bar or Register of mediators. • List of possible mediators for court-annexed mediation. • Mediators in court-annexed mediation must undergo short training courses in mediation.
MAIN PRINCIPLES FOR ACTIVITIES OF MEDIATORS • Impartiality • Confidentiality • Mediator must provide parties information on his education and experience. • Avoid conflict of interests. • According CCP Art. 189, mediators cannot be wittnesses.
NOMINATION OF MEDIATORS I • Nominated by agreement between parties with consent of the mediator. • Where there is no agreement between the parties on the number of mediators, one mediator must be nominated. • Parties can agree that a third party or an administrator of mediation services will select or recommend a mediator for them. • Where there is no agreement between the parties regarding the selection of a mediator, the mediator can be nominated by a district court.
NOMINATION OF MEDIATORS II • Opinion of parties is also the most important for court-annexed mediation. • Usually one mediator, in exceptional cases 2 mediators. • Mediator is appointed by the chairman of the court or by the chairman of the department of civil cases or empowered judge.
PROCEDURE OF MEDIATION I • Parties free to choose • Flexible • In the cases where no agreement between the parties exists on the nature and procedure of mediation, the mediator must perform specific activities properly, taking into account the circumstances of the dispute, including possible imbalances of power between the parties, any wishes of the parties and the need for a prompt settlement of the dispute, and acting in compliance with legal rules.
PROCEDURE OF MEDIATION II • Free of charge • In premises of the court • Up to 4 hours only • No protocol is recorded • Principles of efficiency, fairness, equality of the parties must be applied. • Caucuses can be arranged.
SETTLEMENT AGREEMENT I • In out-of-court mediation has statutory effect to the parties. • Can be submitted to court for endorsement in accordance with the summary procedure set forth in Chapter XXXIX of the CCP. In such cases court decision has res judicata. • In court-annexed mediation settlement agreement is approved by the judge, who hears the case.
FAILURE OF MEDIATION I • Can be described either as a failure to begin the mediation procedure or when the parties or the mediator decide that there are no possibilities to continue mediation. • Termination of mediation is considered the day on which: • which one party sends to the other party a written statement objecting to the settlement of the dispute; - the mediator presents a written notification of termination of mediation to all parties; • the party presents to the mediator and the other party a written notification of his withdrawal from mediation; • when all parties send to the mediator a written notification of termination of mediation.
FAILURE OF MEDIATION II • In court-annexed mediation if no agreement is reached after assigned time for procedure. • If it is ascertained that it was asked for mediation unfairly or the mediation procedure is undergoing unfair, request for mediation can be not met or ongoing procedure can be terminated.
FUTURE PERSPECTIVES • No official statistics so far • Still a strong need to promote and to advertise mediation in Lithuania • Main obstacles to mediation: litigious culture, lack of finances devoted to promoting mediation, quite small number of mediation professionals, huge workload in the courts. • Perhaps mediation in family and consumer disputes have the best perspectives. • It is necessary to make it possible to have mediation in administrative or also in some criminal cases.
