In 5th century BC Athens, the laws of the city were inscribed on pillars, originally made of wood, later of stone. An orator at a trial, therefore, wishing to refer the jury of citizens to the law (for it was not the role of the presiding magistrate to do so) literally pointed to a column. To the frustration of historians and archaeologists, the recorded speeches we have do not include the text of the laws indicated – the writer simply stating at that point “Nomos” or “The Law”. How those days differ when the methods of recording are multiple and in which we can find that in Greece from 17th October 2018 certain types of legal dispute will be subject to compulsory medication (Article 178-206 Law 4512/2018 published 17/1/2018).
At present this system will be essentially limited to intellectual property disputes (infringement of trade marks, patents, industrial designs) which have been commenced in a civil court. The enforcement and interim measures stages of a case are not covered. No such case can proceed to trial until the claimant has requested a mediation, to be conducted by a mediator selected from a list on the website of the Ministry of Justice. The mediator then fixes a date and place for the mediation to last no more than 24 hours. Attendance is compulsory, although physical presence is not required at the mediation and parties eg those based in another country, may attend by technological means. There are fixed time limits for each stage. Failure to attend can result in a fine by the Court at the hearing on the merits.
The Law justified
What is of particular interest is that the preamble to the law sets out the legislator’s reasons for infringing the right to recourse to justice in this way. Briefly, the general interest in quicker and less expensive settlement of disputes with a consequent lightening of the burden on the judicial system outweighs the right to litigate disputes (itself guaranteed by the Greek Constitution), taking into account the limited nature of the interference. Those limitations include the ability of the parties to opt out of the mediation process at the first meeting, the short time limit, the limited costs involved, and, of course, that the judicial remedy remains if no settlement is reached.
Whether there should be a compulsory mediation system particularly for cases initiated in the civil courts has, of course long been a subject of debate. So far the overall consensus in the UK has been against as contrary to the principle that mediation should result from the voluntary decision of the parties and the right to legal remedy should not be infringed (see “Alternative Dispute Resolution and Civil Justice” –the Civil Justice Council’s ADR Working Group’s Interim Report October 2017, particularly Sections 5, 8 and 9). However that has not ruled out strong encouragement of mediation as a course to take both in the CPR and in judgements (developments in which I have touched on in previous blogs). Looking at the justification for the legislation in Greece, what applies to the causes of action to which compulsory mediation is there currently limited, could readily be applied to others. Perhaps Greece, not for the first time in history, is showing a way forward.
The assistance of the IPKAT email posts in writing this blog is gratefully acknowledged.