judge edna bekenstein 8.
(photo credit: Courtesy )
A European Commission-sponsored Workshop and Forum for International Commercial Mediators and Arbitrators will be presented tomorrow (Thursday) in the Israeli Bar in Tel Aviv. The workshop and forum will be held as an intensive full-day discussion of Alternative Dispute Resolution (ADR) issues in the legal and business community. The workshop is part of a project of the European Commission in association with ADR Centre (Rome, Italy), ACB Group (The Hague, the Netherlands), and three other international partners (CMAP, France; IBF, Belgium; and Confartigianato, Italy).
The workshop and forum will be managed by Manon Schonewille from the Netherlands, who is the executive director of ACB Group. She is expected to meet high profiled members of the Israeli legal community during her visit here. Among them is Judge Edna Bekenstein (president of Magistrate Courts of Tel Aviv and a district judge) who has invited Schonewille for a personal tour of the court under her jurisdiction. Judge Bekenstein is a vital component of the new mandatory mediation pilot to start next year, since the court under her jurisdiction is the biggest in Israel and the most prominent as far as business litigation goes here.
Mediation has gained momentum in Israel in the last year, especially since Justice Minister Daniel Friedmann has given the green light for the implementation of an experimental mediation program beginning in March 2008. The program will involve making all sides in civil cases involving claims on sums that exceed NIS 50,000 to hold one free mediation session before the trial begins and letting them decide if they wish to solve their dispute through mediation.
The scheme will be carried out in the magistrate court of Jerusalem, Tel Aviv and Rishon Lezion as a pilot program. The program is based on the recommendations of the commission on mediation headed by Judge Michal Rubinstein, who will also chair the pilot program's steering committee.
During a session held two month ago, as part of the conference of the World Mediation Forum (WMF) which was held in Jerusalem on October 10, Judge Bekenstein emphasized that the courts will have to be very cautious in carrying out the new pilot. She made it clear that although mediation can offload pressure on the court system, this should not be pursued as an independent objective. She further said that the fact that the new pilot is of a mandatory nature should make the system check itself to see that mediation is implied wisely and not met by the Israeli public as a burden.
In this framework, it is very interesting to learn how the rest of the legal world responds to the advancement of mediation in the judicial arena. The study of comparative law in any subject area offers the usual advantages of learning about other countries' legal cultures and through that developing a deeper understanding of the subject study. It is more so when one deals with mediation since it is newly institutionalized in legal cultures, and it is relatively new to the canon of legal education.
National legal traditions have responded differently to the implementation of mediation. Thus, the Israeli legislature and the courts can gain insight from studying the multiple legal traditions in the world. For example, mediation is emerging differently in common law jurisdictions (e.g. the US and Britain) than in civil law jurisdictions (e.g. Continental Europe) which have been much slower at adopting court connected mediation programs.
Mediation in the EU
In 2002, the European Commission issued a Green Paper (COM (2002) 196 final) that identified ADR as a "political priority" for all "European Union institutions, whose task it is to promote these alternative techniques to ensure an environment propitious to their development and to do what it can to guarantee quality." The purpose of the paper was to encourage use of ADR as a means of increasing access to justice in cross-border disputes. The paper initiated wide-spread consultation with Member States and interested parties on possible measures to promote the use of mediation.
Following positive responses to the Green Paper, the Commission of the European Communities issued a proposal for a Directive on mediation in civil and commercial matters in October 2004 (COM (2004) 718 final). The proposed EU Directive focuses on cross-border disputes and was intended to further the EU goal of increasing access to justice by providing private parties and businesses with an additional mechanism for resolving disputes. It was intended to promote the use of mediation in the EU without making it mandatory.
The European Commission has made it clear that the role of the European Community in directly promoting mediation is limited due to the nature of the European Union. The only concrete measure to promote mediation contained in the EC Proposal is the obligation for Member States to allow courts to suggest mediation to the parties. This is a very low key intervention, compared to the law in many states in the US and in Argentina, and even to the new approach in Israel.
At this time, the European Commission proclaims that the pursuit of the objectives of mediation can not take place in isolation without regard to the very provision of mediation services. Therefore, at this time, the question of quality of mediation services must be addressed together with, and as a function of, the other provisions of the proposed directive which must operate with a sufficient level of mutual trust between the Member States in cross-border situations.
In this legal framework, a Mediator Code of Conduct was developed by the European Commission and finalized in July 2004. The Code sets out a number of principles such as informed consent and impartiality, and covers important mediator practice areas such as fees and advertising. It demonstrates not only a commitment to using mediation but to practicing it with high standards of professional integrity.
The author is head of the International Department at the Joseph Shem-Tov law firm.
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