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On 1 September 2012 the new Mediation Act (Act No. 202/2012
Coll., "the Act") became effective. The
Act serves as a legal basis for the amicable settlement of private
disputes within mediation proceedings.
During such proceedings, an unbiased mediator will encourage the
disunited parties to compromise and reach a mutually agreed
solution to their dispute. The mediator will persuade the parties
to actively participate in settlement negotiations and will
regulate their communication. While mediation itself is not unknown
in the Czech market, the Act aims to establish a clear legal
framework and thus significantly increase the amount of cases
settled through mediation proceedings.
Under the Act, any person who passes specific mediation exams
(requiring also the knowledge of the basics of law) will be
registered and entered onto the list of mediators maintained by the
Ministry of Justice. Only registered persons can act as mediators.
Although many of the mediators are also admitted as
attorneys-at-law, it must be highlighted that a mediator may not
act as legal counsel in the same matter. In order to initiate
mediation proceedings, litigating parties must agree upon a
suitable mediator and other terms and conditions regarding an
agreement as to the execution of the mediation. Such an agreement
is a new form of contractual relationship defined by the Act. Such
an agreement must state the names of the conflicting parties, the
mediator, the dispute itself, the remuneration to be received by
the mediator and the agreed duration of the mediation if not agreed
that it should run indefinitely.
If the parties can resolve their dispute, the mediator will help
them conclude a mediation agreement which shall be binding on the
parties. Although mediation is usually voluntary, courts will now
have the power to order litigating parties to resolve their dispute
through the mediation process. This appears to be especially useful
in family disputes. A material advantage of the new regulation is
that in the course of mediation, the limitation period will be
interrupted and thus a claim cannot become statute-barred.
Despite the introduction of the Act, "private mediators"
who are not registered with the Ministry of Justice can continue to
perform their activities outside the scope of this Act. A
disadvantage of this is that beyond a certain guarantee of quality,
the participants will lose the advantages stemming from the new
regulated form of mediation created by the Act.
It could be argued that a mediation agreement concluded in the
course of mediation proceedings is not directly enforceable without
further court proceedings. Thus, the main factor determining the
success of mediation is in fact the parties themselves. The
negotiations will not be successful if the parties´ are
reluctant to cooperate or subsequently refuse to adhere to the
mediation agreement. Notwithstanding this, it is widely believed
that mediation may represent a suitable alternative to standard
court proceedings.
This article was written for Law-Now, CMS Cameron
McKenna's free online information service. To register for
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Law-Now information is for general purposes and guidance
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articles are not necessarily comprehensive and do not purport to
give professional or legal advice. All Law-Now information relates
to circumstances prevailing at the date of its original publication
and may not have been updated to reflect subsequent
developments.
The original publication date for this article was
20/09/2012.
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