Appeal Cour of Ljubljana Positive effects of Court Annexed Mediation from viewpoint of Judges and Clients Mag. Gordana Ristin Appeal Court Judge Head of ADR Division Appeal Cour of Ljubljana Budapest, December 4 th, 2017 1

What do I do? Active judge at the Court of Appeals 2. Head of the ADR department Mediator Trainer for mediators and other trainers Psychotherapist by the transaction analysis method How does this combination work? 2

Conflict 2 persons engage in a conflict when their relevant wishes (interests) exclude each other Who owns the conflict in litigation? Prof. Nils Christie: Who owns the conflict – Conflict as property What is the current situation in the developed world and EU? Why do directives force us to mediate?

The parties think that the judges: do not listen and do not find people important; work slowly; want to resolve files in as easy and fast way as possible; are not fair and do not strive to find a fair solution; do not solve the life’s issue; use professional legal language, incomprehensible to lay people; are not sympathetic and do not feel empathy; react in a way unfitted for real life; act superior and inaccessible.

The judges think that the parties: have unrealistic expectations; are not objective; are not self-critical, stubborn and want to enforce their will; do not understand laws and do not follow them; do not listen to and do not respect judges; are too emotional; do not understand that judges are limited by procedural laws; do not know what they want and force into lawsuits even to their own loss; do not understand that we are dealing with too many cases and backlogs.

Sociologic aspects  the challenge: → historical moment: 1st century of the 3rd millennium: “the Postmodernism” numerous rights doubt in the authorities change in the value system: tolerance as a new value greater general knowledge of psychology time of co-operation and not confrontation new states (Southern & Eastern Europe, etc.) Doubt/distrust/  the challenge: How to consider all this but not at the cost of the rule of law?

Why this gap between the law profession and the people? People expect a solution to their life’s problem. GAP Judges can decide about the legal claim. Stealing conflict from the people? OR A civilisation misunderstanding?

Positive effects of mediation from viewpoint of Judges Why do people file lawsuits: to resolve a legal problem or to resolve a real-life problem? What do they expect from the judge? What can we give them? How many times did you detect that the dispute is not about the law but parties previous disputes (hereditary dispute – 2 brothers). Mediations resolve disputes and reduce court backlog Judge can resolve disputes where an agreement is not possible Legal profession is changing 8

Court backlogs

This is an ideal judge!

Positive effects of mediation from point of view of parties Parties can finally speak about relations, wishes, about what is important to them Dispute is resolved in a few meetings Procedure is informal, confidential and voluntary Parties may co-create the procedure Supervise and contribute to the dynamic of the proceedings If mediation fails, parties may still litigate Possibility of improving relationships 11

Statistics about court annexed mediation in Slovenia A 17 year (ongoing) pilot project ZMCGZ – 2008 ZARSS – 2009 Highest number of settlements in all courts in the year 2012: 2054 From 2009 till end of 2016: over 13.500 In 30% parties before the court of first instance accept mediation offer and settle in 50% of the cases; in appeal proceedings parties accept mediation in 10% and success rate is 50% 12

TO CONCLUDE Life is changing and so do we Parties must be explained what litigating really means Explanation about mediation Same as a doctors duty to explain treatment to the patient (to facilitate the decision), so must the judge explain options to parties in dispute. Mediation is not possible in all disputes Not all people are competent to mediate Court is still considered to be the paramount of dispute resolution 13

Thank you for your attention Gordana Ristin, gordana.ristin@sodisce.si