by Paschalis Ioannidis*

Is the legal framework favorable?

Despite the permanent and persistent will of the administration in both local and European level, the popularity of civil mediation remains restricted. The will for the institution of mediation in Greek civil law occurred between 2007-2010; ultimately, law No3898/2010 provided the definition of the term, set the general principles of the procedure and the range of cases in which the statute applies, determined the requirements of the parties involved and ordered the creation of the Committee of Certification for Mediators, under the supervision of the Ministry of Justice, Transparency and Human Rights. The option of resorting to the procedure of mediation was provided in “private disputes” including those characterized as “cross-border” (a term most probably linking to EU legislation regarding the Common European Market).

 Between 2012 and 2015 the Hellenic legislator has enhanced mediation and widened its field of appliance, thus providing a very favorable environment for the spread of its usage. More specifically, in 2012, by virtue of law No 4055/2012 judges in first-instance courts were provided with the discrete option to propose the resolution of the dispute by mediation in any face of the litigation procedure. Three years later, law No 4335/2015 commissioned the judges with the obligation to propose mediation, while the acceptance of this proposal would postpone the hearing for three months; in a case of an already started trial, the law defined that, the initiation of mediation by the parties would instantly cancel all hearings already conducted.[1]

The final step was taken in 2018; law No 4512/2018 initiated the statute of mandatory mediation for a variety of cases, including disputes arising from apartment-renting contracts, compensation from car damages, family law, patent-law and others. The case can be issued to the competent court only if the mediation procedure has been proven fruitless, whereas attempting to completely skip it leads to the characterization of the action as inadmissible. The aforementioned law also clearly states that every private law case (including both civil and commercial disputes) can be resolved with the use of mediation; it also further facilitates the procedure of ascribing certifications for mediators, via the creation of the Central Committee of Mediation with several sub-committees and the systematization of the procedure of testing and certifying candidates.  It should be noted that all aforementioned laws have been voted for the purpose of the Incorporation of the EU Directive 2008/52/EP.

Has the initiation of Mediation been fruitful?

The Greek legal world has been hesitant towards this new -and quite unknown in Greece- form of ADR. The institution of mandatory mediation, in particular, has caused several reactions among academics, as many state that it is quite dubious weather the statute complies with the provisions of the Article 20 of the Constitution and of the Article 61 of the European Convention on Human Rights (regarding the jus standi right). These concerns have been loudly expressed through the jurisprudence of Areios Pagos (the Hellenic civil and penal Supreme Court of Appeals). More specifically, the Administrative Plenary Session of the Court has judged (by a vote of 21 in favor and 18 against) that mandatory mediation is unconstitutional. The Judges’ reasoning was based on the fact that mediation comes with a high cost, and therefore forcing Citizens to resort to it offends the core of the constitutionally enshrined right of jus standi. Although the aforementioned judgement is not legally binding it surely brings grim tidings to the potentials of spreading mandatory civil-law mediation further than law No 4512/2018 did.[2]

Apart from the experts’ reactions, it is becoming more and more obvious that the Greek society is rather skeptical towards mediation. The usage of the Statute remains exceptionally low, as only 15% of the cases that require mediation attempt for the action to be admissible, have been actually resolved by mediation in a period from 30/11/2019 to 9/6/2020[3]. The phenomenon of bypassing mandatory mediation is not rare, as in many cases, the parties prefer to move straight to Court, and therefore go through the procedure for typical reasons and very often without even their physical presence, in order to just obtain the minutes, which are necessary for their action to be admissible. As for the cases in which mediation is initiated by the parties, the success rate reaches up to 75%[4]; although this looks encouraging, the actual amount of cases in which the parties initiate it is only 3% on the total number of civil cases[5]. This means that the percentage of the successful party-led mediations on the total number of cases for the period from November 2019 to June 2020 is just 2,25%.[6]

What are the reasons for the malfunction of Mediation?

There are various causes to why the statute has not reached the expected popularity. First of all, attorneys and the Associations across the country have done little to encourage its promotion. During disputes, few lawyers actually propose the resort to mediation, whereas the Bars advertise the Statute as little as possible. This reaction is partially fueled by the aforementioned doubts expressed by the country’s academics and judges, regarding both the legality and the functionality of the Statute. However, more “practical” motives contribute to this skepticism as well; given the fact that long lasting “judicial adventures” come with a high cost and are often followed by appeal, it is undeniable that many lawyers choose not to encourage mediation for the shake of preserving their high bills.[7] Taking into consideration the exceptionally high number of attorneys in Greece and the oversaturation of the profession ( it is estimated that Greece has the second larger number of lawyers per resident in the EU)[8] one could easily come to the conclusion that the idea of trying to “choke” this “new brand of lawyers” (etc. the mediators) exists in many attorney’s mind.

The Statute has not been embraced warmly enough by the judges either. Their main concern consists in what a part of the legal society characterizes as “Privatization of Justice”[9]. According to several Judge’s point of view the extensive use of mediation and ADR in general (which is generally practiced in Greece by law-firms) could ultimately lead to a big portion of the justice to stop being administered by the judiciary. Many experts consider this a threat to the independence and the efficiency of the justice system as they oppose to the idea of disputes being handled by people with generally less credentials than a judge[10].  As Nikos Karagiannakidis, Attorney by Areios Pagos believes: “…In addition to its (Mediation’s) high cost, no citizen would trust a lawyer who cannot be adequately certified for neither his neutrality, nor his technical or academic knowledge, with the resolution of his dispute- especially when there is no right to Appeal.”[11]

There is also a widespread worry among the members of the legal society that the extensive usage of mediation would, in the long term, lead to negative effects for the system. The main aspect of this worry is the decrease of Judicial Judgements, a most vital element for the proper function of the Law in the Greek system, as it is the single mean of Constitutionality review as well as a very handy and useful source of legal interpretation. Despite that it is extremely practical and easy, mediation cannot provide neither one of the aforementioned, which leads to many arguing that its spread shall lead to negative consequences for the safeguard of Legal Certainty and for the Rule of Law in general. This opinion however is not embraced by all; many have endorsed and do support Mediation as they are realizing its numerous benefits.

But certain characteristics of the system play a role as well. It is not a coincidence that mediation is a legal statute first developed in Anglo-Saxon countries, as their systems are, in contrast with the ones of Continental Europe, characterized by remarkable flexibility and realism[12]. Whereas the latter tend to be more dogmatic and present a very solid and strictly standardized methodology, common law systems seek to resolve matters in a more empirical and practical way[13], and therefore they create a legal environment perfectly suitable for the formation of ADR. For example, in German law, one of the most widespread and highly innovative systems in the world, mediation was initiated with relative delay, in comparison with several common law systems such as the ones of Australia or New Zealand.[14] As it seems, the idea that the State is the only Guarantor of the citizen’s lawful rights and the preservation of the law’s proper function, and therefore all dispute resolution procedures are almost always conducted under its immediate protection, finds many supporters within the Continental European systems; and Greece is not an exception. Taking this into consideration, we understand that a long tradition of “legal statism” has to be reversed, for mediation to take root as a main dispute resolution mean.

In addition, comprehending why the Greek society has not actively embraced the new statute requires a general evaluation of the historic specificities regarding the way Greeks perceive legal disputes. An intense “culture” of legal confrontation characterizes Hellenic societies throughout the ages; anyone that has fragmental knowledge on Greek Legal History could easily find out that, from the ancient Athens’s frequent and regular judicial “clashes”, such as Socrates’s or the Arginouses trials[15], to the current situation with the Greek Justice System constantly buried under hundreds of thousands of law-suits, one thing is certain: Greeks like going to Court. It is nothing less than the phenomenon which Academics call “dikomania” (from “diki” δίκη = trial & “mania” μανία = madness/obsession)[16]. It is that “bad habit” of the Athenian society that Aristophanes satirizes in his play, “Wasps”[17], and which, as it seems, the Greeks have a very hard time getting rid of.

 Being a Greek myself, the better I understand the society I live in, the stronger I confirm how the Greek “mindset” around dispute resolution hasn’t changed throughout time. No matter how many years pass, the Greeks remain an extremely emotional and spirited people, who get offended easily and seeks encounter for pity reasons. Mediation is a process that needs the litigants to put down their pride and find a common solution in a spirit of compromise -something not as easy for the Greek society as it is for others, since we have a “dicomanic” culture following us for, pretty much, as long as we remember ourselves as a people. So the bet for the young lawyers of Greece is to reverse this world order and make the “seed” of Mediation sprout.

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*Law Student, University of Thessaloniki, Greece

[1]   Professor Theodoros Nikas- “Civil Procedural Law” -Judicial Mediation, p.317-318 (SAKKOULAS publications)

[2] Professor Theodoros Nikas- “Civil Procedural Law” – The Statute of Mediation according to L.4512/2018, p.318-320 (SAKKOULAS publications)

[3] Spyridoula Georgiou, Attorney by Areios Pagos, Mediator- “Mediation in modern day Greece: facts and concerns”, par. 18 (Justina.gr)

[4] Kostantinos Tsiaras, Minister of Justice, Transparency and Human Rights: official statistics presented at his speech in “Delphoi Economic Forum”, 06/11/2020, par.4 (ministryofjustice.gr)

[5] Spyridoula Georgiou, Attorney by Areios Pagos, Mediator- “Mediation in modern day Greece: facts and concerns”, par. 20 (Justina.gr)

[6] As shown by the statistics coming from:

Kostantinos Tsiaras, Minister of Justice, Transparency and Human Rights: official statistics presented in his speech in “Delphoi Economic Forum 2020”, 06/11/2020, par.4 (ministryofjustice.gr) and

Spyridoula Georgiou, Attorney by Areios Pagos, Mediator- “Mediation in modern day Greece: facts and concerns”, par. 18 – 20 (Justina.gr)

[7] Spyridoula Georgiou, Attorney by Areios Pagos, Mediator – “Mediation in modern day Greece: facts and concerns” par. 20-21 (Justina.gr)

[8] Athanasios Rozou- “Overpopulation of Lawyers in Greece: Myths and Reality” par.1-2 & statistics chart (nomikosdialogos.gr)

[9] Spyridoula Georgiou, Attorney by Areios Pagos, Mediator- “Mediation in modern day Greece: facts and concerns” par.22 (Justina.gr)

[10] Spyridoula Georgiou, Attorney by Areios Pagos, Mediator- “Mediation in modern day Greece: facts and concerns” par. 25-28 (Justina.gr)

[11] Personal opinion of Mr. Karagiannakidis, 08/31/2020

[12] Professor Elina N. Moustaira, “Comparative Law” – Anglo-Saxon legal systems in comparison with the legal systems of Continental European States, pages 65-68, (NOMIKI BIBLIOTHIKI publications)

[13] Professor Philippos Vasilogiannis, “Legal Systems and Methodology of the Law: Ethical and Political Argumentology” – pages 1-3 (Professor’s thesis on the course of Legal Methodology).

[14] Nadja Alexander, “From common law to civil law jurisdictions: court ADR on the move in Germany” – par. 3 – 6 (Singapore Management University’s School of Law, Law Review)

[15] Professor Douglas M. McDowell, “The Law in classical Athens”, pages 15-18 & 287-291 & 307-315 (N.D. PAPADIMA publications)

[16] Manolis Τriandafyllidis, “Lexicon – The Gate to the Hellenic Language” / {dikomania} (greek-language.gr)

[17] Stauros Koumentakis, Lawyer, Senior Partner at Koumentakis and Associates Law Firm, “Mediation and Dikomania … From Aristophanes’s Wasps” – par.1 (VORIA.gr)