In this article, we will briefly describe court-annexed mediation. Mediation is an additional offer made by courts to parties in order to provide them with different options for resolving disputes and reduce the number of litigations resolved by judges. In the following article, we will go over one of the different types of mediation in greater detail.

Mediation is an alternative dispute resolution process. A neutral third party – a mediator – assists the disputing parties in reaching an agreement that resolves the dispute and re-regulates mutual relations. The mediation process is more flexible than court proceedings because there are no formal hearings, extensive written documentation, or rules of evidence. The basic procedural principle is the parties’ right to self-determination. Mediation produces a case-specific, acceptable, and flexible solution for both parties. The mediation process is voluntary, expeditious, and confidential, and it has no bearing on any subsequent court dispute between the parties.

The presence of a neutral and impartial third party – the mediator in communication between the parties – is an essential component of the mediation process. The mediator must be professional and committed, and they must not put pressure on the parties to reach an agreement at any cost. The mediator does not judge, decide, or adjudicate; they are concerned with the process rather than the content. They take care of identifying and asserting all participants’ interests, wishes, and needs, as well as for respectful and constructive communication, and they contribute to raising awareness and discovering common points and possible solutions.

We distinguish between court-annexed mediation and out-of-court mediation based on whether the mediation is related to litigation or not. Cases within the jurisdiction of the court are resolved through court-annexed mediation. Mediation in Slovenian courts has been used since 2001, when it was first offered in civil disputes at the District Court in Ljubljana, and later in family and economic disputes as well. The Alternative Dispute Resolution Act (ZARSS) was enacted in 2009, and it applies to disputes arising from economic, employment, family, and other civil law relationships in relation to claims that the parties are free to dispose of and can be settled unless a special law for individual disputes determines otherwise (Article 2 of the ZARSS). Mediation in court programs is carried out by mediators, who can be judges, lawyers, and others, particularly legal professionals who meet the legal requirements, have successfully completed specialized training in the field of alternative dispute resolution, and are included in the list of mediators. Mediators are typically assigned in the order listed on the list of mediators, but a different assignment is possible (e.g., when the special knowledge of the mediator is required). The parties can choose a mediator only if they both agree; otherwise, there is a risk that the mediator proposed by only one party is biased.

In each case, the court offers the possibility of alternative dispute resolution to the parties who are already in court proceedings (the lawsuit and the response to the lawsuit have already been filed), unless the judge determines that this would be inappropriate in a particular case. The court may, at any time, suspend the court proceedings for a period not exceeding three months and refer the parties to the alternative dispute resolution procedure at the request of the parties who agree to try alternative dispute resolution (Article 15 of the ZARSS). The mediation procedure lasts as long as the parties and mediators agree on its reasonableness, but no longer than the decision on referral specifies. If the parties to the mediation procedure reach an agreement, the mediation concludes with a court settlement or the withdrawal of the lawsuit. A court settlement is concluded and signed before a judge. It should never be signed by a judge who acted as a mediator in the case. If the parties are unable to reach an agreement, the case is returned to the regular procedure, where it is dealt with in accordance with the rules governing the order in which cases are dealt with. The courts guarantee the parties that their participation in the mediation process will not adversely affect their regular court proceedings.

The mediation process benefits the parties (speed, economic efficiency, confidentiality, increased ability to influence the final decision, informality, improved communication, fewer new disputes, etc.), the state and courts (faster and cheaper dispute resolution, resolution of multiple disputes at once, no appeals and trials at higher levels, no returns for retrial to the courts of the first instance, no enforcement required (parties mostly voluntarily execute the agreement), reduced number of new disputes between the same parties or from the same relationship, increased reputation and trust in the work of the courts, etc.), judges (fewer cases, no written judgments, easier trial in cases where mediation does not end successfully, etc.), and lawyers (satisfied clients, faster resolution of the dispute – faster payment, etc.).

When conducting mediations in court, the following fundamental principles must be followed: voluntariness, confidentiality, procedure speed and economic efficiency, equality with the court decision, and the relationship between the court and the mediation procedure.

The principle of voluntariness is respected both at the start of the procedure (the procedure cannot begin if one party does not agree to the mediation) and throughout the mediation procedure. The party may withdraw their consent to mediation at any time during the proceedings, and the dispute will be resolved in the regular proceedings before the judge. The mediator may also withdraw consent (e.g., if they find that the parties are using the mediation to delay the court proceedings).

The confidentiality principle states that all information originating from and related to mediation is kept between the participants and is not disclosed to third parties. Confidentiality in the relationship between mediation and court proceedings is conditional on the fact that, even after the mediation is completed, as little mediation-related information as possible leaks into the court proceedings. If the court proceedings end in mediation, only the signed court settlement or its draft remains in the court file. If the procedure does not end with mediation, only the information that the procedure was carried out but did not result in a resolution of the dispute remains in the file. The mediator-judge relationship is also subject to confidentiality, and the latter must never discuss the details of the mediation procedure.

The principle of speed and economic efficiency of the procedure means that mediation is usually a faster and less expensive solution to the parties’ dispute (it usually takes a few meetings or time to resolve a mediation dispute).

The principle of equality with a court decision means that a signed court settlement, like a judgment issued by a court at the conclusion of a trial, represents an enforceable title. The mediation agreement is documented in the form of a draft court settlement. The judge then holds a hearing, reads the prepared draft settlement agreement in front of the parties, and determines whether it is legal and admissible, as well as whether the parties understand the agreement. A record of the court settlement is then recorded. Based thereon, in the absence of voluntary fulfilment of the agreement, the parties initiate enforcement proceedings directly, as they would based on a final judgment.

The court-mediation relationship means that if the mediation process does not end, the courts guarantee the parties that their participation in the mediation process will not have an adverse effect on their court proceedings.