The Portuguese Perspective of the Institucionalization of Mediation

The growing wish of citizens to participate in the resolution of conflicts, linked to the legal crisis (Hespanha, 2007), was the main factor for the development of alternative forms of dispute resolution, and it was also indicated as one of the possible responses to the Portuguese justice crisis (Silva, 2009). However, and despite the recent legislative efforts, mediation in Portugal is still a utopic reality, given the reduced number of mediations that are conducted, and the lack of knowledge about it by the society at large and even the legal community.

Characteristics of Mediation in the Portuguese. Legal System

The notion of mediation currently established in the Portuguese legal system is that of facilitation. Mediation can be integrated into the legal system in different ways: it can be established as a compulsory measure or as optional mediation systems. The trend is to integrate mediation as an option for the parties; however, its development has not been as expected – more than a decade has passed since it was introduced, and even though, it has not been enough for effective success. Facing this situation, establishing mediation as compulsory in some matters seems to be an enticing solution but, what would it be such a solution?

Mediation Public Systems

Mediation public systems in Portugal are created and managed by public entities in order to provide citizens with quick ways to alternatively resolve disputes via mediation services.

As stated above, mediation does not have a long tradition in Portugal, as it emerged in the 90’s of the 20th century, and it was introduced by private entities However, the alternative form of confliction resolution has been growing in different fields of intervention: from commercial to family and school, and also penal, public and intercultural. Initially, Portugal decided to implement mediation via the dissemination of mediation systems that were managed by a public entity called «Gabinete de Resolução Extrajudicial de Conflitos» (GRAL) (Cebola, 2011, p. 354). At that time, private mediation did not have a clear legal framework. The first mediation experience with the brand of the Ministry of Justice occurred in 1997, as a result of the creation of the Mediation Department that had the power to deal with conflicts related to the regulation of parental authority in the region of Lisbon. In 2007, the Family Mediation System was set up. It is a public service created to resolve the conflicts that emerge within families out of court; using it in this kind of conflicts proves to be appropriate⁷, the service covers currently the entire national territory.

Several years after this first initiative, the Labor Mediation System was set up in 2006, which allows workers and employers to resolve emerging disputes concerning individual work contracts⁸.

Penal mediation started to emerge in Portugal as a result of an initiative promoted by the Law School of the Porto University in 2004, but it was only introduced in the Portuguese legal system in 2007 when Act 21/2007 of June 12th was passed.

These are, therefore, the three mediation public systems in Portugal: the Family Mediation System (FMS), the Labor Mediation System (LMS) and the Penal Mediation System (PMS). However, currently there are a few requests for mediation at these entities, and it is practically out of service.

Mediation in Justices of the Peace

Thanks to the creation of Justices of Peace by Act 78/2001 of July 13 mediation became (a little) more evident in the Portuguese legal panorama. At that time the first courses for mediators were organized, and the Ministry of Justice started to require their certification so that practitioners could act in the field of the public system of mediation and justices of the peace.

In Portugal there are 25 Justices of the Peace in almost 50 municipalities.⁹ They are true courts, envisaged by the Constitution of the Portuguese Republic (Article 209, Section 2), which exercise alternative justice that is characterized by proximity and the attempt to reach a settlement that benefits both parties in the conflict (Ferreira, 2005, p. 46). These out of court tribunals have the power to deal with civil cases-except for those that involve Family Law, Law of Succession and Labor Law –with a value in excess of €15,000–, (New Act on Justices of the Peace 54/2013, of June 31, Section 8). The bottom line is that parties must be those who resolve their problems, without prejudice to the Justice of the Peace making a decision in the event they do not reach a settlement by themselves.

Dealing with this at these courts has two important moments to reach an agreement: out of court mediation and judicial conciliation. The mediation is carried out by a mediator, chosen by the parties or appointed by the Justice of the Peace. The conciliation is an attempt of the judge at the beginning of the trial session. According to Mariana Gouveia, «at the Justice of the Peace the motivation for settlement is stronger than in judicial courts (…) as it is known that the Judge is going to endeavor to exhaust all possibilities to reach an agreement » (Gouveia, 2012, p. 291).

Given that the necessary paradigm change for the acceptance of mediation has not yet taken place in the world of Portuguese lawyers, this alternative form of conflict resolution only occur in Portugal, precisely, in Justices of the Peace. Private mediation, defined as voluntarily chosen by the parties outside the public system, is not yet regulated. (Gonçalves and Leitão, 2012). Moreover, according to Article 8 of Act 54/2013 of July 31, cases up to €15,000 can be dealt with at Justices of the Peace or Judicial Courts, as decided upon by the parties. Knowing that most lawyers are still subject to the traditional litigation form (i.e., judicial) we can easily conclude that Justices of the Peace are a less considered option, and for this reason they contribute to the myth that affirms that these are not true courts.

Regulation of Mediation: Act 29/2013 Of April 19

In order to promote mediation it was considered that creating a legislative support was essential to establish the bases of the alternative resolution of conflicts, both concerning its principles and the code of ethics applicable to the mediators and the process plan and the mediation procedure. In this regard, Act 29/2013 of April 19 was recently passed in Portugal. Until its coming into force, we use to have a legislative dispersion of the norms related to mediation, a detailed regulation of the mediation public systems and a legal loophole concerning private mediation, and the debate on the application of the norms of the mediation public systems to the procedures occurred outside these structures (Lopes and Patrão, 2014, p. 12). The implementation of mediation should not be bound only to the public systems. According to Directive 2008/52/CE, –transposed to the Portuguese Legal System through Decree Law 29/2009 of June 29 that introduced articles 240 A, B and C and Article 279 A into the Civil Process Code– this alternative form to resolve disputes must be integrated also into the traditional justice system, which implies the regulation of private mediation (Cebola, 2011, p. 381).

Act 29/2013 of April 19 aims at becoming the base for the general mediation regime affirming the general principles applicable to the mediations conducted in Portugal. These norms refer to the field of private mediation, the mediation public system in Justices of the Peace and all the public systems of specialized mediation (family, labor, and penal). It established in detail the procedure applicable to civil and commercial mediation (in articles 10 and subsequent); the goal of the mediation process, the settlement and, lastly, the duration and suspension of the procedure. It defines the legal regime of mediators (articles 23 and subsequent), referring to aspects related to their access to activity, their education and the respective education entities, their rights and duties, as well as impediments and remuneration of practitioners; and, lastly, it regulates the legal regime of the mediation public systems (article 30 and subsequent) that provides citizens with fast alternative resolutions of conflicts via the mediation services created and managed by public entities.

Mediators practice under the Mediation Act, the Act on Justices of the Peace, and the European Code of Conduct for Mediators, as there is no National Code of Conduct of Mediators. Guidelines exist on how mediation sessions should be conducted, the methods to be used to achieve communication or constructive relations between the parties and on the terms mediators can propose settlements. Moreover, nothing hinders organizations to define and publicize a Professional Code of Conduct for Mediators. The mediation public system, in turn, has a supervision commission that controls the conduct of mediators. If these mechanisms are implemented, trust in relations is assured concerning mediators and mediation itself.

Quality assurance for mediation is pinpointed by the Mediation Act –it becomes obvious, for instance, in article 24 that refers to the «Training and training entities» and in article 43 that refers to the «Supervision of the practice mediation»–.

This piece of legislation is considered, therefore, as a true framework for national mediation, aimed at contributing to more information and dissemination of this mechanism, and, as a result, to a higher use of this form that offers citizens and companies a solution that is complementary to the judicial way.

Final Considerations

According to the data presented in 2012 on Justices of the Peace, 10,971 cases were dealt with, of which 2,167 were resolved thanks to mediation. If we compare this figure with the 870,000 cases dealt with at courts, we can see that mediation resolved only 0.24% of the cases¹⁰. This gives us an idea of the «microscopic» role mediation plays in Justices of the Peace.

Despite of the crisis in the justice sector and the growing wish of citizens to participate in the resolutions of the conflicts, mediation in Portugal does not show signs of a true development. The traditional resolution form, i.e. the judicial form, has proven to be unable to respond on time to the increase in the number of disputes. As indicated by some statistics, in civil justice the average duration of court cases is 29 months¹¹ and even though, individuals and companies do not consider out of court resolution of conflicts as an agile, sure, fast and discreet tool.

Act 29/2013 gave mediation a legal framework. We hope this momentum will be used by justice users, citizens, companies, lawyers and judges so that this form of resolution can be consolidated in our country. The Portuguese socioeconomic reality requires new ways of acting to resolve conflicts, and we believe that mediation is a precious access to justice, although it is not yet sufficiently valued in Portugal.