Default

Question









In international commercial conciliation or mediation in your country

how easy or difficult is it to determine the applicable statute of

1a) limitations?

What should the mediator and the parties be aware of as regards

relevant law and rules as to permitted shortening, tolling (suspending),

or extending the applicable statute of limitations in general, or, if

relevant, with particular reference to international commercial

conciliation (including any special requirements or formalities as to dates

of commencement & ending and/or positive or negative results of the

b) process)?









If relevant, irrespective of the law and rules as to the statute of

limitations as such, is there a way of eliminating any statute of

limitations issue by simple waiver, for example, can the parties make a

c) written promise not to plead the statute of limitations?









Does your country make a distinction between a statute of limitations as

such and a condition precedent attaching to a right, which provides a

shorter time, without reference to the statue of limitations, in which to

d) commence an action?

Are there statutory or common law provisions of general application as

to confidentiality with respect to an international commercial

conciliation which are sufficient to safeguard the desired degree of legal

protection against unwanted disclosure expressed in MLICC Article 9,

or is it necessary to refer to, or to await, some special legislation or rules

2a) of procedure?

Are there nevertheless statutory requirements or rules of court which

would oblige a party or mediator or witness to disclose confidential

information in certain situations with the result that MLICC Article 9

b) offers only a relative protection?









Does your country follow the rule in MLICC Article 8 as to the need for

a party to specify that information being given ex parte to a mediator is

c) confidential?

Is the very fact that a mediation has commenced or ended, with or

without a resolution, confidential per se or is an agreement necessary

between parties, mediator, and/or a service provider such as ICC or

d) AAA?









To what extent may the parties agree upon consequences in the event of

a breach of confidentiality, for example, liquidated damages, contractual

penalties, or contempt proceedings, or, for example, in anticipation of a

disclosure, provide for an expedited injunction proceeding, the right to

intervene in an action or other requirements such as the posting of a

e) bond?

Are there laws or rules of general application, sufficient to satisfy

MLICC Article 10, as to the admissibility or use in a court or in an

arbitration of information obtained in a conciliation, including any

specific “privileged” communications in the nature of or conceptually

similar to attorney-client privilege, or is a special law or regime

f) necessary?

In view of the answer to (f) above, what can a party, mediator, witness or

other relevant third party testify to or introduce in a later proceeding,

g) whether the conciliation was successful or unsuccessful?

Is there any rule that arguments as to admissibility and/or privilege are

waived if a document or communication is relied on in litigation and does

it make any difference if such a reliance was made in the context of a

h) prior conciliation solely to facilitate a possible settlement?









To what extent does the answer to (e) above as to a penalty or injunction

for a breach in respect of confidential information protected by MLICC

Article 8 apply to use or admission of the categories of information

i) protected by MLICC Article 10 in a court proceeding or an arbitration?

To the extent not otherwise addressed above, if a settlement agreement is

made following an international conciliation, can a court or arbitrator or

subsequent mediator hear witnesses or receive documents which are

otherwise subject to a restriction arising out of the prior conciliation as

being non-admissible and/or confidential, and in particular in order to (i)

understand what the parties intended, (ii) implement the agreement, or

j) (iii) enforce the agreement









How would an “offer of settlement” be treated in the context of an

unsuccessful conciliation when a party obtains less in a litigation or

k) arbitration than it was offered by its adversary during the conciliation?









How are settlement agreements generally arrived at and enforced

following an international conciliation in your country --- such as by

ordinary contract or agreement and/or by some exceptional regime

3a) including specialized courts and procedures?

In addition, are there special agreements, procedures or tactics which

can enhance recognition and enforcement --- such as by bonds, letters or

credit or security agreements, deeds, summary proceedings,

incorporation in a judgment or as an arbitral award made with the

consent of the parties, or is there some other sui generis system of

b) expedited enforcement?

Are there any defenses ordinarily or exceptionally available against

c) enforcement of post-conciliation settlement agreements?









What law or rules apply as to such items as costs, interest and attorney

d) fees in the enforcement of a settlement agreement?

Germany: Siegfried H. Elsing, Holters & Elsing Germany: Prof. Dr. Gerhard Wegen, Gleiss Lutz









In Germany, the statute of limitations is considered a matter of substantive

law because it limits

the exercise of a substantive right rather than a legal remedy. Thus, the

determination of the

The applicable statute of limitations is determined applicable statute of limitations will not depend on the law of the forum.

by the substantive law which the cause of action is Rather, the law

subject to. In international law the applicable applicable to the underlying substantive claims, which is determined

statute of limitations follows, pursuant to German primarily by a valid choice

law of conflicts, the lex causae . There are of law clause, or secondarily by German conflict of law rules, will also

generally no major difficulties to identify which govern the statute of

statute of limitations applies. limitations for those claims.

The law on the limitation of actions was thoroughly revised in the

Modernization of the Law of

Obligations Act, which entered into force on January 1, 2002. Pursuant to

§ 204(1) No. 4 of the

German Civil Code (BGB) (hereinafter “BGB”), the statute of limitations

is tolled by notice to

the obligor of the obligee‟s filing an application for conciliation

proceedings at a conciliation

institution approved by the administration of justice of a federal state or, if

the parties amicably

agree to seek conciliation, at any other conciliation institution which

The parties may agree to alter the statute of settles disputes. The same

limitations as they wish, in particular to shorten, might apply for applications to a mediator if the parties agree to seek

extend or suspend the limitation periods. German conciliation with a

law stipulates only two restrictions to this; i) as to mediator, though this is not certain (Palandt/Heinrichs, Bürgerliches

liability for deliberate acts the statutes of Gesetzbuch, § 204, para. 19

limitations may not be shortened in advance and, (66th ed. 2007). If notice is given shortly (cf. § 167 of the German Code

ii) the limitation period may not be extended to of Civil Procedure

more than 30 years. Under German law the Erstelldatum 15.08.2007 15:21:00 /2 12

running of the limitatoin period is suspended while (ZPO), hereinafter “ZPO”) after the filing of the application, the tolling of

negotiations are pending between the parties. the statute is









The parties are free to waive the right to plead the statute of limitations by

agreement.

Such an agreement does not require any special formalities. An obligor

Yes, by simple waiver. This waiver does not can also waive by

eliminate any statute of limitations for good, but unilateral declaration his right to plead the statute of limitations

only causes the limitation period to begin to run (Palandt/Heinrichs, § 202,

anew. paras. 1-7).









Under German law, parties may contractually agree on an option to be

exercised within a certain

agreed upon time frame. Apart from that, German law provides for cut-off

German Law distringuishes between the statute of periods which have

limitations and preclusion periods, which stipulate, to be distinguished from the statute of limitations. A right or a claim

as a matter of substantive (not procedural) law, that subject to a cut-off period

a certain act may only be carried out within a extinguishes with the lapse of time, whereas the statute of limitations only

certain period of time. It is necessary that the gives the obligor the

parties either contractually extend these preclusion right to refuse fulfillment (see § 214(1) BGB), Palandt/Heinrichs, Überbl v

periods for the duration of the mediation, or that § 194 para. 13 et

the claimant files - by mutual agreement - an action seq.). However, the cut-off period will also be tolled by filing an

for the sole purpose of interrupting the preclusion application for conciliation or

period. by party negotiations as set forth supra at 1(b).

Yes/No, Presently, there is no statutory law

provision of general application obliging the Although German lawyers are subject to professional codes of conduct

parties to presreve confidentiality. Therefore, it is regarding confidentiality,

general practice in Germany that the parties enter no German statute provides for confidentiality in mediation or conciliation

into confidentiality agreements amongst each other proceedings or for

and in relation to the mediator. mediators in their capacity as a mediator.

Yes, There is a variety of disclosure obligations

under corporate and business law, under criminal

law or under family law which could be said to

constrain the confidentiality obligation. As to court No, apart from certain exceptions under criminal law or dealing with

rulings, parties to a confidentiality agreement are money laundering or

obliged to exercise their rights to refuse to give securities disclosure obligations for listed companies such us the

evidence, but such rights only exist in limited obligation pursuant to § 15

circumstances. Securities Trading Act (Wertpapierhandelsgesetz).









No, unless explicitly approved by the party

concerned, the mediator is - on the basis of a Yes. Since there are no specific rules in German law on confidentiality in

conclusive mediator contract - not allowed to mediation or on the

disclose information received in a one-to-one duties of mediators, confidentiality obligations must be specified and

interview with this party to the other party. agreed to by the

However, this question is in dispute. parties.

Agreement necessary to ensure confidentiality,

however, such agreement will be deemed to have

been entered into implicitly in most cases. Agreement is necessary to ensure confidentiality.



The prevailing opinion is that parties are free to contractually agree not to

name certain witnesses or

not to rely on certain evidence in a subsequent civil trial or arbitration

(“Prozessvertrag”)

(Zöller/Greger, Zivilprozessordnung, Vor § 284, para. 2b (26th ed. 2007)).

Such an agreement would

give the right to object to any introduction of evidence in breach of the

agreement and lead the court

to reject such evidence as inadmissible. Otherwise, in the event of a breach

In the event of a breach of confidentiality, of a confidentiality

liquidated damages and contractual penalties. To agreement compensatory damages are available or the parties can agree on

force compliance with the confidentiality liquidated damages or

agreement, a party can obtain inunctive relief contractual penalties. If the parties are not merchants, the amount of a

under the general conditions of the German civil contractual penalty is subject

procedure law. to the court‟s examination and reduction; It is possible for the parties to

A party to a German lawsuit is generally not required to disclose any

information in the course

of the proceedings. There are no “discovery” rules such as in the U.S.

There are also no rules of

general application protecting information obtained in a mediation or

conciliation beyond those

of the professional privilege, which include the attorney-client privilege.

Attorneys are bound by

professional duties of confidentiality, and violations are punishable both

under criminal law and

under rules of professional conduct. The attorney-client privilege covers

all information

concerning the professional relationship between the client and the

attorney, including the

existence of such relationship, and all information which became known to

the attorney in his

capacity as an advisor. An attorney or other professional advisor, as well

as every member of his

staff, has the duty to exercise his privilege with regard to all matters and

all information falling

within the scope of the duty of confidentiality. This privilege may be

waived only by the client.

Exceptions to the attorney-client privilege apply only in very limited

No, Failing an agreement and unless special rules circumstances, such as

governing certain professions are applicable which when the attorney is under an obligation to report certain facts to public

provide for confidentiality, there are no regulations authorities under

which prevent any participant of the conciliation criminal or money laundering laws. However, if information falling within

proceedings from acting as set forth in Article 10 the attorney-client

para 1 MLICC. privilege becomes known to the opponent or to the court by other means,

If not bound by the attorney-client privilege or other privilege, a party,

mediator, witness or

Unless contractually agreed upon and unless other third party can testify to or introduce in a later proceeding any

special professional law applies, there are no relevant information

restrictions. obtained in mediation or conciliation.

If a party refers to a document as a means of evidence in its submissions to

the court, that party

is deemed to have waived all privileges with regards to such document. If

a party makes

privileged communications or documents containing privileged

information available to the

opposing party, privileges in relation to such communications or

documents are deemed waived.

A court order for a party to produce information is not enforceable. The

No, No such rules exists. Inadmissibility may only court may, however,

be effected by a procedural contract. draw negative inferences from a party‟s refusal to comply.









Parties are free to agree upon liquidated damages or contractual penalties

in the event of a

Unless a specific procedural contract is agreed breach of a confidentiality agreement. Apart from certain legal obligations

upon, the forfeiture of a penalty as such has no under criminal law or

influence on the use or admission of confidential securities disclosure requirements for listed companies such us the

information in a court proceeding or an arbitration. obligation pursuant to § 15

Also, an injunction prohibiting such disclosures Securities Trading Act, the parties are free to determine the scope of

would not oblige the court or arbitral tribunal not information not to be

to accept or consider this evidence; only the party disclosed. Thus, the parties may determine when there will be a claim for

would have to bear the consequences set forth in confidentiality which

the injunction. could be enforced by an interim injunction.

In principle, it is for the parties to determine what evidence they want to

submit to the court in

civil proceedings, so that confidential evidence supplied by one of the

parties will be

Witnesses or documents excluded in a prior inadmissible. It is, however, not certain whether a court has the power to

concilliation cannot be taken as evidence by a introduce such

court or arbitrator. The same applies to subsequent evidence ex officio by using its discretionary powers pursuant to §§ 142 -

mediation even though it is not subject to civil 144, 273 ZPO.

procedure law. Therefore it is necessary to provide However, those provisions do not relate to witness examinations and are

for exemptions as to the implmentation or only applicable if the

enforcement of the settlement agreement. facts are contested.









A settlement agreement pursuant to § 779 BGB is governed by general

contract principles.

Therefore, an offer of settlement is only valid und thus can only be

accepted within a time

specified by the offeror or a reasonable time (cf. § 147 BGB). If the offer

is not accepted within

that time or if the offer is rejected, it ceases to exist so that no obligations

Such an offer would be of no relevance, since it is, can arise out of it

according to German law, nothing else than an (Palandt/Heinrichs, § 146 para.2). Hence, it would have no effect in

offer to enter into a settlement contract that has subsequent litigation or

simply not been accepted by the other party. arbitration.









A settlement agreement reached in the course of mediation is a

compromise according to § 779

BGB. In substance, this is a contract whereby the dispute or the

uncertainty of the parties

concerning a legal relationship is resolved by way of mutual concession.

Any content is

permissible as long as it is within the limits of general contract law, and no

particular form is

necessary unless required by the content of the agreement (e.g.,

notarization is required if the

agreement contains an obligation to transfer ownership of real estate). If a

party fails to properly

perform its obligations under a settlement agreement, German law

provides for specific

performance of damages. Additionally, the parties may contractually agree

upon consequences,

such as the loss of specific rights, or on penalties or liquidated damages (§

By ordinary contract or by agreement. 339 BGB).

There exist several special procedures which can enhance recognition and

enforcement of a

settlement agreement. The parties could have a deed drawn up by a

German notary public,

which creates an enforceable entitlement if the obligor specifically agrees

to immediate

execution in the document. The deed then becomes enforceable within the

EU.

Another alternative is an attorney‟s settlement, which is a settlement

agreement concluded by

attorneys on behalf and with the authority of their clients the parties. At

the request of a party a

court may declare the settlement agreement enforceable if the following

requirements are met:

(i) the obligor has specifically agreed to immediate execution of the

agreement, (ii) the

settlement has been deposited at the local court at which one of the parties

could be sued

according to rules of general jurisdiction at the time when the settlement

was concluded, and

Erstelldatum 15.08.2007 15:21:00 /10 12

(iii) the agreement states the date on which it was signed (§ 796a ZPO).

With the consent of the

parties, the settlement can also be declared enforceable by a notary and

placed in his custody as

Security agreements, deeds, as an arbitral award long as the notary has seat in the district of a court at the residence of one

made with the consent of the parties, or some but of the parties (§ 796c

other sui generis system of expedited enforcement. ZPO).

A settlement itself is enforceable in the following If court proceedings are already pending, the parties may record the

cases: deed drawn up by a German notary or an settlement agreement with

enforceable attorney's settlement, if the debtor the court (§ 794(1) No. 1 ZPO). The record of the declarations by the

agreed to immediate execution, a settlement before parties in the minutes of

a state approved conciliatory center or if court the court hearing substitutes for the authentication through a notary and

proceedings are pending, a court-recorded meets the necessary

settlement. form requirements. The recognition and enforcement of court settlements

The debtor may avail itself of the ordinary

procedural defenses, in particular of an action Usual contract defenses apply to a settlement agreement, such as

against enforcement by which it may, principally, incapacity, mutual mistake or

assert only such objections against the claim, lack of agency. In addition, a further defense is available pursuant to § 779

following from the settlement, that came into BGB (error on the

existence after the settlement agreement. factual basis of the settlement agreement).

There are no specific rules governing costs in the enforcement of a

settlement agreement. If

enforcement is pursued through litigation, under German law the

unsuccessful party generally

bears the full court costs and must reimburse the statutory attorney fees

incurred by the

successful party in the proceedings (regardless of any negotiated attorney

fee arrangements).

Court fees are governed by the Court Fees Act (Gerichtskostengesetz) and

depend on the value

of the matter in dispute. The court also charges for other expenses, such as

costs for courtappointed

experts, service of process, or translation. Statutory attorney fees are

governed by the

Federal Attorney Remuneration Act (Rechtsanwaltsvergütungsgesetz),

which entered into force

on July 1, 2004. Fees under that act are primarily calculated on the basis

of the value of the

matter in dispute. Negotiated fees are frequent but must be explicitly

agreed to. Larger law firms

in particular often charge by hourly rates or will enter into negotiated fee

arrangements.

Currently contingency fees are not permissible, but the Federal

Settlement agreements are enforced in accordance Constitutional Court has recently

with the ordinary provisions of the 8th book of the held that the German legislature must amend the law prohibiting

ZPO, pursuant to which the debtor has to pay the contingency fees to allow an

'necessary costs of the enforcement'. Included are, exception for their availability by the end of June 2008.

inter alia , the fees and expenses of the forced Interest on costs accrued in the course of legal proceedings is generally not

execution, including attorney's fees. Interests on awarded. However,

the principal claim can only be collected if the interest on costs accrued after the judgment has been entered can be

settlement agreement so provides. awarded. In the proceedings

Germany: Mathias Schwarz, Schwarz Kelwing

Wicke Westpfahl Germany: Sven Forster, Norton Rose









The general rules regarding the statute of

limitations relating to claims governed by German

law are contained in the German Civil Code, Art

194 subs.. They have recently been harmonised

and are intended to apply to most claims.

However, some specific statutes of limitations

apply for special subject areas. Once it is

established that a claim is governed by German The applicable statute of imitation is determined

law which will decided according to the rules of by the German civil law (§§ 194 to 218 BGB).

German International Private Law it will be Given that according to § 202 BGB deviant

relatively easy to establish the applicable statute of agreements are admissible; the valid statute of

limitation. limitations may be determined by the parties.

According to Art. 203 German Civil Code the

applicable statute of limitations is suspended if the

parties have commenced negotiations on the

respective claim. The term “negotiation” is

interpreted broadly and it is generally accepted that

conciliation procedures constitute a “negotiation”

in the sense of Art. 203 German Civil Code. No

specific requirements or formalities are required to

trigger the suspension by such negotiations. The

suspension continues until one or the other party

refuses to continue the negotiations in which case

the statute of limitation will only apply after a (i) Shortening of the statutory periods of

period of 3 months following the termination of limitations is basically admissible. It is solely not

negotiations. allowed to abridge the applicable statute of

According to Art. 202 German Civil Code a statute limitations in standard business conditions

of limitation by mutual agreement can be (ii) It not allowed suspending the applicable statute

shortened or suspended as well as extended up to for deliberately acting in advance.

30 years. There exist no specific requirements as to (iii) The prolongation of the statutory periods of

the form of such an agreement. limitations over 30 years is not possible.









make a written promise not to plead the statute of

limitations), however, not exceeding 30 years



by agreeing on a suspension of the statute of

limitation, an extension or a new statute of

limitation period to run as of a the date at which

the conciliation has failed

No









Conditions precedent agreed between the parties

are seen to be different from a statute of

limitations. The stipulations provided for in Art.

194 subs. of the German Civil Code do not

automatically extend to conditions precedent. The

parties to an international conciliation, however,

could agree on an extension of the period for the

condition precedent to occur or a suspension of There are several preclusion periods destined for

such period for an agreed upon time. It is widely several rights (e.g. §§ 121, 124, 148, 532, 626,

assumed that the suspensive effect of negotiations 1944 BGB).

on the statute of limitation provided for by Art. Certain periods of time for commencing an action

203 German Civil Code by way of analogy can are only designated on the field of public law.

also be applied to conditions precedent.

Yes, A solicitor and a notary public acting as

conciliator is obliged to maintain confidentiality (§

43 a BRAO and § 18 BNotO) and is entitled to

refuse to testify in a following court proceeding.

Only in case the conciliator learns about certain

planned criminal acts of a very major nature he/she

will be obliged to break the confidentiality

obligation. Members of other professions acting as

conciliators will generally be less safe from having

to testify on the content or the outcome of a

conciliation procedure. The parties to an

international conciliation, however, are not held to

keep confidentiality by any specific provision of

the law.

If confidentiality is agreed between the parties (and

the conciliator) the evidence of facts or witnesses

the knowledge of which was obtained in the

conciliation procedure would not be admitted in

civil court proceedings. Such a confidentiality

agreement will be interpreted as an ex parte

contract regarding procedural aspects and will be

adhered to by the judge. However, there is some

uncertainty as to whether and to what extent the

judge could still order ex officio to have the

respective pieces of testimony or witnesses No

Yes, If confidentiality has been agreed upon

between the parties to an international conciliation

and a court nevertheless orders a party, a mediator

or a witness to testify they would have to disclose

the confidential information as witnesses or as a

testifying party. The information received by such No, The applicable regulations on mediation (§

testimony, however, would have to be disregarded 1042 para. 3 ZPO) offers total freedom of scope to

by the court in coming to its decision. For the the parties of a conciliation or mediation. Some

possibility of the judge to order testimony ex German mediators provide regulations, which

officio see answer to lit (a) above include equivalent regulations.









No, The answer to this question depends on the

extent of the confidentiality provision agreed

between the parties. It can be agreed that only

those information expressly specified as being

confidential should fall under the confidentiality

obligation or that all information received during

the conciliation procedure has to be kept secret.

Lawyers as mediators will have to keep any and all

information obtained during the conciliation See above, (b); e.g. rule 4.1. of the rules of

procedure confidential irrespective of any ex parte procedure of the Bundesverband Mediation in

specification. Wirtschaft und Arbeitswelt e.v.

Mediation per se confidential: for lawyers and

notaries public as mediators

Mediation per se confidential

for parties involved and third parties X Agreement necessary to ensure confidentiality









the event of a breach of confidentiality









disclosure









claim for damages

see_above, 2 (a)

No, please provide reference:



There are no express provisions, however, Special law or regime is necessary. Please provide

agreements as to procedural issues such as keeping details, if any:

of confidentiality as to specific issues are

acknowledged and will be respected by the courts See above, 2 (b); e.g. rule 4.3. of the rules of

(see above) procedure of the Bundesverband Mediation in

Wirtschaft und Arbeitswelt e.v.

Lawyer conciliator may not testify at all unless

permission is given by all parties involved. As to

the parties it will depend on the scope of the

confidentiality provision; witnesses, if called to

testify by the judge, will have to testify; whether

their testimony can be used by the judge in coming There is no effect of such regulation in the rules of

to a decision will again depend on how broad the procedure on the obligations of the parties in later

confidentiality provision is drafted. proceedings.

itself introduces a document into court proceedings

it can not later on argue that it was not admissible

as this would be deemed to be contradictory. The Yes, See above, 2 (b); e.g. 4.5. of the rules of

other party, however, could still insist on the procedure of the Bundesverband Mediation in

inadmissibility of that document. Wirtschaft und Arbeitswelt e.V.









This will again depend on the broadness of the

confidentiality provision and whether or not it

extends beyond facts, witnesses and pieces of

evidence learned of in the course of the

conciliation procedure. If the wording is broad

enough penalties can also be agreed to protect

against an introduction of the information There is no effect of such

addressed in Art. 10. Exorbitant penalties may get arrangements on court proceedings

reduced by a judge if no real harm can be proven. or arbitration.

A lawyer mediator could again not be heard as a A court may to full extend give access to the

witness. Otherwise it will again depend on the evidence which is subject to a restriction arising

extent of the wording of the confidentiality clause. out of the prior conciliation.









This would not have any influence on the court‟s

decision about who will have to bear the cost of

the proceedings. At present German law does not

provide for the possibility to have an unreasonable

party bear more costs than it would have to bear

under the general rule that the costs of court

proceedings will be borne by the parties in

accordance with their respective prevailing or An offer of settlement has no effect, if after

loosing. litigation has been carried out (cp § 146 BGB)









specialised courts and procedures

a settlement signed by lawyers for each side it

which a party has agreed to an immediate

enforceability can be made enforceable by

depositing it with the local court. Enforceability is

then declared by the court which would be

competent to hear the case. Enforceability can also

be obtained by depositing such a settlement

agreement with a notary public who will then be

competent to declare the enforceability. Another

possibility is to have the settlement containing a

clause providing for immediate enforceability be

notarised by a notary public; the provision of a

bank guarantee or a letter of credit or the

agreement of a contractual penalty in case of non-

performance of the settlement





by agreement

by bonds









the parties:

this is being discussed as a possibility, exact

requirements are still under debate



expedited enforcement, please specify:



Nothing specific for mediation/conciliation deeds

procedures, otherwise see under (a) above X summary proceedings, as an arbitral award made

with the consent of the parties

According to Art. 779 German Civil Code a

settlement agreement is invalid if according to the

settlement agreement both parties wrongly

assumed certain facts and if the dispute would not

have arisen had they known the true facts.

Otherwise settlement agreements can be invalid for

the same reasons as any other agreement including

wilful deceit by one party of the other party. There

exist no specific rules based on which a party

could claim the invalidity of a post-mediation

settlement agreement due to an undue conciliation

procedure. N/A









Absent any contractual stipulations and subject to

any higher actual damage interest will be due at

8% over and above the basic interest rate. Costs

and attorney fees have to be borne by the party

refusing to fulfil its obligations when due. The general rules of German civil law do apply.

Sweden: Mannheimer Swartling

Romania: Bucharest Arbitration Court Advokatbyra AB









If there are parties from different countries the

statute of limitation depends on the applicable law. The applicable statute of limitations would

In Romania Law no. 105/1992 on the international have to be decided taking into account the law

private law regulates the aspects of lex fori or laws applicable to the subject matter of the

applicable. It is not difficult to determine the dispute, and the circumstances of the case. The

applicable statute of limitation as under Romanian SCC Mediation Rules do not contain any

law this is a matter of public order. provision relating to statute of limitations.

The statute if limitation is especially regulated by

Law-Decree no. 167/1958 which establishes

special cases for suspension and interruptions,

extension, waivers, commencement and ending of

the right of claim (action). According to the

Romanian Legal Principles, the mediator and the

parties cannot shorten, toll or extend the

applicable statute of limitation. See 1a)









No, the time limits are especially regulated by the

general law and the special laws in some

commercial areas, like insurance, transport or

others alike where the legal normal term of 3 years

provided by Law-Decree no. 167/1958 is shorter.

The parties cannot eliminate by their agreement

the statute of limitation and the rules related to the

statute of limitation, they can only respect the law. See 1a)









The Romanian legal system does not apply

distinction between the statute of limitation and

other conditions precedent. One should anyhow

mention the forfeiture term which refers to the

time limit within which one can actually fill a

claim to protect or ask for certain rights otherwise

such claim would be rejected. This forfeiture term

refers to the right itself (as merit) differently from

the limitation which refers only to the right (as

procedural way). See 1a)

The confidentiality matter is stated in the

applicable laws. Although there is no need for

special rules, the Romanian legal system does not

contain provisions of general application that

sufficient to safeguard a certain degree of legal

protection against unwanted disclosure as

expressed in MLICC art. 9. It is also necessary to

refer to Commercial legislation and Civil

Procedure. Furthermore, if it is a special matter the

parties want to specify supplementary in their Confidentiality requires an agreement to that

contractual agreement they can stipulate more. efect as between the parties. Article 3 of the

Therefore, it is sufficient assurance in Romania SCC Mediation Rules contains a duty for the

that confidential subject matter related to an conciliator, the SCC Mediation Institute and

international conciliation or mediation will be the parties to respect the confidentiality of the

protected and that what was said or disclosed in a mediation. In addition, article 3 stipulates that

mediation will not be evidenced in any subesquent the need for appropriate confidentiality

proceeding save for the case when the parties undertakings should be taken into

agreed upon or the law requested so. consideration.

The confidentiality matter is not treated so strictly,

but the law makes the difference between the

mediator possibly acting as witness, expert or

interpreter, but only with the parties' approval or

under a public order. The claims as to

confidentiality may be avoided by showing a

waiver, or a pre-existing or prospective public

availability without breach of any relevant An undertaking of confidentiality does not

agreement. The witness quality prevails in cases entail that a conciliator is precluded from

the mediator knew about the issues before testifying in court as a witness. However,

obtaining the mediator quality (art. 37 Mediation according to the Swedish Code of Judicial

Law). This has also a correspondent in the legal Procedure, members of the Swedish Bar

provisions regulating various other professional Association, who are obliged to observe

activities such as lawyers, public notaries, etc. confidentiality under the Code of Conduct of

However it is to be emphasised that in cases of members of the Swedish Bar Association, may

money laundering procedures or protections not testify concerning matters entrusted to, or

against terrorism confidentiality cannot be discovered by, them in their professional

accepted and individuals in knowledge of aspects capacity unless such disclosure is mandatory or

related to such areas must report them to the person for whose benefit the duty of

competent authorities. secrecy is imposed consents thereto.









Yes, art. 53 of the Mediation Law provides that

confidentiality is one of the characteristics of the The SCC Mediation Rules do not contrain any

mediation procedure in Romanian legal system. provision relating to this issue.

As a general rule, confidentiatliy requires an

agreement. Art. 3 of the SCC Mediation Rules,

governing the confidentiality of the mediation,

stipulates tat the mediator, the parties and the

SCC Mediation Institute shall respect the

confidentiality of the Mediation. In the practice

Nothing special needed more than the above. At of the SCC Mediation Insitute, this means that

any time confidentiality is a mandatory clause of the Institute will neither deny nor confirm or in

the mediation contract concluded between the any other way comment or respond to a

parties and the mediator subject to certain question whether a certain party is or is not

exemption such as money laundering or terrorism involved in conciliation under the auspices of

when they do not apply. the SCC Mediation Institute.



The parties are free to agree even in the contract

signed between them and the mediators about

certain consequences related to an eventual breach

of confidentiality of the mediation, depending also

on the specifics of the case and the type and status

of the information disclosed during mediation, as

in any other commercial agreement. The

consequences mught be liquidated damages or

contractual penalties; they refer to general

contractual liability for breach of an obligation. As a general rules, parties are free to agree on

Under court proceedings, one party might ask also the above. A confidentiality agreement

for an injunction preventing the other party from however does not preclude a duty to testify as a

disclosing confidential information provided witness beofre a court. The SCC Mediation

during mediation, as an ad interim measure until Rules do not contacin any provision which

the contractual claim for damages. specifically relates to these issues.

According to Art 3(4) of the SCC Mediation

Rules, a partu may not introduce as evidence in

any judicial or arbitration proceedings any

views expressed or statements made in the

course of the mediation. No laws exist which

correspond to MLICC Article 10. On the

contrary, an agreement containing restrictions

on the introduction of evidence as described in

MLICC Article 10 does not prevent a Swedish

Art 53 of the Mediation law states that, as a matter court from admiting such evidence. Swedish

of principle, it is not possible to use during procedural law contains very few rules on the

arbitral, judicial or similar proceedings, except for admissibility of evidence; nearly all evidence

the case when parties so agree or law expressly may be admissibile and objections focus on

provides so, as it might be the case when the probative value. The fact that a party may be in

judges in State court consider that the information breach of an undertaking of confidentiality

is needed for the settlement of the case and obliges when presenting evidence does not make

the party to provide it in the court. evidence inadmissible.

As detailed above, the remedy for breach of

confidentiality is merely contractual, but

depending on a case by case basis and the type of

information, parties can either agree or be obliged

to disclose the confidential information at a later

stage of the proceedings in front of State courts or

arbitration. In the latter case, confidentiality is

ensured since arbitration is also a confidential

procedure as a matter of principle and unless There are no general restrictions, unless the

parties do not intend to challenge the award in rule on attorney-client privelege applies (see

State courts. (b))

There are non specific rules as regards these issues

related to admissability and or priveleged

information but nevertheless this is an issue to be

assessed only on a case by case basis and depends

very much on the type of litigation, position of the

judge/arbitrator and nevertheless the information

to be relied upon. N/A









Breach of the obligation to keep confidentiality of

information triggers the responsibility as damages It would not prevent the use of the categories of

towards the party which suffered it, either as information protected by Article 10 in a court

penalty or as injunction during court or arbitration proceeding, unless te rules on attorney-client

proceedings. privelege applies

Again, there are no specific rules except for the

general principal of confidentiality of the

mediation procedures and documentation

disclosed thereon but, however, it all depends on

issue to be assessed only on a case by case basis

and depends very much on the type of litigation,

position of the judge/arbitrator and nevertheless

the informaiton to be relied upon. This has been addressed under (b), (f) and (g).









It is admissable under Swedish Procedural Law

to introduce as evidence information on a

previous 'offer of settlement'. Members of the

The 'offer for settlement' is to be treated as such by Swedish Bar may not, according to the Code of

the addressee in accordance with its intersts at the Conduct of members of the Swedish Bar

moment when it is received. There are on rules in Association, rely upon an 'offer of settlement'

this respect imposed by law or practice, all such from an opposing party unless that party

practical issues related to the settlement either consents thereto. To become inadmissible as

proposed by mediator or by one of the parties evidence, however, the information must meet

within or outside the mediation procedure is left at the standards of Chapter 36, Section 5 of the

parties' will. Swedish Procedural Code.









A settlement agreement is no different from any

other commercial agreement. To be enforced, a

settlement agreement would have to be

confirmed by court or by an arbitral tribunal in

the form of a final award. Swedish procedural

Code, Chapter 17, Section 6: 'If the parties

agree on a settlement of the dispute, the court,

upon request of both parties, shall enter a

judgment confirming the settlement'. Swedish

These aspects are specially regulated by the arbitration act Section 27(2): 'Where the parties

Mediation Law in art. 63, as desribed above in the ener into a settlement agreement, the arbitrators

introduction. As a matter of principle, only may, at the request of the parties, confirm the

settlement acknowledged in a court decision or in settlement agreement in a arbitral award.'

a notarial deed could be enforced (these being According to Article 12 of the SCC Mediation

under the laws of Romania considered as Rules, upon reaching a settlement agreement

enforceable titles) otherwise enforcement of the the parties may, subject to the approval of the

settlement proposed is to be made by parties' mediator, agree to appoint the mediator as an

agreement and no other procedures or tactics are to arbitrator and request him or her to confirm the

be implemented. settlement agreement an arbitral award

Incorporation in a judgment or arbitral award is

See 3a necessary for enforcement.

Nothing special, other than the general principles According to Chapter 3, Section 13 of the

which govern the enforcement of agreements, and Swedish Enforcement Code, a settlement that is

in the case of an international mediation the confirmed by a court is enforced as a judgment

principles set out in the Law no. 105/1992 on that has entered into final legal force, unless

private international law. Such defences may refer otherwise ordered as a result of an action

to public order principles or breach of the against the judgment or an action for a

procedural aspects agreed between the parties and declaration of invalidity of the settlement

mediator. agreement.









The rules of lex fori are able to be applied to the

enforcement of a settlement agreement to costs,

interest and attorney fees. In Romania the general

principles of civil procedure and enforcement of

agreements/decision/settlements should apply. As

regarrds the costs, there are certain enforcement

fees due to the special enforcing officer in charge

as well as some small court fees, all these

theoretically being added to the amounts to be

recovered under the settlement. Beside this, if

parties have an attorney, such costs, in reasonable

amounts assessed on local practice by the courts,

may be added. General Rules of enforcement apply.

Spain: Elisabeth de Nadal & Juan-Antonio Ruiz, Cuatrecasas Abogados S.L









In Spain the statute of limitations depends on the applicable law to the case.If

Spanish law governs the contract, we must distinguish between statute of

limitatoins and statute of expiration. The periods enacted, as well as the choice

between limitation and expiration, are arbitrary and represent what the legislature

deems a sufficient period in a particular kind of case. Additionaly, Spain is divided

into 17 autonomous comunities, all of them with their own parliament, and there is

internal law enacted by regional parliaments in which the regulation, as well as

some of the terms above mentioned, change. Therefore, in some cases, in addition

to the difficulties in determining the law governing the substantive case and the

procedure, it is also complicated to set the statute of limitations or expiration, and

the reckoning.

Generally, under Spanish law parties can not alter the period established bu law as

statute of limitations or expiration, as these terms are imperative, Thus, neither a

shortening nor an extension of a legally imposed period can be agreed, and parties

must claim his right before the end of the deadline. Tolling is not accepted if

statute of limitation applies, instead the interested party has to file a judicial claim

before the ending of the deadline. If the term is one of 'statute of limitations',

before the end of the deadline the party must suspend the running of the statute (by

a registered letter or by any other mean showing evidence that the party is claiming

his right, otherwise he loses his right to claim. Currently, the European Parliament

is discussing a 'Proposal for a Directive of the European Parliament and of the

Council on certain aspects of mediation in civil and commerical matters,

SEC(2004) 1314, not yet enacted. If passed, then the European Union members

will have a period to adopt this regulation and modify his internal law, and the

answer to this question change.









No, parties cannot eliminate the statute of limitations, however, as a practical

matter, a motion to dismiss the claim based on breach of the applicable statute of

limitations can only be granted by the judges if the party specifically pleads for it.

If no party makes this petition, then the judge can not grant it of his own accord

(motu propio). On the contrary, dismissal of a claim based on the statute of

expiration is granted by the judge with no need for the parties to plead for it.









Yes, this distinction exists, as mentioned in the answer to the first question. In a

case in which statute of expiration applies, the cause of action has a built-in

deadline for exercising the action beofre the court. If failed, the plaintiff loses his

right to claim.

No, In Spain there is no statute regulating business mediation. There are several

regional laws regulating mediation for family matters or for labor law conflicts, but

no statute has been enacted to deal with commercial litigation. Therefore, there is

no statutory provision regulating business mediation stating that 'all information

relating to the concilliation proceedings shall be kept confidential, except where

disclosure is required under the law or for the purpose of implementation or

enforcement of a settlement agreement', in the sense mentioned in MLICC Article

9. To this extent there is on sufficient assurance that confidential subject matter

related to an international conciliation or mediation be protected. The parties could

potentially agree about the confidentiality issues in the agreement for the

mediation, and this agreement would be enforceable against the party on breach, as

any other agreement. But nothing can asure that the evidence will not be used in

the subsequent proceeding.

No, the general rules is that parties have the right to call as a witness any person

with relevant knowledge about the controversial facts discussed in the claim (s.

360 Spanish Civil Procedure Act). However, the witness can appear in front of the

civil court and state that he has a duty of secrecy due to ihs profession or state. If

the civil judge considers justified the reasons given by the witness, then he will

release the witness of the obligation to declare. Of course, in the case of criminal

conduct, the mediator would be obliged to disclose the confidential information.









So far there is no legal rule in Spain to this respect. However, the practice follows

this non written rule, and the mediation agreement usually contains a clause

specifiying that everything said of given to the mediator shall be kept confidential

except otherwise mentioned. Notice that if the information given by one of the

parties to the mediator was on the public domain, no confidentiality can be alleged.

Neither of the above, so far there is no legal rules in Spain to this respect, and the

practice varies. There is no legal rules stating that mediation is confidential per se.

If parties want to keep it confidential, then they include this obligation in the

mediation agreement.





Liquidated damages, contractual penalties and others. Parties can agree in several

remedies to apply in case of breach of confidentiality. A liquidated damages clause

is the mos used, and parties ex ante agree the amount of damages recoverable in

the event of a specified breach. Parties can also agree in a penalty clause to punish

the party on breach, although Spoanish law allows the judge to equitably moderate

the agreed penalty if hte breach is only partial. If the party on breach does not

voluntarily fulfill its payment obligation, then civil judicial proceedings will be

needed to declare the breach of contract and the obligation to pay damages and

penalties. Contempt proceedings, other than the civil proceeding for enforcing the

agreement mentioned above, are not usually agreed. Parties can also agree in other

remedies. In spain there is neither disclosure nor discovery in the sense of the

common law, so parties do not have the need to agree on these points. Spanish

procedural rules allow only the disclosure of a particular document or a particular

category of documents.

No, a special law or regime is necessary. Further to section 2(a) above, there is no

rule protecting what has been said or disclosed in an international mediation to be

used as evidence in any subsequent proceedings. It is necessary to await some

special legislation or rules of procedure. For further detail see article 6 of 'Proposal

for a Directive if the European Parliament and of the Council on certain aspects of

mediation in civil and commercial matters'.

As mentioned above, any person having direct knowledge of the controversial facts

discussed in the trial and called by the judge as a party or witness is obliged to

appear before the court and answer to the questions formulated in examination

unless a duty of secrecy can be alleged.

No, In Spain any communication between a lawyer and his client containing

informaiton about a case is considered priveleged and confidential, as it is also any

communication between lawyers discussing points of the case. To use these

documents in a subsequent trial, lawyers are obliged to ask for permissoin to the

BAR Association, and wait until this permit arrives. If they act without this permit

the only consequence is a possible administrative sanction imposed by the BAR

Association. But these are internal rules affecting the lawyers. THe admissability of

these documents as evidence by the courts is not affected by the fact the document

is priveleged or confidential, or the lawyer obtained the permit from the BAR

association. The document can be accepted in any case.









To its full extent. Parties can agree not to use a document as evidence, and in case

of breach, a penalty clause, or liquidated damages, can be imposed to the party on

breach.

Yes, they can. As mentioned before, any evidence relevant to the case may be

brought forward by the parties, and the judge or the arbitrator will later decide if

this evidence must be accepted or rejected. The party on breach of any

confidentilaity agreement will be liable for its breach.









Different to what happens in the US (Rule 68 of the Federal Rules of Civil

Procedure), or what in a similar way happened in the UK (Dunnett v Railtrack

[2002] EWCA Civ 302, where the Court of Appeals refused to award the

prevailing party the costs of the appeal because she rejected to take part in a

mediation process), in Spain there is no impact or consequence at all.









By ordinary contract, or by agreement. Under Spanish law, the usual way to settle a

case after an international conciliation is by drafting and signing an agreement in

which the parties reflect the conflict and the final outcome. See s. 1809 and ff. of

Spanish Civil Code, and s.19 and related of the Spanish Civil Procedure Act and

Article 5 of the 'Proposal for a Directive of the European Parliament and of the

Council on certain aspects of mediation in civil and commercial matters'.

Incorporation in a judgment, as explained above, the best way to assure recognition

and enforcement by court is by incorporating the agreement in a court order. There

are other means to ensure fulfillment of the obligations and rights in the scope of

the settlement agreement: bank warranties, bonds, etc. Most are commericla

instruments ensureing payment obligations.

The available defenses are the same used in the general law of contracts. Parties

can allege that the agreement is null and void because:



(i) was signed by mistake, under threat or violence, or false pretense, or relying on

false documentation (§§ 1817, 1818, 1262-1270 Spanish Civil Code),

(ii) violates the Spanish public order.

(iii) its object is illegal (§§ 1271-1276 Spanish Civil Code).

(iv) The other party has breached the obligations incumbent on it under the

conciliation agreement.









The same rule that applies to general litigation. As established in § 394 Spanish

Civil Procedure Act, the legal fees, expenses and costs must be paid by the losing

party, except if the case was dubious. In this case, the judge has the possibility to

decide not to impose the costs on the losing party. Thus, if the claim is entirely

granted, then the defendant bears all costs and expenses. If entirely dismissed, the

plaintiff is in charge of it. If partially granted or dismissed, each party bears their

own costs.

Argentina: Sebastian C Rodrigo, Alfaro-Abogados









Pursuant to our legal system there are two main groups of liabilities:

contractual and non-contractual, both with different statutory terms

beyond which legal actions can not be brought: ten (10) and two (2)

years. The Civil Code provides for other different terms for more

specific matters, such as collection of invoices, transport contracts, etc.

But in all the cases, the terms can not be modified or replaced by the

parties, since the public order is involved. Thus, if Argentine Law is

applicable to the process, there is no difficulty to determine in the

Civil Code the applicable statute of limitations

Our legal system provides two (2) different types of mediation process:

oficial and private. In the fist case the term is suspended as from the

filing of the petition to commence the mediation process, and will have

effects on all the parties involved in the process. In the case of a

private process the suspension will commence as from the date of

delivery of the notice on the hearing set up by the mediator. The last

case the statute of limitations apply only to the defendant.

The suspensions will never be longer than one (1) year (or a shorter

term if applicable to such action pursuant to the Civil Code).

In case the mediation concludes without settling their dispute, the

process is formally concluded, raising the suspension on the term of

the statute of limitations after twenty (20) running days after the formal

termination of the mediation process.

The suspension implies that the term runs as of the occurrance of the

fact that cause the suspension. Once this cause ceasses to exist, the

term is renewed.









No; Parties can not eliminate any statute of limitations. They are

provided by law.









There is no distinction in our legal system bewteen a statute of

limitations as such and a conditon precedent attaching to a right as

indicated in the question.

Yes, please provide reference: Both the Mediation and Conciliation

Law and its ruling Decree provides that confidentiality is the rule

applicable to the process. For purposes of guarantying said rule, the

mediator and the parties may also request the execution of written

confidential compromise mandatory for all the parties involved in the

process.

Likewise, confidentiality is a duty that all the parties (including the

mediator) shall follow as an “obligation of not-to-do” as defined in the

Civil Code, with the effects that said violation are provided therein.

Yes, please provide reference: Pursuant to section 4 of the Standard

Confidentiality Agreement, the basic principle of any mediation

process contains two (2) exceptions: (a) the existence of a criminal

offense, and (b) violence against a minor citizen. Under these two

circumstances, the confidentiality duty is released.









No, please provide reference: As indicated above, confidentiality is the

rule in any mediation process. Thus, all the information obtained

within a mediation process is confidential –unless already public or an

express release of the party granted in this respect.

Mediation is confidential per se, and thus it is not strictly necessary to

agree among all the parties on the terms and conditions of said duty.

However, parties may execute a standard confidential agreement but

such agreement can not condition in any way the duty assumed by the

parties just by entering into a mediation process. Likewise, the

confidentiality rule is not affected by the existence or not of a

resolution / settlement that terminates the process.









The violation of the confidentiality duty triggers the sanctions

provided by the Civil Code (sections 1067 and 1068) and the Criminal

Law Code (sections 156 of the Code and 244 of the Criminal

Proceeding Code) since both legislations protect the interest of the

confident party. The legislation admits any kind of agreement between

parties in relation to the liquidation of the damages and in general on

the effects of said breach. The legislation does not rule specifically on

this matter. As in any other judicial process parties may agree on any

of these guarantees in anticipation of a disclosure, but actually they are

not an alterative used within a mediation process.

Yes; Information obtained within a mediation process is precluded to

be relied on within a subsequent litigation proceeding, even in the case

that any of the parties pleads that the settlement reached from a

mediation process is null and void. Confidentiality is a duty provided

by law that supports the credibility of the mediation as a valid

alternative dispute resolution method.

The law provides a general principle which mandates that any

document, information or activity brought to the parties as a

consequence of a mediation process is confidential. The breach of such

duty within a litigation proceeding in court brings two (2)

consequences: (i) delete the references to said confidential document /

information / activity indicated in a judicial writ, and (ii) dispense said

confidential evidence based on document / information / activity.

No, please provide reference: There is no such rule under our legal

system, disregarding if was made in the context of a prior conciliation

solely to facilitate a possible settlement. Once within a mediation

process said document or communication becomes confidential. That

is the reason parties are generally very reluctant to disclose

documentation within a mediation process.

However, parties who are seeking for a settlement generally disclose

certain documents and information informally and out of the mediation

process.









Mediation process is confidential. Section 360 bis of the Federal

Procedural Code provides that parties can not be interrogated on the

facts discussed during the mediation hearing.

The confidential characteristic of the mediation process determines

that mediators are compelled not to reveal to the court or third parties

any fact or information obtained during the process.

Likewise, mediators can not testified within a subsequent process or

submit their personal notes on the facts revealed during the mediation

hearings.

A mediation process conducted in Argentina will impede any of the

parties to such process to testify as a witness on the information

obtained during the process, or any court to receive any document

obtained from a mediation process. This rule applies even in the cases

where the party alleges that said admission pretends (i) to evidence the

understanding of what the parties intended, (ii) to implement the

agreement. However, parties can file the settlement agreement in order

to enforce it in case a party to the mediation fails to honour it.









Is a standard practice in Argentina that parties to a settlement

agreement do not admit facts or rights for the benefit of the

counterparty. Settlements are entered into just for the purpose of

terminating the dispute. Thus, any offer made within the mediation

process should not be considered by the court when ruling on the case,

since it was made just to settle the dispute.









By agreement: Settlements are generally arrived by an agreement

where parties, without admitting facts or rights of the counterparty,

assume certain obligations for the sole purpose of terminating the

dispute. However, since the settlements are also executed by the

mediators, the latter certifies the signature of the parties and thus said

certification entitles the plaintiff to follow a summary proceeding also

provided by the Procedural Code for other specific enforcements (e.g.

banking checks, promissory notes, etc.).

summary proceedings: The execution of the settlement within a

mediation process entitles the parties to enforce it through a summary

proceeding. No further procedures are required to obtain a valid

document to enforce a right granted in mediation.

Basically no, since the settlement simple indicate the obligations

assumed by the parties. It could be argued that the enforcement is

improper since there is no breach of the settlement, but no other

ordinary defenses are available against enforcements.









Mediation law provides the fees to be accrued by the mediator which

are in strict relation with the amount of the settlement. But there is a

minimum of U$ 50.- and a cap of U$ 200.-



There is no reference to the professional fees of legal counsels who

assisted the parties within the process. Thus, in case of enforcement

courts should rely on the general rules to determine the amount of the

fees, notwithstanding any agreement entered into by the party and its

counsel (“pacto de cuota litis”).

Israel: Adv. Zvi Nixon, Elhanan Landau Law Office









Israeli law does not contain any provisions relating specifically to statute of

limitation and conciliation and mediation proceedings. In the absence of

such specific rules, a court will apply the general statute of limitations in

Israel as provided for in the Prescription Law, 5718-1958 (hereinafter "the

Prescription Law"), which applies to legal claims generally. Parties can

always agree upon a different statute of limitation from the one determined

by statute, if they do so in a separate written agreement, as discussed in the

answer to question (b) hereinafter . The general rules provide that the

prescription period only ceases to run when a claim is filed with a court or

in arbitration, and commencement of conciliation or mediation will not

stop the running of time. Therefore, parties who wish to prevent time

running must ensure that specific agreement is reached on this. The general

period for prescription in Israeli law is seven years (if the claim is not

related to land), but a number of statutes provide for shorter periods in

certain cases.

Section 79C (e) of the Courts Law (Consolidated Version), 5744-1984 (the

“Courts Law“), authorizes the Court to stay proceedings for as long as it

deems necessary if the parties choose to turn to the conciliation/ mediation

process, which stay it may extend at the request of the parties. Section 79C

(f) states that where the conciliation/ mediation process has not produced

the desired results in resolving the dispute, by the end of the

abovementioned period, court proceedings will resume. The proceedings

can also be revived prior thereto at the request of the conciliator/mediator

or either of the parties. If such conciliation/mediation efforts take place

after the claim is filed in court, the statute of limitations will not run during

such period.

As mentioned above, if the parties have agreed to mediation, court

proceedings in this matter will be stayed. However, no Israeli legislation

addresses the issue of statute of limitation in terms of conciliation. [In

addition to the aforesaid, there is not any explicit reference to commercial

conciliation in Israeli legislation. The Prescription Law sets the limit on a

claim to seven years. In a case of a claim relating to land, the period of

prescription will be 15 years and if the land has been registered in the land

register after settlement of title in accordance with the Land (Settlement of

Title) Ordinance there is no time bar. Other statutes provide for different

periods in special cases, including labour and consumer matters. The

parties may, by separate written contract, agree upon a longer period of

prescription then that fixed by the Prescription Law and, in the case of a

claim not related to land, also upon a shorter period, so long as it is no

shorter than six months. There may be additional factors that effect the

calculation of the prescription period such as the legal capacity of the

parties, knowledge of the facts establishing the cause of action, etc. In

addition, the Prescription Law also determines that any time spent by one

of the parties in the territory of a foreign state, where the conditions under

which he was placed there or the relations which existed between that state

and the state of Israel prevented him or the other party from conducting the

litigation, shall not be taken into account.









No. See the provisions above regarding shortening of the period.









Subjected to the aforesaid, the country of Israel makes no distinction

between a statute of limitations as such and a condition precedent attaching

to a right.

In Israel, it is necessary to refer to special legislation that specifically

addresses unwanted disclosure regarding the conciliation/ mediation

process. Section 79C(d) of the Courts Law states that "Matters submitted in

the course of the mediation process will not serve as evidence in civil

proceedings". Regulation 5 (d) of Courts Regulations (Mediation), 5753-

1993 (hereinafter, the "Mediation Regulations") states that a mediator is

forbidden to use any of the information revealed to him during the

mediation process, other than for the mediation itself except for

information he could discover by other means through reasonable efforts.

In addition, the Mediation Regulations forbids a mediator to disclose any

information revealed to him during the mediation process other than to the

parties to the mediation . Furthermore, if one of the parties reveals

information to the mediator subject to the specific condition that it be kept

confidential, the mediator must not reveal it to any other party involved in

the mediation, unless the disclosing party waives confidentiality . Thus, if

the mediator wants to consult a colleague on a case before him, he must

either receive the parties' consent or disguise any of the parties' identifying

details. However, neither primary nor secondary legislation in Israel deals

with the parties' obligations to secrecy. Therefore the best solution is to

include a secrecy provision within the mediation agreement itself that will

oblige the parties to the same degree of confidentiality as the mediator is

bound to by law, including sanctions that will deter the parties from

violating confidentiality. Any such confidentiality agreements are not

subject to the court's consent, but only to general contract law. In addition,

according to the Mediation Regulations, if parties decide to turn to

The mediator's obligation to confidentiality imposed by the Mediation

Regulations is not absolute. The mediator may be required to disclose

information revealed in mediation to the court or to a third party under

certain circumstances. Such disclosure will be carried out in accordance

with the Mediation Regulations or general provisions of the law that

require such disclosure. According to the Mediation Regulations, a

mediator may only disclose confidential infprmation to the court [or to

experts with whom he has consulted for the purposes of the mediation itself

if the prties accepted the Model Mediation Agreement to enter mediation

which is located in the Mediation Regulation Schedule], and only

regarding certain information, in the following cases: (a) a mediator's

announcement to the court that the parties have not yet reached agreement

and the subsequent application for a further stay of proceedings; (b) where

the parties have agreed that the mediator give the court his opinion

regarding the dispute at the end of the mediation procedure ; and (c) in the

case of dispute regarding the mediator's fees, the mediator may disclose

any relevant information to the court in order to settle the matter. The

mediator is permitted to announce to the court his decision to stop the

mediation proceedings, but may not disclose the reasons for doing so . The

mediator must inform the court of the mediation settlement signed by the

parties, and may serve the court with a copy of such agreement if the

parties wish to incorporate it into a judgment. In addition, since the

secrecy and confidentiality of the mediation proceedings are dealt with in

regulations rather than in primary legislation, any provisions of primary

legislation prevail in the case of conflict and there are thus certain

exceptions to the confidentiality of the mediation procedure. First, if there

is reasonable concern that an offence endangering life or health, sexual

offence, abandoning or neglecting, assaulting or abusing a minor or invalid

by his or her guardian has been committed (section 368D (a) of the Penal

Law, 5737-1977). Second, if the mediator or a party to the mediation

procedure learns during the mediation that a person is about to commit a









In Israel, Regulation 5(f) of the Mediation Regulations offer a similar

solution to the one that is suggested in article 8 of the MLICC, stating that

"If a party reveals information to the mediator on the condition that it be

kept confidential, the mediator is bound to keep it secret from any other

party, unless the party that disclosed the information waives its right to

secrecy".

In this matter, the Israeli legislator had not yet expressed its view, although

it appears that the very fact that a mediation has commenced or ended is

not confidential per se . If the parties are interested in concealing the fact

that they have turned to a mediator and are participating in mediation, there

appears to be no legal provision to bar them from signing an agreement to

that effect between themselves, the mediator and/or the service provider,

accompanied with deterring sanctions if so desired. If the court has referred

the parties to mediation, this fact will appear in the transcript of the court

proceedings, which are accessible to the public, unless the parties ask the

court to hold the hearing in camera .



Due to the absence of legislation on this matter, already discussed above, it

is recommended that the parties sign an agreement, whether separately or

as part of their agreement to participate in mediation or the final mediation

settlement itself, that will determine sanctions in the event of a breach of

confidentiality (not necessarily during a legal procedure), such as payment

of compensation by the breaching party or that any such breach constitutes

a fundamental breach of the mediation settlement thus making the

agreement to mediate void or voidable. The more detailed, relevant and

reasonable the secrecy provisions and sanctions are, the more likely they

will be enforced by the court, even when balanced against the importance

of the public interest in the "discovery of truth", that constitutes another

part of the courts discretion. In addition, when the parties are private

individuals, a party can sue the person who disclosed the information

according to Protection of Privacy Law, 5741-1981, if relevant. As to

liquidated damages, if the parties have agreed on such compensation for

The relevant Israeli legal arrangement is different from the one detailed in

Article 10 of the MLICC. Section 79C (d) of the Courts Law states that

"Matters submitted in the course of the mediation process will not serve as

evidence in civil proceedings." Further, the confidentiality of the mediation

procedure prevents the parties from disclosing information in a judicial

procedure regarding the mediation. If a party tries to use such information

as evidence, it will not be admissible in court in order to ensure that a

mediation procedure will not affect the outcome of any court proceedings,

as mentioned in section 3(b) to the Mediation Regulations. Regulations 2

and 2A of the Mediation Regulations Schedule (Model Mediation

Agreement) state that parties who have agreed to mediation may not

summon the mediator to testify in court or present any documents to the

court in any matter related - directly or indirectly - to the mediation

proceedings. The privilege of the mediation belongs to the mediation

procedure itself and not to the parties, thus, evidence that originates in the

mediation will not be admissible per se. However, this privilege applies,

according to the law, only to court-directed mediation procedures, as

apposed to mediations unconnected to any court proceedings, although it

may be assume that the courts will apply the privilege to such cases as well.

Moreover, the privilege applies only in civil procedures, rather than

criminal cases, where evidence revealed in the course of mediation will be

admissible in court. Although the privilege is supposedly absolute, and the

law is unequivocal, it is reasonable to assume that the court would

acknowledge some exceptions : (i) information that was known to the

parties/ mediator before the mediation will not be confidential in order to

prevent exploitation of the privilege; (ii) in case where a party sues the

mediator regarding his unfit behavior or a breach of obligation on his part

(similarly to the attorney-client privilege); and (iii) in case where the

mediator sues the parties regarding fees. The question whether to deviate

As already mentioned, and regardless of the success of the mediation

process, there are obligations or exceptions that will superceed any duty of

confidentiality imposed on the mediation process, which are not inmposed

by statute but are recognized by the courts.

As discussed above, the mediation privilege belongs to the mediation

procedure and not to the parties, and therefore they cannot waive it in any

way, either explicitly or implicitly, directly or indirectly (as apposed to the

attorney-client privilege, which the client can waive). Evidence existing

prior to the mediation is, of course, not included in the privilege. If the

parties agree, the parties may ask the mediator to give his opinion

regarding the mediation to the court. Otherwise, nothing revealed in

mediation will be admissible in court. This is an absolute rule and the court

has not been granted any discretionary powers in the matter. This policy

was implemented in order to guarantee the confidentiality of those who

turn to mediation. Since one of the most important ingredients to the

success of mediation is that the parties tell the truth, confidentiality

encourages the parties to do so.







The legal arrangement in Israel, regarding this issue is very general and not

detailed enough. However, it can be determined that the mediator's

obligation not to disclose information received from one of the parties who

requested absolute confidentiality, is an absolute obligation. Therefore, the

mediator cannot disclose this information in any judicial or arbitral

procedures, subject only to the limited and essential exceptions

abovementioned that originate in primary legislation. If a mediator

discloses such information without any legal justification, he may be

accused of negligence or breach of statutory duty according to the Torts

Ordinance (New Version) and even invasion of privacy according to the

Privacy Law, 5741-1981. The admissibility of any such evidence depends

on whether the information is absolutely necessary in order to clarify one

of the exceptions to the privilege.

The legal arrangement in Israel, regarding this issue is very general and not

detailed enough. However, it can be determined that the mediator's

obligation not to disclose information received from one of the parties who

requested absolute confidentiality, is an absolute obligation. Therefore, the

mediator cannot disclose this information in any judicial or arbitral

procedures, subject only to the limited and essential exceptions

abovementioned that originate in primary legislation. If a mediator

discloses such information without any legal justification, he may be

accused of negligence or breach of statutory duty according to the Torts

Ordinance (New Version) and even invasion of privacy according to the

Privacy Law, 5741-1981. The admissibility of any such evidence depends

on whether the information is absolutely necessary in order to clarify one

of the exceptions to the privilege.







Whether the mediation was unsuccessful and the dispute is returned to the

competent court, or the dispute arrives in court for the first time after an

unsuccessful mediation, there will not be any discussion of the offers of

settlement that were made during the mediation or of any matter regarding

the mediation procedure that are subject to the confidentiality of the

mediation mentioned in Regulation 3(b) of the Mediation Regulations.

This regulaion also requires the court to explain to the parties that matters

submitted in the course of the mediation process shall not serve as evidence

in civil proceedings and that neither their refusal to commence mediation

proceedings or their decision to halt such proceedings will affect the

outcome of any court proceedings, so they will feel comfortable and not be

inhibited telling the truth or making offers, in order to encourage the

success of the mediation.









Unless the agreement is incorporated into a judgment, the court will

address an international mediation settelments as a regular contract and

will subject its interpretation and enforcement to contract law. If the

agreement has already been incorporated into a foreign judgment or

arbitration award, it will be enforced according to the Foreign Judgments

Enforcement Law, 5718-1958 or the Arbitration Law, 5728-1968, as

applicable. There are not any relevant or similar provisions regarding the

enforcement of a mediation settlments.

The parties may always elect to secure performance of a settlement

agreement, such as by provision of a bond, letter of credit or other security.

A written agreement for payment of a fixed or determinable sum may also

be sued upon in summary procedure. In addition to the aforesaid, if the

mediation settlement has been incorporated into a judgment by the court,

this will enhance recognition and enforcement, as a party may immediately

proceed to execution (in the case of a domestic mediation or conciliation)

or to enforcement under the Foreign Judgments Enforcement Law 1958, in

the case of a foreign judgment, which will then be treated as a domestic

judgment.

Since Israeli law sees the mediation settlement as a contract, a party to the

settlement may argue against in on the basis of one of the causes for

declaring a contract void or voidable, such as fraud, forgery, deception,

etc., that are located in the Contracts (General Part) Law, 5733-1973, if

the party has succeeded in proving all the conditions according to the law.

Additionally, a party may defend enforcement on the ground of breach of

contract. If the settlement agreement has been incorporated in a court

decision, the party must first seek to overturn such decision, by terminating

the agreement and obtaining a court order that the agreement is no longer

enforceable.









Israeli law does not explicitly address this matter. However, it seems that

the court will award costs based on its best judgment and what is

reasonable under the particular circumstances. Israeli courts award costs in

favour of the successful party, but the amount of costs is in the court's

discretion and typically is significantly less than the actual costs incurred

by a party.

Poland: Piotr Bielarczyk, on behalf of Marek Furtek:

.FURTEK I WSPÓLNICY KANCELARIA PRAWNICZA

Poland: Marcin Radwan-Rohrenschef, Wardynski&Partners SP.K.









On condition that Polish Law has been chosen, there is no

distinction between commercial conciliation or mediation and non-

commercial. There is only one general regulation, contained in

Polish Code of Civil Procedure.

In relation to the applicable statute of limitations, if such

mediation is governed by Polish law, it is easy to determine the

For professionals the question of determining the statute of applicable statute of limitations, because in Polish Civil Code

limitations is obvious. According to the provisions of Polish law there are some provisions concerning statute of limitations

the issue of statute of limitations belongs to substantive law and (according to Article 119 of Polish Civil Code, statute of

not procedural law. Therefore, if the parties decide on the choice limitations can not be changed by parties – are imperative

of law, the applicable statute of limitations will be determined by obligations).

the provisions of the chosen substantive law.

Generally, according to Polish law the statute of limitations As we have mentioned above, according to Article 119 of Polish

cannot be modified by the parties. Therefore, if Polish substantive Civil Code, statute of limitations can not be changed by parties.

law applies, this rule will also be applied. However, it must be However, according to article 123 Polish Civil Code:

noted that under Polish law, after recognition of a debt the “The running of the statue of limitation shall be interrupted:

limitation period starts running all over again. Waiver of the 1) by any act before the court or other authority entitled to hear

statute of limitations plea is always possible. cases or enforce claims of a given kind or before the court of

arbitration, performed directly either to vindicate or to establish,

Commencement of the mediation proceedings interrupts the or to satisfy or to secure a claim;

statute of limitations and sets the clock back to zero at the end of 2) (…)

an unsuccessful mediation. Dates of commencement and ending of 3) by the initiation of mediation”

permitted interruptions or suspensions can be readily determined When the abovementioned proceedings are concluded, a statue of

without formalities limitation shall run anew.









After a period of limitation has passed, the claims of one party do

Yes, by simple waiver (for example, can the parties make a written not expire, but the other party may raise the statue of limitations‟

promise not to plead the statute of limitations) objection.









After a period of limitation has passed, the claims of one party do

Yes. In some cases specified by substantive law (for instance in not expire, but the other party may raise the statue of limitations‟

labour law and warranty claims). objection.

No, The parties are free to choose any procedural rules they wish.

They do it either by indicating these rules or by indicating a

particular institution as a mediator, who applies its own rules. Yes, Polish Civil Procedure Code contains a provision stating that

Moreover, Polish Code of Civil Procedure includes special conciliation is confidential, mediator is obliged not to disclose any

provisions concerning mediation that can be applied in absence of information obtained during the conciliation proceedings or

such choice, however, they are of a very general nature and state related thereto, unless parties agreed otherwise, and it is

that the proceedings are confidential and the mediator is under an ineffective to invoke in court or arbitration proceedings proposals

obligation not to disclose the information he gathered during the or information obtained from other party during conciliation

proceedings. proceedings.

Yes, The §10 of the Ordinance of Minister of Justice concerning

the mediatory proceedings in criminal cases states that:

The mediator obtains only the item of information about the case

that is essential to conduct the mediatory proceedings.

In certain situations, on mediator‟s request, court or prosecutor

can make some information available for the mediator. Such

information covers evidence material concerning: suspected,

defendant, aggrieved and offence which are connected with

mediatory proceedings.

However, information relating to the suspected or defendant‟s

health, opinion about him, details about his criminal liability

cannot be released under any circumstances.

Yes, According to the provisions of the Polish Code of Civil The same regulation covers any information representing the state

Procedure the parties cannot refer before the court to the or official secret.

statements and proposals made during the mediation proceedings.









Yes, Article 1834 of Polish Civil Code stipulates that:

“Mediator is obliged to keep confidential all the information

concerning the dispute, unless the parties release him from this

obligation.”

No, The general provisions on mediation do not refer to this issue.

Fact of the mediation is not confidential “per se” (however there

are some discussions in literature), unless parties agreed

otherwise. If parties came to terms during mediation proceedings,

mediator is obliged to lodge in competent court conciliatory

Agreement necessary to ensure confidentiality record (disclose the fact of the mediation).









i) liquidated damages, contractual penalties, ii) provide for an

expedited injunction proceeding, the right to intervene in an

action

Yes Yes

As mentioned above, according to the provisions of the Polish

Code of Civil Procedure the parties cannot refer before the court

to the statements and proposals made during the mediation

proceedings. However, they can present all the materials that were

previously presented to the mediator. The fact of the mediation, unless parties agreed otherwise.

Again, according to the provisions of the Polish Code of Civil

Procedure the parties can present all the documents that were

previously presented to the mediator but cannot refer before the

court to the statements and proposals made during the mediation

proceedings. N/A









Pursuant to the provisions of the Polish Code of Civil Procedure

the use of the protected informations has no effect before the

court. N/A

A court or arbitrator or subsequent mediator has powers to analyse

the case within the scope necessary for the enforcement of the

settlement agreement. They also need to have sufficient access to

the documents allowing them to assess conformity of the

settlement agreement with the basic rules of the Polish law (public

order clause). N/A









The offers made during the mediation proceedings have no impact

whatsoever on further proceedings before the court or arbitral Such “offer of settlement” from conciliation can not be invoked as

tribunal. In particular the offers cannot be treated as recognition of an argument / evidence in a litigation (upon the Article 1834 § 3

debts of Polish Civilprocedures:Code). settlements reached before the

There are two Procedure (1) for

foreign national court and (2) for settlements reached before the

foreign arbitral court.

According to article 1152 of Polish Code of Civil Procedure, a

settlement reached before the foreign national court is, according

to principle of reciprocity, a enforceable title, if is capable in the

country where that settlement has taken a place.

According to article 1215 §1 of Polish Code of Civil Procedure,

the national court shall decide on recognition or enforcement of a

foreign settlement reached before the arbitral court after the

hearing. According to article 1214 §3 of Polish Code of Civil

Procedure, recognition or enforcement of settlement reached

before the arbitral court shall be refused by the national court if:

1) the dispute was not capable of submission to arbitration under

the law; 2) the recognition of enforcement of the settlement

reached before the arbitral court would be contrary to fundamental

public policy rules of the Republic of Poland (the public order

clause). In article 1215 §2 of Polish Code of Civil Procedure,

there are additional circumstances when the national court, on

request of a party, shall refuse recognition or enforcement of the

foreign settlement reached before the arbitral court, if a party

furnishes proof that, i.e., there was no arbitration agreement or the

Any other, please specify: The settlement agreement itself is agreement is not valid (the entire list is available in article 1215

conluded in writing without any particular formalities. However, §2).

to gain a status of a court order it has to be approved by a court

incorporation in a judgment, as an arbitral award made with the

consent of the parties No

The means of attacking the settlement agreements approved by the

court are the same as under the Uncitral Model Law on

Arbitration No









If the settlement is to be enforced in Poland, Polish procedural provisions of Polish Code of Civil Procedure and respective

rules will be applied. decrees

United Kingdom: Joseph Tirado/Emma Humphries, Norton Rose LLP









Yes the applicable statute of limitations is relatively easy to determine.



The applicable statutes of limitations in the UK (England & Wales) are the

Limitations Act 1980 (which concerns causes of action which arise in the

UK) and the Foreign Limitation Periods Act 1984 (applicable where, in

accordance with the rules of private international law, the laws of any other

country are to be taken into account in any claim). While there are no

provisions specifically applicable to mediation or conciliation, generally for

any settlement or compromise to take place there should first be an actual or

potential claim between the parties. Since the expiration of the limitation

period for a cause of action provides a complete defence to a claim, which

would allow the defendant to apply for a strike out of the claim for abuse of

process under R. 3.4 (2)(b) of the CPR, there would be no need for

mediation or conciliation once a limitation period had expired (subject to

any permitted extensions of time) as the claim would be time-barred.

Generally, time will stop running for limitation period purposes on the date

on which a claim form for the action is issued by the High Court (or on the

date of the letter requesting the issue of a claim form is received by the High

Court) (Limitation Act 1980, s. 35(1)(a); Thompson v. Brown [1981] 1

WLR 744)



(i) Permitted shortening – there are no provisions for the shortening of the

periods laid down in the statutes of limitations. Where a claim falls outside

the provisions of the Limitation Act 1980, there is no strict period of

limitation. The time for bringing such claims may, however, be restricted

by analogy to s. 36 of the Limitation Act 1980 or for laches or

acquiescence.



(ii) Tolling/suspending – Tolling applies in the case of a child under 18 or a

person of unsound mind at the date the cause of action accrued (Limitation

Act 1980, s. 28). It can also be applied in cases involving fraud,

concealment or mistake (s. 32 (1)), acknowledgment and part payments (s.

29), latent damage (ss. 14A and 14B) and judgments (s. 24(1)).



(iii) Extending time limit generally or, in particular, with reference to

international commercial conciliation – the Limitation Act 1980 specifically









The expiration of a limitation period is a defence which a defendant to a

claim must specifically raise and will not be taken by a court of its own

motion. Theoretically (although in practice this would be unusual), if the

defence of out of time is not pleaded, the claim could still be mediated by

the parties. However, it should be noted that even if the defence of out of

time was not asserted, it is possible that any settlement agreement arising

out of the mediation could be later challenged by a defendant for want of

consideration, according to Law and Practice of Compromise.









[Not sure on this one – could you make agreement to shorten limitation

period?] No – unless the action is of a category which falls outside the

scope of the Limitation Act 1980 or limitation period that is set down in a

specific statute (Limitation Act 1980, s. 39).

Mediation is private and confidential. It is confidential in two ways:



(1) Internally. The first relates to the separate meetings between the

mediators and the parties. The parties can expressly or impliedly waive

their rights to confidentiality in whole or in part during the course of the

mediation.



(2) Externally. The second relates to the whole of the mediation process.

Nothing said in the course of the mediation can be discussed outside the

mediation nor made known to any third party. This is normally expressly

provided for in the mediation agreement and confidentiality is usually a

standard term in mediation agreements.



Confidentiality in relation to the second limb may also be implied. In

Instance v Denny Bros Printing & Others [2000] LS Gaz R 35, the court

considered that without prejudice material that was not subject to any

express agreement governing confidentiality, may be so governed by an

implied agreement that it would not be used in any litigation between the

same or related parties.

Yes. The test as to whether a party or mediator or witness may under any

circumstances be freed from the duty of confidentiality must be whether the

public interest justifies the disclosure of confidential information (W. v

Egdell [1990] Ch. 359). The confidential information will not be prevented

from being disclosed where there is a just cause for such disclosure (Fraser

v Evans [1969] 1 Q.B. 349). In each case, it is a balancing exercise as to

whether the nature of the just cause overrides the duty of confidentiality.









Yes

Mediation per se confidential.









There is nothing specific in the texts which stipulates that a party may agree

to the consequence of a breach of confidentiality or disclosure conditions.

However, presumably the parties are able to agree on the appropriate

damages on a contractual basis. It should be noted that contempt

proceedings would apply if the confidentiality agreement was incorporated

into a judgment or was made by Court Order and the judgment or order was

breached.

Yes.

It remains to be definitively stated by the English courts or legislature

whether there is a separate concept of “mediation privilege” in existence,

but mediation is viewed as being without prejudice and existing without

prejudice rules apply. The Court of Appeal recognised in Arid v Prime

Meridian Ltd [2006] EWCA Civ 1866 that nothing created solely for the

purpose of the mediation and anything said during the course of the

mediation is privileged and cannot be referred to or relied upon in

subsequent court proceedings in the event that no settlement is reached.



However, whilst privilege can be claimed by the parties to the negotiations

and their lawyers, it cannot be claimed by third parties. This means that a

mediator may be compelled to give evidence if the parties agree and the

parties may extend the privilege to the mediator by including a contractual

confidentiality provision in the mediation agreement.



Also see response to (g) below.

In the Unilever case (Unilever plc v The Proctor & Gamble Co [2000] 1

WLR 2436, Robert Walker LJ set out the most important instances in which

the without prejudice rule would not prevent the admission into evidence of

what one or both of the parties said or wrote:



(1) “Except as to costs” - communication specifically marked “without

prejudice save as to costs” (see for example, CPR r.3619(1) and Cutts v

Head [1984] Ch 290, CA).



(2) Proof of an agreed settlement - in the recent case of Brown v Rice

[2007] All ER (D) 252 (Mar) the court considered a confidentiality clause

in a mediation agreement and held that whilst it “bolster[ed] the without

prejudice nature of what transpires at a mediation”, it could not prevent the

court from applying the exception to the without prejudice rule which arose

in that case. The judge held that communications during the mediation

process could by exception be admitted as evidence to establish whether or

not a settlement had been reached. The without privilege communications

cannot, however, be used for any other purpose.



(3) Unambiguous impropriety - if the exclusion of evidence of what the

parties said or wrote in without prejudice discussions would act as a cloak

for perjury, blackmail, or other “unambiguous impropriety”. The courts

have indicated that this exception is to apply only in the clearest cases of

abuse of privilege involving something “oppressive dishonest or

dishonourable” (Robert Walker LJ in Unilever).



(4) Misrepresentation, fraud, or undue influence - evidence as to how an

agreement was concluded should be set aside on these grounds (see

Underwood v Cox (1912) 4 DLR 66).



(5) Estoppel - the relevant without prejudice evidence may be examined

Yes



If party A introduces without prejudice material at trial, party B is entitled

to rely on the other without prejudice material which came into existence as

part of the same without prejudice process (see Somatra Ltd v Sinclair

Roche & Temperley [2000] 1 WLR 529, CA).



In Smiths Group plc v Weiss & Others (Chancery Division, 22 March

2002), a case concerning inadvertent disclosure of notes of witness

interviews prepared for a mediation, the court found that the without

prejudice status of the documents is not necessarily altered by the inclusion

of the documents in a disclosure list. The court confirmed that the “without

prejudice” protection afforded to documents provided for mediation should

only be waived in clear and unequivocal circumstances.



In addition, just because a normally unprivileged document emerges for the

first time at a mediation, it does not attract privilege. The Australian case of

AWA v Daniels is a direct authority for that proposition. If the documents

are disclosable, for example under the Civil Procedure Rules (CPR), it is

not possible to render them immune from disclosure simply because they

were referred to in mediation. For example, under Civil Procedure Rules R.

35.8, instructions given to a single expert, whose evidence is relied on in the

proceedings, are disclosable to the opponents in the litigation and disclosure

can not be avoided by claiming that those instructions had been referred to

in a mediation.



In Aird and Aird v Prime Meridian Ltd [2006] EWHC (TCC) 2338, in order

to assist the mediation process, the Court ordered that the parties'

architectural experts should meet on a without prejudice basis and prepare a

statement of issues upon which they are agreed and not agreed. The

mediation was unsuccessful and the court decided that the joint statement

following the experts‟ without prejudice meeting was disclosable by virtue

of CPR Part 35.12. Just because it was produced for the first time at the

mediation did not clothe it with any privilege.









[Not sure about what the question is getting at]

Without prejudice evidence is admissible to establish whether a settlement

has been concluded (Brown v Rice [2007] All ER (D) 252 (Mar)).



There may be exceptional circumstances when the courts will need to look

at the conduct of mediation, however it was made clear in Hall v Pertemps

Group Ltd [2005] ADR LR 11/01 that the kind of event the courts will look

into would be irrelevant to the underlying dispute. It is unlikely that any

event that is directly relevant to the underlying dispute would not be

considered as being without prejudice by the courts.









Under CPR R. 44.3 (4) (c), when deciding on costs the court must have

regard to any admissible offer to settle made by a party which is drawn to

the court‟s attention, whether or not this is made in accordance with Part 36

of the CPR or not. However, any offer made “without prejudice” may not

be admissable on any issue as to costs without the consent of both parties

(Corny v. Bretton (1830) 4C.3P.462). Thus, if the offer made in the

conciliation is not made “without prejudice” or is made “without prejudice

save as to costs”, the court may take the amount offered into consideration

when determining what costs the parties will pay. If such offer is made

“without prejudice” it will be inadmissible, unless both parties agree to its

admission.









Settlement agreements are generally concluded as written and signed

agreements, which are binding between the parties under the principles of

contract and may be enforced in the courts as such.

The following procedures may also be used to enhance the recognition and

enforcement of settlement agreements:



• Incorporation into a judgment;

• Incorporation into an arbitral award;

• Consent orders;

• Tomlin orders (which have the effect of staying the proceedings save for

the purpose of carrying out any terms set out in a schedule to the order);

and/or

• Deeds.

If the settlement agreement was recorded in writing and signed by the

parties, the defences available against the enforcement of post-conciliation

settlement agreements, are those defences available against the enforcement

of a contract under general contract law, which include lack of

consideration, incapacity, illegality, mistake, misrepresentation, duress and

undue influence.









Unless specific provision has been made in the settlement agreement as to

costs, interest and attorneys fees, the usual rules on costs in civil

proceedings will apply under CPR 43.

United Kingdom: Peter Rees & Lara Clarke, Debevoise & Plimpton









Yes the applicable statute of limitations is relatively easy to determine.



The applicable statutes of limitations in the UK (England & Wales) are the

Limitations Act 1980 (which concerns causes of action which arise in the

UK) and the Foreign Limitation Periods Act 1984 (applicable where, in

accordance with the rules of private international law, the laws of any other

country are to be taken into account in any claim). While there are no

provisions specifically applicable to mediation or conciliation, generally for

any settlement or compromise to take place there should first be an actual or

potential claim between the parties. Since the expiration of the limitation

period for a cause of action provides a complete defence to a claim, which

would allow the defendant to apply for a strike out of the claim for abuse of

process under R. 3.4 (2)(b) of the CPR, there would be no need for

mediation or conciliation once a limitation period had expired (subject to

any permitted extensions of time) as the claim would be time-barred.

Generally, time will stop running for limitation period purposes on the date

on which a claim form for the action is issued by the High Court (or on the

date of the letter requesting the issue of a claim form is received by the High

Court) (Limitation Act 1980, s. 35(1)(a); Thompson v. Brown [1981] 1

WLR 744)



(i) Permitted shortening – there are no provisions for the shortening of the

periods laid down in the statutes of limitations. Where a claim falls outside

the provisions of the Limitation Act 1980, there is no strict period of

limitation. The time for bringing such claims may, however, be restricted

by analogy to s. 36 of the Limitation Act 1980 or for laches or

acquiescence.



(ii) Tolling/suspending – Tolling applies in the case of a child under 18 or a

person of unsound mind at the date the cause of action accrued (Limitation

Act 1980, s. 28). It can also be applied in cases involving fraud,

concealment or mistake (s. 32 (1)), acknowledgment and part payments (s.

29), latent damage (ss. 14A and 14B) and judgments (s. 24(1)).



(iii) Extending time limit generally or, in particular, with reference to

international commercial conciliation – the Limitation Act 1980 specifically









The expiration of a limitation period is a defence which a defendant to a

claim must specifically raise and will not be taken by a court of its own

motion. Theoretically (although in practice this would be unusual), if the

defence of out of time is not pleaded, the claim could still be mediated by

the parties. However, it should be noted that even if the defence of out of

time was not asserted, it is possible that any settlement agreement arising

out of the mediation could be later challenged by a defendant for want of

consideration, according to Law and Practice of Compromise.









[Not sure on this one – could you make agreement to shorten limitation

period?] No – unless the action is of a category which falls outside the

scope of the Limitation Act 1980 or limitation period that is set down in a

specific statute (Limitation Act 1980, s. 39).

Yes.

Mediation is private and confidential. It is confidential in two ways:



(1) Internally. The first relates to the separate meetings between the

mediators and the parties. The parties can expressly or impliedly waive

their rights to confidentiality in whole or in part during the course of the

mediation.



(2) Externally. The second relates to the whole of the mediation process.

Nothing said in the course of the mediation can be discussed outside the

mediation nor made known to any third party. This is normally expressly

provided for in the mediation agreement and confidentiality is usually a

standard term in mediation agreements.



Confidentiality in relation to the second limb may also be implied. In

Instance v Denny Bros Printing & Others [2000] LS Gaz R 35, the court

considered that without prejudice material that was not subject to any

express agreement governing confidentiality, may be so governed by an

implied agreement that it would not be used in any litigation between the

same or related parties.

Yes.



The test as to whether a party or mediator or witness may under any

circumstances be freed from the duty of confidentiality must be whether the

public interest justifies the disclosure of confidential information (W. v

Egdell [1990] Ch. 359). The confidential information will not be prevented

from being disclosed where there is a just cause for such disclosure (Fraser

v Evans [1969] 1 Q.B. 349). In each case, it is a balancing exercise as to

whether the nature of the just cause overrides the duty of confidentiality.









Yes.

Mediation per se confidential









the event of a breach of confidentiality?

There is nothing specific in the texts which stipulates that a party may agree

to the consequence of a breach of confidentiality or disclosure conditions.

However, presumably the parties are able to agree on the appropriate

damages on a contractual basis. It should be noted that contempt

proceedings would apply if the confidentiality agreement was incorporated

into a judgment or was made by Court Order and the judgment or order was

breached. in anticipation of a disclosure?

See above

Yes.

It remains to be definitively stated by the English courts or legislature

whether there is a separate concept of “mediation privilege” in existence,

but mediation is viewed as being without prejudice and existing without

prejudice rules apply. The Court of Appeal recognised in Arid v Prime

Meridian Ltd [2006] EWCA Civ 1866 that nothing created solely for the

purpose of the mediation and anything said during the course of the

mediation is privileged and cannot be referred to or relied upon in

subsequent court proceedings in the event that no settlement is reached.



However, whilst privilege can be claimed by the parties to the negotiations

and their lawyers, it cannot be claimed by third parties. This means that a

mediator may be compelled to give evidence if the parties agree and the

parties may extend the privilege to the mediator by including a contractual

confidentiality provision in the mediation agreement.



Also see response to (g) below.

In the Unilever case (Unilever plc v The Proctor & Gamble Co [2000] 1

WLR 2436, Robert Walker LJ set out the most important instances in which

the without prejudice rule would not prevent the admission into evidence of

what one or both of the parties said or wrote:



(1) “Except as to costs” - communication specifically marked “without

prejudice save as to costs” (see for example, CPR r.3619(1) and Cutts v

Head [1984] Ch 290, CA).



(2) Proof of an agreed settlement - in the recent case of Brown v Rice

[2007] All ER (D) 252 (Mar) the court considered a confidentiality clause

in a mediation agreement and held that whilst it “bolster[ed] the without

prejudice nature of what transpires at a mediation”, it could not prevent the

court from applying the exception to the without prejudice rule which arose

in that case. The judge held that communications during the mediation

process could by exception be admitted as evidence to establish whether or

not a settlement had been reached. The without privilege communications

cannot, however, be used for any other purpose.



(3) Unambiguous impropriety - if the exclusion of evidence of what the

parties said or wrote in without prejudice discussions would act as a cloak

for perjury, blackmail, or other “unambiguous impropriety”. The courts

have indicated that this exception is to apply only in the clearest cases of

abuse of privilege involving something “oppressive dishonest or

dishonourable” (Robert Walker LJ in Unilever).



(4) Misrepresentation, fraud, or undue influence - evidence as to how an

agreement was concluded should be set aside on these grounds (see

Underwood v Cox (1912) 4 DLR 66).



(5) Estoppel - the relevant without prejudice evidence may be examined

Yes



If party A introduces without prejudice material at trial, party B is entitled

to rely on the other without prejudice material which came into existence as

part of the same without prejudice process (see Somatra Ltd v Sinclair

Roche & Temperley [2000] 1 WLR 529, CA).



In Smiths Group plc v Weiss & Others (Chancery Division, 22 March

2002), a case concerning inadvertent disclosure of notes of witness

interviews prepared for a mediation, the court found that the without

prejudice status of the documents is not necessarily altered by the inclusion

of the documents in a disclosure list. The court confirmed that the “without

prejudice” protection afforded to documents provided for mediation should

only be waived in clear and unequivocal circumstances.



In addition, just because a normally unprivileged document emerges for the

first time at a mediation, it does not attract privilege. The Australian case of

AWA v Daniels is a direct authority for that proposition. If the documents

are disclosable, for example under the Civil Procedure Rules (CPR), it is

not possible to render them immune from disclosure simply because they

were referred to in mediation. For example, under Civil Procedure Rules R.

35.8, instructions given to a single expert, whose evidence is relied on in the

proceedings, are disclosable to the opponents in the litigation and disclosure

can not be avoided by claiming that those instructions had been referred to

in a mediation.



In Aird and Aird v Prime Meridian Ltd [2006] EWHC (TCC) 2338, in order

to assist the mediation process, the Court ordered that the parties'

architectural experts should meet on a without prejudice basis and prepare a

statement of issues upon which they are agreed and not agreed. The

mediation was unsuccessful and the court decided that the joint statement

following the experts‟ without prejudice meeting was disclosable by virtue

of CPR Part 35.12. Just because it was produced for the first time at the

mediation did not clothe it with any privilege.









[Not sure about what the question is getting at]

Without prejudice evidence is admissible to establish whether a settlement

has been concluded (Brown v Rice [2007] All ER (D) 252 (Mar)).



There may be exceptional circumstances when the courts will need to look

at the conduct of mediation, however it was made clear in Hall v Pertemps

Group Ltd [2005] ADR LR 11/01 that the kind of event the courts will look

into would be irrelevant to the underlying dispute. It is unlikely that any

event that is directly relevant to the underlying dispute would not be

considered as being without prejudice by the courts.









Under CPR R. 44.3 (4) (c), when deciding on costs the court must have

regard to any admissible offer to settle made by a party which is drawn to

the court‟s attention, whether or not this is made in accordance with Part 36

of the CPR or not. However, any offer made “without prejudice” may not

be admissable on any issue as to costs without the consent of both parties

(Corny v. Bretton (1830) 4C.3P.462). Thus, if the offer made in the

conciliation is not made “without prejudice” or is made “without prejudice

save as to costs”, the court may take the amount offered into consideration

when determining what costs the parties will pay. If such offer is made

“without prejudice” it will be inadmissible, unless both parties agree to its

admission.









Settlement agreements are generally concluded as written and signed

agreements, which are binding between the parties under the principles of

contract and may be enforced in the courts as such.

The following procedures may also be used to enhance the recognition and

enforcement of settlement agreements:



• Incorporation into a judgment;

• Incorporation into an arbitral award;

• Consent orders;

• Tomlin orders (which have the effect of staying the proceedings save for

the purpose of carrying out any terms set out in a schedule to the order);

and/or

• Deeds.

If the settlement agreement was recorded in writing and signed by the

parties, the defences available against the enforcement of post-conciliation

settlement agreements, are those defences available against the enforcement

of a contract under general contract law, which include lack of

consideration, incapacity, illegality, mistake, misrepresentation, duress and

undue influence









Unless specific provision has been made in the settlement agreement as to

costs, interest and attorneys fees, the usual rules on costs in civil

proceedings will apply under CPR 43.

France: Alexander Brabant, Norton Rose









Under French Law, there is no specific statute of limitations applicable to

international conciliation or mediation proceedings per se. The applicability of a

statute of limitation will depend on the nature of the claim as per the relevant

provisions of the French Civil Code.

(i) Regarding shortening the applicable statute of limitations: The validity of

clauses which shorten the applicable statute of limitations has been upheld by

French courts , provided that such shortening does not result in the elimination

of the creditor's ability to act. There are, however, some exceptions in particular

in insurance matters . (ii) Regarding the tolling of statutes of limitations:

French courts have held that conciliation proceedings toll statutes of limitations,

until the end of the conciliation proceedings . A difficulty, however, may arise

with regard to the determination of the commencement and the end of such

proceedings. Where the conciliation process takes place outside the rules of an

institution, there is no clear rule in this regard, unless the parties have agreed to

how to determine the beginning and end of the proceedings in their conciliation

clause or agreement. (iii) Regarding extending the applicable statute of

limitations: Since, under French law, it is not possible to waive in advance a

statute of limitations (see para. c) below), French courts regularly refuse to

admit the validity of clauses which extend the statute of limitations, which are

also considered as a form of waiver to the benefit of the statute of limitations.









No, Article 2220 of the French Civil Code provides that “it is not possible to

waive, in advance, to the statute of limitations”. Consequently, any provision to

such an effect inserted in a conciliation clause or agreement will be considered

as null and void.



Article 2220, however, provides that a party, who may invoke the benefit of a

statute of limitations which has lapsed, may agree to a waiver of same









French law indeed makes a distinction between statutes of limitations and so-

called "prefix-deadlines" which are essentially a condition precedent attaching

to a right. Prefix-deadlines typically provide that an action must be brought

within a (usually) short period of time as from, for example, the discovery of a

fact which creates the basis for the cause of action.In practice, a claim can

therefore be dismissed notwithstanding the fact that the statute of limitations is

still running, because the action was not commenced prior to the applicable

"prefix-deadline".

Under French law, there is no legal provision which specifically relates to the

confidentiality of contractual conciliation proceedings, notwithstanding the fact

that confidentiality is considered by French practitioners as being an essential

component of conciliation.



The provisions under French law applicable to judicial mediation (i.e. mediation

ordered by a judge), however, specifically provide that: “The mediator [is]

bound by the obligation of confidentiality towards third parties. The

observations of the mediator and the declarations that he gathered cannot be

referred to before the judge in charge of the dispute, except with the parties‟

consent. They cannot be used in other proceedings (…).” .



French courts have extended this rule to contractual conciliation proceedings,

ruling that “by its very nature, aiming at favouring amicable settlement of a

dispute, the judicial or contractual conciliation implies that each party can

confide in the mediator in a free manner, and that, except unanimous agreement,

the confidentiality is kept on information, proposals or concessions received by

the latter” .



Since there is no special legislation or rule of procedure that can be referred to

in order to secure the confidentiality of contractual conciliation proceedings,

and notwithstanding the case law referred to above, it is advisable to include

appropriate confidentiality clauses in any agreement providing for conciliation.

Yes, Pursuant to Article 10 of the French Civil Code and Article 11 of the

French Code of Civil Procedure, each person is held to support the judiciary‟s

purpose to establish the truth in any one case. Consequently, a judge can order a

party to provide documents, information which are considered necessary to the

manifestation of truth, subject to of fine or daily penalty, in the event of a

failure to comply with the order.



The judge‟s power is only limited by the existence of a legitimate ground, which

can either be the respect of privacy or professional confidentiality.









Yes, French practitioners would expect to see such a rule in a well-drafted

conciliation agreement.



But there is no provision for such a rule in the French Civil Code and the

French Code of Civil Procedure.

Mediation per se confidential, Agreement necessary to ensure confidentiality.

While the very foundation of the mediation process is confidentiality, in the

absence of specific provisions under French law, it is nevertheless

recommended to contractually reiterate that confidentiality applies both to the

content of the mediation, but also to the very existence of the mediation.









in the event of a breach of confidentiality, liquidated damages, contractual

penalties. in anticipation of a disclosure, provide for an expedited injunction

proceeding, the right to intervene in an action, the posting of a bond.

Here again, there are no specific provisions relating to the admissibility/use of

information obtained in contractual conciliation proceedings, under French law.

However, one would expect that, on the basis of the general principle of

confidentiality, that all information obtained during the conciliation proceedings

is confidential and therefore, that the subsequent use of any such information be

declared inadmissible before a court of law. French courts have confirmed the

scope of this principle to the admissibility or use of information in other

proceedings, considering that the principle of confidentiality applied

"necessarily not only to the purely technical information communicated by the

parties to the mediator, but also to all the proposals made by each one of them

in view of a settlement agreement. This confidentiality also obviously applies to

the minutes of the mediation, whose content, in principle covered by

confidentiality, can only be released within the limits and conditions agreed by

the parties and the mediator (…). When there has been no agreement on said

use, the telling, in the subsequent writ of summons of one of the parties, of facts

observed or of information received by the mediator in carrying out his mission

is likely to constitute a breach of the duty of confidentiality imposes on all the

actors of mediation (…)" . In the case of a judicial mediation, the French

Supreme Court has held that the observations of a mediator and the statements

made by the parties, could not be used as a basis for criminal liability unless the

parties had in fact consented that their statements could be subsequently

produced before a judge .

As illustrated above (see 2 f), a party, a mediator, a witness or any other relevant

third party cannot testify to or introduce in subsequent proceedings, unless this

has been expressly agreed by the parties.

French courts will declare inadmissible documents obtained in conciliation

proceedings sealed by confidentiality, without the consent of the parties. It does

not make a difference whether the documents were relied on solely to facilitate

settlement or not.









In the event of a breach of confidentiality during subsequent court or arbitration

proceedings, a party could claim for liquidated damages or for contractual

penalties if such remedies had been previously agreed by the parties.

If the parties provided for such a clause in their settlement agreement, it may be

possible. Otherwise, the information will be kept strictly confidential.









In principle, any offer of settlement made in the context of conciliation

proceedings is confidential and therefore cannot be disclosed by any party. In

the event, however, that the parties had agreed to waive confidentiality over the

content of the conciliation proceedings, an offer of settlement subsequently

produced before a court or an arbitral tribunal could influence the latter

especially because a negative finding could be drawn against the party that

refused the offer and decided to initiate the court or arbitral proceedings (e.g.

abuse of process).









by ordinary contract, or by agreement

In France, a settlement agreement is granted enforcement by way of approval

from the District court (tribunal de grande instance), upon a party's request . As

part of the courts' homologation review, the court only checks the apparent

regularity of the settlement agreement, in particular, that it does not run foul of

French public order.

Under French law, there are no specific defences for post conciliation settlement

agreements. The defences against these agreements are the same as the defences

against any "normal" settlement agreement. Pursuant to Article 2044 of the

French Civil Code, for a settlement agreement to be valid, it must settle the

dispute between the parties or prevent any forthcoming dispute, and contain

reciprocal concessions. Therefore, should there remain some issues unresolved

by the settlement agreement, or should only one of the parties make a

concession, the validity of the settlement agreement could be challenged.

Furthermore, a settlement agreement can be rescinded: - when there was an

error on the person or on the subject of the dispute ; - in case of fraud or in case

of violence ; - when it was entered into on the basis of a title which is null and

void . It can be declared null and void:

- when it was entered into on the basis of documents which have been declared

to be false;

- when it was entered into, whereas the parties or one of them ignored a court

decision having res judicata authority, which had already settled the dispute .

- when title documents are discovered after the settlement agreement, relating to

the subject matter of the settlement agreement, which establish that one of the

parties had no right on the concerned title .



It is however not possible to challenge a settlement agreement on the ground of

error of law (erreur de droit) or in case of financial prejudice caused to a party









Under French law, there are no specific rules applicable to enforcement of

settlement agreement regarding costs, interest and attorney fees.



Therefore, unless otherwise agreed by the parties, the general provisions of civil

procedure should apply.

Netherlands: Yke/Patrice Kam, Norton Rose









Once the cause of action and the applicability of Dutch law are determined in

a certain case/issue, it is fairly easy to determine the statute of limitations.

The limitation periods for different causes of action are mainly to be found in

art. 3:306 BW (Dutch Civil Code) and further.

In Dutch law there is a distinction between prescription terms

(verjaringstermijnen) and dissolution terms (vervaltermijnen) when it comes

to statutes of limitations. The main difference lies in the fact that dissolution

terms are absolute and inextensible, whereas prescription terms can be

extended. The general regulation on limitation periods in art. 3:306 BW and

further, only deals with prescription terms as dissolution terms strongly

diverge.



(i) Under Dutch law it is possible to shorten a limitation period by the

contractual

agreement out of which the cause of action arises (art. 3:322 BW).

(ii) Under Dutch law it is not possible to suspend a limitation period.

(iii) Under Dutch law it is possible to interrupt a statute of limitation by

performing a certain legal action (art. 3:316, 3:317 and 3:318 BW). By

interrupting a statute of limitation, a new limitation period will commence

from the day following to that interruption (art. 3:319 BW). Also, the

regulation contains an exhaustive account of grounds on which a limitation

period may be extended in relation to certain parties (art. 3:320 and 3:321)









No, according to art. 3:322 sub 3 BW this is not possible until the

limitation period has elapsed.









Not specifically in relation to the statute of limitations. There are however

some regulations that may have the same effect. E.g., in the specific case of a

purchase agreement, a shortened limitation period of two years applies (art.

7:23 sub 2 BW). However, in order for a purchaser to appeal to non-

conformity within the limitation period, he must have informed the seller

about the deficiency within a reasonable time of two months after he has

discovered or should have discovered the deficiency. If the purchaser fails to

do so, he will lose his ability to plead non-conformity.

No, it is necessary to refer to special legislation or rules of procedure

Yes, please provide reference:



Judgment by the court of first instance in Utrecht, 2 February 2005, LJN:

AS5144.

A confidentiality clause must be considered to be an agreement of

documentary evidence in the sense of art. 153 Rv, which means that a judge

in principal may not hear witnesses with regard to any information

considered to be confidential in accordance with the confidentiality clause.

However, art. 21 Rv contains the obligation for parties to be truthful and

exhaustive about all facts that might be relevant to a judgment. Only in

exceptional circumstances will a judge order a conciliating party to disclose

confidential information. This may only be the case when the need for truth

prevails over the prejudice that might be suffered by a personal disclosure.

Furthermore, it is imaginable in some cases that a mediator has a statutory

duty to testify. This might be the case when a third party who is not bound to

the confidentiality clause (art. 191 Rv) summons the mediator as a witness,

or when the mediator is summoned to testify in a criminal case (art. 213 Sv)

Unlike some professions, a mediator does not have a right of non-disclosure

or legal privilege in such case.









No, please provide reference:



There is no statutory provision under Dutch law that obliges a mediator to

keep information that has been given to him ex parte, disclosed from the

other party. However, it is a rule of procedure that is commonly inserted in

mediation regulations and therefore generally applied. [for example article

7.5 of the NMI (Netherlands Mediation Institute) regulations and article 12.1

of the ACB (ADR Centrum voor het Bedrijfsleven) regulations]

Agreement necessary to ensure confidentiality









the event of a breach of confidentiality; liquidated damages, contractual

penalties, contempt proceedings. in anticipation of a disclosure; provide for

an expedited injunction proceeding, the right to intervene in an action

No, please provide reference:



There are no statutory provisions that prohibit the use of information

obtained in conciliation for the purposes of other proceedings. The parties

have to explicitly agree on this in a confidentiality clause. However, it is a

rule of procedure that is commonly included in mediation regulations and

therefore generally applied. [for example articles 7.1 and 7.2 of the NMI-

regulations and articles 12.2 and 12.3 of the ACB-regulations]

Since there are no statutory provisions under Dutch law on the subject, the

boundaries as to what information may be disclosed depends on what parties

have agreed on in the confidentiality clause. A rule of procedure that is

commonly included in mediation regulations is that any information that a

party had to its disposal (or could have had to its disposal) apart from the

conciliation proceedings, may be disclosed by the parties. [for example

article 7.2 of the NMI-regulations]

No, please provide reference:



There is no statutory provision regarding this subject. The answer to this

question will depend on what parties have agreed on in the confidentiality

clause and whether this clause contains a specific exception with regards to

the admissibility and / or privilege of documents or communication in

litigation.









Both types of shortcomings in respect of confidential information may be

considered to be a breach (wanprestatie). The penalties mentioned in 2e

apply to both.

There is no statutory provision regarding this subject. However, parties may

agree to disclose confidential information to a court, arbitrator or mediator

for the purposes as mentioned above. The NMI-regulations for example

contain the rule in art. 15, that the signed settlement agreement may be

disclosed to a mediator, arbitrator or judge in case of a dispute regarding the

compliance with the said agreement.









Parties in conciliation generally agree to consider an “offer of settlement”

made during conciliation proceedings as confidential information. As this

confidentiality clause is to be considered an agreement of documentary

evidence in the sense of article 153 RV, a party, after an unsuccessful

conciliation, may not disclose such information in a subsequent litigation or

arbitration procedure. Nevertheless, when a party should disclose the “offer

of settlement”, the judge or arbitrator might take this information into

account. The disadvantaged party may then impose one of the penalties as

mentioned above upon the disclosing party.









by ordinary contract, or by agreement. According to article 87 Rv, parties

can request a judge to order the emergence of parties in a court session in

order to come to a settlement. If a settlement is reached and upon the request

of a party, an official report containing the parties‟ engagements under the

settlement may be drafted. Such a report is to be considered an enforceable

award (art. 87 subsection 3). It is also possible to record a settlement

agreement by means of an arbitral award (art. 1069 Rv).

deeds, a notarial deed in which the settlement agreement is incorporated is

enforceable. [Handboek Mediation 2003, p. 169], incorporation in a

judgment, as an arbitral award made with the consent of the parties

A post-conciliation settlement agreement is a settlement agreement in the

sense of art. 7:900 BW. According to art. 7:902 settlement agreements on the

subject of property rights may even be adverse to imperative law, unless the

contents or purpose of the agreement are also adverse to public order or good

morals. For example, it is customary in the Netherlands to exclude the

possibility for parties to appeal to „mistake‟ in concluding a settlement

agreement.



A post-conciliation settlement agreement may be (partially) void if in

violation with public order or good morals (art. 3:40 subsection 1 BW). Also

a said agreement may be voidable if concluded fraudulently, under duress or

under undue influence (art. 3:44 BW). There are no exceptional defences

available against enforcement of post-conciliation settlement agreements.









When a settlement agreement is enforced, it is at the discretion of the judge

or arbitrator to decide which party shall bear the costs, interest and attorney

fees. Generally the party at loss will be condemned to bear the costs, interest

and fees.

Switzerland: Georg von Segessar/Sandra Lendenmann, Schellenberg

Wittmer Latvia: Daiga Zivtina, Klavins & Slaidins









Preliminary remark:

At the moment, there is no Swiss statutory law on a federal level with regard to

national or international conciliation or mediation. Until now, among the 26

cantons, only Geneva has adopted a law on civil mediation which entered into

force on 1 January 2005.

There are, however, private institutions such as the Swiss Lawyers Association

(FSA/SAV) or the Swiss Chamber on Commercial Mediation (SCCM) which

have established guidelines and ethical codes for mediation.

At the moment, the Swiss Civil Procedure Law (SCP) is being unified and

modified on a federal level and is expected to become effective by 2010. The

draft SCP contains to some extent provisions on ADR: conciliation, mediation

and arbitration.

Today, in matter of insurance, banking and travel contracts, conflicts may be

referred to designated ombudsmen offices. These private institutions, however,

are neither defined nor regulated by law.

Statute of limitation:

With regard to contract law, limitation periods are governed by the Swiss Code of

Obligation (art. 134 CO).

In general, these limitation periods are suspended by initiation of court

proceedings. Mediation implemented spontaneously by the parties will not

suspend the limitation period; therefore, parties usually agree preliminarily on a

mutual time extension and waive the right to rely on any time bar which may

apply with regard to a possible claim. Latvian law is silent on mediation and it is

not practiced in Latvia

As set out above (1.a), parties may agree preliminarily on a shorter statute of

limitation or any tolling or extending, but have to respect the principles of good

faith, particularly with regard to parties in need of protection such as consumers,

employees, etc.









Yes, by simple waiver (for example, can the parties make a written promise not to

plead the statute of limitations), by other mean(s), please specify: Parties have to

be aware of procedural time limits which may not be eliminated or amended (see

para 1.d).









Yes, in addition to the afore-mentioned statute of limitations, there exist special

time limits for certain types of civil claims, such as an action to contest a

resolution of a shareholders‟ meeting or the annulement of a last will.

When these limits have elapsed, the claim is dismissed on the merits rather than

on procedural grounds. These time limits, other than the statute of limitations,

cannot be extended by an agreement between the parties.

In any event, further conditions precedent may apply, such as the duty to provide

explanations in an insurance claim, may have an effect on the parties‟ position in

later court proceedings (e.g. the burden of proof).

No, The Geneva civil procedure and law on organization of judiciary (GCP/GOJ)

obliges the mediator to keep secret all the facts he learned as a result of mediation

process and any action he took, participated in or witnessed. The parties may not

reveal anything that was said before the mediator.

In all the other cantons, however, the duty of confidentiality can be stated in a

preliminary agreement to the mediation. But, the enforceability of this duty by the

Court is not assured.

Please note that members of the Swiss Lawyers Association (FSA/SAV) or the

Swiss Chamber on Commercial Mediation (SCCM) are subject to the guidelines

and ethical codes of conduct for conventional mediation; these guidelines do state

respective confidentiality provisions.

Yes, please provide reference:

The mediator‟s contractual duty of confidentiality may conflict with a statutory

duty to testify. There is no statutory provision expressly enabling mediators to

refuse to testify on the basis of a duty of confidentiality. The judge may in general

excuse a witness from testifying if (a) the witness exercises a profession which is

subject to a secrecy obligation under the Swiss Criminal Code or (b) if the

witness is subject to a particular relationship of trust and confidence.

This rule, however, only applies when other protective measures are not available

and when the interest of the witness in keeping the information confidential

prevails over the interest of the party seeking to put the confidential information

into evidence.

Mediators may be regarded as subject to a “particular relationship of trust and

confidence“, such that it might be possible for them to refrain from testifying.









No, please provide reference:



See above (2.a, b).

Agreement necessary to ensure confidentiality



See above (2.a, b).









the event of a breach of confidentiality; liquidated damages, contractual penalties,

in anticipation of a disclosure; provide for an expedited injunction proceeding

No, please provide reference:



See above (2.a, b).

There are no restrictions by Swiss statutory law in this regard.

No, please provide reference:



Under Swiss law, the concept of privilege is not known. Therefore, there is no

statutory rule in this regard. Documents and information once revealed in

mediation may be subject to only limited confidentiality in litigation.









Such penalty agreed upon by the parties does not prevent the presentation and use

of such information in court proceedings or arbitration. But, such breach will

trigger the respective penalty.

Further, a party restricted by some kind of penalty when revealing documents or

information in litigation may try to claim the violation of its constitutional right to

assert a claim.

See above (2.a, b).









Such offer may not be regarded as binding since it was made in the context of

settlement negotiations.

Further, there are no consequences as to costs unless provided for in the

mediation agreement.









by ordinary contract, or; by agreement

security agreements, incorporation in a judgment (provided that proceedings are

pending), as an arbitral award made with the consent of the parties

(provided that proceedings are pending)

The settlement agreement is an ordinary contractual agreement between the

parties. Therefore, it may be subject to any contractual argument such as fraud

and wilful deception.









In order to enforce the agreement, parties may file a claim for performance. The

respective cantonal procedural law and rulings will apply as to costs, interest and

attorney fees.

Indonesia: Karen Mills, KarimSyah Law Firm







(a) Mediation under Law No. 30 of 1999.

Law No. 30 of 1999 concerning Arbitration and Alternative Disputes

Resolution contains provisions with respect to the time limitation for

commercial conciliation or mediation, both international and national.



Under Law No. 30 of 1999, there are 3 stages of mediation:

1. Pre Mediation Process;

2. Mediation – Negotiation Process;

3. End Mediation Process.



Pursuant to Law No. 30 of 1999, the time limitation of such stages, are

as follows:

1. Resolution of disputes through ADR shall be carried out through a

direct meeting of the parties not later than 14 days;

2. If the disputes cannot be resolved, then it may be resolved through

the assistance of one or more expert advisors or a mediator, then they

can start to resolve within 14 days;

3. If the parties still fail to reach an agreement, then such parties may

request an ADR institution (i.e. by the Indonesian Mediation Center) to

appoint a mediator. After the appointment of the mediator by such

ADR institution, the mediation process shall be commenced within 7

(seven) days;

4. The settlement reached shall be set out in a written agreement,

signed by all parties concerned, within 30 days;

5. Such written agreement shall be final and binding and shall be

registered in the District Court within no more than 30 days after it has

been signed;

6. The agreement for resolution of the dispute shall be completely

implemented within no more than 30 days after its registration.



In the rules of Indonesian Mediation Center (Pusat Mediasi Nasional,

“PMN”), there are no provisions on statute limitation. The rules of

PMN only provides for the guideline of mediation proceedings.

In practice, shortening, tolling or extending the applicable statutes of

limitations are permitted as long as the parties agreed to it. In the Court-

Ordered Mediation, the waiver to the statute of limitations shall also be

approved by the presiding Judge.









Yes. By agreement between the parties. In Court-Ordered Mediation,

also by the approval of the Presiding Judge.









No.

The Rules of PMN provides that all parties shall maintain the

confidentiality of the mediation process. This confidentiality provisions

shall form a part of the Agreement to mediate. In the Court-Ordered

Mediation, mediation is open and public can have access to the

information disclosed in the mediation process…

In Court or Arbitration proceedings, parties have the right to disclose

the information. However, the Rules of PMN provides that the parties

shall waive the right to use as evidence of the followings, (i) Opinions

or suggestions made by any party or the Mediator concerning

alternative solutions to the matter in dispute; (ii) Proposals, summaries,

and any other notes presented during the mediation process; (iii) Any

statement by any party to the Mediator that a proposal is accepted or

rejected; (iv) All documents drafted and prepared in connection with

the mediation process.









See 2 (a) above

See 2 (a) above









A party may file a claim to the Court against the party breaching the

confidentiality.

(f) See 2 (b) above

(f) See 2 (b) above

(f) See 2 (b) above









No provision in Indonesian Law on this matter.

See 2 (b) above









When a party obtains less in arbitration than in the offer of settlement

in an unsuccessful conciliation, the party cannot do anything since the

award obtained in arbitration shall be final and binding. While in a

litigation, a dissatisfied party can appeal to the High Court, then to the

Supreme Court, and finally appeal for the Judicial Review to the

Supreme Court.









Under Law No. 30 of 1999, after settlement is reached, the outcome

shall be set out in a written agreement. Such agreement, to be

enforceable, shall be registered in the District Court within no more

than 30 days after it has been signed. In the Court-Ordered Mediation,

settlement agreement can be incorporated in a Judge decision.

Incorporation in a Judgment

A post-mediation settlement agreement which has been incorporated in

a Judgment shall be final and binding.









Obligation to bear costs, interest and attorney fees in the enforcement

of a settlement agreement can be agreed between the parties.

Finland: Antti Heikinheimo, Hannes Snellman Attorneys at Law Ltd









The substantive law applicable to a cause of action determines the

applicable statute of limi-tations. As a result, if an agreement exists

regarding the substantive law applicable to a cause of action, it is easy to

determine the applicable statute of limitations, because both of them can

be determined on the basis of the agreement of the parties.



If no agreement exists regarding the substantive law applicable to a cause

of action, the de-termination of the substantive law as well as the

applicable statute of limitations becomes more complicated. In this

situation, the substantive law applicable to a cause of action de-termining

the statute of limitations, will be determined on the basis of the Finnish

legal pro-visions relating to the choice of law.



Finland is a party to the 1980 Rome Convention on The Law Applicable

to Contractual Obli-gations as well as the 1955 Hague Convention on The

Law Applicable to International Sale of Goods. Consequently, parts of the

Finnish legal provisions relating to the choice of law are uniform with the

choice of law rules of the other European countries.



If assistance is sought from the Finnish court during the conciliation

proceedings, the Finnish procedural law becomes applicable for the

concerned part and may thus set some time lim-its. For example, if

precautionary measures are applied for and granted by the court, the

petitioner shall within one month from the issuing of the order bring an

action on the main issue before the court or bring the main issue up for

consideration in other proceedings that may result in a decision

enforceable in accordance with the Enforcement Act. The com-

mencement of a conciliation procedure is insufficient to interrupt this time

limit.

The substantive law applicable to a cause of action determining the

applicable statute of limitations also determines, whether it is possible to

shorten, toll or extend the applicable statute of limitations. If the Finnish

procedural law is applicable, the time limits set by it cannot be extended

or waived by an agreement between the parties.









The parties are not free to agree on the time limits set by the procedural

law on their own, so the elimination of the procedural time limits is not

possible on the basis of an agreement of the parties.



The parties‟ possibility to eliminate the time limits set by the substantive

law depends on the provision setting the time limit. If the provision

setting the time limit belongs to the non-mandatory provisions of the

legislation, the parties are free to agree on whether to ad-here to the time

limit set by a non-mandatory provision. However, if the provision of the

substantive law setting the time limit is mandatory, the parties are obliged

to adhere to the given time limit. (The presumption is that legal provisions

are mandatory unless otherwise stipulated.)









In Finland, a distinction is made between a statute of limitations as such

and a condition precedent attaching to a right.



Regarding the time limits set by a statute of limitations, the parties have

no possibility to extend, suspend, eliminate or otherwise modify these

time limits, unless otherwise stipu-lated. On the contrary, regarding the

time limits provided by a condition precedent attaching to a right, the

parties are always free to agree on whether to adhere to these time limits.



Because the time limits provided by a condition precedent attaching to a

right are based on the agreement of the parties, these time limits are not as

unconditional as the time limits set by a statute of limitations. As a result,

a fail to observe the time limit provided by a con-dition precedent

attaching to a right does not necessarily lead to a forfeiture of a right, as

would happen, if the limit was set by a mandatory legal provision.

There exist no general applicable legal provisions prohibiting the parties

to disclose the in-formation relating to the conciliation proceedings to

third parties. If confidentiality is re-quired, a separate agreement has to be

made.

In the procedure before a court, the presumption is that a person called as

a witness can-not refuse to testify or answer a question. Nevertheless, a

party to the case may not be heard as a witness before the court, thus the

parties have no obligation to give a testi-mony regarding the confidential

information.

There are also some special provisions allowing the witnesses to refuse to

testify, e.g. an attorney or a counsel shall not testify regarding the matters

which the client has entrusted to him/her for the pursuit of the case, unless

the client consents to such testimony. A wit-ness may also refuse to give

a statement which would reveal a business or professional secret unless

very important reasons require the witness to be heard thereon.









If an agreement exists which regulates that all the information given ex

parte during the conciliation proceedings is confidential, there is no need

to specify the information as confi-dential in order to keep it secret.



However, if no agreement regarding the confidentiality exists, the parties

usually have no obligation to keep the given information secret, although

the given information would have been specified as confidential by one

party. Nevertheless, the substantive law applicable to a cause of action

may include some provisions regarding the confidentiality requiring some

information to be kept secret if specified, for example, as a business

secret.



If a witness refuses to testify in the court regarding some matter he/she is

allowed to keep secret according to the Finnish Code of Judicial

Procedure, at the same time, he/she has to mention the grounds for the

refusal and show a plausible reason for it. So in the court, the witness has

to specify that the information falls under some given category to be

allowed to keep it secret.

Agreement is necessary to ensure confidentiality



the event of a breach of confidentialityliquidated damages, contractual

penalties. in anticipation of a disclosure: There is no remedy available for

the anticipation of a disclosure that is based solely on the agreement of the

parties.



Although, if a confidentiality agreement is made, a precautionary measure

can be applied for the court, in which the court prohibits the other party,

under threat of fine, not to dis-close the information agreed to be kept

secret in the confidentiality agreement. The prereq-uisite for the court‟s

order is that the petitioner can establish a probability that he/she has an

enforceable right to have the information to be kept secret and that there is

a danger that the other party discloses this confidential information.

There exist no general applicable laws nor rules which would safeguard

the information ob-tained in conciliation proceedings and prohibit the use

of the information received during the conciliation proceedings in arbitral,

judicial or similar proceedings on the basis that the in-formation has been

obtained in the conciliation proceedings.



The information obtained in the conciliation proceedings can be

confidential only on the ba-sis of an agreement or if the information falls

under the scope of some special legal provi-sion requiring certain kind of

information to be kept secret.

As mentioned above in clause 2b, the presumption is that a person called

as witness be-fore a court shall not refuse to testify or answer a question if

no special provisions exist giving a witness a right to refuse to testify. The

existence of the conciliation proceedings is not a sufficient ground on its

own to create a right to refuse to testify.

Nevertheless, according to the Finnish procedural law, a party to the case

may not be heard as a witness before the court, thus the parties have no

obligation to testify in the judicial proceedings regarding the conciliation

proceedings.

An attorney or a counsel may also, although heard as a witness, refuse to

testify in re-spect of the matters the client has entrusted to him/her.

Persons like public officials, phy-sicians and pharmacists may as well

refuse to testify in respect of some matters enumer-ated in the Finnish

Code of Judicial Procedure chapter 17, section 23. In addition, a per-son

called as a witness may also refuse to give a statement which would reveal

a business or professional secret unless very important reasons require the

witness to be heard thereon.

It is not possible to hear witnesses under an oath in an arbitration held in

Finland in accor-dance with the Finnish Arbitration Act. As a result, the

persons heard by the arbitral tribu-nal have no obligation to give a

testimony regarding the prior conciliation proceedings. On the other hand,

the persons heard by the arbitral tribunal have either no obligation to re-

fuse to give a testimony regarding the prior conciliation proceedings, if no

confidentiality agreement exists.

No rule exists stipulating that the right to rely on a document or

communication in litigation would be waived if the document or

communication has been relied on in conciliation pro-ceedings. The only

way to prevent that the document or communication relied on in concilia-

tion proceedings will not be relied on in subsequent litigation is to make

an agreement pro-hibiting the use of material relied on in conciliation

proceedings in the subsequent proceed-ings.









The consequences mentioned in clause 2e above are not available

regarding the breach of confidentiality concerning the information or

material protected by the MLICC Article 10, if no agreement exists that

the information or material enumerated in the MLICC Article 10 is

confidential, and the breach of this confidentiality leads to the

aforementioned conse-quences.

As already stated, the existence of the conciliation proceedings on its own

is not a sufficient ground to create an obligation to keep the material

relating to the conciliation proceedings secret.



However, if an agreement regarding the confidentiality is made, the

parties are bound by it. Thus if the confidentiality agreement prohibits the

parties to rely on some material obtained in the conciliation proceedings

in the possible subsequent proceedings, the parties are not allowed to

produce this material in the subsequent proceedings. As a result, the

court, the arbitral tribunal or a subsequent mediator should not receive

from the parties any confiden-tial material that is agreed to be kept secret.









According to the Finnish Rules of proper professional conduct for

advocates, section 39, an advocate may not, without the consent of the

opposing party, at trial invoke a proposal for settlement made by that

party.



This provision reflects the general attitude regarding how an offer of

settlement made dur-ing the conciliation proceedings should be treated in

a subsequent litigation or arbitration. Generally, it is not even appropriate

to rely on a prior offer of settlement made in the con-text of an

unsuccessful conciliation during the following proceedings. However, if a

reference to the prior offer of settlement is made, the court or the arbitral

tribunal will usually give no importance to this kind of reference.









by agreement,



If the other party refuses to voluntarily follow the agreement made

regarding the settlement, the enforcement of the settlement agreement can

be applied for the court.

as an arbitral award made with the consent of the parties

The enforcement of post-conciliation settlement agreements can be

prevented on the same basis as the enforcement of the ordinary

agreements. The party objecting the enforcement may claim for example

that the agreement is invalid because of duress, fraudulent induce-ment or

a misrepresentation, or that the enforcement of the agreement would lead

to an unfair result which could lead to the agreement being declared

terminated.









Usually an agreement regarding the allocation of the costs, interest and

attorney fees is in-cluded in the settlement agreement. If no agreement

regarding the legal expenses exists, the court may, when enforcing the

settlement, give a decision regarding the allocation of the legal expenses

on the basis of the request of the parties. However, if no request is made,

the court will not treat the matter on its own initiative, and the parties

have to bear their own legal expenses.

Italy: Gabriele Bonivento/Cristina Pagni, Norton Rose Studio Legal









Statutes of Limitation are generally provided in the Civil Code and, for

specific rights, in other Acts. It is therefore generally easy to determine

the applicable statute of limitation.

In principle, in case of choice of a foreign law, Italian provisions on

statutes of limitation do not apply; we are not aware of any case law

stating that such provisions are to be treated as “lois d‟application

necessaire”.

Provisions of Italian law on statutes of limitation may not be derogated

by the parties, so no shortenings or extensions of relevant periods are

permitted.

The request of conciliation, however, interrupts the relevant period if

meets certain requirements (it has to specify clearly the underlying

claims, and it has to place the non-performing party in default).









Yes, please name how: The parties may waive their right to avail

themselves of the relevant statute of limitation only once that the

relevant period of time has expired (and never before).









Yes, Italian law provides that certain causes of action must necessarily

be exercised (i.e. the related claim must be brought to court or

arbitration) within a certain period of time (termine di decadenza) set by

the law or by the parties (normally shorter than those provided for

statutes of limitation). Such limitation may subsequently be derogated

by the agreement of the parties, provided that they may freely dispose of

the underlying rights.

No

Yes, please provide reference:

As a general principle, if a person involved in a mediation process is

called to render a witness, he/she has the duty to do so, and he/she is not

excused by the fact that he/she assumed a non-disclosure obligation.

However, he/she may refuse to render witnesses if he/she may invoke a

professional secret (as for lawyers in their client relationships) or a

secret of a similar nature.









No, please provide reference:

In Italy out-of-court mediation / conciliation procedures are not

regulated by the law, so there is no general duty of confidentiality upon

parties /mediators.

Please note, however, that Mediation Rules issued by ADR Institutions

in Italy usually provide for such a duty (but this has only the nature of a

contractual obligation).

Agreement necessary to ensure confidentiality





the event of a breach of confidentiality, Others. Please provide

reference: The only possible consequence under Italian law of a breach

of a confidentiality agreement is the payment of damages. Parties may

agree upon liquidated damages but Courts will always have the power to

reduce the liquidated damages to a sum that they deem equitable. in

anticipation of a disclosure; There is no typical remedy under Italian law

for such a situation, but the interested party may, in principle, ask the

Court to issue an interim order preventing the other party from

disclosing to third parties the relevant information (however we are not

aware of any specific case law addressing this issue); application,

however, may only be uphold if the disclosure would cause an

irreparable damage (i.e. a damage which cannot be fully compensated by

monetary payment).

No, please provide reference:

No, in Italy there is no law of general application regulating out-of-court

mediation / conciliation processes

In principle, unless they can invoke a professional or similar secret, the

parties, the mediator, and the persons intervened in the mediation

proceedings must (if called to do so) testify. The parties however may

agree to renounce to their right to call them as witnesses in litigation

proceedings.

No, please provide reference:

In principle, documents filed in conciliation proceedings are not subject

to any privilege; the parties may however agree in advance that they may

not be used in litigation (usually this is specified on copies of the

documents too).









In order to prevent a party from using in litigation proceedings

documents / witnesses that it was agreed that they could not be used, the

interested party should file a petition for their exclusion in the same

litigation proceedings.

The answer to (2e) only applies to disclosure of the relevant information

to third parties (not in litigation proceedings between the same parties).

The court/arbitrator could only hear the witnesses and receive the

documents requested / filed by the parties. The parties who agreed to

keep the information confidential, however, could not legitimately use

them in the above described context unless the same parties explicitly or

implicitly waived their rights to the restriction.









A non-accepted offer of settlement loses any force and effect. All rights

and obligations of the parties would thus be regulated by the judgement /

award.









by ordinary contract, or by agreement, and / or

letters of credit

security agreements

deeds

Or, some but other sui generis system of expedited enforcement, please

specify:

If the conciliation occurred in the context of court proceedings, the

minutes of the agreement may be enforced like a judgement. In labour

matters, the minutes of the settlement reached before dedicated

conciliation committees have the same effect.

Only ordinary defences available against private agreements, such as

annullement of the agreement for fraud of one of the parties.









No specific rules exist; the related obligations are of a purely contractual

nature.

USA: Robert A. de By, Dewey Ballantine LLP









The answer to this question is contextual in light of the fact that, in

the United States, the statutes of limitations that apply to a cause of

action vary among the 50 states. For instance, the statute of

limitations for breach of contract in New York is six years, see N.Y.

C.P.L.R. § 213(2); in California, the statute of limitations for the

same cause of action is four years. See Cal. Civ. Code Proc. § 337

(2006). Parties to a contract can minimize any difficulties by

choosing, ex ante, what state‟s law will govern any disputes in

connection with the contract.

Again, this question does not lend itself to a straightforward answer

in light of the variations in state laws. Typically, in commercial

relationships, parties are able to shorten, toll, or extend the statute of

limitations pursuant to a written contract. See, e.g., New York Gen.

Oblig. Law § 17-103. This law is subject to certain exceptions that

the mediator and the parties should be aware of. For instance, the

mediator and the parties should be aware that agreements to extend

the statute of limitations indefinitely have been held to be

unenforceable under New York law. See Bayridge Air Rights, Inc. v.

Blitman Constr. Corp., 80 N.Y.2d 777 (1992). Moreover, the parties

and the mediator should be aware that Section 17-103 only applies to

disputes “arising out of a contract” and requires that any agreement

extending the limitations period be in writing. See, e.g., Eberhard v.

Elmira City Sch. Dist., 6 A.D.3d 971 (3d Dep‟t 2004).









While parties cannot “eliminate” a statute of limitations, they

generally have the freedom to enter into a contract that extends,

shortens, or tolls the statute of limitations. Moreover, since the

statute of limitations is a defense to an action, the party who would

be able to assert the defense may waive it -- intentionally or

unintentionally -- by failing to raise the defense at the appropriate

time, usually in a responsive pleading such as an answer to a

complaint. See, e.g., Fed. R. Civ. P. 12(h); Chimblo v. Comm‟r, 177

F.3d 119, 125 (2d Cir. 1999) (“[statute of limitations defense] may

be waived by a party who fails to raise it at the appropriate time”).









The differences and variations between the 50 States‟s laws, their

respective common law, and Federal legislation and federal case law

make answering this question impracticable].

Yes, MLICC Article IX provides a general, blanket prohibition

against disclosure. Typically, rules governing disclosure are

determined by the parties‟ private contract. To the extent that the

parties agree that the mediation proceedings are confidential, and

agree to keep those proceedings confidential, they are bound by that

contract. Contracts prohibiting disclosure are common and are

enforceable in courts. See, e.g., Doe v. Roe, 93 Misc. 2d 201 (N.Y.

Sup. Ct. 1977). Court rules often specify that when parties

participate in a court-sponsored mediation, the parties must sign a

confidentiality agreement. See, e.g., S.D.N.Y. L.R. 83.11.



Recently, many states have adopted the Uniform Mediation Act

(“UMA”), drafted by the National Conference of Commissioners on

Uniform State Law, in collaboration with the American Bar

Association‟s Section on Dispute Resolution. Section 8 of the UMA,

“Confidentiality,” is patterned after MLICC Article IX and provides:

“Unless subject to the [insert statutory references to open meetings

act and open records act], mediation communications are confidential

to the extent agreed by the parties or provided by other law or rule of

this State.” So far, the UMA has been adopted, with subtle

variations, by the following states: Illinois, see 710 ILCS 35; Iowa,

see Iowa Code § 679C.1; Nebraska, see Neb. Rev. Stat. Ann. § 25-

2930; New Jersey, see N.J. Stat. Ann. § 2A:23C-1; see Ohio, O.R.C.

§ 2710; Utah, see Utah Stat. Ann. § 78-31c-101; Vermont, Vt. Stat.

Ann. tit. 12 § 5712; Washington, see Wash. Rev. Code § 7.07; as

Yes, Article IX is clear that its protections do not apply where

“disclosure is required under the law.” so to the extent that any

statutory requirements or rules of court compel disclosure, then they

would not be in conflict with Article IX. Certain states compel

disclosure in connection with “public records” laws. See, e.g.,

Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191

(Alaska 1989); Pierce v. St. Vrain Valley Sch. Dist., 944 P.2d 646

(Colo. Ct. App. 1997). Other states have recognized a public policy

requiring disclosure in order to prevent death or substantial bodily

harm. See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334

(Cal. 1976). One court has compelled disclosure of communications

during civil mediation in connection with criminal grand jury

proceedings. See In re: 1994 -- Special Grand Jury Proceedings, 870

F. Supp. 1170 (S.D. Ind. 1995); but see State v. Williams, 877 A.2d

1258 (N.J. 2005) (criminal defendant‟s constitutional right to present

complete defense using testimony from mediator in related mediation

did not outweigh policy interest in preserving mediation

confidentiality when evidence was otherwise available).









No, This is the common practice, although there are not necessarily

general rules that dictate this result. See, e.g., AAA Rule M-12

(requiring parties to indicate to mediator where ex parte

communications should remain confidential); ICPR Mediation

Procedure, Rule 9, “Confidentiality.”

Again, the extent of the confidentiality can be determined by the

parties‟ contract. Most state mediation privileges, however, only

apply to “communications;” accordingly, the mere fact that a person

attended the mediation or that a mediation existed is, in most

instances, not a “communication” protected from disclosure.



Again, the agreement to submit a dispute to conciliation is by

contract or court order. So whatever the agreement or the local rules

of court provide is what controls. (It is unlikely, however, that a

court would enforce an agreement that bound it to hold a party in

contempt.) in anticipation of a disclosure; Although some courts are

split with respect to the availability of provisional relief in aid of an

arbitration, this issue does not appear to come up with any frequency

in the context of a mediation. Compare Borden, Inc. v. Meiji Milk

Prods., 919 F.2d 822, 826 (2d Cir. 1990) (upholding grant of

preliminary injunction in aid of arbitration); PMS Distrib. Co. v.

Polymembrane Sys., Inc., 863 F.2d 639, 641-42 (9th Cir. 1988)

(holding that court had authority to issue writ of possession pending

outcome of arbitration), with McCreary Tire & Rubber Co. v. CEAT

SpA, 501 F.2d 1032 (3d Cir. 1974) (holding that court does not have

authority to grant provisional relief in aid of arbitration).

To the extent that the parties agree that the mediation proceedings are

confidential, and agree to keep those proceedings confidential, they

are bound by that contract.



Pursuant to Federal Rule of Evidence (“FRE”) 408, parties may not

introduce evidence concerning (1) the offer or acceptance of

consideration in order to settle a claim or (2) conduct or statements

made in settlement discussions in order to “provide liability for,

invalidity of, or amount of a claim that was disputed as to validity or

amount, or to impeach through a prior inconsistent statement or

contradiction[.]”



The confidentiality protections offered by Rule 408 are not as broad

as the protections offered by MLICC Article IX. Article IX only

permits disclosure where “required under law or for the purposes of

implementation or enforcement of a settlement agreement.” In

contrast, Rule 408 does not prohibit a party from introducing -- or a

court from admitting -- evidence concerning conduct or statements

made in settlement discussions in order to prove bias or prejudice, or

to negate a contention of undue delay, or to prove an effort to

obstruct a criminal investigation or prosecution. See FRE 408(b).

Courts have found that the protections of Rule 408 are inapplicable

when evidence of settlement communications are offered for

purposes other than to prove the validity, invalidity, or amount of a

disputed claim.



Some federal courts have crafted a federal common-law privilege for

mediation communications under FRE 501. See, e.g., Folb v.

Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164

The answer to this question also depends on the context and the

jurisdiction. If there is an action to enforce a mediated agreement,

and one party attempts to raise a common-law contract defense, such

as duress or fraud, then a court will usually permit the party to do so.

See, e.g., FDIC v. White, 76 F. Supp. 2d 736 (N.D. Tex. 1999).



In another case, one party attempted to enforce an oral agreement

reached during a telephonic mediation conference. The court refused

to admit evidence about these communications. See, e.g., Microsoft

Corp. v. Suncrest Enters., No. C-03-5424-JF(HRL), 2005 WL

3555721 (N.D. Cal. Dec. 28, 2005).

The question is not altogether clear. If what is intended is to ask

whether a party can rely on a document in litigation, and then claim it

is privileged, the answer would generally be that a party cannot.



Note though that if a document is prepared for the sole purpose of a

mediation, then it is usually not discoverable. See, e.g., Folb v.

Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164

(C.D. Cal. 1998) (P could not discover mediation brief prepared in

connection with prior mediation between D and 3rd Party). As a

general rule, however, evidence that is otherwise admissible in

arbitral or judicial or similar proceedings does not become

inadmissible as a consequence of having been used in a conciliation.









Some courts have imposed sanctions for similar breaches. For

instance, in Bernard v. Galen Group, Inc., 901 F. Supp. 778

(S.D.N.Y. 1995) (court imposed sanctions on party where it ignored

court order that mediation communications, including the name of

the mediator, are to remain confidential -- party disclosed settlement

offers, communications made by defendant, and the name of the

mediator).

If the parties agree, then usually permissible. The agreement is a

contract, so when the dispute relates specifically to the contract,

courts will generally admit mediation communications. FDIC v.

White, 76 F. Supp. 2d 736 (N.D. Tex. 1999); Olam v. Congress

Mortgage Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999). In Olam, the

court identified an additional wrinkle in the analysis when it

recognized that (i) the parties themselves can hold the privilege and

(ii) the mediator may hold an independent privilege that prevents

disclosure. Ultimately, the Olam court found that the policy interests

in compelling testimony from the mediator to protect the party

resisting enforcement of the agreement outweighed the policy in

consistent application of the mediation privilege. See Olam, 68 F.

Supp. 2d at 1137-38 (construing California law).









Rule 68 of the Federal Rules of Civil Procedure provides that if a

party makes a pre-trial settlement offer and the other party rejects it,

“if the judgment finally obtained by the offeree is not more favorable

than the offer, the offeree must pay the costs incurred after the

making of the offer.” A large number states follow similar rules with

respect to settlement offers made in connection with litigation. See,

e.g., Alaska R. Civ. P. 68; Cal. Civ. Proc. Code § 998; Conn. Gen.

Stat. Ann. § 52-192a; Fla. Stat. Ann. § 768.79; Hawaii R. Civ. P. 68;

Mass. R. Civ. P. 68; Mich. C.R. 2.405; Wis. Stat. Ann. § 807.01(3).









[What is the difference between a contract or an agreement? It would

be either of these, or if it is court ordxered, the third option may be in

play, depending on the jurisdiction.]

[“Special agreements?” As a general rule, the “agreements,

procedures or tactics” used to enhance recognition and enforcement

of contracts in general apply to contracts reached pursuant to a

settlement or conciliation. In the United States, a party can confirm

an arbitral award into a judgment; so to the extent that the parties

consent to memorialize their settlement agreement in an arbitral

award, they can avail themselves of the same procedures for

recognition that are available to parties to an arbitration (e.g.,

confirmation, pre- and post-judgment interest).]

Parties can raise common-law contract defenses against enforcement

of post-conciliation settlement agreements, such as duress. See, e.g.,

FDIC v. White, 76 F. Supp. 2d 736 (N.D. Tex. 1999). The

availability of these defenses is dependent on the applicable state law

where the party is attempting to enforce the agreement.









Parties to a settlement agreement can work out these terms in

connection with the agreement. For the remainder the answer

depends on the law of the various jurisdictions/50 States.

Canada: Gerald W. Ghikas, Q.C, Borden Ladner Gervais LLP









In most Canadian provinces and territories, statutory limitation periods

emanate from one of two sources. In most cases, the limitation period is

defined by a general limitations statute adopted in the relevant

jurisdiction. In other cases, the jurisdiction may have enacted special

limitation provisions for particular types of claim. Where a limitation

period is established by special legisation of that type, it prevails over any

otherwise applicable limitation period defined in the general limitation

statute.



Most Canadian jurisdictions have not established statutory limitation

periods for commencing mediation. A partial exception relates to four of

the jurisdictions summarized above that facilitate the use of mediation in

litigation proceedings. In those jurisdictions, limitation periods have been

established for the commencement of mediation. Those limitations are:

• 60 days after filing the first statement of defence in British Columbia.

• 90 days after the first defence has been filed in Ontario.

• 3 months after the filing of the last dispute note filed in the action in

Alberta.

• After the close of pleadings in Saskatchewan.

Again, this question is relevant only in respect of the jurisdictions

summarized above that facilitate the use of mediation in litigation

proceedings:

• In Ontario, the court has jurisdiction to extend or abridge the time limit

for commencing mediation based on an evaluation of the number of

parties, the state of pleadings, the complexity of the issues, the nature of

the action, and whether the mediation will be more likely to succeed if an

extension or abridgment is imposed. The statute of limitations can also be

extended by 60 days if both parties consent.

• In British Columbia, the date for commencing mediation may be

extended by agreement of all the parties, or by court order.

• In Saskatchewan, on application by a party, the court can postpone the

mediation session.

• In Alberta, the court can extend the limitation period either before or

after the expiry of the period.









Some Canadian limitation statutes expressly confirm the ability of parties

to contract out of the legislated limitation period. In jurisdictions with

such legislation, the ability of parties to opt out of the statutory limitation

period is clear. Most Canadian limitation statutes, though, are silent as to

the parties‟ ability to opt out. In jurisdictions in which the limitation

statute is silent on this question, the ability of parties to opt out is more

controversial. On one view, the law should recognize the primacy of

private ordering with respect to statutory limitation periods. On that view,

parties would be able to waive limitation periods if their waiver is made

explicit. A contrary view holds that it offends public policy to permit

parties to opt out of the statutory limitations scheme. On that view, any

attempt to contract out of any statutory limitation period would be void as

against public body and the statutory period would prevail.









Canadian law does distinguish between a statute of limitations and a

condition precedent attaching to a right. A condition precedent makes the

creation of a right contingent upon fulfilling a set of circumstances,

whereas a statute of limitations serves only to extinguish a right after a

specified period of time.

The “without prejudice” privilege will apply in most mediations. It will

apply regardless of whether or not it is referred to by the parties, provided

the common law requirements are satisfied. At common law, the “without

prejudice” privilege applies to:

• admissions;

• made in good faith;

• orally or in writing; and

• to settle disputes in a situation in which settlement is not actually

reached.

No









proceedings follow this rule, but the other jurisdictions‟ provisions are

silent on this subject.

on this matter. As such, parties may presumably agree to maintain

confidentiality with resepct to the commencement or conclusion of

mediations.









the event of a breach of confidentiality

Most agreements to mediate contain confidentiality clauses and remedial

provisions for breach of confidentiality. These provisions have not yet

been considered in Canadian courts.



in anticipation of a disclosure

See above. No Canadian judicial consideration.

Mediations are generally considered analogous to “without prejudice”

settlement negotiations. As such, information obtained in mediation is not

admissible in arbitral or judicial proceedings.

Where mediation is regulated by statute, information disclosed during a

mediation is not admissible in any subsequent proceedings. The without

prejudice privilege will generally apply in jurisdictions that do not have

mediation legislation.

document or communication is relied on in litigation









As previously noted, parties may agree upon the consequences of

breaching confidentiality. These agreements have not been considered in

Canadian courts.

Among the jurisdictions summarized above that facilitate the use of

mediation in litigation proceedings:

• In Nova Scotia, disclosure of relevant information is permitted for the

purposes of carrying out or enforcing a settlement agreement.

• In British Columbia, confidentiality does not extend to any fee

declaration, agreement to mediate or settlement document made in

anticipation of, during or in connection with a mediation session.

• In Alberta, the confidentiality rule does not apply to anything contained

in the mediated agreement, or to factual evidence relating to the cause of

action that would be otherwise admissible.









While formal offers to settle made in the context of settlement

negotiations can trigger outcome-based cost consequences, offers to settle

made during mediation are confidential and cannot.









In the Nova Scotia, Ontario, and Alberta provisions facilitating the use of

mediation in litigation proceedings, parties must file settlement

agreements with the court.

Most agreements regarding enforcement will be contemplated by the

parties in the agreement to mediate, offering a wide range of remedial

options.

Equitable principles such as unconscionability or undue influence may

apply to bar enforcement of post-conciliation settlement agreements.









In the jurisdictions that have enacted provisions to facilitate the use of

mediation in litigation proceedings, if a party must pursue a court action

to enforce an agreement, legal costs may follow the event.

Belgium









The applicable statute of limitations will depend on the law applicable to the dispute according to applicable International

Private Law rules.

Part seven of the Belgian Code of Civil Procedure deals with Mediation.



Article 1730 of this Code, sets forth that a proposal made by a party by registered mail, containing a claim to a right, to have

recourse to a mediation procedure, shall suspend the limitation period of the claim related to the said right during one month.









Article 7131 sets forth the suspending of the statute of limitations for the whole duration of the mediation, if some conditions

are met (enclosed a translation of article 1731).

Article 1728 § 1 of the Belgian Code of Civil Procedure sets forth :

Art. 1728 - § 1. All documents and communications made during and for the purpose of a mediation process are confidential.

They may not be used during any judicial, administrative or arbitral procedure or in any other dispute resolution procedure and

they are not admissible as evidence, not even as an out-of-court confession. The duty of confidentiality can only be lifted with

the consent of the parties with a view to allowing inter alia a Court to homologate settlement agreements.



If this duty of confidentiality is violated by one of the parties, the Court or Arbitral Tribunal decides whether any damages may

be granted. Any confidential documents that are nevertheless communicated or which are relied upon by a party in violation of

the duty of confidentiality are ex officio excluded from the proceedings.



Without prejudice to the requirements of the law, the mediator may not disclose the facts with which he becomes acquainted as

a result of his function. He may not be called upon by the parties as a witness in civil or administrative proceedings relating to

the facts with which he has become acquainted in the course of the mediation. Article 458 of the Criminal Code is applicable

to the mediator.

Refer to Article 1728 § 1 of the Belgian Code of Civil Procedure (as above)









The Belgian Code of Civil Procedure does not contain a specific rule on ex parte given information. Therefore such an

information may not be disclosed to the other parties without the prior consent of the disclosing party. The Code sets forth that

before the mediation starts, parties and mediator should sign a mediation “protocole”. In this document the rules of

confidentiality are confirmed in detail.

The very fact that mediation has commenced or ended is not confidential per se.









Parties are free to agree upon the consequences in the event of a breach of confidentiality. This can be done in the mediation

“protocol”.

See (a)

- a mediator nothing, except in a procedure concerning his liability as

mediator, or with prior consent of all parties

- the parties or any relevant third party : only with consent of all parties (see article 1728)

Documents disclosed during the mediation but that the other party could have obtained without the mediation, are not

confidential.









Same rule, as above.

No, they can‟t except with the consent of all parties in the scope of an homologation of the agreement by the Court (to get

enforcement).









Such an offer of settlement is confidential.









As a general rule, settlement agreement arrives at by written agreement.



Article 1733 of the Belgian Code of Civil procedures, sets forth that each party can, under certain conditions, apply for

homologation by the competent Court. The homologation decision can be enforced as a regular judgment.

Not specified

In commercial matters only public order.









Not specified

Israel: Prescription Law, 5718-1958. Section 19.

Prescription Law, 5718-1958. Section 5 (2).

Land Law, 5729-1969. Section 159 (b).

Prescription Law, 5718-1958. Section 19.

Courts Regulations (Mediation), 5753- 1993. Section 5(e).

Courts Regulations (Mediation), 5753- 1993. Section 5(f).

L. Zar-Guttman, "Ensuring Confidentiality of the Mediation Procedure",

Sheary Mishpat Vol. C(1) 2002, 165. p. 170-171.

Courts Law (Consolidated Version), 5744-1984. Section 79C (f).

Courts Regulations (Mediation), 5753- 1993. Section 5(h).

Courts Regulations (Mediation), 5753- 1993. Section 8(c).

O. Shapira, "The mediator's obligation to secrecy and the mediation

confidentiality", Nekudat Gishur, the Israeli Bar Association Journal, Vol. 6

2002.

L. Zar-Guttman, "Ensuring the confidentiality of the mediation procedure"

Sheary Mishpat Vol. C(1) 2002, 165. p. 171.

O. Shapira, "The mediator's obligation to secrecy and the mediation

confidentiality", Nekudat Gishur, the Israeli Bar Association Journal, Vol. 6

2002.

Family court case (Jerusalem) 3341/99, Dinim Family Case Law, Vol. A,

p.661. The court has expressed this opinion.

3-309/56 Hellwing v. Elroee, Labor Case Law, Vol. 30 p. 13.

O. Shapira, "The mediator's obligation to secrecy and the mediation

confidentiality", Nekudat Gishur, the Israeli Bar Association Journal, Vol. 6

2002.

Courts Regulations (Mediation), 5753- 1993. Section 9(c).

US: The MLICC Questionnaire cited the New York General Obligations Law as an example of

the type of law this question addresses. See Questionnaire at 2.

See, e.g., Ark. Code Ann. § 16-7-206; Cal. Evid. Code § 1119; Fla. Stat. Ann. § 44.102; Iowa

Code Ann. § (1998); Kan. Stat. Ann. § 60-452a (assertive representations); Mass. Gen. Laws ch.

233, § 23C; Mont. Code Ann. § 26-1-813; Neb. Rev. Stat. § 25-2914; Nev. Rev. Stat. § 25-2914

(assertive representations); N.C. Gen. Stat. 7A-38.1(1); N.J. Rev. Stat. § 2A:23A-9; Ohio Rev.

Code Ann. § 2317.023; Okla. Stat. tit. 12, § 1805; Or. Rev. Stat. Ann. § 36.220; 42 Pa. Cons. Stat.

Ann. § 5949; R.I. Gen. Laws § 9-19-44; S.D. Cod. Laws § 19-13-32; Va. Code Ann. § 8.01-576.10;

Wash. Rev. Code § 5.60.070; Wis. Stat. § 904.085(4)(a); Wyo. Stat. Ann. § 1-43-103.

This issue is discussed directly in the Federal Rules of Evidence Advisory Committee Notes to

the 2006 Amendments: See, e.g., Athey v. Farmers Ins. Exchange, 234 F.3d 357 (8th Cir. 2000)

(evidence of settlement offer by insurer was properly admitted to prove insurer's bad faith);

Coakley & Williams v. Structural Concrete Equip., 973 F.2d 349 (4th Cir. 1992) (evidence of

settlement is not precluded by Rule 408 where offered to prove a party's intent with respect to the

scope of a release); Cates v. Morgan Portable Bldg. Corp., 708 F.2d 683 (7th Cir. 1985) (Rule 408

does not bar evidence of a settlement when offered to prove a breach of the settlement

agreement, as the purpose of the evidence is to prove the fact of settlement as opposed to the

validity or amount of the underlying claim); Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d

1284 (6th Cir. 1997) (threats made in settlement negotiations were admissible; Rule 408 is

inapplicable when the claim is based upon a wrong that is committed during the course of

settlement negotiations). Nor does the amendment affect the case law providing that Rule 408 is

inapplicable when evidence of the compromise is offered to prove notice. See, e.g., United States

v. Austin, 54 F.3d 394 (7th Cir 1995) (no error to admit evidence of the defendant's settlement with

the FTC, because it was offered to prove that the defendant was on notice that subsequent similar

conduct was wrongful); Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987) (in a civil rights action

alleging that an officer used excessive force, a prior settlement by the City of another brutality

claim was properly admitted to prove that the City was on notice of aggressive behavior by police

officers).

Belgium - Belgian Code of Civil Procedure



Art. 1731 - § 1. The parties decide by mutual agreement, with the assistance of the mediator, upon the rules for

the conduct of the mediation as well as its duration. This agreement is confirmed in writing in a mediation

protocol signed by the parties and by the mediator. The mediation costs and fees are payable in equal shares

by the parties, unless agreed otherwise by the parties.



§ 2. The mediation protocol contains:



(1°) the name and domicile of the parties and their counsel ;



(2°) the name, description and address of the mediator, and, as the case may be, the indication that the

mediator is accredited by the Commission mentioned in Article 1727;



(3°) the restatement of the voluntary character of mediation;



(4°) a brief summary of the dispute;



(5°) the restatement of the principle of the confidentiality of all communications exchanged during the

mediation;



(6°) the method by which the fees of the mediator are fixed, the fee rate as well as the terms of payment ;



(7°) the date;



(8°) the signature of the parties and of the mediator;



§ 3. The signature of the protocol suspends the limitation period for the duration of the mediation.



§ 4. Unless expressly agreed by the parties, the suspension of the limitation period ends one month after one

of the parties or the mediator inform the other party or parties of its wish to terminate the mediation. This

Question

Number









Law

Firm/Organi

Country Name sation









Hölters &

Elsing,

Partnerschaft

von

Rechtsanwält

en -

GERMANY Siegfried H. Elsing Duesseldorf

Gleiss Lutz -

GERMANY Prof. Dr. Gerhard Wegen Stuttgart

Schwarz

Kelwing

Wicke

Westpfahl -

GERMANY Mathias Schwarz Munich









Norton Rose

GERMANY Sven Förster LLP - Munich

Court of

International

Commercial

Arbitration

attached to

the Chamber

of Commerce

and Industry

of Romania

(Bucharest

Arbitration

ROMANIA Mihaela Cozmanciuc Court)









Mannheimer

Swartling

Annette Magnusson / Stefan Advokatbyra

SWEDEN Brocker AB

Elisabeth de Nadal. Partner.

(Lawyer admitted in Spain)

Juan-Antonio Ruiz, LL.M. Cuatrecasas

Berkeley.(Associate Lawyer Abogados

SPAIN admitted in Spain) S.L.

Alfaro-

Abogados

Law Firm –

Buenos Aires

ARGENTINA Sebastian C Rodrigo office

Elhanan

Landau Law

ISRAEL Adv. Zvi Nixon Office









Wardynski &

POLAND Marcin Radwan-Rohrenschef Partners

Furtek I

Wspolnicy

Kancelaria

Piotr Bielarczyk, on behalf of Prawnicza

POLAND Marek Furtek SP.K.

Norton Rose

UNITED KINGDOM Joseph Tirado/Emma Humphries LLP - London

Debevoise &

Plimpton LLP

UNITED KINGDOM Peter Rees & Lara Clarke - London

Norton Rose

FRANCE Alexander Brabant LLP - Paris

Norton Rose

LLP -

THE NETHERLANDS Yke Lennartz / Patrice Kam Amsterdam

Schellenberg

Georg von Segesser (Partner) Wittmer -

SWITZERLAND Sandra Lendenmann (Associate) Zürich

Klavins &

LATVIA Daiga Zivtina Slaidins

KarimSyah

INDONESIA Karen Mills Law Firm

Hannes

Snellman

Attorneys at

Law Ltd -

FINLAND Antti Heikinheimo Helsinki

Norton Rose

Studio Legale

ITALY Gabriele Bonivento / Cristina Pagni - Milan

Dewey

Ballantine

LLP - New

USA Robert A. de By York

Borden

Ladner

Gervais LLP -

CANADA Gerald W. Ghikas, Q.C Vancouver

BELGIUM

1a) b)









What should the mediator and the parties

be aware of as regards relevant law and

rules as to permitted shortening, tolling

(suspending), or extending the applicable

statute of limitations in general, or, if

relevant, with particular reference to

international commercial conciliation

In international commercial conciliation or (including any special requirements or

mediation in your country how easy or formalities as to dates of commencement &

difficult is it to determine the applicable ending and/or positive or negative results

statute of limitations? of the process)?



The parties may agree to alter the statute of

limitations as they wish, in particular to

shorten, extend or suspend the limitation

periods. German law stipulates only two

The applicable statute of limitations is restrictions to this; i) as to liability for

determined by the substantive law which the deliberate acts the statutes of limitations may

cause of action is subject to. In international not be shortened in advance and, ii) the

law the applicable statute of limitations limitation period may not be extended to

follows, pursuant to German law of conflicts, more than 30 years. Under German law the

the lex causae . There are generally no major running of the limitatoin period is suspended

difficulties to identify which statute of while negotiations are pending between the

limitations applies. parties.

The law on the limitation of actions was

thoroughly revised in the Modernization of

the Law of

Obligations Act, which entered into force on

January 1, 2002. Pursuant to § 204(1) No. 4

of the

German Civil Code (BGB) (hereinafter

“BGB”), the statute of limitations is tolled by

notice to

the obligor of the obligee‟s filing an

application for conciliation proceedings at a

conciliation

institution approved by the administration of

justice of a federal state or, if the parties

amicably

agree to seek conciliation, at any other

conciliation institution which settles disputes.

The same

might apply for applications to a mediator if

the parties agree to seek conciliation with a

In Germany, the statute of limitations is mediator, though this is not certain

considered a matter of substantive law (Palandt/Heinrichs, Bürgerliches Gesetzbuch,

because it limits § 204, para. 19

the exercise of a substantive right rather than (66th ed. 2007). If notice is given shortly (cf.

a legal remedy. Thus, the determination of the § 167 of the German Code of Civil Procedure

applicable statute of limitations will not Erstelldatum 15.08.2007 15:21:00 /2 12

depend on the law of the forum. Rather, the (ZPO), hereinafter “ZPO”) after the filing of

law the application, the tolling of the statute is

applicable to the underlying substantive retroactive from the time of filing the

claims, which is determined primarily by a application. Pursuant to § 204(2) BGB the

valid choice tolling of the

of law clause, or secondarily by German statute ends six months after the conciliation

conflict of law rules, will also govern the proceedings are terminated.

statute of In addition to the above, pursuant to § 203

limitations for those claims. BGB party negotiations with regard to a legal

According to Art. 203 German Civil Code

the applicable statute of limitations is

suspended if the parties have commenced

negotiations on the respective claim. The

term “negotiation” is interpreted broadly and

it is generally accepted that conciliation

procedures constitute a “negotiation” in the

sense of Art. 203 German Civil Code. No

specific requirements or formalities are

required to trigger the suspension by such

negotiations. The suspension continues until

The general rules regarding the statute of one or the other party refuses to continue the

limitations relating to claims governed by negotiations in which case the statute of

German law are contained in the German limitation will only apply after a period of 3

Civil Code, Art 194 subs.. They have recently months following the termination of

been harmonised and are intended to apply to negotiations.

most claims. However, some specific statutes According to Art. 202 German Civil Code a

of limitations apply for special subject areas. statute of limitation by mutual agreement can

Once it is established that a claim is governed be shortened or suspended as well as

by German law which will decided according extended up to 30 years. There exist no

to the rules of German International Private specific requirements as to the form of such

Law it will be relatively easy to establish the an agreement.

applicable statute of limitation.









(i) Shortening of the statutory periods of

limitations is basically admissible. It is solely

not allowed to abridge the applicable statute

The applicable statute of imitation is of limitations in standard business conditions

determined by the German civil law (§§ 194 (ii) It not allowed suspending the applicable

to 218 BGB). Given that according to § 202 statute for deliberately acting in advance.

BGB deviant agreements are admissible; the (iii) The prolongation of the statutory periods

valid statute of limitations may be determined of limitations over 30 years is not possible.

by the parties.

The statute if limitation is especially

If there are parties from different countries regulated by Law-Decree no. 167/1958 which

the statute of limitation depends on the establishes special cases for suspension and

applicable law. In Romania Law no. interruptions, extension, waivers,

105/1992 on the international private law commencement and ending of the right of

regulates the aspects of lex fori applicable. It claim (action). According to the Romanian

is not difficult to determine the applicable Legal Principles, the mediator and the parties

statute of limitation as under Romanian law cannot shorten, toll or extend the applicable

this is a matter of public order. statute of limitation.









The applicable statute of limitations would

have to be decided taking into account the

law or laws applicable to the subject matter of

the dispute, and the circumstances of the case.

The SCC Mediation Rules do not contain any

provision relating to statute of limitations. See 1a)

Generally, under Spanish law parties can not

alter the period established bu law as statute

of limitations or expiration, as these terms are

imperative, Thus, neither a shortening nor an

extension of a legally imposed period can be

agreed, and parties must claim his right

In Spain the statute of limitations depends on before the end of the deadline. Tolling is not

the applicable law to the case.If Spanish law accepted if statute of limitation applies,

governs the contract, we must distinguish instead the interested party has to file a

between statute of limitatoins and statute of judicial claim before the ending of the

expiration. The periods enacted, as well as the deadline. If the term is one of 'statute of

choice between limitation and expiration, are limitations', before the end of the deadline the

arbitrary and represent what the legislature party must suspend the running of the statute

deems a sufficient period in a particular kind (by a registered letter or by any other mean

of case. Additionaly, Spain is divided into 17 showing evidence that the party is claiming

autonomous comunities, all of them with their his right, otherwise he loses his right to claim.

own parliament, and there is internal law Currently, the European Parliament is

enacted by regional parliaments in which the discussing a 'Proposal for a Directive of the

regulation, as well as some of the terms above European Parliament and of the Council on

mentioned, change. Therefore, in some cases, certain aspects of mediation in civil and

in addition to the difficulties in determining commerical matters, SEC(2004) 1314, not

the law governing the substantive case and yet enacted. If passed, then the European

the procedure, it is also complicated to set the Union members will have a period to adopt

statute of limitations or expiration, and the this regulation and modify his internal law,

reckoning. and the answer to this question change.

Our legal system provides two (2) different

types of mediation process: oficial and

private. In the fist case the term is suspended

as from the filing of the petition to commence

the mediation process, and will have effects

on all the parties involved in the process. In

the case of a private process the suspension

will commence as from the date of delivery of

the notice on the hearing set up by the

mediator. The last case the statute of

Pursuant to our legal system there are two limitations apply only to the defendant.

main groups of liabilities: contractual and The suspensions will never be longer than

non-contractual, both with different statutory one (1) year (or a shorter term if applicable to

terms beyond which legal actions can not be such action pursuant to the Civil Code).

brought: ten (10) and two (2) years. The Civil In case the mediation concludes without

Code provides for other different terms for settling their dispute, the process is formally

more specific matters, such as collection of concluded, raising the suspension on the term

invoices, transport contracts, etc. of the statute of limitations after twenty (20)

But in all the cases, the terms can not be running days after the formal termination of

modified or replaced by the parties, since the the mediation process.

public order is involved. Thus, if Argentine The suspension implies that the term runs as

Law is applicable to the process, there is no of the occurrance of the fact that cause the

difficulty to determine in the Civil Code the suspension. Once this cause ceasses to exist,

applicable statute of limitations the term is renewed.

Israeli law does not contain any provisions As mentioned above, if the parties have

relating specifically to statute of limitation agreed to mediation, court proceedings in this

and conciliation and mediation proceedings. matter will be stayed. However, no Israeli

In the absence of such specific rules, a court legislation addresses the issue of statute of

will apply the general statute of limitations in limitation in terms of conciliation. [In

Israel as provided for in the Prescription Law, addition to the aforesaid, there is not any

5718-1958 (hereinafter "the Prescription explicit reference to commercial conciliation

Law"), which applies to legal claims in Israeli legislation. The Prescription Law

generally. Parties can always agree upon a sets the limit on a claim to seven years. In a

different statute of limitation from the one case of a claim relating to land, the period of

determined by statute, if they do so in a prescription will be 15 years and if the land

separate written agreement, as discussed in has been registered in the land register after

the answer to question (b) hereinafter . The settlement of title in accordance with the

general rules provide that the prescription Land (Settlement of Title) Ordinance there is

period only ceases to run when a claim is no time bar. Other statutes provide for

filed with a court or in arbitration, and different periods in special cases, including

commencement of conciliation or mediation labour and consumer matters. The parties

will not stop the running of time. Therefore, may, by separate written contract, agree upon

parties who wish to prevent time running a longer period of prescription then that fixed

must ensure that specific agreement is by the Prescription Law and, in the case of a

reached on this. The general period for claim not related to land, also upon a shorter

prescription in Israeli law is seven years (if period, so long as it is no shorter than six

the claim is not related to land), but a number months. There may be additional factors that

of statutes provide for shorter periods in effect the calculation of the prescription

certain cases. period such as the legal capacity of the

Section 79C (e) of the Courts Law parties, knowledge of the facts establishing

(Consolidated Version), 5744-1984 (the the cause of action, etc. In addition, the

“Courts Law“), authorizes the Court to stay Prescription Law also determines that any

proceedings for as long as it deems necessary time spent by one of the parties in the

if the parties choose to turn to the territory of a foreign state, where the

conciliation/ mediation process, which stay it conditions under which he was placed there



Generally, according to Polish law the statute

of limitations cannot be modified by the

parties. Therefore, if Polish substantive law

applies, this rule will also be applied.

However, it must be noted that under Polish

law, after recognition of a debt the limitation

period starts running all over again. Waiver

of the statute of limitations plea is always

possible.

For professionals the question of determining

the statute of limitations is obvious. Commencement of the mediation proceedings

According to the provisions of Polish law the interrupts the statute of limitations and sets

issue of statute of limitations belongs to the clock back to zero at the end of an

substantive law and not procedural law. unsuccessful mediation. Dates of

Therefore, if the parties decide on the choice commencement and ending of permitted

of law, the applicable statute of limitations interruptions or suspensions can be readily

will be determined by the provisions of the determined without formalities

chosen substantive law.

As we have mentioned above, according to

Article 119 of Polish Civil Code, statute of

limitations can not be changed by parties.

On condition that Polish Law has been However, according to article 123 Polish

chosen, there is no distinction between Civil Code:

commercial conciliation or mediation and “The running of the statue of limitation shall

non-commercial. There is only one general be interrupted:

regulation, contained in Polish Code of Civil 1) by any act before the court or other

Procedure. authority entitled to hear cases or enforce

In relation to the applicable statute of claims of a given kind or before the court of

limitations, if such mediation is governed by arbitration, performed directly either to

Polish law, it is easy to determine the vindicate or to establish, or to satisfy or to

applicable statute of limitations, because in secure a claim;

Polish Civil Code there are some provisions 2) (…)

concerning statute of limitations (according 3) by the initiation of mediation”

to Article 119 of Polish Civil Code, statute of When the abovementioned proceedings are

limitations can not be changed by parties – concluded, a statue of limitation shall run

are imperative obligations). anew.

Generally, time will stop running for

limitation period purposes on the date on

which a claim form for the action is issued by

the High Court (or on the date of the letter

requesting the issue of a claim form is

received by the High Court) (Limitation Act

1980, s. 35(1)(a); Thompson v. Brown [1981]

1 WLR 744)

Yes the applicable statute of limitations is

relatively easy to determine. (i) Permitted shortening – there are no

provisions for the shortening of the periods

The applicable statutes of limitations in the laid down in the statutes of limitations.

UK (England & Wales) are the Limitations Where a claim falls outside the provisions of

Act 1980 (which concerns causes of action the Limitation Act 1980, there is no strict

which arise in the UK) and the Foreign period of limitation. The time for bringing

Limitation Periods Act 1984 (applicable such claims may, however, be restricted by

where, in accordance with the rules of private analogy to s. 36 of the Limitation Act 1980 or

international law, the laws of any other for laches or acquiescence.

country are to be taken into account in any

claim). While there are no provisions (ii) Tolling/suspending – Tolling applies in

specifically applicable to mediation or the case of a child under 18 or a person of

conciliation, generally for any settlement or unsound mind at the date the cause of action

compromise to take place there should first be accrued (Limitation Act 1980, s. 28). It can

an actual or potential claim between the also be applied in cases involving fraud,

parties. Since the expiration of the limitation concealment or mistake (s. 32 (1)),

period for a cause of action provides a acknowledgment and part payments (s. 29),

complete defence to a claim, which would latent damage (ss. 14A and 14B) and

allow the defendant to apply for a strike out judgments (s. 24(1)).

of the claim for abuse of process under R. 3.4

(2)(b) of the CPR, there would be no need for (iii) Extending time limit generally or, in

mediation or conciliation once a limitation particular, with reference to international

period had expired (subject to any permitted commercial conciliation – the Limitation Act

extensions of time) as the claim would be 1980 specifically lays down provisions for

time-barred. discretionary extensions of the limitation

periods for judicial review (Supreme Court

Generally, time will stop running for

limitation period purposes on the date on

which a claim form for the action is issued by

the High Court (or on the date of the letter

requesting the issue of a claim form is

received by the High Court) (Limitation Act

1980, s. 35(1)(a); Thompson v. Brown [1981]

1 WLR 744)

Yes the applicable statute of limitations is

relatively easy to determine. (i) Permitted shortening – there are no

provisions for the shortening of the periods

The applicable statutes of limitations in the laid down in the statutes of limitations.

UK (England & Wales) are the Limitations Where a claim falls outside the provisions of

Act 1980 (which concerns causes of action the Limitation Act 1980, there is no strict

which arise in the UK) and the Foreign period of limitation. The time for bringing

Limitation Periods Act 1984 (applicable such claims may, however, be restricted by

where, in accordance with the rules of private analogy to s. 36 of the Limitation Act 1980 or

international law, the laws of any other for laches or acquiescence.

country are to be taken into account in any

claim). While there are no provisions (ii) Tolling/suspending – Tolling applies in

specifically applicable to mediation or the case of a child under 18 or a person of

conciliation, generally for any settlement or unsound mind at the date the cause of action

compromise to take place there should first be accrued (Limitation Act 1980, s. 28). It can

an actual or potential claim between the also be applied in cases involving fraud,

parties. Since the expiration of the limitation concealment or mistake (s. 32 (1)),

period for a cause of action provides a acknowledgment and part payments (s. 29),

complete defence to a claim, which would latent damage (ss. 14A and 14B) and

allow the defendant to apply for a strike out judgments (s. 24(1)).

of the claim for abuse of process under R. 3.4

(2)(b) of the CPR, there would be no need for (iii) Extending time limit generally or, in

mediation or conciliation once a limitation particular, with reference to international

period had expired (subject to any permitted commercial conciliation – the Limitation Act

extensions of time) as the claim would be 1980 specifically lays down provisions for

time-barred. discretionary extensions of the limitation

periods for judicial review (Supreme Court

(i) Regarding shortening the applicable

statute of limitations: The validity of clauses

which shorten the applicable statute of

limitations has been upheld by French courts

, provided that such shortening does not

result in the elimination of the creditor's

ability to act. There are, however, some

exceptions in particular in insurance matters .

(ii) Regarding the tolling of statutes of

limitations: French courts have held that

conciliation proceedings toll statutes of

limitations, until the end of the conciliation

proceedings . A difficulty, however, may

arise with regard to the determination of the

commencement and the end of such

proceedings. Where the conciliation process

takes place outside the rules of an institution,

there is no clear rule in this regard, unless the

parties have agreed to how to determine the

beginning and end of the proceedings in their

conciliation clause or agreement. (iii)

Regarding extending the applicable statute of

limitations: Since, under French law, it is not

possible to waive in advance a statute of

Under French Law, there is no specific statute limitations (see para. c) below), French courts

of limitations applicable to international regularly refuse to admit the validity of

conciliation or mediation proceedings per se. clauses which extend the statute of

The applicability of a statute of limitation will limitations, which are also considered as a

depend on the nature of the claim as per the form of waiver to the benefit of the statute of

relevant provisions of the French Civil Code. limitations.

In Dutch law there is a distinction between

prescription terms (verjaringstermijnen) and

dissolution terms (vervaltermijnen) when it

comes to statutes of limitations. The main

difference lies in the fact that dissolution

terms are absolute and inextensible, whereas

prescription terms can be extended. The

general regulation on limitation periods in art.

3:306 BW and further, only deals with

prescription terms as dissolution terms

strongly diverge.



(i) Under Dutch law it is possible to shorten a

limitation period by the contractual

agreement out of which the cause of action

arises (art. 3:322 BW).

(ii) Under Dutch law it is not possible to

suspend a limitation period.

(iii) Under Dutch law it is possible to

interrupt a statute of limitation by performing

a certain legal action (art. 3:316, 3:317 and

3:318 BW). By interrupting a statute of

limitation, a new limitation period will

Once the cause of action and the applicability commence from the day following to that

of Dutch law are determined in a certain interruption (art. 3:319 BW). Also, the

case/issue, it is fairly easy to determine the regulation contains an exhaustive account of

statute of limitations. The limitation periods grounds on which a limitation period may be

for different causes of action are mainly to be extended in relation to certain parties (art.

found in art. 3:306 BW (Dutch Civil Code) 3:320 and 3:321)

and further.

Preliminary remark:

At the moment, there is no Swiss statutory

law on a federal level with regard to national

or international conciliation or mediation.

Until now, among the 26 cantons, only

Geneva has adopted a law on civil mediation

which entered into force on 1 January 2005.

There are, however, private institutions such

as the Swiss Lawyers Association

(FSA/SAV) or the Swiss Chamber on

Commercial Mediation (SCCM) which have

established guidelines and ethical codes for

mediation.

At the moment, the Swiss Civil Procedure

Law (SCP) is being unified and modified on a

federal level and is expected to become

effective by 2010. The draft SCP contains to

some extent provisions on ADR: conciliation,

mediation and arbitration.

Today, in matter of insurance, banking and

travel contracts, conflicts may be referred to

designated ombudsmen offices. These private

institutions, however, are neither defined nor

regulated by law.

Statute of limitation:

With regard to contract law, limitation

periods are governed by the Swiss Code of

Obligation (art. 134 CO). As set out above (1.a), parties may agree

In general, these limitation periods are preliminarily on a shorter statute of limitation

suspended by initiation of court proceedings. or any tolling or extending, but have to

Mediation implemented spontaneously by the respect the principles of good faith,

parties will not suspend the limitation period; particularly with regard to parties in need of

therefore, parties usually agree preliminarily protection such as consumers, employees, etc.

Latvian law is silent on mediation and it is

not practiced in Latvia

(a) Mediation under Law No. 30 of 1999.

Law No. 30 of 1999 concerning Arbitration

and Alternative Disputes Resolution contains

provisions with respect to the time limitation

for commercial conciliation or mediation,

both international and national.



Under Law No. 30 of 1999, there are 3 stages

of mediation:

1. Pre Mediation Process;

2. Mediation – Negotiation Process;

3. End Mediation Process.



Pursuant to Law No. 30 of 1999, the time

limitation of such stages, are as follows:

1. Resolution of disputes through ADR shall

be carried out through a direct meeting of the

parties not later than 14 days;

2. If the disputes cannot be resolved, then it

may be resolved through the assistance of one

or more expert advisors or a mediator, then

they can start to resolve within 14 days;

3. If the parties still fail to reach an

agreement, then such parties may request an

ADR institution (i.e. by the Indonesian

Mediation Center) to appoint a mediator.

After the appointment of the mediator by

such ADR institution, the mediation process

shall be commenced within 7 (seven) days;

4. The settlement reached shall be set out in a In practice, shortening, tolling or extending

written agreement, signed by all parties the applicable statutes of limitations are

concerned, within 30 days; permitted as long as the parties agreed to it.

5. Such written agreement shall be final and In the Court-Ordered Mediation, the waiver

binding and shall be registered in the District to the statute of limitations shall also be

Court within no more than 30 days after it has approved by the presiding Judge.

The substantive law applicable to a cause of

action determines the applicable statute of

limi-tations. As a result, if an agreement

exists regarding the substantive law

applicable to a cause of action, it is easy to

determine the applicable statute of

limitations, because both of them can be

determined on the basis of the agreement of

the parties.



If no agreement exists regarding the

substantive law applicable to a cause of

action, the de-termination of the substantive

law as well as the applicable statute of

limitations becomes more complicated. In this

situation, the substantive law applicable to a

cause of action de-termining the statute of

limitations, will be determined on the basis of

the Finnish legal pro-visions relating to the

choice of law.



Finland is a party to the 1980 Rome

Convention on The Law Applicable to

Contractual Obli-gations as well as the 1955

Hague Convention on The Law Applicable to

International Sale of Goods. Consequently,

parts of the Finnish legal provisions relating The substantive law applicable to a cause of

to the choice of law are uniform with the action determining the applicable statute of

choice of law rules of the other European limitations also determines, whether it is

countries. possible to shorten, toll or extend the

applicable statute of limitations. If the

If assistance is sought from the Finnish court Finnish procedural law is applicable, the time

during the conciliation proceedings, the limits set by it cannot be extended or waived

Finnish procedural law becomes applicable by an agreement between the parties.

Statutes of Limitation are generally provided

in the Civil Code and, for specific rights, in Provisions of Italian law on statutes of

other Acts. It is therefore generally easy to limitation may not be derogated by the

determine the applicable statute of limitation. parties, so no shortenings or extensions of

In principle, in case of choice of a foreign relevant periods are permitted.

law, Italian provisions on statutes of The request of conciliation, however,

limitation do not apply; we are not aware of interrupts the relevant period if meets certain

any case law stating that such provisions are requirements (it has to specify clearly the

to be treated as “lois d‟application underlying claims, and it has to place the non-

necessaire”. performing party in default).

Again, this question does not lend itself to a

straightforward answer in light of the

variations in state laws. Typically, in

commercial relationships, parties are able to

shorten, toll, or extend the statute of

limitations pursuant to a written contract.

See, e.g., New York Gen. Oblig. Law § 17-

103. This law is subject to certain

exceptions that the mediator and the parties

should be aware of. For instance, the

The answer to this question is contextual in mediator and the parties should be aware that

light of the fact that, in the United States, the agreements to extend the statute of limitations

statutes of limitations that apply to a cause of indefinitely have been held to be

action vary among the 50 states. For unenforceable under New York law. See

instance, the statute of limitations for breach Bayridge Air Rights, Inc. v. Blitman Constr.

of contract in New York is six years, see N.Y. Corp., 80 N.Y.2d 777 (1992). Moreover, the

C.P.L.R. § 213(2); in California, the statute parties and the mediator should be aware that

of limitations for the same cause of action is Section 17-103 only applies to disputes

four years. See Cal. Civ. Code Proc. § 337 “arising out of a contract” and requires that

(2006). Parties to a contract can minimize any agreement extending the limitations

any difficulties by choosing, ex ante, what period be in writing. See, e.g., Eberhard v.

state‟s law will govern any disputes in Elmira City Sch. Dist., 6 A.D.3d 971 (3d

connection with the contract. Dep‟t 2004).

In most Canadian provinces and territories,

statutory limitation periods emanate from one

of two sources. In most cases, the limitation

period is defined by a general limitations

statute adopted in the relevant jurisdiction. In

other cases, the jurisdiction may have enacted

special limitation provisions for particular

types of claim. Where a limitation period is

established by special legisation of that type, Again, this question is relevant only in

it prevails over any otherwise applicable respect of the jurisdictions summarized above

limitation period defined in the general that facilitate the use of mediation in

limitation statute. litigation proceedings:

• In Ontario, the court has jurisdiction to

Most Canadian jurisdictions have not extend or abridge the time limit for

established statutory limitation periods for commencing mediation based on an

commencing mediation. A partial exception evaluation of the number of parties, the state

relates to four of the jurisdictions summarized of pleadings, the complexity of the issues, the

above that facilitate the use of mediation in nature of the action, and whether the

litigation proceedings. In those jurisdictions, mediation will be more likely to succeed if an

limitation periods have been established for extension or abridgment is imposed. The

the commencement of mediation. Those statute of limitations can also be extended by

limitations are: 60 days if both parties consent.

• 60 days after filing the first statement of • In British Columbia, the date for

defence in British Columbia. commencing mediation may be extended by

• 90 days after the first defence has been filed agreement of all the parties, or by court order.

in Ontario. • In Saskatchewan, on application by a party,

• 3 months after the filing of the last dispute the court can postpone the mediation session.

note filed in the action in Alberta. • In Alberta, the court can extend the

• After the close of pleadings in limitation period either before or after the

Saskatchewan. expiry of the period.

Part seven of the Belgian Code of Civil

Procedure deals with Mediation.



Article 1730 of this Code, sets forth that a

proposal made by a party by registered mail,

containing a claim to a right, to have recourse

The applicable statute of limitations will to a mediation procedure, shall suspend the

depend on the law applicable to the dispute limitation period of the claim related to the

according to applicable International Private said right during one month.

Law rules.

c) d)









If relevant, irrespective of the law and

rules as to the statute of limitations as such, Does your country make a distinction

is there a way of eliminating any statute of between a statute of limitations as such and

limitations issue by simple waiver, for a condition precedent attaching to a right,

example, can the parties make a written which provides a shorter time, without

promise not to plead the statute of reference to the statue of limitations, in

limitations? which to commence an action?







German Law distringuishes between the

statute of limitations and preclusion periods,

which stipulate, as a matter of substantive

(not procedural) law, that a certain act may

only be carried out within a certain period of

time. It is necessary that the parties either

contractually extend these preclusion periods

Yes, by simple waiver. This waiver does not for the duration of the mediation, or that the

eliminate any statute of limitations for good, claimant files - by mutual agreement - an

but only causes the limitation period to begin action for the sole purpose of interrupting the

to run anew. preclusion period.

Under German law, parties may contractually

agree on an option to be exercised within a

certain

agreed upon time frame. Apart from that,

German law provides for cut-off periods

which have

to be distinguished from the statute of

limitations. A right or a claim subject to a cut-

off period

extinguishes with the lapse of time, whereas

the statute of limitations only gives the

The parties are free to waive the right to plead obligor the

the statute of limitations by agreement. right to refuse fulfillment (see § 214(1)

Such an agreement does not require any BGB), Palandt/Heinrichs, Überbl v § 194

special formalities. An obligor can also waive para. 13 et

by seq.). However, the cut-off period will also be

unilateral declaration his right to plead the tolled by filing an application for conciliation

statute of limitations (Palandt/Heinrichs, § or

202, by party negotiations as set forth supra at

paras. 1-7). 1(b).

Conditions precedent agreed between the

parties are seen to be different from a statute

of limitations. The stipulations provided for

in Art. 194 subs. of the German Civil Code

do not automatically extend to conditions

precedent. The parties to an international

parties make a written promise not to plead conciliation, however, could agree on an

the statute of limitations), however, not extension of the period for the condition

exceeding 30 years precedent to occur or a suspension of such

period for an agreed upon time. It is widely

by agreeing on a suspension of the statute of assumed that the suspensive effect of

limitation, an extension or a new statute of negotiations on the statute of limitation

limitation period to run as of a the date at provided for by Art. 203 German Civil Code

which the conciliation has failed by way of analogy can also be applied to

conditions precedent.









There are several preclusion periods destined

for several rights (e.g. §§ 121, 124, 148, 532,

626, 1944 BGB).

Certain periods of time for commencing an

action are only designated on the field of

public law.

No

The Romanian legal system does not apply

distinction between the statute of limitation

No, the time limits are especially regulated by and other conditions precedent. One should

the general law and the special laws in some anyhow mention the forfeiture term which

commercial areas, like insurance, transport or refers to the time limit within which one can

others alike where the legal normal term of 3 actually fill a claim to protect or ask for

years provided by Law-Decree no. 167/1958 certain rights otherwise such claim would be

is shorter. The parties cannot eliminate by rejected. This forfeiture term refers to the

their agreement the statute of limitation and right itself (as merit) differently from the

the rules related to the statute of limitation, limitation which refers only to the right (as

they can only respect the law. procedural way).









See 1a) See 1a)

No, parties cannot eliminate the statute of

limitations, however, as a practical matter, a

motion to dismiss the claim based on breach

of the applicable statute of limitations can

only be granted by the judges if the party

specifically pleads for it. If no party makes Yes, this distinction exists, as mentioned in

this petition, then the judge can not grant it of the answer to the first question. In a case in

his own accord (motu propio). On the which statute of expiration applies, the cause

contrary, dismissal of a claim based on the of action has a built-in deadline for exercising

statute of expiration is granted by the judge the action beofre the court. If failed, the

with no need for the parties to plead for it. plaintiff loses his right to claim.

There is no distinction in our legal system

bewteen a statute of limitations as such and a

No; Parties can not eliminate any statute of conditon precedent attaching to a right as

limitations. They are provided by law. indicated in the question.

Subjected to the aforesaid, the country of

Israel makes no distinction between a statute

No. See the provisions above regarding of limitations as such and a condition

shortening of the period. precedent attaching to a right.









Yes, by simple waiver (for example, can the Yes. In some cases specified by substantive

parties make a written promise not to plead law (for instance in labour law and warranty

the statute of limitations) claims).

After a period of limitation has passed, the After a period of limitation has passed, the

claims of one party do not expire, but the claims of one party do not expire, but the

other party may raise the statue of limitations‟ other party may raise the statue of limitations‟

objection. objection.

The expiration of a limitation period is a

defence which a defendant to a claim must

specifically raise and will not be taken by a

court of its own motion. Theoretically

(although in practice this would be unusual),

if the defence of out of time is not pleaded,

the claim could still be mediated by the

parties. However, it should be noted that

even if the defence of out of time was not [Not sure on this one – could you make

asserted, it is possible that any settlement agreement to shorten limitation period?] No –

agreement arising out of the mediation could unless the action is of a category which falls

be later challenged by a defendant for want of outside the scope of the Limitation Act 1980

consideration, according to Law and Practice or limitation period that is set down in a

of Compromise. specific statute (Limitation Act 1980, s. 39).

The expiration of a limitation period is a

defence which a defendant to a claim must

specifically raise and will not be taken by a

court of its own motion. Theoretically

(although in practice this would be unusual),

if the defence of out of time is not pleaded,

the claim could still be mediated by the

parties. However, it should be noted that

even if the defence of out of time was not [Not sure on this one – could you make

asserted, it is possible that any settlement agreement to shorten limitation period?] No –

agreement arising out of the mediation could unless the action is of a category which falls

be later challenged by a defendant for want of outside the scope of the Limitation Act 1980

consideration, according to Law and Practice or limitation period that is set down in a

of Compromise. specific statute (Limitation Act 1980, s. 39).

French law indeed makes a distinction

between statutes of limitations and so-called

No, Article 2220 of the French Civil Code "prefix-deadlines" which are essentially a

provides that “it is not possible to waive, in condition precedent attaching to a right.

advance, to the statute of limitations”. Prefix-deadlines typically provide that an

Consequently, any provision to such an effect action must be brought within a (usually)

inserted in a conciliation clause or agreement short period of time as from, for example, the

will be considered as null and void. discovery of a fact which creates the basis for

the cause of action.In practice, a claim can

Article 2220, however, provides that a party, therefore be dismissed notwithstanding the

who may invoke the benefit of a statute of fact that the statute of limitations is still

limitations which has lapsed, may agree to a running, because the action was not

waiver of same commenced prior to the applicable "prefix-

deadline".

Not specifically in relation to the statute of

limitations. There are however some

regulations that may have the same effect.

E.g., in the specific case of a purchase

agreement, a shortened limitation period of

two years applies (art. 7:23 sub 2 BW).

However, in order for a purchaser to appeal

to non-conformity within the limitation

period, he must have informed the seller

about the deficiency within a reasonable time

No, according to art. 3:322 sub 3 BW this is of two months after he has discovered or

not possible until the should have discovered the deficiency. If the

limitation period has elapsed. purchaser fails to do so, he will lose his

ability to plead non-conformity.

Yes, in addition to the afore-mentioned

statute of limitations, there exist special time

limits for certain types of civil claims, such as

an action to contest a resolution of a

shareholders‟ meeting or the annulement of a

last will.

When these limits have elapsed, the claim is

dismissed on the merits rather than on

procedural grounds. These time limits, other

than the statute of limitations, cannot be

extended by an agreement between the

parties.

Yes, by simple waiver (for example, can the In any event, further conditions precedent

parties make a written promise not to plead may apply, such as the duty to provide

the statute of limitations), by other mean(s), explanations in an insurance claim, may have

please specify: Parties have to be aware of an effect on the parties‟ position in later court

procedural time limits which may not be proceedings (e.g. the burden of proof).

eliminated or amended (see para 1.d).

Yes. By agreement between the parties. In

Court-Ordered Mediation, also by the

approval of the Presiding Judge. No.

In Finland, a distinction is made between a

statute of limitations as such and a condition

precedent attaching to a right.



Regarding the time limits set by a statute of

The parties are not free to agree on the time limitations, the parties have no possibility to

limits set by the procedural law on their own, extend, suspend, eliminate or otherwise

so the elimination of the procedural time modify these time limits, unless otherwise

limits is not possible on the basis of an stipu-lated. On the contrary, regarding the

agreement of the parties. time limits provided by a condition precedent

attaching to a right, the parties are always free

The parties‟ possibility to eliminate the time to agree on whether to adhere to these time

limits set by the substantive law depends on limits.

the provision setting the time limit. If the

provision setting the time limit belongs to the Because the time limits provided by a

non-mandatory provisions of the legislation, condition precedent attaching to a right are

the parties are free to agree on whether to ad- based on the agreement of the parties, these

here to the time limit set by a non-mandatory time limits are not as unconditional as the

provision. However, if the provision of the time limits set by a statute of limitations. As a

substantive law setting the time limit is result, a fail to observe the time limit

mandatory, the parties are obliged to adhere provided by a con-dition precedent attaching

to the given time limit. (The presumption is to a right does not necessarily lead to a

that legal provisions are mandatory unless forfeiture of a right, as would happen, if the

otherwise stipulated.) limit was set by a mandatory legal provision.

Yes, Italian law provides that certain causes

of action must necessarily be exercised (i.e.

the related claim must be brought to court or

arbitration) within a certain period of time

(termine di decadenza) set by the law or by

the parties (normally shorter than those

Yes, please name how: The parties may waive provided for statutes of limitation). Such

their right to avail themselves of the relevant limitation may subsequently be derogated by

statute of limitation only once that the the agreement of the parties, provided that

relevant period of time has expired (and never they may freely dispose of the underlying

before). rights.

While parties cannot “eliminate” a statute of

limitations, they generally have the freedom

to enter into a contract that extends, shortens,

or tolls the statute of limitations. Moreover,

since the statute of limitations is a defense to

an action, the party who would be able to

assert the defense may waive it --

intentionally or unintentionally -- by failing

to raise the defense at the appropriate time,

usually in a responsive pleading such as an

answer to a complaint. See, e.g., Fed. R. Civ.

P. 12(h); Chimblo v. Comm‟r, 177 F.3d 119, The differences and variations between the 50

125 (2d Cir. 1999) (“[statute of limitations States‟s laws, their respective common law,

defense] may be waived by a party who fails and Federal legislation and federal case law

to raise it at the appropriate time”). make answering this question impracticable].

Some Canadian limitation statutes expressly

confirm the ability of parties to contract out

of the legislated limitation period. In

jurisdictions with such legislation, the ability

of parties to opt out of the statutory limitation

period is clear. Most Canadian limitation

statutes, though, are silent as to the parties‟

ability to opt out. In jurisdictions in which the

limitation statute is silent on this question, the

ability of parties to opt out is more

controversial. On one view, the law should

recognize the primacy of private ordering

with respect to statutory limitation periods.

On that view, parties would be able to waive

limitation periods if their waiver is made Canadian law does distinguish between a

explicit. A contrary view holds that it offends statute of limitations and a condition

public policy to permit parties to opt out of precedent attaching to a right. A condition

the statutory limitations scheme. On that precedent makes the creation of a right

view, any attempt to contract out of any contingent upon fulfilling a set of

statutory limitation period would be void as circumstances, whereas a statute of

against public body and the statutory period limitations serves only to extinguish a right

would prevail. after a specified period of time.

Article 7131 sets forth the suspending of the

statute of limitations for the whole duration

of the mediation, if some conditions are met

(enclosed a translation of article 1731).

2a) b)









Are there statutory or common law

provisions of general application as to

confidentiality with respect to an

international commercial conciliation

which are sufficient to safeguard the Are there nevertheless statutory

desired degree of legal protection against requirements or rules of court which would

unwanted disclosure expressed in MLICC oblige a party or mediator or witness to

Article 9, or is it necessary to refer to, or to disclose confidential information in certain

await, some special legislation or rules of situations with the result that MLICC

procedure? Article 9 offers only a relative protection?









Yes, There is a variety of disclosure

obligations under corporate and business law,

Yes/No, Presently, there is no statutory law under criminal law or under family law which

provision of general application obliging the could be said to constrain the confidentiality

parties to presreve confidentiality. Therefore, obligation. As to court rulings, parties to a

it is general practice in Germany that the confidentiality agreement are obliged to

parties enter into confidentiality agreements exercise their rights to refuse to give

amongst each other and in relation to the evidence, but such rights only exist in limited

mediator. circumstances.

No, apart from certain exceptions under

Although German lawyers are subject to criminal law or dealing with money

professional codes of conduct regarding laundering or

confidentiality, securities disclosure obligations for listed

no German statute provides for companies such us the obligation pursuant to

confidentiality in mediation or conciliation § 15

proceedings or for Securities Trading Act

mediators in their capacity as a mediator. (Wertpapierhandelsgesetz).

Yes, A solicitor and a notary public acting as

conciliator is obliged to maintain

confidentiality (§ 43 a BRAO and § 18

BNotO) and is entitled to refuse to testify in a

following court proceeding. Only in case the

conciliator learns about certain planned

criminal acts of a very major nature he/she

will be obliged to break the confidentiality

obligation. Members of other professions

acting as conciliators will generally be less

safe from having to testify on the content or

the outcome of a conciliation procedure. The

parties to an international conciliation,

however, are not held to keep confidentiality

by any specific provision of the law.

If confidentiality is agreed between the

parties (and the conciliator) the evidence of

facts or witnesses the knowledge of which

was obtained in the conciliation procedure Yes, If confidentiality has been agreed upon

would not be admitted in civil court between the parties to an international

proceedings. Such a confidentiality conciliation and a court nevertheless orders a

agreement will be interpreted as an ex parte party, a mediator or a witness to testify they

contract regarding procedural aspects and will would have to disclose the confidential

be adhered to by the judge. However, there is information as witnesses or as a testifying

some uncertainty as to whether and to what party. The information received by such

extent the judge could still order ex officio to testimony, however, would have to be

have the respective pieces of testimony or disregarded by the court in coming to its

witnesses introduced into the court decision. For the possibility of the judge to

proceedings. order testimony ex officio see answer to lit (a)

above









No, The applicable regulations on mediation

(§ 1042 para. 3 ZPO) offers total freedom of

scope to the parties of a conciliation or

mediation. Some German mediators provide

regulations, which include equivalent

No regulations.

The confidentiality matter is not treated so

strictly, but the law makes the difference

The confidentiality matter is stated in the between the mediator possibly acting as

applicable laws. Although there is no need for witness, expert or interpreter, but only with

special rules, the Romanian legal system does the parties' approval or under a public order.

not contain provisions of general application The claims as to confidentiality may be

that sufficient to safeguard a certain degree of avoided by showing a waiver, or a pre-

legal protection against unwanted disclosure existing or prospective public availability

as expressed in MLICC art. 9. It is also without breach of any relevant agreement.

necessary to refer to Commercial legislation The witness quality prevails in cases the

and Civil Procedure. Furthermore, if it is a mediator knew about the issues before

special matter the parties want to specify obtaining the mediator quality (art. 37

supplementary in their contractual agreement Mediation Law). This has also a

they can stipulate more. Therefore, it is correspondent in the legal provisions

sufficient assurance in Romania that regulating various other professional

confidential subject matter related to an activities such as lawyers, public notaries, etc.

international conciliation or mediation will be However it is to be emphasised that in cases

protected and that what was said or disclosed of money laundering procedures or

in a mediation will not be evidenced in any protections against terrorism confidentiality

subesquent proceeding save for the case when cannot be accepted and individuals in

the parties agreed upon or the law requested knowledge of aspects related to such areas

so. must report them to competent authorities.









An undertaking of confidentiality does not

entail that a conciliator is precluded from

testifying in court as a witness. However,

according to the Swedish Code of Judicial

Procedure, members of the Swedish Bar

Confidentiality requires an agreement to that Association, who are obliged to observe

efect as between the parties. Article 3 of the confidentiality under the Code of Conduct of

SCC Mediation Rules contains a duty for the members of the Swedish Bar Association,

conciliator, the SCC Mediation Institute and may not testify concerning matters entrusted

the parties to respect the confidentiality of the to, or discovered by, them in their

mediation. In addition, article 3 stipulates that professional capacity unless such disclosure

the need for appropriate confidentiality is mandatory or the person for whose benefit

undertakings should be taken into the duty of secrecy is imposed consents

consideration. thereto.

No, In Spain there is no statute regulating

business mediation. There are several

regional laws regulating mediation for family

matters or for labor law conflicts, but no

statute has been enacted to deal with

commercial litigation. Therefore, there is no

statutory provision regulating business

mediation stating that 'all information relating

to the concilliation proceedings shall be kept

confidential, except where disclosure is No, the general rules is that parties have the

required under the law or for the purpose of right to call as a witness any person with

implementation or enforcement of a relevant knowledge about the controversial

settlement agreement', in the sense mentioned facts discussed in the claim (s. 360 Spanish

in MLICC Article 9. To this extent there is on Civil Procedure Act). However, the witness

sufficient assurance that confidential subject can appear in front of the civil court and state

matter related to an international conciliation that he has a duty of secrecy due to ihs

or mediation be protected. The parties could profession or state. If the civil judge

potentially agree about the confidentiality considers justified the reasons given by the

issues in the agreement for the mediation, and witness, then he will release the witness of

this agreement would be enforceable against the obligation to declare. Of course, in the

the party on breach, as any other agreement. case of criminal conduct, the mediator would

But nothing can asure that the evidence will be obliged to disclose the confidential

not be used in the subsequent proceeding. information.

Yes, please provide reference: Both the

Mediation and Conciliation Law and its

ruling Decree provides that confidentiality is

the rule applicable to the process. For

purposes of guarantying said rule, the

mediator and the parties may also request the

execution of written confidential compromise Yes, please provide reference: Pursuant to

mandatory for all the parties involved in the section 4 of the Standard Confidentiality

process. Agreement, the basic principle of any

Likewise, confidentiality is a duty that all the mediation process contains two (2)

parties (including the mediator) shall follow exceptions: (a) the existence of a criminal

as an “obligation of not-to-do” as defined in offense, and (b) violence against a minor

the Civil Code, with the effects that said citizen. Under these two circumstances, the

violation are provided therein. confidentiality duty is released.

In Israel, it is necessary to refer to special The mediator's obligation to confidentiality

legislation that specifically addresses imposed by the Mediation Regulations is not

unwanted disclosure regarding the absolute. The mediator may be required to

conciliation/ mediation process. Section disclose information revealed in mediation to

79C(d) of the Courts Law states that "Matters the court or to a third party under certain

submitted in the course of the mediation circumstances. Such disclosure will be

process will not serve as evidence in civil carried out in accordance with the Mediation

proceedings". Regulation 5 (d) of Courts Regulations or general provisions of the law

Regulations (Mediation), 5753- 1993 that require such disclosure. According to the

(hereinafter, the "Mediation Regulations") Mediation Regulations, a mediator may only

states that a mediator is forbidden to use any disclose confidential infprmation to the court

of the information revealed to him during the [or to experts with whom he has consulted for

mediation process, other than for the the purposes of the mediation itself if the

mediation itself except for information he prties accepted the Model Mediation

could discover by other means through Agreement to enter mediation which is

reasonable efforts. In addition, the Mediation located in the Mediation Regulation

Regulations forbids a mediator to disclose Schedule], and only regarding certain

any information revealed to him during the information, in the following cases: (a) a

mediation process other than to the parties to mediator's announcement to the court that the

the mediation . Furthermore, if one of the parties have not yet reached agreement and

parties reveals information to the mediator the subsequent application for a further stay

subject to the specific condition that it be of proceedings; (b) where the parties have

kept confidential, the mediator must not agreed that the mediator give the court his

reveal it to any other party involved in the opinion regarding the dispute at the end of

mediation, unless the disclosing party waives the mediation procedure ; and (c) in the case

confidentiality . Thus, if the mediator wants of dispute regarding the mediator's fees, the

to consult a colleague on a case before him, mediator may disclose any relevant

he must either receive the parties' consent or information to the court in order to settle the

disguise any of the parties' identifying details. matter. The mediator is permitted to

However, neither primary nor secondary announce to the court his decision to stop the

legislation in Israel deals with the parties' mediation proceedings, but may not disclose









No, The parties are free to choose any

procedural rules they wish. They do it either

by indicating these rules or by indicating a

particular institution as a mediator, who

applies its own rules. Moreover, Polish Code

of Civil Procedure includes special provisions

concerning mediation that can be applied in

absence of such choice, however, they are of

a very general nature and state that the Yes, According to the provisions of the

proceedings are confidential and the mediator Polish Code of Civil Procedure the parties

is under an obligation not to disclose the cannot refer before the court to the statements

information he gathered during the and proposals made during the mediation

proceedings. proceedings.

Yes, The §10 of the Ordinance of Minister of

Justice concerning the mediatory proceedings

in criminal cases states that:

The mediator obtains only the item of

information about the case that is essential to

conduct the mediatory proceedings.

In certain situations, on mediator‟s request,

court or prosecutor can make some

information available for the mediator. Such

information covers evidence material

Yes, Polish Civil Procedure Code contains a concerning: suspected, defendant, aggrieved

provision stating that conciliation is and offence which are connected with

confidential, mediator is obliged not to mediatory proceedings.

disclose any information obtained during the However, information relating to the

conciliation proceedings or related thereto, suspected or defendant‟s health, opinion

unless parties agreed otherwise, and it is about him, details about his criminal liability

ineffective to invoke in court or arbitration cannot be released under any circumstances.

proceedings proposals or information The same regulation covers any information

obtained from other party during conciliation representing the state or official secret.

proceedings.

Mediation is private and confidential. It is

confidential in two ways:



(1) Internally. The first relates to the separate

meetings between the mediators and the

parties. The parties can expressly or

impliedly waive their rights to confidentiality

in whole or in part during the course of the

mediation.



(2) Externally. The second relates to the

whole of the mediation process. Nothing said

in the course of the mediation can be

discussed outside the mediation nor made

known to any third party. This is normally

expressly provided for in the mediation Yes. The test as to whether a party or

agreement and confidentiality is usually a mediator or witness may under any

standard term in mediation agreements. circumstances be freed from the duty of

confidentiality must be whether the public

Confidentiality in relation to the second limb interest justifies the disclosure of confidential

may also be implied. In Instance v Denny information (W. v Egdell [1990] Ch. 359).

Bros Printing & Others [2000] LS Gaz R 35, The confidential information will not be

the court considered that without prejudice prevented from being disclosed where there is

material that was not subject to any express a just cause for such disclosure (Fraser v

agreement governing confidentiality, may be Evans [1969] 1 Q.B. 349). In each case, it is

so governed by an implied agreement that it a balancing exercise as to whether the nature

would not be used in any litigation between of the just cause overrides the duty of

the same or related parties. confidentiality.

Yes.

Mediation is private and confidential. It is

confidential in two ways:



(1) Internally. The first relates to the separate

meetings between the mediators and the

parties. The parties can expressly or

impliedly waive their rights to confidentiality

in whole or in part during the course of the

mediation.



(2) Externally. The second relates to the

whole of the mediation process. Nothing said

in the course of the mediation can be

discussed outside the mediation nor made

known to any third party. This is normally Yes.

expressly provided for in the mediation

agreement and confidentiality is usually a The test as to whether a party or mediator or

standard term in mediation agreements. witness may under any circumstances be

freed from the duty of confidentiality must be

Confidentiality in relation to the second limb whether the public interest justifies the

may also be implied. In Instance v Denny disclosure of confidential information (W. v

Bros Printing & Others [2000] LS Gaz R 35, Egdell [1990] Ch. 359). The confidential

the court considered that without prejudice information will not be prevented from being

material that was not subject to any express disclosed where there is a just cause for such

agreement governing confidentiality, may be disclosure (Fraser v Evans [1969] 1 Q.B.

so governed by an implied agreement that it 349). In each case, it is a balancing exercise

would not be used in any litigation between as to whether the nature of the just cause

the same or related parties. overrides the duty of confidentiality.

Under French law, there is no legal provision

which specifically relates to the

confidentiality of contractual conciliation

proceedings, notwithstanding the fact that

confidentiality is considered by French

practitioners as being an essential component

of conciliation.



The provisions under French law applicable

to judicial mediation (i.e. mediation ordered

by a judge), however, specifically provide

that: “The mediator [is] bound by the

obligation of confidentiality towards third

parties. The observations of the mediator and

the declarations that he gathered cannot be

referred to before the judge in charge of the

dispute, except with the parties‟ consent.

They cannot be used in other proceedings

(…).” . Yes, Pursuant to Article 10 of the French

Civil Code and Article 11 of the French Code

French courts have extended this rule to of Civil Procedure, each person is held to

contractual conciliation proceedings, ruling support the judiciary‟s purpose to establish

that “by its very nature, aiming at favouring the truth in any one case. Consequently, a

amicable settlement of a dispute, the judicial judge can order a party to provide documents,

or contractual conciliation implies that each information which are considered necessary

party can confide in the mediator in a free to the manifestation of truth, subject to of fine

manner, and that, except unanimous or daily penalty, in the event of a failure to

agreement, the confidentiality is kept on comply with the order.

information, proposals or concessions

received by the latter” . The judge‟s power is only limited by the

existence of a legitimate ground, which can

Since there is no special legislation or rule of either be the respect of privacy or

procedure that can be referred to in order to professional confidentiality.

secure the confidentiality of contractual

Yes, please provide reference:



Judgment by the court of first instance in

Utrecht, 2 February 2005, LJN: AS5144.

A confidentiality clause must be considered

to be an agreement of documentary evidence

in the sense of art. 153 Rv, which means that

a judge in principal may not hear witnesses

with regard to any information considered to

be confidential in accordance with the

confidentiality clause. However, art. 21 Rv

contains the obligation for parties to be

truthful and exhaustive about all facts that

might be relevant to a judgment. Only in

exceptional circumstances will a judge order

a conciliating party to disclose confidential

information. This may only be the case when

the need for truth prevails over the prejudice

that might be suffered by a personal

disclosure. Furthermore, it is imaginable in

some cases that a mediator has a statutory

duty to testify. This might be the case when a

third party who is not bound to the

confidentiality clause (art. 191 Rv) summons

the mediator as a witness, or when the

mediator is summoned to testify in a criminal

case (art. 213 Sv) Unlike some professions, a

mediator does not have a right of non-

No, it is necessary to refer to special disclosure or legal privilege in such case.

legislation or rules of procedure

Yes, please provide reference:

The mediator‟s contractual duty of

confidentiality may conflict with a statutory

duty to testify. There is no statutory provision

No, The Geneva civil procedure and law on expressly enabling mediators to refuse to

organization of judiciary (GCP/GOJ) obliges testify on the basis of a duty of

the mediator to keep secret all the facts he confidentiality. The judge may in general

learned as a result of mediation process and excuse a witness from testifying if (a) the

any action he took, participated in or witness exercises a profession which is

witnessed. The parties may not reveal subject to a secrecy obligation under the

anything that was said before the mediator. Swiss Criminal Code or (b) if the witness is

In all the other cantons, however, the duty of subject to a particular relationship of trust and

confidentiality can be stated in a preliminary confidence.

agreement to the mediation. But, the This rule, however, only applies when other

enforceability of this duty by the Court is not protective measures are not available and

assured. when the interest of the witness in keeping

Please note that members of the Swiss the information confidential prevails over the

Lawyers Association (FSA/SAV) or the interest of the party seeking to put the

Swiss Chamber on Commercial Mediation confidential information into evidence.

(SCCM) are subject to the guidelines and Mediators may be regarded as subject to a

ethical codes of conduct for conventional “particular relationship of trust and

mediation; these guidelines do state confidence“, such that it might be possible for

respective confidentiality provisions. them to refrain from testifying.

In Court or Arbitration proceedings, parties

have the right to disclose the information.

However, the Rules of PMN provides that the

parties shall waive the right to use as

evidence of the followings, (i) Opinions or

suggestions made by any party or the

The Rules of PMN provides that all parties Mediator concerning alternative solutions to

shall maintain the confidentiality of the the matter in dispute; (ii) Proposals,

mediation process. This confidentiality summaries, and any other notes presented

provisions shall form a part of the Agreement during the mediation process; (iii) Any

to mediate. In the Court-Ordered Mediation, statement by any party to the Mediator that a

mediation is open and public can have access proposal is accepted or rejected; (iv) All

to the information disclosed in the mediation documents drafted and prepared in

process… connection with the mediation process.

In the procedure before a court, the

presumption is that a person called as a

witness can-not refuse to testify or answer a

question. Nevertheless, a party to the case

may not be heard as a witness before the

court, thus the parties have no obligation to

give a testi-mony regarding the confidential

information.

There are also some special provisions

allowing the witnesses to refuse to testify, e.g.

an attorney or a counsel shall not testify

regarding the matters which the client has

entrusted to him/her for the pursuit of the

case, unless the client consents to such

There exist no general applicable legal testimony. A wit-ness may also refuse to give

provisions prohibiting the parties to disclose a statement which would reveal a business or

the in-formation relating to the conciliation professional secret unless very important

proceedings to third parties. If confidentiality reasons require the witness to be heard

is re-quired, a separate agreement has to be thereon.

made.

Yes, please provide reference:

As a general principle, if a person involved in

a mediation process is called to render a

witness, he/she has the duty to do so, and

he/she is not excused by the fact that he/she

assumed a non-disclosure obligation.

However, he/she may refuse to render

witnesses if he/she may invoke a professional

secret (as for lawyers in their client

relationships) or a secret of a similar nature.

No

Yes, MLICC Article IX provides a general,

blanket prohibition against disclosure.

Typically, rules governing disclosure are

determined by the parties‟ private contract.

To the extent that the parties agree that the

mediation proceedings are confidential, and

agree to keep those proceedings confidential,

they are bound by that contract. Contracts Yes, Article IX is clear that its protections do

prohibiting disclosure are common and are not apply where “disclosure is required under

enforceable in courts. See, e.g., Doe v. Roe, the law.” so to the extent that any statutory

93 Misc. 2d 201 (N.Y. Sup. Ct. 1977). Court requirements or rules of court compel

rules often specify that when parties disclosure, then they would not be in conflict

participate in a court-sponsored mediation, with Article IX. Certain states compel

the parties must sign a confidentiality disclosure in connection with “public

agreement. See, e.g., S.D.N.Y. L.R. 83.11. records” laws. See, e.g., Anchorage Sch.

Dist. v. Anchorage Daily News, 779 P.2d

Recently, many states have adopted the 1191 (Alaska 1989); Pierce v. St. Vrain

Uniform Mediation Act (“UMA”), drafted by Valley Sch. Dist., 944 P.2d 646 (Colo. Ct.

the National Conference of Commissioners App. 1997). Other states have recognized a

on Uniform State Law, in collaboration with public policy requiring disclosure in order to

the American Bar Association‟s Section on prevent death or substantial bodily harm.

Dispute Resolution. Section 8 of the UMA, See, e.g., Tarasoff v. Regents of Univ. of

“Confidentiality,” is patterned after MLICC Cal., 551 P.2d 334 (Cal. 1976). One court

Article IX and provides: “Unless subject to has compelled disclosure of communications

the [insert statutory references to open during civil mediation in connection with

meetings act and open records act], mediation criminal grand jury proceedings. See In re:

communications are confidential to the extent 1994 -- Special Grand Jury Proceedings, 870

agreed by the parties or provided by other law F. Supp. 1170 (S.D. Ind. 1995); but see State

or rule of this State.” So far, the UMA has v. Williams, 877 A.2d 1258 (N.J. 2005)

been adopted, with subtle variations, by the (criminal defendant‟s constitutional right to

following states: Illinois, see 710 ILCS 35; present complete defense using testimony

Iowa, see Iowa Code § 679C.1; Nebraska, see from mediator in related mediation did not

Neb. Rev. Stat. Ann. § 25-2930; New Jersey, outweigh policy interest in preserving

see N.J. Stat. Ann. § 2A:23C-1; see Ohio, mediation confidentiality when evidence was

O.R.C. § 2710; Utah, see Utah Stat. Ann. § otherwise available).

The “without prejudice” privilege will apply

in most mediations. It will apply regardless of

whether or not it is referred to by the parties,

provided the common law requirements are

satisfied. At common law, the “without

prejudice” privilege applies to:

• admissions;

• made in good faith;

• orally or in writing; and

• to settle disputes in a situation in which

settlement is not actually reached.

No

Article 1728 § 1 of the Belgian Code of Civil

Procedure sets forth :

Art. 1728 - § 1. All documents and

communications made during and for the

purpose of a mediation process are

confidential. They may not be used during

any judicial, administrative or arbitral

procedure or in any other dispute resolution

procedure and they are not admissible as

evidence, not even as an out-of-court

confession. The duty of confidentiality can

only be lifted with the consent of the parties

with a view to allowing inter alia a Court to

homologate settlement agreements.



If this duty of confidentiality is violated by

one of the parties, the Court or Arbitral

Tribunal decides whether any damages may

be granted. Any confidential documents that

are nevertheless communicated or which are

relied upon by a party in violation of the duty

of confidentiality are ex officio excluded

from the proceedings.



Without prejudice to the requirements of the

law, the mediator may not disclose the facts

with which he becomes acquainted as a result

of his function. He may not be called upon by

the parties as a witness in civil or

administrative proceedings relating to the

facts with which he has become acquainted in Refer to Article 1728 § 1 of the Belgian Code

the course of the mediation. Article 458 of of Civil Procedure (as above)

c) d)









Is the very fact that a mediation has

commenced or ended, with or without a

Does your country follow the rule in resolution, confidential per se or is an

MLICC Article 8 as to the need for a party agreement necessary between parties,

to specify that information being given ex mediator, and/or a service provider such as

parte to a mediator is confidential? ICC or AAA?









No, unless explicitly approved by the party

concerned, the mediator is - on the basis of a

conclusive mediator contract - not allowed to Agreement necessary to ensure

disclose information received in a one-to-one confidentiality, however, such agreement will

interview with this party to the other party. be deemed to have been entered into

However, this question is in dispute. implicitly in most cases.

Yes. Since there are no specific rules in

German law on confidentiality in mediation

or on the

duties of mediators, confidentiality

obligations must be specified and agreed to

by the Agreement is necessary to ensure

parties. confidentiality.

No, The answer to this question depends on

the extent of the confidentiality provision

agreed between the parties. It can be agreed

that only those information expressly

specified as being confidential should fall

under the confidentiality obligation or that all

information received during the conciliation Mediation per se confidential: for lawyers

procedure has to be kept secret. Lawyers as and notaries public as mediators

mediators will have to keep any and all

information obtained during the conciliation confidentiality for parties involved and third

procedure confidential irrespective of any ex parties

parte specification.









Mediation per se confidential

See above, (b); e.g. rule 4.1. of the rules of X Agreement necessary to ensure

procedure of the Bundesverband Mediation in confidentiality

Wirtschaft und Arbeitswelt e.v.

Nothing special needed more than the above.

At any time confidentiality is a mandatory

clause of the mediation contract concluded

Yes, art. 53 of the Mediation Law provides between the parties and the mediator subject

that confidentiality is one of the to certain exemption such as money

characteristics of the mediation procedure in laundering or terrorism when they do not

Romanian legal system. apply.









As a general rule, confidentiatliy requires an

agreement. Art. 3 of the SCC Mediation

Rules, governing the confidentiality of the

mediation, stipulates tat the mediator, the

parties and the SCC Mediation Institute shall

respect the confidentiality of the Mediation.

In the practice of the SCC Mediation Insitute,

this means that the Institute will neither deny

nor confirm or in any other way comment or

respond to a question whether a certain party

The SCC Mediation Rules do not contrain is or is not involved in conciliation under the

any provision relating to this issue. auspices of the SCC Mediation Institute.

So far there is no legal rule in Spain to this

respect. However, the practice follows this

non written rule, and the mediation agreement

usually contains a clause specifiying that

everything said of given to the mediator shall Neither of the above, so far there is no legal

be kept confidential except otherwise rules in Spain to this respect, and the practice

mentioned. Notice that if the information varies. There is no legal rules stating that

given by one of the parties to the mediator mediation is confidential per se. If parties

was on the public domain, no confidentiality want to keep it confidential, then they include

can be alleged. this obligation in the mediation agreement.

Mediation is confidential per se, and thus it is

not strictly necessary to agree among all the

parties on the terms and conditions of said

duty. However, parties may execute a

No, please provide reference: As indicated standard confidential agreement but such

above, confidentiality is the rule in any agreement can not condition in any way the

mediation process. Thus, all the information duty assumed by the parties just by entering

obtained within a mediation process is into a mediation process. Likewise, the

confidential –unless already public or an confidentiality rule is not affected by the

express release of the party granted in this existence or not of a resolution / settlement

respect. that terminates the process.

In this matter, the Israeli legislator had not yet

expressed its view, although it appears that

the very fact that a mediation has commenced

or ended is not confidential per se . If the

parties are interested in concealing the fact

that they have turned to a mediator and are

participating in mediation, there appears to be

no legal provision to bar them from signing

In Israel, Regulation 5(f) of the Mediation an agreement to that effect between

Regulations offer a similar solution to the themselves, the mediator and/or the service

one that is suggested in article 8 of the provider, accompanied with deterring

MLICC, stating that "If a party reveals sanctions if so desired. If the court has

information to the mediator on the condition referred the parties to mediation, this fact will

that it be kept confidential, the mediator is appear in the transcript of the court

bound to keep it secret from any other party, proceedings, which are accessible to the

unless the party that disclosed the information public, unless the parties ask the court to hold

waives its right to secrecy". the hearing in camera .









No, The general provisions on mediation do

not refer to this issue. Agreement necessary to ensure confidentiality

Yes, Article 1834 of Polish Civil Code Fact of the mediation is not confidential “per

stipulates that: se” (however there are some discussions in

“Mediator is obliged to keep confidential all literature), unless parties agreed otherwise. If

the information concerning the dispute, parties came to terms during mediation

unless the parties release him from this proceedings, mediator is obliged to lodge in

obligation.” competent court conciliatory record (disclose

the fact of the mediation).

Yes Mediation per se confidential.

Yes. Mediation per se confidential

Mediation per se confidential, Agreement

Yes, French practitioners would expect to see necessary to ensure confidentiality. While the

such a rule in a well-drafted conciliation very foundation of the mediation process is

agreement. confidentiality, in the absence of specific

provisions under French law, it is

But there is no provision for such a rule in the nevertheless recommended to contractually

French Civil Code and the French Code of reiterate that confidentiality applies both to

Civil Procedure. the content of the mediation, but also to the

very existence of the mediation.

No, please provide reference:



There is no statutory provision under Dutch

law that obliges a mediator to keep

information that has been given to him ex

parte, disclosed from the other party.

However, it is a rule of procedure that is

commonly inserted in mediation regulations

and therefore generally applied. [for example

article 7.5 of the NMI (Netherlands

Mediation Institute) regulations and article

12.1 of the ACB (ADR Centrum voor het

Bedrijfsleven) regulations]

Agreement necessary to ensure confidentiality

No, please provide reference: Agreement necessary to ensure confidentiality



See above (2.a, b). See above (2.a, b).

See 2 (a) above See 2 (a) above

If an agreement exists which regulates that all

the information given ex parte during the

conciliation proceedings is confidential, there

is no need to specify the information as confi-

dential in order to keep it secret.



However, if no agreement regarding the

confidentiality exists, the parties usually have

no obligation to keep the given information

secret, although the given information would

have been specified as confidential by one

party. Nevertheless, the substantive law

applicable to a cause of action may include

some provisions regarding the confidentiality

requiring some information to be kept secret

if specified, for example, as a business secret.



If a witness refuses to testify in the court

regarding some matter he/she is allowed to

keep secret according to the Finnish Code of

Judicial Procedure, at the same time, he/she

has to mention the grounds for the refusal and

show a plausible reason for it. So in the court,

the witness has to specify that the information

falls under some given category to be allowed

to keep it secret. Agreement is necessary to ensure

confidentiality

No, please provide reference:

In Italy out-of-court mediation / conciliation

procedures are not regulated by the law, so

there is no general duty of confidentiality

upon parties /mediators.

Please note, however, that Mediation Rules

issued by ADR Institutions in Italy usually

provide for such a duty (but this has only the

nature of a contractual obligation).

Agreement necessary to ensure confidentiality

Again, the extent of the confidentiality can be

No, This is the common practice, although determined by the parties‟ contract. Most

there are not necessarily general rules that state mediation privileges, however, only

dictate this result. See, e.g., AAA Rule M-12 apply to “communications;” accordingly, the

(requiring parties to indicate to mediator mere fact that a person attended the mediation

where ex parte communications should or that a mediation existed is, in most

remain confidential); ICPR Mediation instances, not a “communication” protected

Procedure, Rule 9, “Confidentiality.” from disclosure.

confidentiality: The law is silent on this

matter. As such, parties may presumably

use of mediation in litigation proceedings agree to maintain confidentiality with resepct

follow this rule, but the other jurisdictions‟ to the commencement or conclusion of

provisions are silent on this subject. mediations.

The Belgian Code of Civil Procedure does

not contain a specific rule on ex parte given

information. Therefore such an information

may not be disclosed to the other parties

without the prior consent of the disclosing

party. The Code sets forth that before the

mediation starts, parties and mediator should

sign a mediation “protocole”. In this

document the rules of confidentiality are The very fact that mediation has commenced

confirmed in detail. or ended is not confidential per se.

e) f)









To what extent may the parties agree upon

consequences in the event of a breach of Are there laws or rules of general

confidentiality, for example, liquidated application, sufficient to satisfy MLICC

damages, contractual penalties, or Article 10, as to the admissibility or use in

contempt proceedings, or, for example, in a court or in an arbitration of information

anticipation of a disclosure, provide for an obtained in a conciliation, including any

expedited injunction proceeding, the right specific “privileged” communications in the

to intervene in an action or other nature of or conceptually similar to

requirements such as the posting of a attorney-client privilege, or is a special law

bond? or regime necessary?









No, Failing an agreement and unless special

In the event of a breach of confidentiality, rules governing certain professions are

liquidated damages and contractual penalties. applicable which provide for confidentiality,

To force compliance with the confidentiality there are no regulations which prevent any

agreement, a party can obtain inunctive relief participant of the conciliation proceedings

under the general conditions of the German from acting as set forth in Article 10 para 1

civil procedure law. MLICC.

The prevailing opinion is that parties are free A party to a German lawsuit is generally not

to contractually agree not to name certain required to disclose any information in the

witnesses or course

not to rely on certain evidence in a of the proceedings. There are no “discovery”

subsequent civil trial or arbitration rules such as in the U.S. There are also no

(“Prozessvertrag”) rules of

(Zöller/Greger, Zivilprozessordnung, Vor § general application protecting information

284, para. 2b (26th ed. 2007)). Such an obtained in a mediation or conciliation

agreement would beyond those

give the right to object to any introduction of of the professional privilege, which include

evidence in breach of the agreement and lead the attorney-client privilege. Attorneys are

the court bound by

to reject such evidence as inadmissible. professional duties of confidentiality, and

Otherwise, in the event of a breach of a violations are punishable both under criminal

confidentiality law and

agreement compensatory damages are under rules of professional conduct. The

available or the parties can agree on attorney-client privilege covers all

liquidated damages or information

contractual penalties. If the parties are not concerning the professional relationship

merchants, the amount of a contractual between the client and the attorney, including

penalty is subject the

to the court‟s examination and reduction; It is existence of such relationship, and all

possible for the parties to agree on certain information which became known to the

security measures in the event of a breach of attorney in his

confidentiality, such as the posting of a bond capacity as an advisor. An attorney or other

or a bank guarantee. The other party may also professional advisor, as well as every member

be of his

prevented from disclosing confidential staff, has the duty to exercise his privilege

information by filing an interim injunction with regard to all matters and all information

pursuant to falling

§ 935 ZPO. The parties may also execute an within the scope of the duty of

enforceable deed with a notary (§ 794(1) No. confidentiality. This privilege may be waived

5 only by the client.

ZPO) which facilitates immediate Exceptions to the attorney-client privilege

enforcement under § 890 ZPO, provided that apply only in very limited circumstances,

the event of a breach of confidentiality





No, please provide reference:

a disclosure

There are no express provisions, however,

agreements as to procedural issues such as

keeping of confidentiality as to specific issues

are acknowledged and will be respected by

the courts (see above)

claim for damages









Special law or regime is necessary. Please

provide details, if any:



See above, 2 (b); e.g. rule 4.3. of the rules of

procedure of the Bundesverband Mediation in

Wirtschaft und Arbeitswelt e.v.

see_above, 2 (a)

The parties are free to agree even in the

contract signed between them and the

mediators about certain consequences related

to an eventual breach of confidentiality of the

mediation, depending also on the specifics of

the case and the type and status of the

information disclosed during mediation, as in

any other commercial agreement. The

consequences mught be liquidated damages Art 53 of the Mediation law states that, as a

or contractual penalties; they refer to general matter of principle, it is not possible to use

contractual liability for breach of an during arbitral, judicial or similar

obligation. Under court proceedings, one proceedings, except for the case when parties

party might ask also for an injunction so agree or law expressly provides so, as it

preventing the other party from disclosing might be the case when the judges in State

confidential information provided during court consider that the information is needed

mediation, as an ad interim measure until the for the settlement of the case and obliges the

contractual claim for damages. party to provide it in the court.









According to Art 3(4) of the SCC Mediation

Rules, a partu may not introduce as evidence

in any judicial or arbitration proceedings any

views expressed or statements made in the

course of the mediation. No laws exist which

correspond to MLICC Article 10. On the

contrary, an agreement containing restrictions

on the introduction of evidence as described

in MLICC Article 10 does not prevent a

Swedish court from admiting such evidence.

Swedish procedural law contains very few

rules on the admissibility of evidence; nearly

As a general rules, parties are free to agree on all evidence may be admissibile and

the above. A confidentiality agreement objections focus on probative value. The fact

however does not preclude a duty to testify as that a party may be in breach of an

a witness beofre a court. The SCC Mediation undertaking of confidentiality when

Rules do not contacin any provision which presenting evidence does not make evidence

specifically relates to these issues. inadmissible.

Liquidated damages, contractual penalties

and others. Parties can agree in several

remedies to apply in case of breach of

confidentiality. A liquidated damages clause

is the mos used, and parties ex ante agree the

amount of damages recoverable in the event

of a specified breach. Parties can also agree in

a penalty clause to punish the party on

breach, although Spoanish law allows the

judge to equitably moderate the agreed

penalty if hte breach is only partial. If the

party on breach does not voluntarily fulfill its

payment obligation, then civil judicial

proceedings will be needed to declare the

breach of contract and the obligation to pay

damages and penalties. Contempt No, a special law or regime is necessary.

proceedings, other than the civil proceeding Further to section 2(a) above, there is no rule

for enforcing the agreement mentioned above, protecting what has been said or disclosed in

are not usually agreed. Parties can also agree an international mediation to be used as

in other remedies. In spain there is neither evidence in any subsequent proceedings. It is

disclosure nor discovery in the sense of the necessary to await some special legislation or

common law, so parties do not have the need rules of procedure. For further detail see

to agree on these points. Spanish procedural article 6 of 'Proposal for a Directive if the

rules allow only the disclosure of a particular European Parliament and of the Council on

document or a particular category of certain aspects of mediation in civil and

documents. commercial matters'.

The violation of the confidentiality duty

triggers the sanctions provided by the Civil

Code (sections 1067 and 1068) and the

Criminal Law Code (sections 156 of the Code

and 244 of the Criminal Proceeding Code)

since both legislations protect the interest of

the confident party. The legislation admits Yes; Information obtained within a mediation

any kind of agreement between parties in process is precluded to be relied on within a

relation to the liquidation of the damages and subsequent litigation proceeding, even in the

in general on the effects of said breach. The case that any of the parties pleads that the

legislation does not rule specifically on this settlement reached from a mediation process

matter. As in any other judicial process is null and void. Confidentiality is a duty

parties may agree on any of these guarantees provided by law that supports the credibility

in anticipation of a disclosure, but actually of the mediation as a valid alternative dispute

they are not an alterative used within a resolution method.

mediation process.

Due to the absence of legislation on this The relevant Israeli legal arrangement is

matter, already discussed above, it is different from the one detailed in Article 10

recommended that the parties sign an of the MLICC. Section 79C (d) of the Courts

agreement, whether separately or as part of Law states that "Matters submitted in the

their agreement to participate in mediation or course of the mediation process will not serve

the final mediation settlement itself, that will as evidence in civil proceedings." Further, the

determine sanctions in the event of a breach confidentiality of the mediation procedure

of confidentiality (not necessarily during a prevents the parties from disclosing

legal procedure), such as payment of information in a judicial procedure regarding

compensation by the breaching party or that the mediation. If a party tries to use such

any such breach constitutes a fundamental information as evidence, it will not be

breach of the mediation settlement thus admissible in court in order to ensure that a

making the agreement to mediate void or mediation procedure will not affect the

voidable. The more detailed, relevant and outcome of any court proceedings, as

reasonable the secrecy provisions and mentioned in section 3(b) to the Mediation

sanctions are, the more likely they will be Regulations. Regulations 2 and 2A of the

enforced by the court, even when balanced Mediation Regulations Schedule (Model

against the importance of the public interest Mediation Agreement) state that parties who

in the "discovery of truth", that constitutes have agreed to mediation may not summon

another part of the courts discretion. In the mediator to testify in court or present any

addition, when the parties are private documents to the court in any matter related -

individuals, a party can sue the person who directly or indirectly - to the mediation

disclosed the information according to proceedings. The privilege of the mediation

Protection of Privacy Law, 5741-1981, if belongs to the mediation procedure itself and

relevant. As to liquidated damages, if the not to the parties, thus, evidence that

parties have agreed on such compensation for originates in the mediation will not be

breach of confidentiality, they will be admissible per se. However, this privilege

determind pursuant to the Contract applies, according to the law, only to court-

(Remedies for Breach of Contract) Law, 5731- directed mediation procedures, as apposed to

1970. The meaning of choosing this option is mediations unconnected to any court

that the plaintiff is not obliged to prove proceedings, although it may be assume that









i) liquidated damages, contractual penalties,

ii) provide for an expedited injunction

proceeding, the right to intervene in an action Yes

Yes

Yes.

It remains to be definitively stated by the

English courts or legislature whether there is

a separate concept of “mediation privilege” in

existence, but mediation is viewed as being

without prejudice and existing without

prejudice rules apply. The Court of Appeal

recognised in Arid v Prime Meridian Ltd

[2006] EWCA Civ 1866 that nothing created

solely for the purpose of the mediation and

anything said during the course of the

mediation is privileged and cannot be referred

to or relied upon in subsequent court

proceedings in the event that no settlement is

reached.



However, whilst privilege can be claimed by

There is nothing specific in the texts which the parties to the negotiations and their

stipulates that a party may agree to the lawyers, it cannot be claimed by third parties.

consequence of a breach of confidentiality or This means that a mediator may be compelled

disclosure conditions. However, presumably to give evidence if the parties agree and the

the parties are able to agree on the parties may extend the privilege to the

appropriate damages on a contractual basis. mediator by including a contractual

It should be noted that contempt proceedings confidentiality provision in the mediation

would apply if the confidentiality agreement agreement.

was incorporated into a judgment or was

made by Court Order and the judgment or Also see response to (g) below.

order was breached.

Yes.

It remains to be definitively stated by the

English courts or legislature whether there is

a separate concept of “mediation privilege” in

existence, but mediation is viewed as being

without prejudice and existing without

prejudice rules apply. The Court of Appeal

recognised in Arid v Prime Meridian Ltd

[2006] EWCA Civ 1866 that nothing created

solely for the purpose of the mediation and

anything said during the course of the

mediation is privileged and cannot be referred

the event of a breach of confidentiality? to or relied upon in subsequent court

There is nothing specific in the texts which proceedings in the event that no settlement is

stipulates that a party may agree to the reached.

consequence of a breach of confidentiality or

disclosure conditions. However, presumably However, whilst privilege can be claimed by

the parties are able to agree on the the parties to the negotiations and their

appropriate damages on a contractual basis. lawyers, it cannot be claimed by third parties.

It should be noted that contempt proceedings This means that a mediator may be compelled

would apply if the confidentiality agreement to give evidence if the parties agree and the

was incorporated into a judgment or was parties may extend the privilege to the

made by Court Order and the judgment or mediator by including a contractual

order was breached. in anticipation of a confidentiality provision in the mediation

disclosure? agreement.

See above

Also see response to (g) below.

Here again, there are no specific provisions

relating to the admissibility/use of

information obtained in contractual

conciliation proceedings, under French law.

However, one would expect that, on the basis

of the general principle of confidentiality, that

all information obtained during the

conciliation proceedings is confidential and

therefore, that the subsequent use of any such

information be declared inadmissible before a

court of law. French courts have confirmed

the scope of this principle to the admissibility

or use of information in other proceedings,

considering that the principle of

confidentiality applied "necessarily not only

to the purely technical information

communicated by the parties to the mediator,

but also to all the proposals made by each one

of them in view of a settlement agreement.

This confidentiality also obviously applies to

the minutes of the mediation, whose content,

in principle covered by confidentiality, can

only be released within the limits and

conditions agreed by the parties and the

mediator (…). When there has been no

agreement on said use, the telling, in the

subsequent writ of summons of one of the

parties, of facts observed or of information

received by the mediator in carrying out his

in the event of a breach of confidentiality, mission is likely to constitute a breach of the

liquidated damages, contractual penalties. in duty of confidentiality imposes on all the

anticipation of a disclosure, provide for an actors of mediation (…)" . In the case of a

expedited injunction proceeding, the right to judicial mediation, the French Supreme Court

intervene in an action, the posting of a bond. has held that the observations of a mediator

No, please provide reference:



There are no statutory provisions that prohibit

the use of information obtained in

conciliation for the purposes of other

proceedings. The parties have to explicitly

the event of a breach of confidentiality; agree on this in a confidentiality clause.

liquidated damages, contractual penalties, However, it is a rule of procedure that is

contempt proceedings. in anticipation of a commonly included in mediation regulations

disclosure; provide for an expedited and therefore generally applied. [for example

injunction proceeding, the right to intervene articles 7.1 and 7.2 of the NMI-regulations

in an action and articles 12.2 and 12.3 of the ACB-

regulations]

the event of a breach of confidentiality; No, please provide reference:

liquidated damages, contractual penalties, in

anticipation of a disclosure; provide for an See above (2.a, b).

expedited injunction proceeding

A party may file a claim to the Court against

the party breaching the confidentiality. (f) See 2 (b) above

the event of a breach of

confidentialityliquidated damages,

contractual penalties. in anticipation of a

disclosure: There is no remedy available for

the anticipation of a disclosure that is based

solely on the agreement of the parties.

There exist no general applicable laws nor

Although, if a confidentiality agreement is rules which would safeguard the information

made, a precautionary measure can be applied ob-tained in conciliation proceedings and

for the court, in which the court prohibits the prohibit the use of the information received

other party, under threat of fine, not to dis- during the conciliation proceedings in

close the information agreed to be kept secret arbitral, judicial or similar proceedings on the

in the confidentiality agreement. The prereq- basis that the in-formation has been obtained

uisite for the court‟s order is that the in the conciliation proceedings.

petitioner can establish a probability that

he/she has an enforceable right to have the The information obtained in the conciliation

information to be kept secret and that there is proceedings can be confidential only on the

a danger that the other party discloses this ba-sis of an agreement or if the information

confidential information. falls under the scope of some special legal

provi-sion requiring certain kind of

information to be kept secret.

the event of a breach of confidentiality,

Others. Please provide reference: The only

possible consequence under Italian law of a

breach of a confidentiality agreement is the

payment of damages. Parties may agree upon

liquidated damages but Courts will always

have the power to reduce the liquidated

damages to a sum that they deem equitable. in

anticipation of a disclosure; There is no

typical remedy under Italian law for such a

situation, but the interested party may, in

principle, ask the Court to issue an interim

order preventing the other party from

disclosing to third parties the relevant

information (however we are not aware of

any specific case law addressing this issue);

application, however, may only be uphold if No, please provide reference:

the disclosure would cause an irreparable No, in Italy there is no law of general

damage (i.e. a damage which cannot be fully application regulating out-of-court mediation

compensated by monetary payment). / conciliation processes

To the extent that the parties agree that the

mediation proceedings are confidential, and

agree to keep those proceedings confidential,

they are bound by that contract.



Pursuant to Federal Rule of Evidence

(“FRE”) 408, parties may not introduce

evidence concerning (1) the offer or

acceptance of consideration in order to settle

a claim or (2) conduct or statements made in

settlement discussions in order to “provide

liability for, invalidity of, or amount of a

Again, the agreement to submit a dispute to claim that was disputed as to validity or

conciliation is by contract or court order. So amount, or to impeach through a prior

whatever the agreement or the local rules of inconsistent statement or contradiction[.]”

court provide is what controls. (It is unlikely,

however, that a court would enforce an The confidentiality protections offered by

agreement that bound it to hold a party in Rule 408 are not as broad as the protections

contempt.) in anticipation of a disclosure; offered by MLICC Article IX. Article IX

Although some courts are split with respect to only permits disclosure where “required

the availability of provisional relief in aid of under law or for the purposes of

an arbitration, this issue does not appear to implementation or enforcement of a

come up with any frequency in the context of settlement agreement.” In contrast, Rule 408

a mediation. Compare Borden, Inc. v. Meiji does not prohibit a party from introducing --

Milk Prods., 919 F.2d 822, 826 (2d Cir. or a court from admitting -- evidence

1990) (upholding grant of preliminary concerning conduct or statements made in

injunction in aid of arbitration); PMS Distrib. settlement discussions in order to prove bias

Co. v. Polymembrane Sys., Inc., 863 F.2d or prejudice, or to negate a contention of

639, 641-42 (9th Cir. 1988) (holding that undue delay, or to prove an effort to obstruct

court had authority to issue writ of possession a criminal investigation or prosecution. See

pending outcome of arbitration), with FRE 408(b). Courts have found that the

McCreary Tire & Rubber Co. v. CEAT SpA, protections of Rule 408 are inapplicable

501 F.2d 1032 (3d Cir. 1974) (holding that when evidence of settlement communications

court does not have authority to grant are offered for purposes other than to prove

provisional relief in aid of arbitration). the validity, invalidity, or amount of a

the event of a breach of confidentiality

Most agreements to mediate contain

confidentiality clauses and remedial

provisions for breach of confidentiality.

These provisions have not yet been

considered in Canadian courts.

Mediations are generally considered

in anticipation of a disclosure analogous to “without prejudice” settlement

See above. No Canadian judicial negotiations. As such, information obtained

consideration. in mediation is not admissible in arbitral or

judicial proceedings.

Parties are free to agree upon the

consequences in the event of a breach of

confidentiality. This can be done in the

mediation “protocol”. See (a)

g) h)









Is there any rule that arguments as to

admissibility and/or privilege are waived if

In view of the answer to (f) above, what a document or communication is relied on

can a party, mediator, witness or other in litigation and does it make any

relevant third party testify to or introduce difference if such a reliance was made in

in a later proceeding, whether the the context of a prior conciliation solely to

conciliation was successful or unsuccessful? facilitate a possible settlement?









Unless contractually agreed upon and unless

special professional law applies, there are no No, No such rules exists. Inadmissibility may

restrictions. only be effected by a procedural contract.

If a party refers to a document as a means of

evidence in its submissions to the court, that

party

is deemed to have waived all privileges with

regards to such document. If a party makes

privileged communications or documents

containing privileged information available to

the

opposing party, privileges in relation to such

communications or documents are deemed

If not bound by the attorney-client privilege waived.

or other privilege, a party, mediator, witness A court order for a party to produce

or information is not enforceable. The court

other third party can testify to or introduce in may, however,

a later proceeding any relevant information draw negative inferences from a party‟s

obtained in mediation or conciliation. refusal to comply.

Lawyer conciliator may not testify at all

unless permission is given by all parties

involved. As to the parties it will depend on

the scope of the confidentiality provision; party itself introduces a document into court

witnesses, if called to testify by the judge, proceedings it can not later on argue that it

will have to testify; whether their testimony was not admissible as this would be deemed

can be used by the judge in coming to a to be contradictory. The other party, however,

decision will again depend on how broad the could still insist on the inadmissibility of that

confidentiality provision is drafted. document.









There is no effect of such regulation in the Yes, See above, 2 (b); e.g. 4.5. of the rules of

rules of procedure on the obligations of the procedure of the Bundesverband Mediation in

parties in later proceedings. Wirtschaft und Arbeitswelt e.V.

As detailed above, the remedy for breach of

confidentiality is merely contractual, but

depending on a case by case basis and the

type of information, parties can either agree There are non specific rules as regards these

or be obliged to disclose the confidential issues related to admissability and or

information at a later stage of the proceedings priveleged information but nevertheless this

in front of State courts or arbitration. In the is an issue to be assessed only on a case by

latter case, confidentiality is ensured since case basis and depends very much on the type

arbitration is also a confidential procedure as of litigation, position of the judge/arbitrator

a matter of principle and unless parties do not and nevertheless the information to be relied

intend to challenge the award in State courts. upon.









There are no general restrictions, unless the

rule on attorney-client privelege applies (see

(b)) N/A

No, In Spain any communication between a

lawyer and his client containing informaiton

about a case is considered priveleged and

confidential, as it is also any communication

between lawyers discussing points of the

case. To use these documents in a subsequent

trial, lawyers are obliged to ask for

permissoin to the BAR Association, and wait

until this permit arrives. If they act without

this permit the only consequence is a possible

administrative sanction imposed by the BAR

Association. But these are internal rules

As mentioned above, any person having affecting the lawyers. THe admissability of

direct knowledge of the controversial facts these documents as evidence by the courts is

discussed in the trial and called by the judge not affected by the fact the document is

as a party or witness is obliged to appear priveleged or confidential, or the lawyer

before the court and answer to the questions obtained the permit from the BAR

formulated in examination unless a duty of association. The document can be accepted in

secrecy can be alleged. any case.

No, please provide reference: There is no

such rule under our legal system, disregarding

if was made in the context of a prior

The law provides a general principle which conciliation solely to facilitate a possible

mandates that any document, information or settlement. Once within a mediation process

activity brought to the parties as a said document or communication becomes

consequence of a mediation process is confidential. That is the reason parties are

confidential. The breach of such duty within a generally very reluctant to disclose

litigation proceeding in court brings two (2) documentation within a mediation process.

consequences: (i) delete the references to said However, parties who are seeking for a

confidential document / information / activity settlement generally disclose certain

indicated in a judicial writ, and (ii) dispense documents and information informally and

said confidential evidence based on document out of the mediation process.

/ information / activity.

As discussed above, the mediation privilege

belongs to the mediation procedure and not to

the parties, and therefore they cannot waive it

in any way, either explicitly or implicitly,

directly or indirectly (as apposed to the

attorney-client privilege, which the client can

waive). Evidence existing prior to the

mediation is, of course, not included in the

privilege. If the parties agree, the parties may

ask the mediator to give his opinion regarding

the mediation to the court. Otherwise,

nothing revealed in mediation will be

admissible in court. This is an absolute rule

and the court has not been granted any

discretionary powers in the matter. This

As already mentioned, and regardless of the policy was implemented in order to guarantee

success of the mediation process, there are the confidentiality of those who turn to

obligations or exceptions that will superceed mediation. Since one of the most important

any duty of confidentiality imposed on the ingredients to the success of mediation is that

mediation process, which are not inmposed the parties tell the truth, confidentiality

by statute but are recognized by the courts. encourages the parties to do so.









As mentioned above, according to the Again, according to the provisions of the

provisions of the Polish Code of Civil Polish Code of Civil Procedure the parties

Procedure the parties cannot refer before the can present all the documents that were

court to the statements and proposals made previously presented to the mediator but

during the mediation proceedings. However, cannot refer before the court to the statements

they can present all the materials that were and proposals made during the mediation

previously presented to the mediator. proceedings.

The fact of the mediation, unless parties

agreed otherwise. N/A

In the Unilever case (Unilever plc v The Yes

Proctor & Gamble Co [2000] 1 WLR 2436,

Robert Walker LJ set out the most important If party A introduces without prejudice

instances in which the without prejudice rule material at trial, party B is entitled to rely on

would not prevent the admission into the other without prejudice material which

evidence of what one or both of the parties came into existence as part of the same

said or wrote: without prejudice process (see Somatra Ltd v

Sinclair Roche & Temperley [2000] 1 WLR

(1) “Except as to costs” - communication 529, CA).

specifically marked “without prejudice save

as to costs” (see for example, CPR r.3619(1) In Smiths Group plc v Weiss & Others

and Cutts v Head [1984] Ch 290, CA). (Chancery Division, 22 March 2002), a case

concerning inadvertent disclosure of notes of

(2) Proof of an agreed settlement - in the witness interviews prepared for a mediation,

recent case of Brown v Rice [2007] All ER the court found that the without prejudice

(D) 252 (Mar) the court considered a status of the documents is not necessarily

confidentiality clause in a mediation altered by the inclusion of the documents in a

agreement and held that whilst it “bolster[ed] disclosure list. The court confirmed that the

the without prejudice nature of what “without prejudice” protection afforded to

transpires at a mediation”, it could not documents provided for mediation should

prevent the court from applying the exception only be waived in clear and unequivocal

to the without prejudice rule which arose in circumstances.

that case. The judge held that

communications during the mediation process In addition, just because a normally

could by exception be admitted as evidence to unprivileged document emerges for the first

establish whether or not a settlement had time at a mediation, it does not attract

been reached. The without privilege privilege. The Australian case of AWA v

communications cannot, however, be used for Daniels is a direct authority for that

any other purpose. proposition. If the documents are disclosable,

for example under the Civil Procedure Rules

(3) Unambiguous impropriety - if the (CPR), it is not possible to render them

exclusion of evidence of what the parties said immune from disclosure simply because they

or wrote in without prejudice discussions were referred to in mediation. For example,

would act as a cloak for perjury, blackmail, or under Civil Procedure Rules R. 35.8,

other “unambiguous impropriety”. The instructions given to a single expert, whose

In the Unilever case (Unilever plc v The Yes

Proctor & Gamble Co [2000] 1 WLR 2436,

Robert Walker LJ set out the most important If party A introduces without prejudice

instances in which the without prejudice rule material at trial, party B is entitled to rely on

would not prevent the admission into the other without prejudice material which

evidence of what one or both of the parties came into existence as part of the same

said or wrote: without prejudice process (see Somatra Ltd v

Sinclair Roche & Temperley [2000] 1 WLR

(1) “Except as to costs” - communication 529, CA).

specifically marked “without prejudice save

as to costs” (see for example, CPR r.3619(1) In Smiths Group plc v Weiss & Others

and Cutts v Head [1984] Ch 290, CA). (Chancery Division, 22 March 2002), a case

concerning inadvertent disclosure of notes of

(2) Proof of an agreed settlement - in the witness interviews prepared for a mediation,

recent case of Brown v Rice [2007] All ER the court found that the without prejudice

(D) 252 (Mar) the court considered a status of the documents is not necessarily

confidentiality clause in a mediation altered by the inclusion of the documents in a

agreement and held that whilst it “bolster[ed] disclosure list. The court confirmed that the

the without prejudice nature of what “without prejudice” protection afforded to

transpires at a mediation”, it could not documents provided for mediation should

prevent the court from applying the exception only be waived in clear and unequivocal

to the without prejudice rule which arose in circumstances.

that case. The judge held that

communications during the mediation process In addition, just because a normally

could by exception be admitted as evidence to unprivileged document emerges for the first

establish whether or not a settlement had time at a mediation, it does not attract

been reached. The without privilege privilege. The Australian case of AWA v

communications cannot, however, be used for Daniels is a direct authority for that

any other purpose. proposition. If the documents are disclosable,

for example under the Civil Procedure Rules

(3) Unambiguous impropriety - if the (CPR), it is not possible to render them

exclusion of evidence of what the parties said immune from disclosure simply because they

or wrote in without prejudice discussions were referred to in mediation. For example,

would act as a cloak for perjury, blackmail, or under Civil Procedure Rules R. 35.8,

other “unambiguous impropriety”. The instructions given to a single expert, whose

French courts will declare inadmissible

As illustrated above (see 2 f), a party, a documents obtained in conciliation

mediator, a witness or any other relevant third proceedings sealed by confidentiality, without

party cannot testify to or introduce in the consent of the parties. It does not make a

subsequent proceedings, unless this has been difference whether the documents were relied

expressly agreed by the parties. on solely to facilitate settlement or not.

Since there are no statutory provisions under

Dutch law on the subject, the boundaries as to

what information may be disclosed depends No, please provide reference:

on what parties have agreed on in the

confidentiality clause. A rule of procedure There is no statutory provision regarding this

that is commonly included in mediation subject. The answer to this question will

regulations is that any information that a depend on what parties have agreed on in the

party had to its disposal (or could have had to confidentiality clause and whether this clause

its disposal) apart from the conciliation contains a specific exception with regards to

proceedings, may be disclosed by the parties. the admissibility and / or privilege of

[for example article 7.2 of the NMI- documents or communication in litigation.

regulations]

No, please provide reference:



Under Swiss law, the concept of privilege is

not known. Therefore, there is no statutory

rule in this regard. Documents and

information once revealed in mediation may

be subject to only limited confidentiality in

litigation.

There are no restrictions by Swiss statutory

law in this regard.

(f) See 2 (b) above (f) See 2 (b) above

As mentioned above in clause 2b, the

presumption is that a person called as witness

be-fore a court shall not refuse to testify or

answer a question if no special provisions

exist giving a witness a right to refuse to

testify. The existence of the conciliation

proceedings is not a sufficient ground on its

own to create a right to refuse to testify.

Nevertheless, according to the Finnish

procedural law, a party to the case may not be

heard as a witness before the court, thus the

parties have no obligation to testify in the

judicial proceedings regarding the

conciliation proceedings.

An attorney or a counsel may also, although

heard as a witness, refuse to testify in re-spect

of the matters the client has entrusted to

him/her. Persons like public officials, phy-

sicians and pharmacists may as well refuse to

testify in respect of some matters enumer-ated

in the Finnish Code of Judicial Procedure

chapter 17, section 23. In addition, a per-son

called as a witness may also refuse to give a

statement which would reveal a business or No rule exists stipulating that the right to rely

professional secret unless very important on a document or communication in litigation

reasons require the witness to be heard would be waived if the document or

thereon. communication has been relied on in

It is not possible to hear witnesses under an conciliation pro-ceedings. The only way to

oath in an arbitration held in Finland in accor- prevent that the document or communication

dance with the Finnish Arbitration Act. As a relied on in concilia-tion proceedings will not

result, the persons heard by the arbitral tribu- be relied on in subsequent litigation is to

nal have no obligation to give a testimony make an agreement pro-hibiting the use of

regarding the prior conciliation proceedings. material relied on in conciliation proceedings

On the other hand, the persons heard by the in the subsequent proceed-ings.

No, please provide reference:

In principle, unless they can invoke a In principle, documents filed in conciliation

professional or similar secret, the parties, the proceedings are not subject to any privilege;

mediator, and the persons intervened in the the parties may however agree in advance that

mediation proceedings must (if called to do they may not be used in litigation (usually

so) testify. The parties however may agree to this is specified on copies of the documents

renounce to their right to call them as too).

witnesses in litigation proceedings.

The question is not altogether clear. If what

is intended is to ask whether a party can rely

The answer to this question also depends on on a document in litigation, and then claim it

the context and the jurisdiction. If there is an is privileged, the answer would generally be

action to enforce a mediated agreement, and that a party cannot.

one party attempts to raise a common-law

contract defense, such as duress or fraud, then Note though that if a document is prepared

a court will usually permit the party to do so. for the sole purpose of a mediation, then it is

See, e.g., FDIC v. White, 76 F. Supp. 2d 736 usually not discoverable. See, e.g., Folb v.

(N.D. Tex. 1999). Motion Picture Indus. Pension & Health

Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998)

In another case, one party attempted to (P could not discover mediation brief

enforce an oral agreement reached during a prepared in connection with prior mediation

telephonic mediation conference. The court between D and 3rd Party). As a general rule,

refused to admit evidence about these however, evidence that is otherwise

communications. See, e.g., Microsoft Corp. admissible in arbitral or judicial or similar

v. Suncrest Enters., No. C-03-5424-JF(HRL), proceedings does not become inadmissible as

2005 WL 3555721 (N.D. Cal. Dec. 28, a consequence of having been used in a

2005). conciliation.

Where mediation is regulated by statute,

information disclosed during a mediation is

not admissible in any subsequent

proceedings. The without prejudice privilege

will generally apply in jurisdictions that do privilege is waived if a document or

not have mediation legislation. communication is relied on in litigation

- a mediator nothing, except in a procedure

concerning his liability as

mediator, or with prior consent of all parties Documents disclosed during the mediation

- the parties or any relevant third party : only but that the other party could have obtained

with consent of all parties (see article 1728) without the mediation, are not confidential.

i) j)







To the extent not otherwise addressed

above, if a settlement agreement is made

following an international conciliation, can

a court or arbitrator or subsequent

To what extent does the answer to (e) mediator hear witnesses or receive

above as to a penalty or injunction for a documents which are otherwise subject to a

breach in respect of confidential restriction arising out of the prior

information protected by MLICC Article 8 conciliation as being non-admissible and/or

apply to use or admission of the categories confidential, and in particular in order to

of information protected by MLICC (i) understand what the parties intended,

Article 10 in a court proceeding or an (ii) implement the agreement, or (iii)

arbitration? enforce the agreement









Unless a specific procedural contract is

agreed upon, the forfeiture of a penalty as

such has no influence on the use or admission Witnesses or documents excluded in a prior

of confidential information in a court concilliation cannot be taken as evidence by a

proceeding or an arbitration. Also, an court or arbitrator. The same applies to

injunction prohibiting such disclosures would subsequent mediation even though it is not

not oblige the court or arbitral tribunal not to subject to civil procedure law. Therefore it is

accept or consider this evidence; only the necessary to provide for exemptions as to the

party would have to bear the consequences implmentation or enforcement of the

set forth in the injunction. settlement agreement.

Parties are free to agree upon liquidated In principle, it is for the parties to determine

damages or contractual penalties in the event what evidence they want to submit to the

of a court in

breach of a confidentiality agreement. Apart civil proceedings, so that confidential

from certain legal obligations under criminal evidence supplied by one of the parties will

law or be

securities disclosure requirements for listed inadmissible. It is, however, not certain

companies such us the obligation pursuant to whether a court has the power to introduce

§ 15 such

Securities Trading Act, the parties are free to evidence ex officio by using its discretionary

determine the scope of information not to be powers pursuant to §§ 142 - 144, 273 ZPO.

disclosed. Thus, the parties may determine However, those provisions do not relate to

when there will be a claim for confidentiality witness examinations and are only applicable

which if the

could be enforced by an interim injunction. facts are contested.

This will again depend on the broadness of

the confidentiality provision and whether or

not it extends beyond facts, witnesses and

pieces of evidence learned of in the course of

the conciliation procedure. If the wording is

broad enough penalties can also be agreed to

protect against an introduction of the A lawyer mediator could again not be heard

information addressed in Art. 10. Exorbitant as a witness. Otherwise it will again depend

penalties may get reduced by a judge if no on the extent of the wording of the

real harm can be proven. confidentiality clause.









There is no effect of such A court may to full extend give access to the

arrangements on court evidence which is subject to a restriction

proceedings or arbitration. arising out of the prior conciliation.

Again, there are no specific rules except for

the general principal of confidentiality of the

mediation procedures and documentation

Breach of the obligation to keep disclosed thereon but, however, it all depends

confidentiality of information triggers the on issue to be assessed only on a case by case

responsibility as damages towards the party basis and depends very much on the type of

which suffered it, either as penalty or as litigation, position of the judge/arbitrator and

injunction during court or arbitration nevertheless the informaiton to be relied

proceedings. upon.









It would not prevent the use of the categories

of information protected by Article 10 in a

court proceeding, unless te rules on attorney- This has been addressed under (b), (f) and

client privelege applies (g).

Yes, they can. As mentioned before, any

evidence relevant to the case may be brought

To its full extent. Parties can agree not to use forward by the parties, and the judge or the

a document as evidence, and in case of arbitrator will later decide if this evidence

breach, a penalty clause, or liquidated must be accepted or rejected. The party on

damages, can be imposed to the party on breach of any confidentilaity agreement will

breach. be liable for its breach.

Mediation process is confidential. Section

360 bis of the Federal Procedural Code

provides that parties can not be interrogated A mediation process conducted in Argentina

on the facts discussed during the mediation will impede any of the parties to such process

hearing. to testify as a witness on the information

The confidential characteristic of the obtained during the process, or any court to

mediation process determines that mediators receive any document obtained from a

are compelled not to reveal to the court or mediation process. This rule applies even in

third parties any fact or information obtained the cases where the party alleges that said

during the process. admission pretends (i) to evidence the

Likewise, mediators can not testified within a understanding of what the parties intended,

subsequent process or submit their personal (ii) to implement the agreement. However,

notes on the facts revealed during the parties can file the settlement agreement in

mediation hearings. order to enforce it in case a party to the

mediation fails to honour it.

The legal arrangement in Israel, regarding The legal arrangement in Israel, regarding

this issue is very general and not detailed this issue is very general and not detailed

enough. However, it can be determined that enough. However, it can be determined that

the mediator's obligation not to disclose the mediator's obligation not to disclose

information received from one of the parties information received from one of the parties

who requested absolute confidentiality, is an who requested absolute confidentiality, is an

absolute obligation. Therefore, the mediator absolute obligation. Therefore, the mediator

cannot disclose this information in any cannot disclose this information in any

judicial or arbitral procedures, subject only to judicial or arbitral procedures, subject only to

the limited and essential exceptions the limited and essential exceptions

abovementioned that originate in primary abovementioned that originate in primary

legislation. If a mediator discloses such legislation. If a mediator discloses such

information without any legal justification, he information without any legal justification, he

may be accused of negligence or breach of may be accused of negligence or breach of

statutory duty according to the Torts statutory duty according to the Torts

Ordinance (New Version) and even invasion Ordinance (New Version) and even invasion

of privacy according to the Privacy Law, of privacy according to the Privacy Law,

5741-1981. The admissibility of any such 5741-1981. The admissibility of any such

evidence depends on whether the information evidence depends on whether the information

is absolutely necessary in order to clarify one is absolutely necessary in order to clarify one

of the exceptions to the privilege. of the exceptions to the privilege.









A court or arbitrator or subsequent mediator

has powers to analyse the case within the

scope necessary for the enforcement of the

settlement agreement. They also need to have

sufficient access to the documents allowing

Pursuant to the provisions of the Polish Code them to assess conformity of the settlement

of Civil Procedure the use of the protected agreement with the basic rules of the Polish

informations has no effect before the court. law (public order clause).

N/A N/A

Without prejudice evidence is admissible to

establish whether a settlement has been

concluded (Brown v Rice [2007] All ER (D)

252 (Mar)).



There may be exceptional circumstances

when the courts will need to look at the

conduct of mediation, however it was made

clear in Hall v Pertemps Group Ltd [2005]

ADR LR 11/01 that the kind of event the

courts will look into would be irrelevant to

the underlying dispute. It is unlikely that any

event that is directly relevant to the

underlying dispute would not be considered

[Not sure about what the question is getting as being without prejudice by the courts.

at]

Without prejudice evidence is admissible to

establish whether a settlement has been

concluded (Brown v Rice [2007] All ER (D)

252 (Mar)).



There may be exceptional circumstances

when the courts will need to look at the

conduct of mediation, however it was made

clear in Hall v Pertemps Group Ltd [2005]

ADR LR 11/01 that the kind of event the

courts will look into would be irrelevant to

the underlying dispute. It is unlikely that any

event that is directly relevant to the

underlying dispute would not be considered

[Not sure about what the question is getting as being without prejudice by the courts.

at]

In the event of a breach of confidentiality

during subsequent court or arbitration

proceedings, a party could claim for If the parties provided for such a clause in

liquidated damages or for contractual their settlement agreement, it may be

penalties if such remedies had been possible. Otherwise, the information will be

previously agreed by the parties. kept strictly confidential.

There is no statutory provision regarding this

subject. However, parties may agree to

disclose confidential information to a court,

arbitrator or mediator for the purposes as

mentioned above. The NMI-regulations for

example contain the rule in art. 15, that the

Both types of shortcomings in respect of signed settlement agreement may be disclosed

confidential information may be considered to a mediator, arbitrator or judge in case of a

to be a breach (wanprestatie). The penalties dispute regarding the compliance with the

mentioned in 2e apply to both. said agreement.

Such penalty agreed upon by the parties does

not prevent the presentation and use of such

information in court proceedings or

arbitration. But, such breach will trigger the

respective penalty.

Further, a party restricted by some kind of

penalty when revealing documents or

information in litigation may try to claim the

violation of its constitutional right to assert a

claim.

See above (2.a, b).

No provision in Indonesian Law on this

matter. See 2 (b) above

As already stated, the existence of the

conciliation proceedings on its own is not a

sufficient ground to create an obligation to

keep the material relating to the conciliation

proceedings secret.



However, if an agreement regarding the

confidentiality is made, the parties are bound

by it. Thus if the confidentiality agreement

prohibits the parties to rely on some material

The consequences mentioned in clause 2e obtained in the conciliation proceedings in

above are not available regarding the breach the possible subsequent proceedings, the

of confidentiality concerning the information parties are not allowed to produce this

or material protected by the MLICC Article material in the subsequent proceedings. As a

10, if no agreement exists that the result, the court, the arbitral tribunal or a

information or material enumerated in the subsequent mediator should not receive from

MLICC Article 10 is confidential, and the the parties any confiden-tial material that is

breach of this confidentiality leads to the agreed to be kept secret.

aforementioned conse-quences.

In order to prevent a party from using in

litigation proceedings documents / witnesses

that it was agreed that they could not be used,

the interested party should file a petition for The court/arbitrator could only hear the

their exclusion in the same litigation witnesses and receive the documents

proceedings. requested / filed by the parties. The parties

The answer to (2e) only applies to disclosure who agreed to keep the information

of the relevant information to third parties confidential, however, could not legitimately

(not in litigation proceedings between the use them in the above described context

same parties). unless the same parties explicitly or implicitly

waived their rights to the restriction.

If the parties agree, then usually permissible.

The agreement is a contract, so when the

dispute relates specifically to the contract,

courts will generally admit mediation

communications. FDIC v. White, 76 F.

Supp. 2d 736 (N.D. Tex. 1999); Olam v.

Congress Mortgage Co., 68 F. Supp. 2d 1110

(N.D. Cal. 1999). In Olam, the court

identified an additional wrinkle in the

analysis when it recognized that (i) the parties

Some courts have imposed sanctions for themselves can hold the privilege and (ii) the

similar breaches. For instance, in Bernard v. mediator may hold an independent privilege

Galen Group, Inc., 901 F. Supp. 778 that prevents disclosure. Ultimately, the

(S.D.N.Y. 1995) (court imposed sanctions on Olam court found that the policy interests in

party where it ignored court order that compelling testimony from the mediator to

mediation communications, including the protect the party resisting enforcement of the

name of the mediator, are to remain agreement outweighed the policy in

confidential -- party disclosed settlement consistent application of the mediation

offers, communications made by defendant, privilege. See Olam, 68 F. Supp. 2d at 1137-

and the name of the mediator). 38 (construing California law).

Among the jurisdictions summarized above

that facilitate the use of mediation in

litigation proceedings:

• In Nova Scotia, disclosure of relevant

information is permitted for the purposes of

carrying out or enforcing a settlement

agreement.

• In British Columbia, confidentiality does

not extend to any fee declaration, agreement

to mediate or settlement document made in

anticipation of, during or in connection with a

mediation session.

• In Alberta, the confidentiality rule does not

apply to anything contained in the mediated

As previously noted, parties may agree upon agreement, or to factual evidence relating to

the consequences of breaching the cause of action that would be otherwise

confidentiality. These agreements have not admissible.

been considered in Canadian courts.

No, they can‟t except with the consent of all

parties in the scope of an homologation of the

Same rule, as above. agreement by the Court (to get enforcement).

k) 3a)









How are settlement agreements generally

arrived at and enforced following an

How would an “offer of settlement” be international conciliation in your country ---

treated in the context of an unsuccessful such as by ordinary contract or agreement

conciliation when a party obtains less in a and/or by some exceptional regime

litigation or arbitration than it was offered including specialized courts and

by its adversary during the conciliation? procedures?









Such an offer would be of no relevance, since

it is, according to German law, nothing else

than an offer to enter into a settlement

contract that has simply not been accepted by

the other party. By ordinary contract or by agreement.

A settlement agreement reached in the course

of mediation is a compromise according to §

779

BGB. In substance, this is a contract whereby

the dispute or the uncertainty of the parties

concerning a legal relationship is resolved by

way of mutual concession. Any content is

permissible as long as it is within the limits of

general contract law, and no particular form

A settlement agreement pursuant to § 779 is

BGB is governed by general contract necessary unless required by the content of

principles. the agreement (e.g., notarization is required if

Therefore, an offer of settlement is only valid the

und thus can only be accepted within a time agreement contains an obligation to transfer

specified by the offeror or a reasonable time ownership of real estate). If a party fails to

(cf. § 147 BGB). If the offer is not accepted properly

within perform its obligations under a settlement

that time or if the offer is rejected, it ceases to agreement, German law provides for specific

exist so that no obligations can arise out of it performance of damages. Additionally, the

(Palandt/Heinrichs, § 146 para.2). Hence, it parties may contractually agree upon

would have no effect in subsequent litigation consequences,

or such as the loss of specific rights, or on

arbitration. penalties or liquidated damages (§ 339 BGB).

specialised courts and procedures

a settlement signed by lawyers for each side it

which a party has agreed to an immediate

enforceability can be made enforceable by

depositing it with the local court.

Enforceability is then declared by the court

which would be competent to hear the case.

Enforceability can also be obtained by

depositing such a settlement agreement with a

notary public who will then be competent to

This would not have any influence on the declare the enforceability. Another possibility

court‟s decision about who will have to bear is to have the settlement containing a clause

the cost of the proceedings. At present providing for immediate enforceability be

German law does not provide for the notarised by a notary public; the provision of

possibility to have an unreasonable party bear a bank guarantee or a letter of credit or the

more costs than it would have to bear under agreement of a contractual penalty in case of

the general rule that the costs of court non-performance of the settlement

proceedings will be borne by the parties in

accordance with their respective prevailing or

loosing.









An offer of settlement has no effect, if after

litigation has been carried out (cp § 146

BGB) by agreement

These aspects are specially regulated by the

Mediation Law in art. 63, as desribed above

The 'offer for settlement' is to be treated as in the introduction. As a matter of principle,

such by the addressee in accordance with its only settlement acknowledged in a court

intersts at the moment when it is received. decision or in a notarial deed could be

There are on rules in this respect imposed by enforced (these being under the laws of

law or practice, all such practical issues Romania considered as enforceable titles)

related to the settlement either proposed by otherwise enforcement of the settlement

mediator or by one of the parties within or proposed is to be made by parties' agreement

outside the mediation procedure is left at and no other procedures or tactics are to be

parties' will. implemented.







A settlement agreement is no different from

any other commercial agreement. To be

enforced, a settlement agreement would have

to be confirmed by court or by an arbitral

tribunal in the form of a final award. Swedish

procedural Code, Chapter 17, Section 6: 'If

the parties agree on a settlement of the

dispute, the court, upon request of both

parties, shall enter a judgment confirming the

It is admissable under Swedish Procedural settlement'. Swedish arbitration act Section

Law to introduce as evidence information on 27(2): 'Where the parties ener into a

a previous 'offer of settlement'. Members of settlement agreement, the arbitrators may, at

the Swedish Bar may not, according to the the request of the parties, confirm the

Code of Conduct of members of the Swedish settlement agreement in a arbitral award.'

Bar Association, rely upon an 'offer of According to Article 12 of the SCC

settlement' from an opposing party unless that Mediation Rules, upon reaching a settlement

party consents thereto. To become agreement the parties may, subject to the

inadmissible as evidence, however, the approval of the mediator, agree to appoint the

information must meet the standards of mediator as an arbitrator and request him or

Chapter 36, Section 5 of the Swedish her to confirm the settlement agreement an

Procedural Code. arbitral award

By ordinary contract, or by agreement. Under

Spanish law, the usual way to settle a case

after an international conciliation is by

Different to what happens in the US (Rule 68 drafting and signing an agreement in which

of the Federal Rules of Civil Procedure), or the parties reflect the conflict and the final

what in a similar way happened in the UK outcome. See s. 1809 and ff. of Spanish Civil

(Dunnett v Railtrack [2002] EWCA Civ 302, Code, and s.19 and related of the Spanish

where the Court of Appeals refused to award Civil Procedure Act and Article 5 of the

the prevailing party the costs of the appeal 'Proposal for a Directive of the European

because she rejected to take part in a Parliament and of the Council on certain

mediation process), in Spain there is no aspects of mediation in civil and commercial

impact or consequence at all. matters'.

By agreement: Settlements are generally

arrived by an agreement where parties,

without admitting facts or rights of the

counterparty, assume certain obligations for

the sole purpose of terminating the dispute.

Is a standard practice in Argentina that parties However, since the settlements are also

to a settlement agreement do not admit facts executed by the mediators, the latter certifies

or rights for the benefit of the counterparty. the signature of the parties and thus said

Settlements are entered into just for the certification entitles the plaintiff to follow a

purpose of terminating the dispute. Thus, any summary proceeding also provided by the

offer made within the mediation process Procedural Code for other specific

should not be considered by the court when enforcements (e.g. banking checks,

ruling on the case, since it was made just to promissory notes, etc.).

settle the dispute.

Whether the mediation was unsuccessful and

the dispute is returned to the competent court,

or the dispute arrives in court for the first

time after an unsuccessful mediation, there

will not be any discussion of the offers of

settlement that were made during the

mediation or of any matter regarding the

mediation procedure that are subject to the Unless the agreement is incorporated into a

confidentiality of the mediation mentioned in judgment, the court will address an

Regulation 3(b) of the Mediation international mediation settelments as a

Regulations. This regulaion also requires the regular contract and will subject its

court to explain to the parties that matters interpretation and enforcement to contract

submitted in the course of the mediation law. If the agreement has already been

process shall not serve as evidence in civil incorporated into a foreign judgment or

proceedings and that neither their refusal to arbitration award, it will be enforced

commence mediation proceedings or their according to the Foreign Judgments

decision to halt such proceedings will affect Enforcement Law, 5718-1958 or the

the outcome of any court proceedings, so they Arbitration Law, 5728-1968, as applicable.

will feel comfortable and not be inhibited There are not any relevant or similar

telling the truth or making offers, in order to provisions regarding the enforcement of a

encourage the success of the mediation. mediation settlments.









The offers made during the mediation Any other, please specify: The settlement

proceedings have no impact whatsoever on agreement itself is conluded in writing

further proceedings before the court or without any particular formalities. However,

arbitral tribunal. In particular the offers to gain a status of a court order it has to be

cannot be treated as recognition of debts approved by a court

There are two procedures: (1) for settlements

reached before the foreign national court and

(2) for settlements reached before the foreign

arbitral court.

According to article 1152 of Polish Code of

Civil Procedure, a settlement reached before

the foreign national court is, according to

principle of reciprocity, a enforceable title, if

is capable in the country where that

settlement has taken a place.

According to article 1215 §1 of Polish Code

of Civil Procedure, the national court shall

decide on recognition or enforcement of a

foreign settlement reached before the arbitral

court after the hearing. According to article

1214 §3 of Polish Code of Civil Procedure,

recognition or enforcement of settlement

reached before the arbitral court shall be

refused by the national court if: 1) the dispute

was not capable of submission to arbitration

under the law; 2) the recognition of

enforcement of the settlement reached before

the arbitral court would be contrary to

fundamental public policy rules of the

Republic of Poland (the public order clause).

In article 1215 §2 of Polish Code of Civil

Such “offer of settlement” from conciliation Procedure, there are additional circumstances

can not be invoked as an argument / evidence when the national court, on request of a party,

in a litigation (upon the Article 1834 § 3 of shall refuse recognition or enforcement of the

Polish Civil Procedure Code). foreign settlement reached before the arbitral

Under CPR R. 44.3 (4) (c), when deciding on

costs the court must have regard to any

admissible offer to settle made by a party

which is drawn to the court‟s attention,

whether or not this is made in accordance

with Part 36 of the CPR or not. However,

any offer made “without prejudice” may not

be admissable on any issue as to costs

without the consent of both parties (Corny v.

Bretton (1830) 4C.3P.462). Thus, if the offer

made in the conciliation is not made “without

prejudice” or is made “without prejudice save

as to costs”, the court may take the amount

offered into consideration when determining Settlement agreements are generally

what costs the parties will pay. If such offer concluded as written and signed agreements,

is made “without prejudice” it will be which are binding between the parties under

inadmissible, unless both parties agree to its the principles of contract and may be

admission. enforced in the courts as such.

Under CPR R. 44.3 (4) (c), when deciding on

costs the court must have regard to any

admissible offer to settle made by a party

which is drawn to the court‟s attention,

whether or not this is made in accordance

with Part 36 of the CPR or not. However,

any offer made “without prejudice” may not

be admissable on any issue as to costs

without the consent of both parties (Corny v.

Bretton (1830) 4C.3P.462). Thus, if the offer

made in the conciliation is not made “without

prejudice” or is made “without prejudice save

as to costs”, the court may take the amount Settlement agreements are generally

offered into consideration when determining concluded as written and signed agreements,

what costs the parties will pay. If such offer which are binding between the parties under

is made “without prejudice” it will be the principles of contract and may be

inadmissible, unless both parties agree to its enforced in the courts as such.

admission.

In principle, any offer of settlement made in

the context of conciliation proceedings is

confidential and therefore cannot be disclosed

by any party. In the event, however, that the

parties had agreed to waive confidentiality

over the content of the conciliation

proceedings, an offer of settlement

subsequently produced before a court or an

arbitral tribunal could influence the latter

especially because a negative finding could

be drawn against the party that refused the

offer and decided to initiate the court or by ordinary contract, or by agreement

arbitral proceedings (e.g. abuse of process).

Parties in conciliation generally agree to

consider an “offer of settlement” made during

conciliation proceedings as confidential

information. As this confidentiality clause is by ordinary contract, or by agreement.

to be considered an agreement of According to article 87 Rv, parties can

documentary evidence in the sense of article request a judge to order the emergence of

153 RV, a party, after an unsuccessful parties in a court session in order to come to a

conciliation, may not disclose such settlement. If a settlement is reached and

information in a subsequent litigation or upon the request of a party, an official report

arbitration procedure. Nevertheless, when a containing the parties‟ engagements under the

party should disclose the “offer of settlement may be drafted. Such a report is to

settlement”, the judge or arbitrator might take be considered an enforceable award (art. 87

this information into account. The subsection 3). It is also possible to record a

disadvantaged party may then impose one of settlement agreement by means of an arbitral

the penalties as mentioned above upon the award (art. 1069 Rv).

disclosing party.

Such offer may not be regarded as binding

since it was made in the context of settlement

negotiations.

Further, there are no consequences as to costs

unless provided for in the mediation

agreement.

by ordinary contract, or; by agreement

When a party obtains less in arbitration than

in the offer of settlement in an unsuccessful Under Law No. 30 of 1999, after settlement is

conciliation, the party cannot do anything reached, the outcome shall be set out in a

since the award obtained in arbitration shall written agreement. Such agreement, to be

be final and binding. While in a litigation, a enforceable, shall be registered in the District

dissatisfied party can appeal to the High Court within no more than 30 days after it has

Court, then to the Supreme Court, and finally been signed. In the Court-Ordered Mediation,

appeal for the Judicial Review to the Supreme settlement agreement can be incorporated in a

Court. Judge decision.

According to the Finnish Rules of proper

professional conduct for advocates, section

39, an advocate may not, without the consent

of the opposing party, at trial invoke a

proposal for settlement made by that party.



This provision reflects the general attitude

regarding how an offer of settlement made

dur-ing the conciliation proceedings should

be treated in a subsequent litigation or

arbitration. Generally, it is not even

appropriate to rely on a prior offer of

settlement made in the con-text of an

unsuccessful conciliation during the by agreement,

following proceedings. However, if a

reference to the prior offer of settlement is If the other party refuses to voluntarily follow

made, the court or the arbitral tribunal will the agreement made regarding the settlement,

usually give no importance to this kind of the enforcement of the settlement agreement

reference. can be applied for the court.

A non-accepted offer of settlement loses any

force and effect. All rights and obligations of

the parties would thus be regulated by the by ordinary contract, or by agreement, and /

judgement / award. or

Rule 68 of the Federal Rules of Civil

Procedure provides that if a party makes a pre-

trial settlement offer and the other party

rejects it, “if the judgment finally obtained by

the offeree is not more favorable than the

offer, the offeree must pay the costs incurred

after the making of the offer.” A large

number states follow similar rules with

respect to settlement offers made in

connection with litigation. See, e.g., Alaska

R. Civ. P. 68; Cal. Civ. Proc. Code § 998;

Conn. Gen. Stat. Ann. § 52-192a; Fla. Stat. [What is the difference between a contract or

Ann. § 768.79; Hawaii R. Civ. P. 68; Mass. an agreement? It would be either of these, or

R. Civ. P. 68; Mich. C.R. 2.405; Wis. Stat. if it is court ordxered, the third option may be

Ann. § 807.01(3). in play, depending on the jurisdiction.]

While formal offers to settle made in the

context of settlement negotiations can trigger In the Nova Scotia, Ontario, and Alberta

outcome-based cost consequences, offers to provisions facilitating the use of mediation in

settle made during mediation are confidential litigation proceedings, parties must file

and cannot. settlement agreements with the court.

As a general rule, settlement agreement

arrives at by written agreement.



Article 1733 of the Belgian Code of Civil

procedures, sets forth that each party can,

under certain conditions, apply for

homologation by the competent Court. The

homologation decision can be enforced as a

Such an offer of settlement is confidential. regular judgment.

b) c)









In addition, are there special agreements,

procedures or tactics which can enhance

recognition and enforcement --- such as by

bonds, letters or credit or security

agreements, deeds, summary proceedings,

incorporation in a judgment or as an

arbitral award made with the consent of Are there any defenses ordinarily or

the parties, or is there some other sui exceptionally available against enforcement

generis system of expedited enforcement? of post-conciliation settlement agreements?







Security agreements, deeds, as an arbitral

award made with the consent of the parties, or

some but other sui generis system of

expedited enforcement. A settlement itself is

enforceable in the following cases: deed The debtor may avail itself of the ordinary

drawn up by a German notary or an procedural defenses, in particular of an action

enforceable attorney's settlement, if the debtor against enforcement by which it may,

agreed to immediate execution, a settlement principally, assert only such objections

before a state approved conciliatory center or against the claim, following from the

if court proceedings are pending, a court- settlement, that came into existence after the

recorded settlement. settlement agreement.

There exist several special procedures which

can enhance recognition and enforcement of a

settlement agreement. The parties could have

a deed drawn up by a German notary public,

which creates an enforceable entitlement if

the obligor specifically agrees to immediate

execution in the document. The deed then

becomes enforceable within the EU.

Another alternative is an attorney‟s

settlement, which is a settlement agreement

concluded by

attorneys on behalf and with the authority of

their clients the parties. At the request of a

party a

court may declare the settlement agreement

enforceable if the following requirements are

met:

(i) the obligor has specifically agreed to

immediate execution of the agreement, (ii) the

settlement has been deposited at the local

court at which one of the parties could be

sued

according to rules of general jurisdiction at

the time when the settlement was concluded,

and

Erstelldatum 15.08.2007 15:21:00 /10 12

(iii) the agreement states the date on which it

was signed (§ 796a ZPO). With the consent

of the Usual contract defenses apply to a settlement

parties, the settlement can also be declared agreement, such as incapacity, mutual

enforceable by a notary and placed in his mistake or

custody as lack of agency. In addition, a further defense

long as the notary has seat in the district of a is available pursuant to § 779 BGB (error on

court at the residence of one of the parties (§ the

796c factual basis of the settlement agreement).

by bonds









above) According to Art. 779 German Civil Code a

settlement agreement is invalid if according

to the settlement agreement both parties

wrongly assumed certain facts and if the

consent of the parties: dispute would not have arisen had they

this is being discussed as a possibility, exact known the true facts. Otherwise settlement

requirements are still under debate agreements can be invalid for the same

reasons as any other agreement including

expedited enforcement, please specify: wilful deceit by one party of the other party.

There exist no specific rules based on which a

Nothing specific for mediation/conciliation party could claim the invalidity of a post-

procedures, otherwise see under (a) above mediation settlement agreement due to an

undue conciliation procedure.









deeds

X summary proceedings, as an arbitral award

made with the consent of the parties N/A

Nothing special, other than the general

principles which govern the enforcement of

agreements, and in the case of an

international mediation the principles set out

in the Law no. 105/1992 on private

international law. Such defences may refer to

public order principles or breach of the

procedural aspects agreed between the parties

See 3a and mediator.









According to Chapter 3, Section 13 of the

Swedish Enforcement Code, a settlement that

is confirmed by a court is enforced as a

judgment that has entered into final legal

force, unless otherwise ordered as a result of

an action against the judgment or an action

Incorporation in a judgment or arbitral award for a declaration of invalidity of the

is necessary for enforcement. settlement agreement.

The available defenses are the same used in

the general law of contracts. Parties can

allege that the agreement is null and void

because:



(i) was signed by mistake, under threat or

violence, or false pretense, or relying on false

Incorporation in a judgment, as explained documentation (§§ 1817, 1818, 1262-1270

above, the best way to assure recognition and Spanish Civil Code),

enforcement by court is by incorporating the (ii) violates the Spanish public order.

agreement in a court order. There are other (iii) its object is illegal (§§ 1271-1276

means to ensure fulfillment of the obligations Spanish Civil Code).

and rights in the scope of the settlement (iv) The other party has breached the

agreement: bank warranties, bonds, etc. Most obligations incumbent on it under the

are commericla instruments ensureing conciliation agreement.

payment obligations.

summary proceedings: The execution of the Basically no, since the settlement simple

settlement within a mediation process entitles indicate the obligations assumed by the

the parties to enforce it through a summary parties. It could be argued that the

proceeding. No further procedures are enforcement is improper since there is no

required to obtain a valid document to breach of the settlement, but no other

enforce a right granted in mediation. ordinary defenses are available against

enforcements.

The parties may always elect to secure Since Israeli law sees the mediation

performance of a settlement agreement, such settlement as a contract, a party to the

as by provision of a bond, letter of credit or settlement may argue against in on the basis

other security. A written agreement for of one of the causes for declaring a contract

payment of a fixed or determinable sum may void or voidable, such as fraud, forgery,

also be sued upon in summary procedure. In deception, etc., that are located in the

addition to the aforesaid, if the mediation Contracts (General Part) Law, 5733-1973, if

settlement has been incorporated into a the party has succeeded in proving all the

judgment by the court, this will enhance conditions according to the law. Additionally,

recognition and enforcement, as a party may a party may defend enforcement on the

immediately proceed to execution (in the case ground of breach of contract. If the settlement

of a domestic mediation or conciliation) or to agreement has been incorporated in a court

enforcement under the Foreign Judgments decision, the party must first seek to overturn

Enforcement Law 1958, in the case of a such decision, by terminating the agreement

foreign judgment, which will then be treated and obtaining a court order that the

as a domestic judgment. agreement is no longer enforceable.









The means of attacking the settlement

agreements approved by the court are the

incorporation in a judgment, as an arbitral same as under the Uncitral Model Law on

award made with the consent of the parties Arbitration

No No

The following procedures may also be used to

enhance the recognition and enforcement of

settlement agreements:

If the settlement agreement was recorded in

• Incorporation into a judgment; writing and signed by the parties, the

• Incorporation into an arbitral award; defences available against the enforcement of

• Consent orders; post-conciliation settlement agreements, are

• Tomlin orders (which have the effect of those defences available against the

staying the proceedings save for the purpose enforcement of a contract under general

of carrying out any terms set out in a schedule contract law, which include lack of

to the order); and/or consideration, incapacity, illegality, mistake,

• Deeds. misrepresentation, duress and undue

influence.

The following procedures may also be used to

enhance the recognition and enforcement of

settlement agreements:

If the settlement agreement was recorded in

• Incorporation into a judgment; writing and signed by the parties, the

• Incorporation into an arbitral award; defences available against the enforcement of

• Consent orders; post-conciliation settlement agreements, are

• Tomlin orders (which have the effect of those defences available against the

staying the proceedings save for the purpose enforcement of a contract under general

of carrying out any terms set out in a schedule contract law, which include lack of

to the order); and/or consideration, incapacity, illegality, mistake,

• Deeds. misrepresentation, duress and undue

influence

Under French law, there are no specific

defences for post conciliation settlement

agreements. The defences against these

agreements are the same as the defences

against any "normal" settlement agreement.

Pursuant to Article 2044 of the French Civil

Code, for a settlement agreement to be valid,

it must settle the dispute between the parties

or prevent any forthcoming dispute, and

contain reciprocal concessions. Therefore,

should there remain some issues unresolved

by the settlement agreement, or should only

one of the parties make a concession, the

validity of the settlement agreement could be

challenged. Furthermore, a settlement

agreement can be rescinded: - when there

was an error on the person or on the subject

of the dispute ; - in case of fraud or in case of

violence ; - when it was entered into on the

basis of a title which is null and void . It can

be declared null and void:

- when it was entered into on the basis of

documents which have been declared to be

false;

- when it was entered into, whereas the

parties or one of them ignored a court

In France, a settlement agreement is granted decision having res judicata authority, which

enforcement by way of approval from the had already settled the dispute .

District court (tribunal de grande instance), - when title documents are discovered after

upon a party's request . As part of the courts' the settlement agreement, relating to the

homologation review, the court only checks subject matter of the settlement agreement,

the apparent regularity of the settlement which establish that one of the parties had no

agreement, in particular, that it does not run right on the concerned title .

foul of French public order.

A post-conciliation settlement agreement is a

settlement agreement in the sense of art.

7:900 BW. According to art. 7:902 settlement

agreements on the subject of property rights

may even be adverse to imperative law,

unless the contents or purpose of the

agreement are also adverse to public order or

good morals. For example, it is customary in

the Netherlands to exclude the possibility for

parties to appeal to „mistake‟ in concluding a

settlement agreement.



A post-conciliation settlement agreement may

be (partially) void if in violation with public

order or good morals (art. 3:40 subsection 1

BW). Also a said agreement may be voidable

deeds, a notarial deed in which the settlement if concluded fraudulently, under duress or

agreement is incorporated is enforceable. under undue influence (art. 3:44 BW). There

[Handboek Mediation 2003, p. 169], are no exceptional defences available against

incorporation in a judgment, as an arbitral enforcement of post-conciliation settlement

award made with the consent of the parties agreements.

security agreements, incorporation in a

judgment (provided that proceedings are The settlement agreement is an ordinary

pending), as an arbitral award made with the contractual agreement between the parties.

consent of the parties Therefore, it may be subject to any

(provided that proceedings are pending) contractual argument such as fraud and wilful

deception.

A post-mediation settlement agreement which

has been incorporated in a Judgment shall be

Incorporation in a Judgment final and binding.

The enforcement of post-conciliation

settlement agreements can be prevented on

the same basis as the enforcement of the

ordinary agreements. The party objecting the

enforcement may claim for example that the

agreement is invalid because of duress,

fraudulent induce-ment or a

misrepresentation, or that the enforcement of

the agreement would lead to an unfair result

as an arbitral award made with the consent of which could lead to the agreement being

the parties declared terminated.

letters of credit

security agreements

deeds

Or, some but other sui generis system of

expedited enforcement, please specify:

If the conciliation occurred in the context of

court proceedings, the minutes of the

agreement may be enforced like a judgement.

In labour matters, the minutes of the

settlement reached before dedicated Only ordinary defences available against

conciliation committees have the same effect. private agreements, such as annullement of

the agreement for fraud of one of the parties.

[“Special agreements?” As a general rule, the

“agreements, procedures or tactics” used to

enhance recognition and enforcement of

contracts in general apply to contracts

reached pursuant to a settlement or

conciliation. In the United States, a party can

confirm an arbitral award into a judgment; so Parties can raise common-law contract

to the extent that the parties consent to defenses against enforcement of post-

memorialize their settlement agreement in an conciliation settlement agreements, such as

arbitral award, they can avail themselves of duress. See, e.g., FDIC v. White, 76 F. Supp.

the same procedures for recognition that are 2d 736 (N.D. Tex. 1999). The availability of

available to parties to an arbitration (e.g., these defenses is dependent on the applicable

confirmation, pre- and post-judgment state law where the party is attempting to

interest).] enforce the agreement.

Most agreements regarding enforcement will Equitable principles such as

be contemplated by the parties in the unconscionability or undue influence may

agreement to mediate, offering a wide range apply to bar enforcement of post-conciliation

of remedial options. settlement agreements.

Not specified In commercial matters only public order.

d)









What law or rules apply as to such items as

costs, interest and attorney fees in the

enforcement of a settlement agreement?









Settlement agreements are enforced in

accordance with the ordinary provisions of

the 8th book of the ZPO, pursuant to which

the debtor has to pay the 'necessary costs of

the enforcement'. Included are, inter alia , the

fees and expenses of the forced execution,

including attorney's fees. Interests on the

principal claim can only be collected if the

settlement agreement so provides.

There are no specific rules governing costs in

the enforcement of a settlement agreement. If

enforcement is pursued through litigation,

under German law the unsuccessful party

generally

bears the full court costs and must reimburse

the statutory attorney fees incurred by the

successful party in the proceedings

(regardless of any negotiated attorney fee

arrangements).

Court fees are governed by the Court Fees

Act (Gerichtskostengesetz) and depend on the

value

of the matter in dispute. The court also

charges for other expenses, such as costs for

courtappointed

experts, service of process, or translation.

Statutory attorney fees are governed by the

Federal Attorney Remuneration Act

(Rechtsanwaltsvergütungsgesetz), which

entered into force

on July 1, 2004. Fees under that act are

primarily calculated on the basis of the value

of the

matter in dispute. Negotiated fees are

frequent but must be explicitly agreed to.

Larger law firms

in particular often charge by hourly rates or

will enter into negotiated fee arrangements.

Currently contingency fees are not

permissible, but the Federal Constitutional

Court has recently

held that the German legislature must amend

the law prohibiting contingency fees to allow

an

Absent any contractual stipulations and

subject to any higher actual damage interest

will be due at 8% over and above the basic

interest rate. Costs and attorney fees have to

be borne by the party refusing to fulfil its

obligations when due.









The general rules of German civil law do

apply.

The rules of lex fori are able to be applied to

the enforcement of a settlement agreement to

costs, interest and attorney fees. In Romania

the general principles of civil procedure and

enforcement of

agreements/decision/settlements should

apply. As regarrds the costs, there are certain

enforcement fees due to the special enforcing

officer in charge as well as some small court

fees, all these theoretically being added to the

amounts to be recovered under the settlement.

Beside this, if parties have an attorney, such

costs, in reasonable amounts assessed on

local practice by the courts, may be added.









General Rules of enforcement apply.

The same rule that applies to general

litigation. As established in § 394 Spanish

Civil Procedure Act, the legal fees, expenses

and costs must be paid by the losing party,

except if the case was dubious. In this case,

the judge has the possibility to decide not to

impose the costs on the losing party. Thus, if

the claim is entirely granted, then the

defendant bears all costs and expenses. If

entirely dismissed, the plaintiff is in charge of

it. If partially granted or dismissed, each party

bears their own costs.

Mediation law provides the fees to be accrued

by the mediator which are in strict relation

with the amount of the settlement. But there

is a minimum of U$ 50.- and a cap of U$

200.-



There is no reference to the professional fees

of legal counsels who assisted the parties

within the process. Thus, in case of

enforcement courts should rely on the general

rules to determine the amount of the fees,

notwithstanding any agreement entered into

by the party and its counsel (“pacto de cuota

litis”).

Israeli law does not explicitly address this

matter. However, it seems that the court will

award costs based on its best judgment and

what is reasonable under the particular

circumstances. Israeli courts award costs in

favour of the successful party, but the amount

of costs is in the court's discretion and

typically is significantly less than the actual

costs incurred by a party.









If the settlement is to be enforced in Poland,

Polish procedural rules will be applied.

provisions of Polish Code of Civil Procedure

and respective decrees

Unless specific provision has been made in

the settlement agreement as to costs, interest

and attorneys fees, the usual rules on costs in

civil proceedings will apply under CPR 43.

Unless specific provision has been made in

the settlement agreement as to costs, interest

and attorneys fees, the usual rules on costs in

civil proceedings will apply under CPR 43.

Under French law, there are no specific rules

applicable to enforcement of settlement

agreement regarding costs, interest and

attorney fees.



Therefore, unless otherwise agreed by the

parties, the general provisions of civil

procedure should apply.

When a settlement agreement is enforced, it is

at the discretion of the judge or arbitrator to

decide which party shall bear the costs,

interest and attorney fees. Generally the party

at loss will be condemned to bear the costs,

interest and fees.

In order to enforce the agreement, parties may

file a claim for performance. The respective

cantonal procedural law and rulings will

apply as to costs, interest and attorney fees.

Obligation to bear costs, interest and attorney

fees in the enforcement of a settlement

agreement can be agreed between the parties.

Usually an agreement regarding the allocation

of the costs, interest and attorney fees is in-

cluded in the settlement agreement. If no

agreement regarding the legal expenses

exists, the court may, when enforcing the

settlement, give a decision regarding the

allocation of the legal expenses on the basis

of the request of the parties. However, if no

request is made, the court will not treat the

matter on its own initiative, and the parties

have to bear their own legal expenses.

No specific rules exist; the related obligations

are of a purely contractual nature.

Parties to a settlement agreement can work

out these terms in connection with the

agreement. For the remainder the answer

depends on the law of the various

jurisdictions/50 States.

In the jurisdictions that have enacted

provisions to facilitate the use of mediation in

litigation proceedings, if a party must pursue

a court action to enforce an agreement, legal

costs may follow the event.

Not specified