Docstoc

New Jersey Life Insurance Misrepresentation Material Lawyers

Document Sample
New Jersey Life Insurance Misrepresentation Material Lawyers Powered By Docstoc
					      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

				
DOCUMENT INFO
Description: New Jersey Life Insurance Misrepresentation Material Lawyers document sample