In a previous article, the existence and basic functions of mediation were discussed. It was stated that mediation is a part of the alternative dispute resolution (ADR) branch, allowing the parties involved in a legal dispute to opt for mediation as an alternative to litigation. The scope of mediation, however, is broader and more complex. The aim of this article is to explore the recognition of mediation, briefly introduce different types of mediation and examine why the voluntary nature of mediation is essential.

One of the core values of mediation is that the entire process is based on the principle of voluntariness, which means the parties must willingly opt for mediation, and no external authority can compel their participation. The Hungarian Act on Mediation states, that the procedure shall be initiated by mutual agreement between the parties by requesting a natural or legal person of their choice to act as mediator.[1] The idea of a request from the side of the parties is logical since the whole point of mediation is to try to facilitate a conversation between the parties and it would be challenging if one or both parties were uncooperative or disengaged. Thus, the decision remains in the hands of the parties, but this choice carries significant weight, as parties can only choose from the options, they are familiar with: the principle of bounded rationality applies to the choice of forum in legal disputes.[2]  Despite the statutory regulation of mediation in Hungary since 2002, it appears that mediation has not yet received the recognition it deserves. A survey on the awareness of mediation has already been carried out in Hungary: according to data from December 2015, 29.1% of people surveyed had already heard of mediation.[3] This indicates that more than two-thirds of the participants had no prior knowledge of mediation and therefore will not consider trying it out once they have a legal dispute. In this research, the test subjects were presented with the definition of mediation before they had to answer whether they were familiar with this kind of conflict management method or not. It might have been insightful to ask the same question but without the definition and later inquire if participants could explain what mediation entails, to assess if the public truly comprehends the concept when they opt for mediation. Indeed, some individuals might have misconceptions about it:  apparently, a mediator has had clients show up with yoga mats.[4]

To address this lack of awareness, this article will introduce some of the types of mediation and explore briefly what the difference is between out-of-court mediation, court-annexed mediation, and judicial mediation.

Out-of-court mediation is a form of pre-litigation mediation, provided by private mediators not directly affiliated to the judicial organization.[5] In this process, the freedom of the parties is wide, it depends on them how quickly they get to the solution and how and when they implement it.

On the other hand, court-annexed mediation, and judicial mediation do not limit mediation to pre-litigation, as parties can use mediation also at the beginning of the litigation, during the litigation and even later after the litigation, in some cases during the enforcement phase, on the recommendation of the court, but within the framework of the court proceedings, within the time limit set by the judge.[6]

Considering the earlier emphasis on the voluntary nature of mediation, it might be controversial, but compulsory (judicial) mediation exists: how is this possible?

Compulsory mediation appears in the Hungarian Act on Mediation, where it says, “[i]n the case of a mandatory mediation procedure, the court or the authority obliges the parties to cooperate with at least one mediator to settle all or part of their dispute by agreement.”[7] At first, it may seem harsh and might raise questions around the legality of such a provision, as it gives no choice to the parties. However, the text goes on: “…in the framework of this obligation of cooperation, the Parties are obliged to a) jointly seek mediation (request or application); and b) attend the first mediation meeting.”[8] Even though the parties must seek mediation, the court has no power to force them to settle their dispute this way, as the parties are only obliged to attend the first mediation meeting. If after this meeting they do not want to continue, they do not have to, meaning the full conduct of the mediation process itself, in particular the conclusion of an agreement by the parties is not mandatory.[9]

It is important to note that today in Hungary compulsory mediation is only possible in two cases. It can be ordered in a dispute over the exercise of parental authority[10] and the court may order this if it considers that it is likely to produce a positive result.[11] Mediation can be ordered not only by the court, but also by the guardianship authorities in cases falling within their jurisdiction, meaning the guardianship authority may, on request or ex officio in the best interests of the child, order the parents to have recourse to mediation.[12] Again, reaching an agreement through mediation is not mandatory in either case.

It can be concluded that the narrow range of options to refer the dispute to mediation and the lack of mandatory full conduct of the mediation process means the legislator intends to protect the voluntary nature of mediation. This approach is valuable, as voluntary mediation empowers individuals to protect their constitutional rights, mainly their right to self-determination. The right to self-determination, although not explicitly enumerated in the Fundamental Law of Hungary, is deemed an aspect of the right to human dignity according to the Constitutional Court’s jurisprudence.[13] This interpretation is derived from Article II of the Fundamental Law, which states: “human dignity shall be inviolable. Every human being shall have the right to […] human dignity.” Therefore, the area of mandatory mediation is constitutionally sensitive, and any future expansion of this legal institution requires careful consideration.

Although there are more constitutional aspects of mediation[14], this might be the most striking.

Looking ahead, the full potential of voluntary mediation can only be realized by addressing misconceptions associated with the process, thereby narrowing the divide between public perception and the actual mediation process. Through increased awareness and dispelling of misconceptions, mediation can assume a more central role in conflict resolution.

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Sources

Legislation and Legal Documents:

• Act LV of 2002 on Mediation
• Act V of 2013 – the Civil Code

Academic Articles and Journals:

• Aszatrjan, D. Á., & Tóth, K. A. (2016). Közép Európai Mediációs Intézet “Mediációról a mediációért” pályázat: Kutatás a mediáció ismertségéről és a mediáción való részvétel arányáról Magyarországon [Central European Mediation Institute “Mediation for Mediation” Competition: Research on the Awareness and Participation Rate of Mediation in Hungary]. Budapest. https://www.kemi.hu/images/news/627928cc8601b.pdf (last accessed: 21.10.2023)
• Gyengéné Nagy Márta: A bírósági közvetítés fejlődésének lehetőségei Magyarországon (Családi Jog 2014/4., 1-6. o.) [Opportunities for the Development of Court Mediation in Hungary], 4(2014), 1-6. https://szakcikkadatbazis.hu/doc/3660494
• Németh, Z. (2022). Constitutional foundations of mediation in Hungarian Fundamental Law. Publicationes Universitatis Miskolcinensis Sectio Juridica et Politica, XL (2), 163-173.
• Simon, H. A. (1990). Bounded rationality. Utility and probability, 15-18. https://link.springer.com/chapter/10.1007/978-1-349-20568-4_5
• Great Commentary on Act V of 2013 (the Civil Code), authored by Szeibert Orsolya, as part of Gárdos Péter and Vékás Lajos’ comprehensive commentary

Legal Decisions:

• 22/1992 (IV.10.) Constitutional Court decision
• 23/1990 (XI.31.) Constitutional Court decision
• 30/2013 (X.28.) Constitutional Court decision
• 46/2007 (VI.27.) Constitutional Court decision

Other:

• https://arsboni.hu/epitsunk-hidakat-interju-dr-nemeth-zoltannal-1-resz/

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[1] Act LV of 2002 on Mediation Art. 23 (1)

[2]  Simon, H. A. (1990). Bounded rationality. Utility and probability, 15-18.: Bounded rationality is a central theme in the behavioural approach to economics, which takes into account the limitations of both knowledge and computational capacity.  https://link.springer.com/chapter/10.1007/978-1-349-20568-4_5

[3] Aszatrjan, D. Á., & Tóth, K. A. (2016). Közép Európai Mediációs Intézet “Mediációról a mediációért” pályázat: Kutatás a mediáció ismertségéről és a mediáción való részvétel arányáról Magyarországon [Central European Mediation Institute “Mediation for Mediation” Competition: Research on the Awareness and Participation Rate of Mediation in Hungary]. Budapest. https://www.kemi.hu/images/news/627928cc8601b.pdf (last accessed: 21.10.2023)

[4] Zoltán Németh, President of the Central European Mediation Institute, shared this story in one of his interviews https://arsboni.hu/epitsunk-hidakat-interju-dr-nemeth-zoltannal-1-resz/

[5]  Gyengéné Nagy Márta: A bírósági közvetítés fejlődésének lehetőségei Magyarországon (Családi Jog 2014/4., 1-6. o.) Opportunities for the Development of Court Mediation in Hungary. https://szakcikkadatbazis.hu/doc/3660494

[6] Ibid.

[7] Act LV of 2002 on Mediation Art. 38/C (2)

[8] Act LV of 2002 on Mediation Art. 38/C (2)

[9] Great Commentary on Act V of 2013 on the Civil Code), authored by Szeibert Orsolya, as part of Gárdos Péter and Vékás Lajos’ comprehensive commentary to Art. 4:172.

[10] Act V of 2013 on the Civil Code (hereinafter: Ptk.) Art. 4:172.

[11] Great Commentary on Act V of 2013 on the Civil Code), authored by Szeibert Orsolya, as part of Gárdos Péter and Vékás Lajos’ comprehensive commentary to Art. 4:172.

[12] Ptk. 4:177. §

[13] 23/1990 (XI. 31.) Constitutional Court decision, 22/1992 (IV. 10.) Constitutional Court decision, 46/2007 (VI. 27.) Constitutional Court decision, 30/2013 (X. 28.) Constitutional Court decision

[14] See: Németh, Z. (2022). Constitutional foundations of mediation in Hungarian Fundamental Law. Publicationes Universitatis Miskolcinensis Sectio Juridica et Politica, XL(2), 163-173.

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Anna NÉMETH – She is currently pursuing her master’s degree in law at Eötvös Loránd University, completing her courses with excellent marks. In addition, she is studying international public management BA at the University of Public Service. During her university years she won the New National Excellence Programme in 2020. She worked as an intern for KPMG Legal Tóásó Law Firm and for the Oppenheim Law Firm in Budapest. In her previous research, she has focused on the constitutional status of art and artistic freedom. Through another project she has explored the consumer protection and competition law aspects of the Digital Markets Act. In her ongoing research, she delves into the topic of mediation.