Abstract
Mediation plays an increasingly important part as a dispute resolution mechanism for civil law disputes in Norway, and the Norwegian legislator has taken several steps to facilitate the use of mediation. However, regardless of incentives to increase the use of private, out-of-court mediation, most mediation is provided by publicly funded mediation institutes, and there is still a very small market for private mediators. Several of the most commonly used mediation institutes are closely connected to the court system, either as mandatory steps before the instigation of legal proceedings, or in the form of in-court mediation institutes. Especially rettsmekling (judicial mediation) has been successful. The approach to mediation in Norway has for the most part been fairly pragmatic, recognizing the benefits of amicable settlement of disputes, but with a rather eclectic view of mediation, sometimes including procedures and techniques that blur the line between mediation and other dispute resolution mechanisms. For instance, an evaluative mediator role is allowed for several mediation institutes, and some mediation institutes are integral parts of or mixed with other dispute resolution mechanisms, for instance adjudication. For parental court disputes concerning custody and visitation rights, evaluation is especially prominent. The approach to mediation is often fairly outcome-oriented. In this chapter, the most important Norwegian mediation institutes will be explored and compared, and the overall picture of mediation in Norway will be discussed.
The parts of the report concerning mediation after the institution of legal proceedings is based on my book Camilla Bernt, Meklerrollen ved mekling i domstolene (The role of the Mediator in Mediation within the Courts), Fagbokforlaget, Bergen 2011.
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Notes
- 1.
Anne Austbø og Geir Engebretsen, Mekling i rettskonflikter (Mediation of Legal Disputes) 2nd edition Oslo 2006, p. 31.
- 2.
- 3.
Mediation at the conciliation boards will be described and discussed in further detail throughout this article.
- 4.
For further details on this requirement, see Sect. 2.2.1. The mediation institute is described and discussed in further detail throughout this article.
- 5.
Mediation at the National Mediation Service is described and discussed in further detail throughout this article.
- 6.
Act on the Handling of Consumer Disputes (The Consumer Disputes’ Act) 28 April 1978 no. 18 section 5.
- 7.
An English presentation of The Norwegian Consumer Council and Complaints’ Board is provided at http://www.forbrukerradet.no/forside/other-languages/complain-to-forbrukerr%C3%A5det .
- 8.
The Consumer Disputes Act 28 April 1978 no. 18 sections 1, 4, 6 and 11. An English presentation of The Norwegian Consumer Disputes Commission is provided at http://www.forbrukertvistutvalget.no/xp/pub/hoved/english/489330.
- 9.
Act Relating to Mediation and Procedure in Civil Disputes [The Dispute Act] 17 June 2005 no. 90.
- 10.
NOU 2001: 32 Rett på sak.
- 11.
NOU 2001: 32 p. 208–211.
- 12.
NOU 2001: 32 p. 209.
- 13.
Act relating to Children and Parents. [The Children Act] 8 April 1981 no 7. This mediation institute, as well as judicial mediation, will be described and discussed in further detail throughout the article.
- 14.
- 15.
- 16.
- 17.
English translations of several of the acts referred to in this country report can be found at the following webaddress: http://www.ub.uio.no/ujur/ulov/english.html.
- 18.
Mediation for separating spouses and cohabitants is prescribed in The Marriage Act of 4 July 1991 no 47 Section 26, cf. Act relating to Children and Parents. [The Children Act] 8 April 1981 no 7 section 51 and the Family Allowance Act of 8 March 2002 no 4 Section 9, fifth paragraph. As regards the requirement for mediation before the commencement of legal proceedings, see The Children Act Sections 51 and 56 second paragraph.
- 19.
C.f. The Children Act section 54.
- 20.
Rundskriv Q-02/2007 p. 4.
- 21.
The Act relating to the mediation by the National Mediation Service [National Mediation Service Act] 20 June 2014 no. 49.
- 22.
Bernt 2011 chapter 9, with further references.
- 23.
C.f. Tvistelovforskriften (Supplementing subordinate legislation to The Dispute Act) 21 December 2007 no. 1605 sections 8 and 9 for further details on the qualifications and experience required for judicial mediators.
- 24.
Ot.prp. nr. 51 (2004–2005) p. 390 and 126. See also p. 124–125.
- 25.
Ot.prp. nr. 51 (2004–2005) p. 391–392.
- 26.
Bernt 2011 p. 468–473.
- 27.
Richard Knoff, «Evaluering av prøveordningen med rettsmekling” (“Evaluation of the Judicial Mediation Pilot Scheme”) in NOU 2001: 32 Rett på sak. Lov om tvisteløsning (tvisteloven) p. 1133–1207 on p. 1136 and 1179–1182 found in his study in 2000 that in only 3 of 102 cases the judge kept the case after failed judicial mediation.
- 28.
Administrative Regulation on Judicial Mediation in The Land Consolidation Courts 22 January 2007 no. 80 established a pilot scheme, and this will be a permanent mediation institute when the new land consolidation courts’ act enters into enters into force 1 January 2016, c.f. Act relating, c.f. Act relating to Land Consolidation etc. [The Land Consolidation Act] 21 June 2013 no. 100 section 6-1 second paragraph, c.f. The Dispute Act chapter 8, and section 6-18.
- 29.
NOU 1998: 17 p. 48 and Ot.prp. nr. 29 (2002–2003) p. 45.
- 30.
C.f. Ot.prp. nr. 29 (2002–2003) p. 43.
- 31.
Ot.prp. nr. 29 (2002–2003) p. 88. See Bernt (2011) p. 208–209.
- 32.
C.f. The Courts of Justice Act sections 106-108.
- 33.
See for instance Kimberly K. Kovach & Lela P. Love, “Mapping Mediation: The Risk of Risikin’s Grid”, Harvard Negotiation Law Review, Volume 3, Spring 1998, p. 71–110 and Vibeke Vindeløv, Mediation. A Non-Model, Djøf Publishing, Copenhagen 2007.
- 34.
Katrin Koch, “Når mor og far møtes i retten – barnefordeling og samvær», («When mother and father meet in court – custody arrangements and visitation») NOVA-rapport 13/2000.
- 35.
Katrin Koch, Evaluering av saksbehandlingsreglene for domstolene i barneloven – saker om foreldreansvar, fast bosted og samvær, (Evaluation of the procedural rules of courts in cases pursuant to The Children Act – cases concerning parental responsibility, custody and visitation) Oslo 2008 p. 23.
- 36.
Koch 2008 p 23.
- 37.
C.f. The Dispute Act section 6-2.
- 38.
Ot.prp. nr. 51 (2004–2005) p. 385–386 has further details on the provisions.
- 39.
C.f. Ot.prp. nr. 51 (2004–2005) p. 386.
- 40.
Act relating to the Limitation Period for Claims 18 May 1979 no. 18 section 15.
- 41.
Prop. 57 L (2013–2014) p. 83, c.f. Act of 17 July 1992 No. 100 Relating to Child Welfare Services (The Child Welfare Act) section 6-4.
- 42.
Prop. 57 L (2013–2014) p. 84.
- 43.
The National Mediation Service Act sections 20 and 21.
- 44.
In addition, The Family Counseling Offices Act section 9 states that the mediators and other personnel have a duty to report to the Public health and care services and Social services – and on these authorities’ request provide information – if there is reason to believe that a pregnant woman is abusing intoxicating substances in such a manner that it is more likely than not that the child will be born with injuries.
- 45.
C.f. The Dispute Act section 7-3 (6) and Guidelines for mediation with advocates as mediators section 6, c.f. section 1.
- 46.
Bernt 2011 p. 297–298, c.f. Ørnulf Rasmussen, Kommunikasjonsrett og taushetsplikt i helsevesenet (The right of communication and the duty of confidentiality in the health services) Ålesund 1997 p. 606–622.
- 47.
C.f. The National Mediation Services Act section 15.
- 48.
Nils Nygaard, Skade og ansvar (Damage and Liability) 6th edition Bergen 2007 p. 194–195. For the question of liability for advocates, see p. 483–490. Liability for mediators is however not addressed.
- 49.
A brief overview is given in Bernt 2011 p. 26–27, c.f. NOU 2001: 32 p. 543–544.
- 50.
An exception is the National Mediation Services. They have a set of ethical principles. These principles are brief and fairly general. C.f. Konfliktrådet (The National Mediation Service), Håndbok for meglere (Handbook for mediators) chapter 4.
- 51.
I have analyzed these issues thoroughly in Bernt 2011 p. 46 and chapter 9.
- 52.
C.f. The Advocate Administrative Regulation 20 December 1996 no. 1161 chapter 12.
- 53.
The Ethical Principles for Psychologists, The Norwegian Psychologists’ Association 1998 (http://www.psykologforeningen.no/Fag-og-profesjon/For-fagutoevere/Etikk/Etiske-prinsipper-for-nordiske-psykologer/(language)/nor-NO).
- 54.
There are other out-of-court mediation institutes in addition to those mentioned in this report. Apart from the family counseling offices and The National Mediation Service, which are responsible for a large portion of Norwegian mediations, I have excluded institutes that are limited to certain subject matters/fields of law.
- 55.
The Dispute Act section 8-5 (1), c.f. The Courts Act section 124 and section 125 second paragraph, c.f. section 122.
- 56.
Convention for the Protection of Human Rights and Fundamental Freedoms article 6, 1 and The Courts’ Act section 124, c.f. section 122.
- 57.
The Dispute Act section 6-9 (1), c.f. Courts of Justice Act chapter 7.
- 58.
The Family Counseling Offices’ Act 19 June 1997 no. 62 section 5a.
- 59.
The National Mediation Service Act section section 9, fourth paragraph.
- 60.
C.f. The Dispute Act section 7-3 (6) and Guidelines for mediation with advocates as mediators section 6, c.f. section 1.
- 61.
The Children Act section 50.
- 62.
Ot.prp. nr. 51 (2004–2005) p. 391.
- 63.
Ot.prp. nr. 51 (2004–2005) p. 391.
- 64.
The Public Administration Act. Act relating to procedure in cases concerning the public administration 10 February 1967.
- 65.
Bernt 2011 p. 300–305 with examples and further references. For an English text written by a Nordic expert, see Vindeløv 2007 p. 205–208.
- 66.
For the National Mediation Service and the family counseling offices the rules on impartiality and neutrality in The Public Administration Act, sections 6 to 9 apply, c.f. National Mediation Service Act section 8 and The Family Counseling Offices Act section 13. For in-court mediation the regulation in The Courts of Justice Act sections 106-108 apply for judges, judicial mediators and court appointed experts, c.f. The Dispute Act section 8-4 (2) (judicial mediators) and section 25-3 (3) (court appointed experts). For mediation according to The Dispute Act chapter 7, section 7-2 (2) states that the mediator must be “impartial and independent of the parties”, and when a mediator from a district court’s selection of external judicial mediators is requested, the rules in The Courts of Justice Act sections 106-108 apply, c.f The Dispute Act section 8-4 (2).
- 67.
See for instance Vibeke Vindeløv 2007 p. 99 and 160–161.
- 68.
Ot.prp. nr.103 (2004–2005) p. 57.
- 69.
C.f. The Children Act section 61 no. 1.
- 70.
C.f. The Children Act section 61 no. 7.
- 71.
NOU 2001: 32 p. 723.
- 72.
See sections 2.2.2 and 4.1 above, with references.
- 73.
See section 2.2.1 above, with references.
- 74.
Bush, Robert A. Baruch og Joseph P. Folger, The Promise of Mediation. The Transformative Approach to Conflict, Revised edition San Francisco 2005 p. 13 and 21–22.
- 75.
Christie, Nils, “Conflict as Property”, The British Journal of Criminology (1) 1977 p- 1–15. (It was however first published in 1976 in Norwegian at The University of Oslo.)
- 76.
C.f. Prop. 57 L (2013–2014).
- 77.
Ot.prp. nr. 51 (2004–2005) p. 388.
- 78.
C.f. The Execution Act 26 June 1992 no. 86 section 4-1. The first paragraph states that there must be grounds for execution for a claim to be executed, and in the second paragraph such grounds are listed. One such ground is a judgment; another is an in-court settlement. Another is promissories where the parties have explicitly stated that payment can be enforced without prior legal proceedings, c.f. section 7-2 (a). An out-of-court settlement in itself cannot fulfil the requirements for such a promissory, because it is normally reciprocal and refers to circumstances outside of the document itself, i.e. the dispute between the parties, c.f. for example Advokatfirmaet Ruv, “Gjeldsbrev” (Promissories), Jusinfo.no, http://jusinfo.no/index.php?site=default/721/1699/1702/1703, with further references.
- 79.
This has been established by the Norwegian Supreme Court in Rt. 2005 p. 985, c.f. Bernt 2011 p. 446–447 with references to other authors.
- 80.
C.f. Act relating to Free Legal Aid (The Legal Aid Act) 13 June 1980 no. 35 section 14, c.f. Administrative Regulation regarding Legal Aid, 12 December 2005 no. 1443 section 3-3, c.f Circular from The Ministry of Justice and Police G-12/2005 chapters 5.2.1, 5.2.3, 6.2.1 and 6.2.2.
- 81.
The maximum income is currently NOK 246,000 (29,000 €) for singles and NOK 369,000,- (43,000 €) for married couples and others with joint finances. The maximum fortune is NOK 100,000,- (12,000 €), c.f. Administrative Regulation regarding Legal Aid section 1.
- 82.
The Execution Act section 4-1, second paragraph, litra f.
- 83.
The Lugano Convention 30 October 2007.
- 84.
Searches conducted 9 September 2013 by the author.
- 85.
C.f. The Dispute Act section 23-1.
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Bernt, C. (2015). Mediation of Legal Disputes in Norway. Institutionalized, Pragmatic and Increasingly Popular. In: Esplugues, C., Marquis, L. (eds) New Developments in Civil and Commercial Mediation. Ius Comparatum - Global Studies in Comparative Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-18135-6_17
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