To Örebro University

Since 1948, the Swedish Code of Judicial Procedure (Rättegångsbalken) has enabled extensive utilisation of mediation in the district courts via the opportunity to have a special mediator appointed within the frame of the procedure in a civil case (court-connected mediation). Nonetheless, the use of a special mediator in Swedish courts has been very rare. In this paper, I attempt to answer the question why the method of mediation has not had any particular success in the Swedish courts. Due to the EU directive on certain aspects of mediation in civil and commercial matters, new Swedish legislation entered into force in 2011. Another question is thus whether the implementation of the directive has led to any practical changes inside or outside the courts. The new legislation comprised an entirely new law, the Mediation Act (Medlingslagen), and several changes in existing laws. The Mediation Act is applicable to out-of-court mediation in both domestic relations and in relations where one of the parties had his or her residence within another member state in the European Union (Denmark excluded) during the point of time when the process of mediation started. According to the Act, a mediator and his or her assistant have a duty of absolute professional secrecy, and a limitation or prescription period that is open during the point of time when the mediation starts will not expire until 1 month after the finalising of the mediation. Moreover, there is a possibility to make the agreement enforceable. The rule in the Code of Judicial Procedure on judicial settlement activities (held by the handling judge) and mediation (held by an independent mediator) has somewhat been sharpened. There is now an obligation for the district court to promote a settlement between the parties if it is not appropriate, given the nature of the case and other circumstances, and, when applying the rule, the court can decide to appoint a special mediator. The Government has stated that mediation and judicial settlement activities should be two clear and equally available alternatives for the parties during the preparation of the case and that other than large and complicated cases can be suitable for mediation. It is the parties who will pay for the cost of the mediator. The judicial settlement activities are free of charge. Through the years, the judicial settlement activities have been very successful and at least 30 % of all civil cases are settled through the method. Rules on confidentiality have been taken into new legislation: the obligation to testify in a court should not apply to mediators and his or her assistants, and there is also a duty of absolute secrecy in the general courts. The duty of secrecy is only applicable if the party has made a reservation that the information shall be confidential. The possibility to resort to judicial settlement activities and to appoint a special mediator in the appellate courts is now expressly stated. Before the new legislation, it was an unspoken rule and the methods were seldom used in the appellate courts.

As to the question of why mediation not has been common in the Swedish courts, there are many circumstances that influence this situation. The general opinion of the function of the civil justice system has had an effect on how the legislator has formulated the rules in the Code of Judicial Procedure. There has been a change from the court as mainly a provider of judgments (which will direct people how to act) to the court as a means of solving disputes. Thus, the formulation and interpretation of the rule of mediation (and also of the rule of judicial settlement activities) has changed during the years. However, the major changes did not occur until 2011. Before the legislative changes in 2011, the “signals” from the legislator could have led to that the judges did not find many cases suitable for mediation.

Is it likely that court-connected mediation will be more commonly used in time? The reasons stated by the district courts as to why mediation (up until 2007) not has been commonly used is mostly of a practical nature; the judicial settlement proceedings is successful enough, the parties think it will be too expensive, the court and the parties do not know how to find a suitable mediator and the possibility is not commonly known. The problem of finding a suitable mediator is now perhaps solved since the Swedish National Courts Administration keeps a list of mediators, easily found on their webpage. But the problem of the cost of the mediator still remains: It is not likely that the parties will choose a mediator if they can have the same result in the judicial settlement activities for free. It is reasonable to think that most of the cases that would be suitable for mediation not end up in the courts in the first place: they are solved in arbitrational tribunals or by out-of-court mediation. Taken all the circumstances into account, a deliberate guess will be that court-connected mediation, despite the legislative and practical change that have facilitate this method, in the future will remain relatively uncommon.