Lithuania
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
As well as informal negotiations that can be conducted at any stage of litigation/arbitration or instead of it, the legislation of the Republic of Lithuania also regulates some formal types of ADR, including out-of-court mediation, conciliatory proceedings, judicial mediation and compulsory mediation.
Out-of-court mediation is a procedure for the settlement of civil or administrative disputes, where one or several mediators, assist the parties to the dispute in their efforts to reach an amicable settlement of a dispute that is not subject to judicial proceedings.
Conciliatory proceedings is an in-court procedure for the settlement of civil disputes, when the judge offers the parties to come to a mutually acceptable compromise agreement and close the case in a peaceful settlement, after the essence of the dispute has been identified in a preliminary session. During conciliatory proceedings parties may agree on judicial mediation.
Judicial mediation is a procedure for the settlement of civil or administrative disputes in the course whereof one or several mediators assist the parties to the dispute in their efforts to reach an amicable settlement of a dispute subject to court proceedings.
Compulsory mediation is mediation that is mandatory (in certain cases) before applying to court in civil disputes.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Commencing out of court mediation results in the suspension of prescription periods. Where mediation of the civil dispute terminates without a settlement agreement, the prescription periods resume.
If a decision to commence judicial mediation is met during court proceedings, the court will automatically adjourn the case examination pursuant to Art. 231 of the Code of Civil Procedure.
In some cases, an attempt to resolve a dispute by mediation is a prerequisite for exercising the right of access to the court. Such cases may be contractually agreed by the parties or regulated by law (compulsory mediation).
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
No, however there are some kind of disputes (for example family disputes), where mediation is mandatory and failure to participate results in the refusal to accept a statement of claim. However, such cases are not related to commercial disputes. Lithuanian law provides that such cases of mandatory mediation might be set out in other laws, but currently, , there are no plans to amend the regulatory framework in such a way.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes, the parties to the dispute may agree on mediation either after the dispute has arisen or prior to it. The parties may agree to apply mediation only, as the dispute resolution mechanism, permitted to conclude a settlement agreement. The parties to the dispute which have agreed to settle a civil dispute by way of mediation must attempt to settle the civil dispute by this method before going to court or to arbitration.
When does ADR generally take place?
Mediation may take both before and during the court proceedings. However, if parties agree to commence mediation after the time when court proceedings have already started, only judicial mediation is available.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes. Unless otherwise agreed by the parties to the dispute, the parties to the dispute, mediators and administrators of mediation services must keep confidential, all information on mediation of the civil dispute and matters related thereto, except for information required to approve or implement a settlement agreement concluded in the course of mediation and information, non-disclosure of which would be contrary to the public interest. Also, mediators may not be interviewed as witnesses about the circumstances obtained during mediation. Data received during mediation process cannot be used as evidence in civil proceedings, except certain cases as established by law.
Does the output from ADR create precedents?
No. Mediation is generally confidential, and settlement is recorded in a written agreement binding only the parties of the dispute, therefore, it does not have any effect on third parties.
Who bears the costs of ADR?
Mediation related costs depend on the type of mediation (judicial or out of court mediation), type of the dispute (civil, administrative), who is performing the mediation (the judge or other mediator), etc Certain rules regarding costs are detailed in laws. In some cases, mediation is free of charge (if judicial mediation is performed by mediators who are judges, if non judicial administrative mediation is performed by mediators who are members of the Administrative Dispute Commission, etc). There is a lower stamp duty (75%) to lodge a claim to court after an unsuccessful mediation.
Is your jurisdiction subject to any specific rules for cross border ADR?
No. Lithuania is not party to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
Mediation services may be provided only by a mediator entered on the List of Mediators of the Republic of Lithuania (exception – persons who have been granted the right to provide mediation services under the legal acts of a Member State of the European Union or a state of the European Economic Area by the competent authority of that state shall not be restricted from exercising the freedom to provide mediation services on a temporary basis in the Republic of Lithuania).
Persons seeking to be entered on the List of Mediators of the Republic of Lithuania shall meet the following requirements: (1) hold a university degree; (2) have completed at least 40 academic hours of training in mediation not earlier than five years before the date of application to be entered on the List of Mediators of the Republic of Lithuania; (3) pass a mediators qualifying examination; (4) be of good repute (no previous criminal conviction for certain type and degree of criminal offences, no abuse of alcohol, drugs, etc). Mediators who are judges are not allowed to take part in out-of-court mediation.
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