Portugal contributed to the introduction of mediation in the modern world. In 1494, when the Portuguese King John II (the Perfect Prince) did not accept Pope Alexander II’s “previous arbitration” on the distribution of the “islands of the world,” direct negotiations with the Spanish Monarchs, Isabella I of Castile and Ferdinand II of Aragon, were initiated. On June 7th, in the small Spanish town of Tordesilhas near the Portuguese border, a papal representative was brought to the negotiating table and ordered to serve as the “mediator.”
In the past, Portugal allocated to the courts an annual budget per inhabitant that was superior to EU averages. Accordingly, in 2008 considerable public funds were put into the creation of a public system of court-annexed mediation in family, labor, criminal law and civil areas before Justice of Peace Courts. Subsequently, in 2013, the Portuguese Mediation Law implemented the EU Directive regulating private commercial mediation.
By institutionalizing mediation and not promoting private players to intervene in commercial cases, however, no changes in the dominant litigation culture have been achieved, especially when considering the low judicial costs of public courts in Portugal.
Mediation requests are still fewer than 2% of the cases filed at the 1st Instance Courts, and have less than a 15% success rate. After an initial burst of interest in 2008 and 2009, mediation requests and usage are now decreasing. Accordingly, even though Portugal has recognized the importance of mediation, it is still not mainstream within the legal sector. Court-annexed pre-mediation or mandatory mediation should be considered as part of future legislative reform to further promote the importance of mediation in the resolution of disputes in Portugal.
By Teresa Morais Leitão, Senior Fellow – Portugal, Weinstein International Foundation.