Mediation
Increased use of alternative dispute resolution
Mediation and other forms of alternative dispute resolution are becoming increasingly common in Norway, especially for commercial disputes. For long-term projects in the construction and offshore industries, various types of mediation and expert procedures are commonly used alternatives to traditional litigation. Regardless of whether the parties have agreed on litigation or arbitration, many contracts include provisions requiring the parties to attempt finding an amicable solution through mediation or expert procedures before the dispute may be brought before the courts.
In-court mediation
In-court mediation is heavily promoted by first and second instance courts. Respondents are usually required by the court to declare in their reply to a writ whether they are willing to participate at in-court mediation. Further, in-court mediation will always be suggested by the courts in a preparatory conference call during case preparation. In-court mediation is not mandatory, and will only take place with the consent of all parties.
In-court mediation is normally conducted by one judge, serving in the role of mediator. For some cases, the court may propose that an expert serve as co-mediator. A mediating judge is excluded from adjudicating the dispute on the merits if the parties do not reach a settlement through mediation, and is not permitted to disclose any information from the mediation to the presiding judge.
Out-of-court mediation
Ad-hoc out-of-court mediation featuring one or two mediators has been a fairly common alternative to in-court mediation in Norway. Two alternative providers account for the bulk of institutionalised mediation: the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce and the Nordic Offshore & Maritime Arbitration Association, with the latter also having members from Denmark, Finland and Sweden.
For both ad-hoc and institutionalised mediation, the parties will typically agree on one or two mediators who are recognised practitioners in the specific business sector or field of law relevant to the case. Several experienced lawyers and professors in Norway have specialised in mediation and have extensive mediation experience.
The parties will, furthermore, agree on the mediation framework, such as venue, duration, confidentiality and whether to file any written submissions prior to mediation. The mediation institutions have mediation rules that serve as a starting point for the parties' agreement.
Out-of-court mediation normally comprises a brief presentation of the case by each party, followed by one-on-one meetings with the mediator, joint meetings with both parties present, as well as discussions on specific issues, depending on the type of case.
For long-term projects in the construction and offshore industries, various types of mediation and expert procedures are also commonly used during project execution. Several Norwegian standard forms of contract include provisions for so-called "project-integrated mediation", whereby one or more mediators are appointed for projects for the purpose of resolving any disagreements while the project is ongoing, and before disputes arise. Typical topics addressed by such mediation are claims for additional payment or extension of time.
