Mandatory mediation and a MAHUT meeting (information, introduction and coordination meeting): what the court can require, and what not

Service page: Commercial contracts lawyer: drafting, review and enforcement.

“The court sent me to mediation”: what really happened

The notice that arrives by registered mail confuses many people: it seems that the court has imposed a procedure. In practice, the law distinguishes between two completely different things, and this distinction determines what you are allowed to do.

• Mediation: by agreement. Section 79C(b) of the Courts Law [Consolidated Version], 5744-1984, states: “The court may, with the consent of the parties, transfer a claim to mediation”. Without consent, there is no transfer. Regulation 3(b) of the Courts Regulations (Mediation), 5753-1993 (תקנות בתי המשפט (גישור), התשנ״ג-1993) adds that the court will explain to the parties that their refusal to agree to the transfer, or stopping the mediation, will not affect the outcome of the case.
• MAHUT meeting: mandatory. “MAHUT” is the Hebrew acronym for information, introduction and coordination. It is a single meeting meant to examine the possibility of settling the dispute through an alternative mechanism. It is not a mediation process, and not a negotiation on the merits of the case.

In other words: you must attend a meeting where mediation is explained to you. You do not have to agree to mediation, and you do not have to reach an agreement.

When the MAHUT duty applies: the exact conditions

Regulation 37 of the Civil Procedure Regulations, 5779-2018, provides:

• Financial threshold: a claim whose amount, or the value of whose subject matter, exceeds NIS 40,000.
• Exceptions: a claim for compensation for bodily injury, and a claim whose cause of action is in the Compensation for Road Accident Victims Law, 5735-1975 (חוק פיצויים לנפגעי תאונות דרכים, התשל״ה-1975).
• Representation is irrelevant: the duty applies whether or not the party is represented.
• Time of appointment: no later than 45 days after the last pleading was filed. For this purpose, an application for leave to defend has the same status as a statement of defense.
• Date of the meeting: no later than 30 days from the date the notice of the appointment of the MAHUT mediator was served.
• Place: the meeting is held at the courts listed in the Second Schedule to the Regulations (regulation 37(k)), and the Schedule lists the Magistrates’ Courts.
• Cost: the MAHUT meeting is held without cost.

The identity of the MAHUT mediator is set by the mediation unit, from the list of mediators, according to the mediator’s practice areas, regions of activity, the languages they speak and any special features the case requires. The decision is made “as far as possible, in an equal manner”. The details of the mediator who held the meeting are published on the courts’ website.

Who must attend, and what happens to someone who does not come

An invitation to a MAHUT meeting has the same status as an invitation to a court hearing. This is where most mistakes are made. The parties themselves attend the meeting, and they may come with their lawyers. For a corporation: a representative in a position of responsibility who knows the details of the dispute and has an authorized position on transferring the claim to mediation. For the state, a local authority or an insurance company: the state attorney or the lawyer handling the case, with an authorized position; a knowledgeable representative of the party may attend with them.

If one of the parties did not attend, the official in charge will order them to pay the costs of the MAHUT mediator and the costs of the parties who did attend, unless the official in charge finds reasons not to do so. This does not limit the court’s powers regarding failure to comply with the provisions of the chapter.

Within 14 days of the meeting, the MAHUT mediator informs the official in charge whether the parties agree to transfer the dispute to mediation. The provisions on separate meetings and confidentiality (section 79C(c) and (d) of the Law) also apply to the MAHUT meeting itself. The decision whether to agree to mediation is examined against the wording of the contract and the remedies in it. So it is worth reaching it after consulting a commercial contracts lawyer.

Checklist before the MAHUT meeting

1. Does the case need a MAHUT meeting at all? Beyond the threshold and the exceptions in regulation 37(b), the whole chapter does not apply to: a proceeding filed with the consent of the parties; a claim for eviction from leased property; a claim for compensation for damage to property caused by the use of a motor vehicle; a civil claim that follows a criminal conviction; a claim for which special rules of procedure were set in another enactment; and a proceeding in which, for special reasons, permission was given not to follow the chapter. Even in these cases, the court is entitled at any time to order a MAHUT meeting (regulation 39).
2. Who attends: for a party who lives permanently outside Israel and is not in the country, the person holding their power of attorney; for a corporation, a representative who knows the details of the dispute and has an authorized position on transferring the claim to mediation (regulation 37(i)).
3. A problem with the date, the place, the identity of the mediator or taking part by video conference: bring the matter to the official in charge for directions. If the directions were given by an official in charge who is a lawyer in the mediation unit, you can apply to an official in charge who is a registrar or a judge (regulation 37(g)–(h)).

The duty that comes before MAHUT: the preliminary meeting

Before the MAHUT stage there is another stage that many people skip. Regulation 35 of the Civil Procedure Regulations requires represented parties to hold a preliminary meeting between them, within 30 days of the date the last pleading was served. At it, they must address, among other things, “the possibility of resolving the dispute through an alternative dispute resolution mechanism”, narrowing the issues in dispute, and reducing the scope of the proceeding. Regulation 36 requires a report on the preliminary meeting to be filed with the court, on a dedicated form, no later than 20 days before the first pre-trial hearing.

What happens to a party who did not meet these duties? Regulation 38 gives the court three powers: to order a party who breached regulations 35–37 to comply with them; to stay the proceeding until they comply; and even to strike out the claim for special reasons, if the party in breach is the plaintiff. In addition, the court can order a party who did not comply with the provisions of the chapter without a justified reason to pay costs.

The price of refusing: where it really hits your pocket

Refusing has no direct sanction, but it has an indirect price. Not “because the judge was offended”, but under explicit provisions.

Regulation 151 of the Civil Procedure Regulations provides that an order for costs is meant to compensate the opposing party “taking into account its outcome, the resources needed to conduct it and the conduct of the parties”. Regulation 151(c) adds: if the court finds that a party abused legal proceedings or did not comply with the regulations, it is entitled to order that party to pay costs to the injured party or to the State Treasury. In special circumstances, it can also order the party’s lawyer to pay.

Add to this regulation 4, which prohibits abuse of legal proceedings, “including an action that is disproportionate to the nature of the proceeding, its cost or its complexity”. Add also regulation 3(b), which imposes on the parties and their lawyers a duty to act in good faith and with procedural fairness. The result is a clear picture: how the parties behave in resolving the dispute is a legitimate consideration when costs are awarded.

What this means in practice: do not refuse orally and without reasons. A party who believes the case is not suitable for mediation should say so in writing, with relevant reasons (a pure legal question that needs a decision, a need for a precedent, a real concern about a lack of good faith by the other side), and document it. Such a document is worth a lot when you reach the costs stage.

And what about the Labor Court?

A sharp distinction is needed here: a MAHUT meeting is held only at the courts listed in the Second Schedule to the Civil Procedure Regulations (regulation 37(k)), and the Labor Court is not among them. The Labor Court Regulations (Rules of Procedure), 5752-1991 (תקנות בית הדין לעבודה (סדרי דין), התשנ״ב-1991) do not include provisions on mediation or MAHUT. In the Labor Court there is no automatic summons to a MAHUT meeting, and no parallel duty to hold a preliminary meeting.

What does exist is a separate track: the Labor Court Regulations (Conciliation), 5753-1993 (תקנות בית הדין לעבודה (פישור), התשנ״ג-1993). Under them, the court is entitled to propose to the parties, at any stage of the case, that a civil matter be transferred to conciliation (pishur), with their consent. It is even entitled to appoint as conciliator two public representatives (one from the employees’ side and one from the employers’ side) or a labor relations officer. Full details in Mediation at work: settling an employee–employer dispute.

Your rights within the process

• You do not have to agree to anything. The mediator has no power to decide, and not agreeing is not a breach of anything.
• What is said is confidential. Section 79C(d) provides that things said in a mediation process will not be used as evidence in a civil legal proceeding. The provision also applies to the MAHUT meeting.
• You can stop at any time. Regulation 8(a) of the Mediation Regulations allows any party to stop after giving written notice to the other parties and to the mediator.
• You can come with a lawyer, and consult them at any stage.
• Failure does not delay the case. If the process is stopped, the court orders the case to be resumed, and the hearing date is set taking into account the date the claim was filed.
• Success equals a judgment. Under section 79C(g) and (h), the court is entitled to give the settlement the force of a judgment, even if no claim was filed at all.

Frequently asked questions

Can the court force me into mediation?

No. Section 79C(b) of the Courts Law [Consolidated Version], 5744-1984, provides that the court may transfer a claim to mediation with the consent of the parties. Regulation 3(b) of the Courts Regulations (Mediation), 5753-1993, requires the court to explain that refusing the transfer, or stopping the mediation, will not affect the outcome of the case. What is binding is attending a MAHUT meeting under regulation 37 of the Civil Procedure Regulations, 5779-2018: an information, introduction and coordination meeting, which is not a mediation process and does not require you to reach an agreement.

When does the duty to attend a MAHUT meeting apply?

Under regulation 37 of the Civil Procedure Regulations, 5779-2018, it applies in a claim whose amount, or the value of whose subject matter, exceeds NIS 40,000. The exceptions are a claim for compensation for bodily injury and a claim whose cause of action is in the Compensation for Road Accident Victims Law. It applies whether or not the party is represented. The official in charge appoints a MAHUT mediator no later than 45 days after the last pleading. The meeting is held without cost, no later than 30 days from the date the notice of the appointment was served, at the courts listed in the Second Schedule to the Regulations: the Magistrates’ Courts.

What happens if you don’t show up to a MAHUT meeting?

An invitation to a MAHUT meeting has the same status as an invitation to a court hearing. Under regulation 37, a party who did not attend will be ordered to pay the costs of the MAHUT mediator and the costs of the parties who attended, unless the official in charge finds reasons not to do so. This does not limit the court’s powers. Regulation 38 adds that the court is entitled to order the duty to be fulfilled, to stay the proceeding, and even to strike out the claim for special reasons if the party in breach is the plaintiff, and also to order costs.

Does the MAHUT duty also apply in the Labor Court?

No. A MAHUT meeting is held only at the courts listed in the Second Schedule to the Civil Procedure Regulations (regulation 37(k)), and the Labor Court is not among them. The Labor Court Regulations (Rules of Procedure), 5752-1991, do not include provisions on mediation or MAHUT. In the Labor Court a separate track operates under the Labor Court Regulations (Conciliation), 5753-1993. The court is entitled to propose a transfer to conciliation at any stage of the case, with the parties’ consent. It is also entitled to appoint as conciliator two public representatives (one from the employees’ side and one from the employers’ side) or a labor relations officer.