Calling All Researchers: Is Mediation a Tool for Social Change and Development of Democratic Institutions? Mediation and Social Change of the Traditional Legal Institutions

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Srđan Šimac, Ph.D.

Judge of the High Commercial Court of the Republic of Croatia

Zagreb, February, 15 2016

Calling All Researchers: Is Mediation a Tool for Social Change and Development of Democratic Institutions?

Mediation and Social Change of the Traditional Legal Institutions
The secret of change is to focus all of your energy, not on fighting to old, but on building the new."


The court system, legal institutions, judicial proceedings and legal professions that serve them, did not follow the great changes which occurred in modern societies. Therefore it is believed that they have not been able to meet the needs and interests of the users of their services. The law has almost completely replaced the justice1, the clients become observers in their own disputes2, and the courts, forums for representing the interests of the state and the values of the legal profession. Judicial procedures are more complex and legal language more and more unintelligible to the clients. The quality of justice is increasingly giving way to efforts for increased efficiency, and the law has become a business in which the interests of clients are not the primary one. Law and legal professionals seem to have lost its purpose. The result of such a situation is the confusion of clients in legal labyrinths, their deep dissatisfaction with the system over which they have no control, and alienation of the legal system and the legal profession of the citizens and of the society.

This state of the legal system and the state judiciary has acquired some serious proportions to the extent that it claims to have become a brake to the further development of society. It is a kind of self-capitulation of the legal system in terms of the mass modern societies. Although it would be quite an exaggeration to say that such a state only contributed by legal professionals, there's no denying that the holders of the legal profession as carriers of the legal system, through their daily and largely unchanged practice, very often neglect the real interests and needs of the clients in the disputes, as well as the need necessary for positive change. Dissatisfaction with the growing number of representatives of the legal profession with such a state only confirms the proposed assessment.3

It seems that the judicial system and the legal profession in its traditional form, experienced the heyday of its historical activity and existence and that persistence in maintaining the status quo calls into question their relevance and the existence in society. It is believed that in order to maintain the democratic culture and civilization achievements of modern societies, legislative, executive, and judicial authorities as well as the legal professionals, they must not ignore the limitations of the traditional legal system and legal practice within it, as well as the negative evaluation of the community, including political and economic elites of their work. On the contrary, they should confront such a situation and decide on positive action. The representatives of the legal profession should not be only intermediaries between the law and the clients in a dispute nor should they count on the fact that their special knowledge and skills and rigor and formality of treatment4 or the mere affiliation profession will guarantee a job position and the reputation in society. The position and reputation of the legal profession in society cannot be guaranteed, it must be earned.

Access to justice means not only access to the courts. Therefore, it is considered that the time has come to revitalize the legal system, legal institutions and the legal profession and to adapt them to the the environment in which they operate. On the way to the transformation of traditional dispute resolution system and its institutions, we have at our disposal a number of tools - new dispute resolutions led by mediation which has become a synonym for Alternative Dispute Resolution (ADR) movement.

The effects of mediation and its postulates achieved during the practice of resolving conflicts and disputes, compared with the traditional system of dispute resolution, indicate its significant potential as an agent of positive change in the entire legal system, legal institutions, the legal profession and society. The experience of the benefits of mediation both for the clients and the legal professionals5, regardless of the current number of such procedures and barriers to their rapid development6, make the peaceful settlement of disputes and mediation possibly the major signpost in which direction citizens, legal professionals, state dispute resolution system and its institutions, as well as the whole society, should go. We are in the middle of the process of construction significantly enhancing new version of the dispute resolution system wich will incorporate the best from two worlds, the public/formal and private/informal justice.

1. Democratization of disputing and traditional legal institutions

The blindfold on the Goddess of Justice should no longer be just a fashion accessory. The task of every modern society and all its citizens is to provide appropriate mechanisms for access and achievement of the highest possible degree of justice.7 However, it turned out that this ideal in most modern societies is not nearly reached. It turned out that the traditional system of dispute resolution, its institutions and supporting legal professions, are not able to ensure the equality and equal justice for all in court litigations. With regard to the social reality that is reflected in the unequal material wealth, power and opportunity, no formal legal system, regardless of its level of objectivity and formality, simply cannot ensure such equality and justice.8

Every attempt to solve the problems of the judicial system by increasing their legalization in form of more substantive and procedural law, increased number of lawyers, judges and courts -is in fact counterproductive and operated exclusively by unilateral interests of the legal system and the legal profession.9 It seems that the legal professionals handeled the problems of the judicial system in a manner similar to extinguishing fire with gasoline.10 When the system, in this case, legal, looses the function to serve, the only possible result is for it to begin to serve itself and function as an aeroplane flown by an auto pilot.11

These problems of legal systems in most countries in the world, as well as failed attempts for their solution, with much effort and perseverance of their users, created mediation and the entire ADR movement whose goal is not to create a new, but to improve the existing system of dispute resolution and the conjunction of its real needs. The initial strong opposition of legal institutions and legal professionals to such initiatives was in many countries soon replaced by a selfish form of support, again exclusively through the prism of the benefits system and its potential relief from the case. Customers, their needs and interests are again being pushed into the background.12

How to resolve conflicts in the life of every community largely determines the requirements for its development, but also the satisfaction of its members. It seems that the time has come when the state and its legal system, for the sake of general well-being should ensure citizens and business subjects in disputes to have far greater autonomy in matters that are only important to them.13 And what is more, provide them the opportunity to decide about it even before the court proceedings. In each community the majority of citizens is understandably excluded from the possibility of creating the law and legal institutions. However, what is unacceptable for them is their substantial exclusion of real influence on the resolution of their own cases in court litigations. This relation of the legal system and the legal profession to citizens in the conflict, is the principal basis for their dissatisfaction and distrust.

For the functioning of any society it is of utmost importance that the citizens trust its institutions, especially the legal institutions.14 Neither the legal profession nor the government cannot wait any longer to have this trust between the citizens and the legal system restores itself, but must take on an active role in its restoration and demonstrate that they care about its users and their problems.15 The easiest way to restore public confidence in the legal institutions and the legal profession is the introduction of democracy into the dispute.16 They are the elements that help the clients in a dispute and so enable them to participate in civil law matters which are only important to them.17 In this way, the already very wide autonomy of the clients who are filing lawsuits would be completed by other autonomous and democratic elements which could give them a greater choice on how to resolve their disputes, and on the other hand, a much higher possibility of direct involvement and control of the proceedings and their solution.18

Decision-making or co-decision making on matters essential to human life, liberty and the entire destiny, represent one of the fundamentals of a good life of every individual and in general of any democratic society.19 The question is: what is the state or the public interest to control absolutely every, even the smallest civil initiative aimed at correcting temporarily or permanently disturbed relationship of citizens or businesses in a dispute. Also, the question can be asked whether it is possible in the legal system to apply solutions that could, to a much greater extent than before, reconcile (restore balance) the public interest and the interests, needs and freedom of its users.20 It seems that there are already solutions with the help of which is possible in traditional dispute settlement system and outside of it, help the parties in conflict to solve their problems and meet their interests and needs, and it does not jeopardize the public interest and social needs.21 They are simple and do not require large-scale intervention in the existing legal system. This is more about changing the exsisting legal point of view that should adopt the idea that there are alternative solutions for every problem other than the legal ones.

Liberal democracy is founded on the ideal of the citizen participation in decision-making. It is believed that there are no obstacles to allow democracy in a much higher degree and allow it in the legal area of social life. Law and its institutions are the basis of each social community and are involved in all social pores. Therefore law, legal institutions and legal professions have massive potential to act as a social agents22 with whose intervention it will be possible to provide citizens a greater degree of their active and direct involvement in the dispute settlement procedures. That can be enabled by transforming the traditional system of dispute resolution and its amendment of non-formal ways of resolving disputes. In doing so, the system of formal and informal justice system should form a single unit. In this way, citizens can realize the first important democratic right in the world of law, to choose from more possibilities of resolving disputes.23 Freedom of choice is a powerful attribute of any democracy.24 Studies have confirmed that the possibility of free choice, even in trivial matters, makes people happier and even healthier. People generally find it difficult to experience a decline in the ability to choose, because they believe that having more choices provides a greater feeling of control in their lives, and better coping with their personal problems.25

By introduction of parallel and complementary informal ways of dispute resolution system or private justice system, citizens are allowed full and direct participation in the proceedings and are given a full control over the proceedings and their outcome. In these procedures, among which mediation is in the lead26, the clients exercise their right for self-determination, have the opportunity to present their side of the story that is relevant to them, to participate directly in a settlement of a dispute that both sides want and therefore experience as fair. Such a solution is accepted by the clients themselves, they usually voluntarily execute on their own. In this way the clients have a direct, quick and cost-effective access to justice that they create. Clients consider achievement of customized solutions in mediation proceedings acceptable and therefore fair, and it usually promptly excludes any further confrontation, renews their temporary disturbed relationship and prevents similar conflicts in the future. The realization of their interests and needs in the manner described in disputes which is permitted, is also the realization of public interest aimed at the highest possible level of harmony in society.

Any settlement reached in a dispute with whose subject the clients can freeley manage with their direct and active participation in the preparation of its content, is an expression of their freedom of choice and the exercise of the right to self-determination in matters that are important for them. The mediation procedure and possible settlement in this process allows them the realization of control over the decisions that affect their lives.27 Is there a need to emphasize how this approach improves the position of the clients in their own dispute, their attitude and mood towards the legal system and the society that allowed them that.

The following possibility for the introduction of more democratic elements into the law and the legal system is able to increase the direct participation of the clients at court litigations. Numerous studies have confirmed that the clients, no matter the content of a court's rulling, are satisfied with the litigation, the court and the judge conducting the proceedings in all cases where they are allowed to present their own side of the story, regardless of whether it is legally relevant or not.28 Clients' satisfaction is significantly increased in all cases in which they are treated with more care and humanity, dignity and respect.29 Clients who experience such treatment in litigation are much more willing to express respect and trust in the judicial system30 and what is equally important, are much more willing to voluntarily execute a court decision that has been issued in their favor, without the need to impose it forcefully through judicial enforcement procedure. It is believed that the introduction of such democratic elements in the court civil procedures cannot damage the legitimacy and authority of the courts and judges. On the contrary, it can only strengthen it, because in this way the element of repression is reduced and at the same time, the element of voluntariness is empowered.

In the described way the legal system can achieve more valuable goals: increase access to justice for the clients, reduce the time and costs required for litigation, enable and facilitate speculation in disputes in and out of the court, relieve the courts, allow customers the choice between more opportunities to settle disputes and thereby teach them that before resorting to judicial civil proceedings there are other options available and finally, increase customer satisfaction and public judicial system, as well as the legal profession.31 It seems that this approach to law and the legal system to its customers has a chance to reconcile what is at first glance irreconcilable - the public perception of the legal system and the legal profession, the personal perception of legal professionals as well as private and individual interests to the public. This is a real example of the evolution of a society in which its estranged legal system returns to its fold.32 Therefore, Roscoe Pound sees this process and the new role of the courts, judges and the legal system as the socialization of rights.33

  1. Privatization of justice

In order to increase the efficiency of the courts, in modern states different measures are being taken. One part of them refers to the relief of the courts with a certain number of cases and transferring the jurisdiction for resolve them onto some other bodies. All cases which are not necessarily for courts are being removed from their scope. In Croatia, this trend began with public notaries who took on many cases concerning inheritance and foreclosure. The next step was supposed to be the establishment of a public foreclosure service that would take over the major work on foreclosure cases and in particular, the immediate implementation of foreclosure. Although the process of the establishment of this service has been stopped, it is believed that it is only a matter of time when it will be re-introduced (in a more favorable political and social moment). In many countries, the registry of companies with vessels transferred to the jurisdiction of the special state bodies. Such efforts exisit and in Croatia. All of these are useful unilateral measures primarily aimed at relieving the courts, but quite rare to meet the interests and needs of the users of their services. As a result, the clients have to address other bodies for certain actions, instead of addressing the courts. Not much has changed from their point of view.

You could say that the realization of the interests and needs of the clients in a dispute reaches its full expression only when consensual way of resolving disputes in courts and outside them is introduced, in processes of so-called informal or private litigation, where mediation occupies a prominent place. It is a possibility for the clients to resolve their disputes in a peaceful manner, regardless of whether they have already initiated legal proceedings or not. They have such a possibility wether in front of the courts or any other public or private mediation center. In this way, democracy in litigation is directly introduced into the institutions of the legal system.34 Legal institutions are giving up their own monopoly for resolving civil disputes to the extent bounded by the autonomy of the clients and give some of these disputes over to judicial, public or private bodies, which become an integral and complementary part of the dispute settlement system. In this way, the traditional system of dispute resolution is not being questioned, but only refined and updated.35

The described process of privatization of justice really is just a confirmation of how the market reacts much faster and more efficiently than the legal institutions and the legal system in general, to the needs of its users. Mediation is also a form of the privatization of justice and many authors who support its wider application indicate the superiority of justice that the clients can achieve in mediation in relation to its formal equivalent in court proceedings.36 So Uzelac believes that in private forms of dispute resolution, there is a more prominent social moment - the importance of each individual case for the clients who represent their own values in the dispute. Informal forms of dispute resolution, when successfully brought to an end, generally mean an end to the conflict and the dispute between the clients, whereas a verdict brought by atrial court, is only the beginning of the multiplication of the dispute, or the number of cases in front of various courts due to regular and extraordinary legal remedies. The informal procedure takes much less time, is much cheaper, clients are willing to execute what has been agreed and that agreement prevents any future disputes between the clients. Should they occur, the clients will try to solve them again in the same way, outside the court.37 Based on the findings of Mr. Uzelac, it can be concluded that mediation is the most prominent form of informal dispute resolution which, in the way described above, complies with all basic democratic values. The settlement in mediation proceedings on one hand, allows maximizing the interests and needs of the parties involved (which are only of interest to them), but on the other hand, a settlement in mediation at the same time satisfies the public interest and the social values.

Informal or private justice or justice achieved in the mediation procedure (mediational justice38) and public or formal justice, co-exist independently of each other, and yet they are in constant interaction. By keeping their own integrity, systems of formal and private justice mutually confirm and strengthen their legitimacy39. It is about systems that offer dispute resolution services on various grounds and enable the clients to each choose the one that most closely matches the specifics of their dispute, but also their personal needs and interests. Both serve the individual, but also the public interest. Every society needs to practice both systems, because one exsists because of the other40, and the different feelings that arise from these systems are the formula of are not only the survival of the healthy spirit of clients, but also the healthy spirit of lawyers in a contemporary setting.

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