European Policies in Mediation as an Alternative in the Courts of Law

• Author: Ion Tutuianu - Dorin Ilie
• Position: Senior Lecturer, PhD, University 'Vasile Alecsandri', Bacau, Romania - Mediator, Bucharest. Romania
• Pages: 28-44

ACTA UNIVERSITATIS

28

Abstract: The aim of this article

methods regarding the alternati

focused on the increasing trend o

and the medium and long-term

regarding countries such as Italy

before opening a judicial proc

(attorneys, lawyers, magistrates)

the various European governmen

Keywords: mediation; European

1. Short History of Med

Mediation is a relatively

different public or private

litigation settlement procedur 

in the second half of th

strengthening of certain sp

requirements and capacitie

run the mediation process t

finding the most advantage

Historically, we can say t

legal systems occurred

1

Senior Lecturer, PhD, Univer

tutuianuion@yahoo.com.

2

Mediator, Bucharest. Romania.

3

We refer to mediation as an

phenomena existed from the anc

IS DANUBIUS Vol. 10, no. 1/20

European Policies in Mediation as an

Alternative in the Courts of Law

Ion Ţ UŢ UIANU1,,Dorin ILIE2

icle is to synthesize the importance of mediation as one of the mos

ative solutions to courts of law. The approach is qualitative a

d of mediation in Eur ope, an evolution of the related European po

m perspectives of mediation.. F or this purpose we used the case

taly and Romania, countries that have introduced mandatory med

ocess. The study is important for those involved in the justic

es) and the novelty of the study dwells in the analysis of mediat

ent systems.

ean Union; legislation; alternative

ediation

vely new3settlement method of conflicts/litigation

te social relations. The institutionalization of mediation

ocedure is materialized in the U.S. (Anche, 2010, p. 10

the 20th Century. The institutionalization included

n specific procedure stages and techniques and of ce

ities from a third party – the mediator – as a person abl

ss toward a maximum efficiency, settlement of litigation by

ageous solutions for each party involved into the confli

y that mediation existed before the legal systems, as

ed only after a certain type of organization

versity “Vasile Alecsandri”, Bacău, Romania. Corresponding a

ia. E-mail: dorin@mediatoru.ro.

an institution attached to the modern law system. Mediation

ncient times, in different forms and traditional systems.

AUDJ, vol. 10, no. 1/2014, pp.

no. 1/2014

an

ost used

e and is

policies

se study

ediation

stice act

iation in

on from

ation as

p. 102),

uded the

certain

on able to

tion by

onflict.

, as the

ion in

author:

ion as a

p. 28-44

JURIDICA

29

communes/states/emperies. Before such forms of organization, the patriarchate or

the tribal organization were the habituating ways of living.

We cannot deny the inherence of conflicts in social relations of any kind and at any

time, regardless of level. Either on the intra-familial level or inter-familial level, or

in different social groups, conflicts occur in different degrees and forms. Related to

such considerate, people were parties in conflicts since the ancient times. As people

had not yet established a legal system, the leaders of groups or tribes, or elderly

people in a community were considered to hold the principles of equity, based on

which they settled their conflicts. We can say that they were mediators whilst

people were not subjected to trials in the meaning we give today to this, there were

no principles of criminal or civil law, as the person or persons empowered to settle

such conflicts settled them listening, in a first stage, the point of view on the

conflict of the parties; after that stage they addressed and assessed the causes and

effects of facts, presenting an equitable solution, taking into consideration the

previous settlements.

After communes, states or empires were established, due to increase rate of

occurrence of conflicts, the need of a judgment system and settlement of conflicts

appeared. Therefore, the law system was established, as a whole system improved

in time, a system that was at most materialized and strengthened during the Roman

Empire, a law system which is the essence and root of the present law systems.

With the occurrence of this law system, mediation of conflicts or amiable

settlement, becoming the second choice, people willing more a sentence imposed

by a judge, willing for a trial, as the states considered only this trial method related

to the true-false, guilty or not guilty, punished or not punished, punishable or not

punishable dyadic.

The issues of the classical law system, which made the amiable conflict systems as

inexistent, started to appear with the technical and technological development,

when the social relations grew considerably, the legal systems were stuffed with

new problems or conflicts, growing in number. The courts of law could not cope

with the high number of litigation cases, the quality of the legal act was questioned,

the time needed for the settlement of a case was high, and the work of each judge

was overstressing.

Under such conditions, the need of alternative methods for the settlement o f

conflicts had already appeared. Although the conciliation or mediation existed as

methods in traditional forms, there was no procedural and material frame necessary