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
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