Private Mediation as a Means of Achieving Public Goals

ანოტაცია

The development and strengthening of private mediation significantly determine the possibilities of overcoming the challenges in the process of the institutionalization of mediation. Establishes an effective system of dispute resolution at the state level. The legal or practical regulation of the abovementioned should be considered a prerequisite for implementing the interests of the subjects of law and forming legal awareness.

In addition, the perfect functioning of the justice system, which should ensure the implementation of the legal interests of the subjects of law, is an expression of public and private interests. The well-being and satisfaction of the civil turnover participants are significantly determined by the existence of flexible dispute resolution systems and mechanisms, the correct implementation of which creates guarantees for the stability of civil turnover. In addition, it’s in the public interest that the chain of the means of dispute resolution should be flexible and diverse and allow the interested parties to choose an acceptable method in each case. Regardless of its importance, providing fast and affordable forms of dispute resolution remains a challenge. In addition, it’s important to strengthen cooperation between the public and private sectors in this process, which will be considered an innovation in Georgia. Accordingly, following legislative changes, it is important to raise public awareness, improve legal culture, and strengthen the court’s role in implementing state policy regarding dispute resolution.

Keywords: dispute, resolution, advantage.

Introduction

Conflicts in societies are inevitable. In individual cases, the conflict can manifest itself in different forms: it can mean an interstate war and a family or work dispute.[1] Circumstances arising within the interrelationship may lead to the impossibility of independently resolving the dispute. Thus, flexible and many-sided legal mechanisms for resolving disputes throughout the state significantly determine the stability of civil turnover. In addition, it should be considered a prerequisite for realising the interests of the subjects of law. Mediation is considered important in this direction, as it occupies a prominent place in the justice chain and manifests in different forms. However, in any case, the fundamental ethical principles of mediation are essential for understanding the purpose of any form of mediation, and these principles also directly determine the procedural side or content of any form of mediation.

Accordingly, the issues related to the institution of mediation in Georgia are discussed within the paper’s framework. In particular, for the purposes of the paper, attention will be paid to one of its forms - private mediation, because the institutionalization of judicial mediation is currently more active. After the fundamental legislative changes, a number of judicial mediation programs have been implemented that can not be said about private mediation. However, it is a fact that the degree of success of the functioning of private mediation significantly shapes public opinion towards the institution of the mediation in total. The subject is also actual, as the positive role of mediation, which also includes the implementation of the fundamental principles of mediation, is visible in the case of private mediation, and a number of states, it is private mediation that is considered to be the most acceptable form in the process of solving various categories of disputes.

Therefore, the development and strengthening of private mediation in Georgia is considered inevitable, and in this process, the court’s role should be considered important. So, judicial mediation should ensure the strengthening process of private mediation, its establishment in the legal culture and establishment in the society, as well as the presence of the mediation component in the judicial system - strengthens the court. As a methodological basis of the paper, general scientific-historical and, special-normative and comparative legal research methods are used.

1. Mediation as a Means of Dispute Resolution and its Possible Forms

John F. Kennedy mentioned, “Let us never negotiate out of fear. But let us never fear to negotiate.[2] Human history shows that conflicts between people are inevitable. Therefore, one of the purposes of the legislation is to neutralize them to ensure public order and peace.[3] Mediation probably originated 4000 years ago - from the Sumerian society. However, it continues to evolve as a means of dispute resolution, and it is necessary to offer ways to ensure its perfection process.[4] Mediation has been regarded as the preferred method of conflict resolution in China for thousands of years. In the United States of America, society concluded that court proceedings could not fully satisfy the interests of the subjects of law, and mediation was recognized as the best form of dispute resolution. Consequently, in recent decades, mediation has been introduced in schools, the judicial system, government institutions, and the business/private sector.[5]

What is mediation? Mediation is defined as a process in which a neutral third party facilitates communication between the disputing parties in order to reach a mutually acceptable resolution of the dispute.[6] According to another definition, mediation is a voluntary process in which, with the involvement of a neutral third party, the parties try to find ways to resolve the conflict and achieve satisfactory results.[7] According to a recent definition by the Center for Dispute Resolution in the UK, mediation is a flexible process, conducted confidentially, in which a neutral person acts as a mediator to help the parties reach an agreement within their dispute, where the parties have authority to determine the content and terms of the agreement.[8] In any case, the recognized definitions of mediation as an institution, are based on emphasizing its fundamental principles as an institution, the prohibition of third-party interference in the rights of the parties, and the principle of self-determination of the parties as the nature of the mediation itself is based on the substantive and procedural goal of self-determination and the free will of the parties.

The mediator does not influence the results of the mediation. The mediator looks for ways to bring the parties closer to each other and the problem.[9] Therefore, the transformation of relations should be evaluated as a kind of goal of mediation.[10] It is recognized that mediation affects public relations like a drop of liquid in a glass of water. It slowly and imperceptibly changes the entire environment. By teaching mediation to young people and legal entities, by offering transformative alternatives of dispute resolution, and by introducing non-violent methods, the existing environment is being changed.[11] Even recent scientific studies indicate that one person’s positive attitude and aspirations can change the physical environment, emotions, and even the energy of those around them. Therefore, the mediator’s thoughts, mind state and emotions have a direct influence on the results obtained.[12] One of the characteristics of mediation is that with its help it becomes possible to resolve disputes in the area of ​​a particular society/institution. For example, mediation centres are established in schools or other types of institutions, in which case mediators work voluntarily, or the municipality finances their remuneration.[13]

As for the possible forms of mediation, which can be considered as the type of services to be provided to citizens, according to the established approaches in international legal spaces, the following dominate: court and private mediation, also referred to as voluntary mediation. In addition, court mediation is of two types: 1. Court-annexed mediation,[14] which is institutionally coordinated with the court, however, procedurally, it is independent of the court as an independent institution;[15] 2. Judicial mediation[16] is related to the court regarding building and staff. In case of this kind of mediation, the process may be conducted by a judge.[17]

Currently, a number of programs in Georgia have been developed with the purpose of developing the form of mediation - court-annexed mediation, that cannot be said about private mediation. However, as Albert Einstein said, it is possible to see an opportunity in any difficulty.”[18]

Accordingly, following the legislative regulation of mediation and the implementation of court mediation programs, support for the development of private mediation is necessary for the development of mediation practice. The development of private mediation indicates the formation of mediation as a profession. In addition, since completing the unified justice chain is a public goal, it is necessary to introduce forms of cooperation between the court and the private sector - for example, such would be the implementation of joint programs. In this way, cooperation with the court will strengthen private mediation - just as the institution of mediation strengthens the court.

 In addition, private mediation has a special role in different aspects. For example, for the representatives of the business sector, the advantages are of special importance: the ability to control the result; the possibility of controlling procedural issues; the possibility of determining the participating parties; saving financial resources; the ability to save on expert costs; time-saving; ability to maintain full privacy.[19] All of these advantages are also visible in the case of private mediation.

It should also be noted that the support for developing private mediation does not imply recognition of its superiority over other means of dispute resolution. Private mediation should be understood as one of the means of dispute resolution available in the state, which also has the support of the public sector, and the subjects of the law should have the opportunity to determine, in terms of free choice, the form of dispute resolution that is more acceptable for them.

Indeed - private mediation is not always the solution - for example, in cases where the parties are limited in terms of budget, it is less desirable to use private mediation. In these conditions, it is more reasonable, for example, to apply for court-annexed mediation.[20]

2. Cooperation between the Court and Private Mediation Providers as a Prerequisite for the Development of Mediation

It is recognized that PPP: Public-Private Partnership is one of the most flexible forms of implementation of public tasks. Its general definition implies the inclusion of private finance in the implementation of public tasks. In this model, the pairs of “public and private” entities imply cooperation.[21] Accordingly, taking into account the fact of the importance of the development of private mediation throughout the state, the question arises whether it would be appropriate to develop projects/such as mediation programs, on the basis of which the development of private mediation would be promoted on the basis of mutual cooperation between the judicial and private sectors, which would ultimately serve the common interests of both sectors.

Cooperation in this direction will be especially significant in building public trust and raising awareness towards private mediation. In this direction, examples of relevant successful practices should be considered: for example, in 1992, the Alberta Better Business Bureau established an independent, private legal entity, which gained a reputation as a Dispute Settlement Centre (BBB). The Center works with the Alberta Provincial Court and offers free alternative dispute resolution to disputing parties. The court proceedings are terminated if the parties agree to mediation, and it ends successfully. In case of impossibility of resolving the dispute, a standard consideration of the case within the framework of civil proceedings is being continued.[22]

It has also to be mentioned that in 1987, a Florida court initiated a program in which the court referred disputes to private mediators paid by the parties themselves. As a result of the implementation of the program, the number of cases to be discussed by the courts was reduced, access to the court was improved, and the degree of satisfaction of the parties was significantly higher than in the case of court proceedings.[23]

The indicated experience unequivocally confirms the effective practice of cooperation between the courts and legal entities of the private sector. This can be described as a hybrid form of court and private forms of mediation, which ensures the strengthening of the role of the court in the process of institutionalizing mediation, as well as the promotion of private mediation, the establishment of a culture of peaceful dispute resolution, and the transformation of the court into a space that offers citizens a variety of dispute resolution mechanisms.[24]

Conclusion

As a result of the discussion carried out within the framework of the work, it is determined that following the process of institutionalization of mediation, its regulation at the legislative level and the implementation of one of its forms - court programs in Georgia, it is considered relevant to take concrete steps for the development of private mediation. Improving practice in the relevant direction. Obviously, the mentioned process should not be carried out by automatically recognizing the experience of any state, and each innovation should be introduced based on a cause-and-effect analysis. It is considered necessary to involve the judicial system in developing a judicial form of mediation and private mediation. For this purpose, establishing and implementing projects should occur based on the principle of mutual cooperation between the public and private sectors. The above conditions, which consider strengthening the role of private mediation, complete the unified chain of dispute resolution operating throughout the state. In a broader sense, this means ensuring the Georgian reality and its compliance with the standards of leading democratic values-oriented legal systems - each subject should have the opportunity to decide as a result of a multifaceted and complete assessment of the issue under the conditions of free will - Within the discussion of a specific issue, which means of dispute resolution would be most suitable. The legal awareness of the subjects of the law should be based on the principle that the court proceedings should be considered not the main but one of the means of resolving the dispute. The abovementioned, which means a kind of cooperation between the public and private sectors, will contribute to the implementation of both public and private interests. On the one hand, the judicial system will be relieved; On the other hand, it will promote the development of private mediation. At the same time, an opportunity will be created to quickly and effectively satisfy the real interests of the subjects of the law.

In this way, as a result, two kinds of effects will be revealed. After all, mediation, in its essence, changes the court and determines the possibilities of overcoming a number of challenges in the judicial system. In addition, according to the recommendation, the judicial system will ensure the development of the forms of mediation in Georgia.

Bibliography

Legal acts:

1. The Civil Procedure Code of Georgia <https://www.matsne.gov.ge> (In Georgian)


2. Law on Georgia on Mediation <https://www.matsne.gov.ge> (In Georgian)

Literature:

1. Gurieli, (2019). The scope of the judge’s authority in relation to the conduct of the court mediation process. Tbilisi.


2. Khandashvili, I. (2018). Judicial and non-judicial forms of alternative dispute resolution on the example of mediation in Georgia. Ivane Javakhishvili Tbilisi State University Faculty of Law, Tbilisi.


3. Khubua, G., Kalichava, K. (2018). Handbook of administrative science. Tbilisi.


4. Brunet, E. (2002). Judicial mediation and signaling. Nevada law journal.


5. Clarke, S., Gordon, H., Ellen, E. (1997). Public Sponsorship of Private Settling: Court-Ordered Civil Case Mediation. Justice System Journal.


6. De Vries, T. (2012). The Legal Regulation of Mediation in Germany. Part I: Studies: Section 2: Private Judicial Law. Acta Universitatis Lucian Blaga.


7. Fisher, J. (2000). Symbol in mediation. Mediation Quarterly.


8. Gold, N. (1997). Prospects, Problem and Potential: An Assessment of Trends and Issues regarding Mediation in Canada. Journal of Arbitration Studies.


9. Hyde, L. M. Jr. (1984). Mediation. Juvenile & Family Court Journal.


10. Hesser, D., Craig, C., Jarrell, E. (2007). Team Mediation: An Interdisciplinary Model Balancing Mediation in the Matrix. Pepperdine Dispute Resolution Law Journal.


11. Khouri, N. (2021). Mediation. New Zealand Law Review.


12. Kovach, K. (2003). Mediation in a nutshell. Printed in the United States of America.


13. Lindblom, P. H. (2017). Progressive Procedure. Iustus.


14. Lovenheim, P., Guerin, L. (2004). Mediate, don’t litigate. Printed in the USA.


15. Maas, F. (2017). A Magistrate Judge’s Plunge into the World of Private Mediation. Litigation Journal.


16. Mosten, F. (2004). Institutionalization of mediation. Family Court Review.


17. Noll, D. E. (2007). Mediation. Then Mediation Deeper Dimensions Dispute Resolution Magazine.


18. Ozturk, N. (2015). Banka ve Ticaret Hukuku Dergisi.


19. Picard, Cheryl, A., Melchin, K. R. (2007). Insight Mediation: A Learning-Centered Mediation Model In Practice. Negotiation Journal.


20. Prabakar, R., Kripa, Somi J. (2022). Mediation in Family Dispute. Indian Journal of Law and Legal Research.


21. Richler, J. (2011). Court-Based Mediation in Canada. Judges’ Journal.


22. Riskin, L. L. (1997). Mediation Quandries. Florida State University Law Review.


23. Sudini, L. (2016). Mediation in the Settlement of Business Disputes in Indonesia. Journal of Law, Policy and Globalization.


24. Steffek, F. (2012). Mediation. In The Max Planck Encyclopedia of European Private Law, Vol. II, Basedow, J., Hopt, J. K., Zimmermann, R., Stier, A. Oxford University Press, Oxford.


25. Steffek, F. (2013). Mediation und Gűterichterverfahren. Zeitschrift fűr Europäisches Privatrecht, (ZEuP) #3. Verlag C. H. Beck, Műnchen.

Footnotes

[1] Kovach, K. (2003). Mediation in a nutshell, Printed in the United States of America, p. 3.

[2] Ozturk, N. (2015). Banka ve Ticaret Hukuku Dergisi, p. 203.

[3] Sudini, L. (2016). Mediation in the Settlement of Business Disputes in Indonesia. Journal of Law, Policy and Globalization, p. 41.

[4] Hesser, D., Craig C., Jarrell E. (2007). Team Mediation: An Interdisciplinary Model Balancing Mediation in the Matrix. Pepperdine Dispute Resolution Law Journal, p. 113.

[5] Mosten, F. (2004). Institutionalization of mediation. Family Court Review, p. 292.

[6] Richler, J. (2011). Court-Based Mediation in Canada. Judges’ Journal, p. 14.

[7] Hyde L. M. Jr. (1984). Mediation. Juvenile & Family Court Journal, p. 57.

[8] Khouri, N. (2021). Mediation. New Zealand Law Review, p. 170.

[9] Picard, C. A., Melchin, K. R. (2007). Insight Mediation: A Learning-Centered Mediation Model In Practice. Negotiation Journal, p. 35.

[10] Riskin, L. L. (1997). Mediation Quandries. Florida State University Law Review, p. 1007.

[11] Fisher, J. (2000). Symbol in mediation. Mediation Quarterly, p. 87.

[12] Noll, D. E. (2007). Mediation. Then Mediation Deeper Dimensions Dispute Resolution Magazine, p. 37.

[13] De Vries, T. (2012). The Legal Regulation of Mediation in Germany. Part I: Studies: Section 2: Private Judicial Law. Acta Universitatis Lucian Blaga, p. 209.

[14] Steffek, F. (2012). Mediation. In The Max Planck Encyclopedia of European Private Law, Vol. II, Basedow, J., Hopt, J. K., Zimmermann, R., Stier, A. Oxford University Press, Oxford, p. 163.

[15] Lindblom, P. H. (2017). Progressive Procedure. Iustus, p. 422.

[16] Brunet, E. (2002). Judicial mediation and signaling. Nevada law journal, p. 232.

[17] Steffek, F. (2013). Mediation und Gűterichterverfahren. Zeitschrift fűr Europäisches Privatrecht, (ZEuP) #3. Verlag C. H. Beck, Műnchen, 538. Mentioned in: Khandashvili, I. (2018). Judicial and non-judicial forms of alternative dispute resolution on the example of mediation in Georgia. Ivane Javakhishvili Tbilisi State University Faculty of Law, p. 184.

[18] Prabakar, R., Kripa S. J. (2022). Mediation in Family Dispute. Indian Journal of Law and Legal Research, p.1.

[19] Lovenheim, P., Guerin, L. (2004). Mediate, don’t litigate. Printed in the USA, pp. 300-301.

[20] Maas, F. (2017). A Magistrate Judge’s Plunge into the World of Private Mediation. Litigation Journal, p. 42.

[21] Khubua, G., Kalichava, K. (2018). Handbook of administrative science. Tbilisi, p. 161.

[22] Gold, N. (1997). Prospects, Problem and Potential: An Assessment of Trends and Issues regarding Mediation in Canada. Journal of Arbitration Studies, p. 94.

[23] Clarke, S., Gordon, H., Ellen, E. (1997). Public Sponsorship of Private Settling: Court-Ordered Civil Case Mediation. Justice System Journal, pp. 326-327.

[24] Gurieli, A. (2019). The scope of the judge’s authority in relation to the conduct of the court mediation process. Tbilisi, p. 126.