Study of Civil Dispute Resolutions by Social Mediation Services in Civil Law

Abstract

The paper draws attention to alternative resolutions of civil disputes by social mediation in civil law. The main objective of the study was to map incidence of the most frequently resolved civil disputes, and their categorization in mediation conferences from the perspective of mediators who are registered under a personal evidence number by the Ministry of Justice of the Slovak Republic. The sample included 104 (n=104) purposefully selected mediators. Statistical analyses showed interesting facts such as advantages of mediation conferences versus court hearings, advantages of the process in the mediation conferences related to the client, positive outcomes of mediation services related to time of conferences, agreements, and communication with reflexion on the case, the importance and need of social mediation services in civil law in our society.

Keywords: Disputecivil lawmediation conferencessocial negotiationmediatorcivil disputes

Social mediation services in civil disputes in Slovakia

Mediation service in civil law is a process, which emphasizes responsibility of the parties for their

decisions which will influence their lives. A mediation conference consists of specific stages and

techniques, which allow meeting important tasks. It is a final process, which brings concrete outcomes

depending on the values, norms and principles of all the parties in the mediation process. Mediation

service focused on the future is an organic part of the policy to enhance the access of the citizen to

justice, which is a basic right for all citizens in accordance with the Article 6 of the European

Convention for the Protection of Human Rights and Fundamental Freedoms. A bill on mediation was

justified also from the point of view of synchronization of new legislation related to the entry of

Slovakia (01.05.2004) into the European Union with its legislation and international standards. From

February 2002 to March 2003, the Ministry of Justice conducted a project as a part of bilateral

cooperation with the United Kingdom of Great Britain and Northern Ireland where mediation has a

long tradition. Mediators in criminal processes state that if the offenders face a direct contact with the

victims, they can understand harmfulness of their actions, which educates the offenders (Welsh, Nancy

A, 2002, Wissler, Roselle L, 2001, Vanková, K., 2014). Their participation in reaching an agreement

on compensation results in the fact that the offender takes responsibility for the crime and a tendency to

pay damages is, in this case, affected not only by court decisions but also their own efforts; in the

mediation process, they can also comment on the amount of compensation and they have also an

opportunity to express their emotions related to psychological harm to the victim. On the

Recommendation Rec (2002)10 of the Committee of Ministers to Member States on mediation in civil

matters and also by strengthening the access to justice, a project was conducted in Slovakia; it is

significant for legislation of mediation in civil law. We can state that mediation uses the knowledge

from law, philosophy, sociology, economy, anthropology, social disciplines, and psychology – thus

mediation is a scientific interdisciplinary field, which results in the fact that mediation allows the

parties to understand the dispute and its consequences better, allows them to participate in elimination

of the dispute under the conditions that are agreed on between the parties instead of giving the

possibility to decide about unpredictable outcomes by a judge or a jury where one party is a winner and

the other is a loser (Tyler, Tom R.,1997). Social mediation service in civil law in perception of

interpersonal relationships suggests the most frequently used alternative ways of dealing with the

conflict including facilitation, negotiation, conciliation, mini-tribunal, arbitration, expertize, med-arb,

arb-med, and mediation.

Mediators in civil law deal with the disputes, conflicts and problems which result from the

contractual relationships in various scopes: civil, family, employment, business; they deal with the

cross-border disputes and school-related problems using the peer mediation conferences (Vanková,

2015). Social mediation process is based on respect to the parties, their abilities, responsibility for their

lives, and their own judgement of their needs (Sandefur, & Rebecca L., 2010).

Adoption of the Act No. 420/2004 Coll. on mediation in the legislation of the Slovak Republic

reflected an intention to reduce the number of court actions and the length of court proceedings;

mediation in civil law should significantly reduce the extreme overload in judicial system.

In the paper we focus on dealing with the civil conflicts and disputes through mediation –

mediation conferences; the main objective is to map incidence of the most common civil disputes in

mediation conferences from the point of view of mediators registered under a personal evidence

number by the Ministry of Justice of the Slovak Republic.

According to the section 99(1) of the Act No. 99/1963 Coll. the third sentence reads: “If the

circumstances of the case allow it, before the first proceedings and during the proceedings the court

can ask the parties to try to resolve the dispute through mediation and to participate in the informative

meeting in the registered mediator’s premises” (translated by the author).

Mediation is used as an alternative to court proceedings by most of the Member States of the

European Union.

Applied mediation is not used with the same intensity in the countries using it. It develops

differently in each of the implemented areas, depending on the specificity of the conditions. In Norway,

it has more than a two-hundred-year tradition, particularly in mediation focused on care for the minors.

A committee of mediators decides about the issues of education, subsistence, and contact with children

up to 16 years of age. In Oslo itself, there are three municipal family counselling offices. The key roles

are played by psychologists, social workers, and mediators (Vanková, 2015).

1.1 Conflicts – the most common issues in interpersonal relationships

Civil conflicts that are resolved through mediation include: neighbourhood relationships (animals,

noise, parking, property management conditions), youth (petty arguments, group activities, conflicts

with institutions), conflicts between citizens and institutions in their neighbourhood such as schools,

entertainment centres, shopping centres, trespassing, damage to property, noise nuisance at night hours;

civil disputes such as settlement of a tenancy by entirety after a divorce, or cancelling a tenancy by

entirety of a couple, settlement of the inheritance; encumbrance, rent relations, rights and obligations of

the owners of residential and non-residential premises, etc. (Vanková, K, 2015, Pleasence, P, Nigel B,

Alexy B, 2006, Woods, L, 1985).

The above mentioned conflicts occur between the tenants and landlords, the tenants themselves, the

tenants and other state and non-state organizations. Mediation can be used in the disputes that are

resolved by specific commissions at municipal offices. “The Civil Code regulates property relations of

the natural persons and legal persons, property relations between the persons and the state, as well as

relations resulting from the right of protection of persons, if these civil relations are not regulated by

other acts. Regulation of civil relations contributes to meeting the civil rights and freedoms,

particularly protection of personality and inviolability of property” (Občiansky zákonník č. 40/1964

Zb.; Civil Code No 40/1964 Coll.; translated by the author).

Other civil disputes include all disputes which result from infringement of rights of persons living

in certain relationships in a community; they are called community disputes of house owners resulting

from contracts about property management, disturbed relations between neighbours because of

animals, noise, parking, trespassing, damage to property, and noise nuisance at night hours.

The aim of social mediation service is to guide the parties to be able to deal with the conflicts; the

basis is to gain or restore the ability to be responsible for one’s actions.

Sometimes, just talking to neighbours can help because they probably do not realize that their

behaviour causes annoyance. This would resolve the problem. But sometimes it is necessary to deal

with the situation by legal action.

The main study objective was to map incidence of the most frequently resolved civil disputes in

mediation conferences from the perspective of mediators who are registered under a personal evidence

number by the Ministry of Justice of the Slovak Republic. In the study, it is interesting to compare the

responds by the male mediators and female mediators. In the study, we compare how many mediation

cases were resolved by male mediators and female mediators. The findings show how often the female

and male mediators were contacted to resolve civil disputes.

There are four partial objectives:

O1: To find out the most common civil disputes.

O2: To find out the outcomes of the most of the cases at the end of mediation process in civil

disputes.

O3: To find out the time frame necessary to obtain a successful outcome of mediation process in

civil disputes.

O4: To find out advantages of mediation versus court proceedings from the perspective of

mediators.

Methods

2.1 Sample

The basic criterion for sampling was being registered in the Register of Mediators at the Ministry of

Justice of the Slovak Republic. A designed questionnaire was sent to the purposefully selected

mediators. The sample included 104 (n=104; 100%) purposefully selected mediators. There were 39

(n1=39; 37.50%) men and 65 (n2=65; 62.50%) women (see Table 1 ).

An average age was 41.67 years (SD=10.46). The youngest respondent was 24 years old and the oldest

one was 60 years old.

Table 1 -
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2.2 Tool

In the study, we used a designed anonymous questionnaire that was emailed to 250 mediators. It

consisted of introduction (the purpose), identification items (age, gender), and 16 matter-of-fact items

(specific questions on the issue) including 6 open-ended and 10 closed-ended questions.

The obtained data are presented in the tables.

2.3 Time frame

The questionnaire was designed in accordance with the objectives and research questions in

January. It was emailed to 250 mediators in February. The questionnaire can be completed within 15

minutes. We received 104 (41.6%) completed questionnaires.

Results

3.1 The most common civil disputes

The first partial objective examines the most common civil disputes.

Table 2 -
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The Table 4 shows that 57 respondents answered Yes, which means they helped resolve

neighbourhood disputes. In their practice, 45% of the respondents did not help to resolve

neighbourhood disputes. All 104 respondents answered this question. A chi-squared test showed that

x2=1.13. The test value is lower than the critical value at the 5% significance level with 1df, which

means the result is not statistically significant.

3.1.3 Resolving inheritance disputes by mediation

Table 3 -
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The Table 5 shows that 42% of the respondents (15 men and 29 women; 44 respondents) answered

Yes, which means they helped resolve inheritance disputes; 58% of the respondents (24 men and 36

women; 60 respondents) did not help resolve inheritance disputes. A chi-squared test showed that

x2=0.37. The test value is lower than the critical value at the 5% significance level with 1df, which

means the result is not statistically significant.

3.1.4 The most frequently solved civil disputes in mediation

Table 4 -
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All 104 mediators answered this open-ended question. Many respondents offered several answers,

so there are 111 responds. A chi-squared test showed that x2=106.79. The test value is higher than the

critical value at the 1% significance level with 4df, which means the result is statistically significant.

The results show that the most frequently solved disputes in mediation were property disputes (53

(47%) respondents). The second most common disputes were neighbourhood disputes (44 (39%)

respondents).

This question was used as a control question. The results for this question were the same as the results

for the question on the most commonly resolved civil disputes in mediation.

3.2 Mediation outcomes in civil disputes

The second partial objective focused on mediation outcomes . Three questions were used.

3.2.1 Outcomes in civil disputes

Table 5 -
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The Table 7 shows that 79% of the respondents (31 men and 51 women; 82 respondents) answered

Yes, which means that the civil disputes mostly resulted in agreements; 13% of the mediators (5 men

and 9 women; 14 respondents) answered No, which means that the civil disputes mostly did not result

in agreements; 8% of the respondents (3 men and 5 women; 8 respondents) answered Do not know,

which means they did not know the outcomes of the civil disputes. A chi-squared test showed that

x2=0.02. The test value is lower than the critical value at the 5% significance level with 2df, which

means the result is not statistically significant.

3.2.2 Outcomes at the end of mediation process

Table 6 -
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Up to 13% of the mediators (5 men and 9 women; 14 respondents) answered Yes, which means that

the civil disputes finish without agreements; 79% of the respondents (31 men and 51 women; 82

respondents) answered No, which means that the civil disputes result in agreements; 8% of the

respondents (3 men and 5 women; 8 respondents) answered Do not know, which means that they did

not know the outcomes of the civil disputes. All 104 respondents answered this question. A chi-squared

test showed that x2=0.02. The test value is lower than the critical value at the 5% significance level

with 2df, which means the result is not statistically significant.

This question was used as a control question. The results for this question were the same as the results

for the question if the civil disputes mostly result in agreements.

3.2.3 The most common reasons of mediation failures

Figure 1: Table 9.The most common reasons of mediation failures
Table 9.The most common reasons of mediation failures
See Full Size >

Unwillingness to reach agreement was stated as the most common cause of mediation failure by 91

(87%) mediators; 12 (12%) mediators stated unwillingness to use mediation was the most common

cause of mediation failure; and one (1%) mediator stated that termination by a mediator was the most

common reason of mediation failure. A chi-squared test showed that x2=137.26. The test value is

higher than the critical value at the 1% significance level with 2df, which means the result is

statistically significant.

3.3 Time necessary for successful resolution of civil disputes

The third partial objective focused on time necessary for successful resolution of civil disputes . Five

questions were used.

3.3.1 Average duration of mediation conferences

Figure 2: Table 10.Average duration of mediation conferences
Table 10.Average duration of mediation conferences
See Full Size >

The Table 1 0 shows that 38 (36%) mediators stated that one mediation conference lasts 60 minutes

in average; 27 (26%) respondents stated that one mediation conference lasts 90 minutes in average; two

(2%) respondents stated that one mediation conference lasts 30 minutes in average; three (3%)

respondents stated that one mediation conference lasts 180 minutes in average; and four (4%)

respondents stated that it is individual and it depends on a dispute and parties.

3.3.2 Resolving disputes after the first mediation conference

Table 7 -
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All 104 mediators answered the question if the disputes can be resolved after the first mediation

conference. The Table 1 1 shows that 44 (42%) mediators answered Certainly yes; 12 (12%) mediators

answered Certainly not; and four (4%) respondents were not able to say.

3.3.3 The number of mediation conferences necessary for successful dispute resolution

Table 8 -
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All 104 mediators answered the question how many mediation conferences are necessary for successful dispute resolution. It was a multiple choice question, so there were 161 answers. The Table 1 2 shows that 67 (42%) mediators consider three mediation conferences as necessary to successfully resolve the dispute; five (3%) mediators stated it was individual; and one (1%) mediator stated that seven mediation conferences are necessary to successfully resolve the dispute.

3.3.4 Resolving disputes after two or three mediation conferences

Table 9 -
See Full Size >

Discussion

The main study objective was to map incidence of the most frequently resolved civil disputes in

mediation conferences from the perspective of male and female mediators.

There were four partial objectives. The first partial objective was to find out the most common civil disputes. The second partial objective was to find out the outcomes of the most of the cases at the end of mediation process in civil disputes. The third partial objective was to find out the time frame necessary to obtain a successful outcome of mediation process in civil disputes. The fourth partial objective was to find out advantages of mediation versus court proceedings from the perspective of mediators.

In the first partial task we were interested in the opinion of the mediators on the most commonly resolved civil disputes in mediation. We found out that 71 mediators resolved property disputes. The second most commonly resolved disputes were neighbourhood disputes which were resolved by 57 mediators.

In the second partial task we were interested in the opinion of the mediators on the outcomes at the end of mediation process in civil disputes. The success rate is given by the number of successfully resolved disputes. A successfully resolved dispute means there is a written agreement between the parties. According to Vanková (2015), reaching and signing an agreement is the final outcome of mediation process. Our results show that it is definitely agreement between the parties. Up to 79% of the mediators stated that the outcomes of civil disputes were agreements; 13% of the respondents stated that the outcomes of civil disputes mostly were not agreements; and 8% of the respondents stated that they did not know the outcomes of civil disputes. In the USA and Canada, 75% of conflicts are resolved by mediation; according to the statistics, approximately two thirds result in mediation agreement (Tyler, Tom R., 1997, Vanková, K., 2015). In the European countries, the most positive experiences with mediation are in Great Britain, the Netherlands, Norway, Slovenia, and France. Mediation is used in 60-70% of employment disputes, commercial disputes, consumer disputes, divorce proceedings, neighbourhood disputes, and school system disputes. The statistics show that approximately two thirds of mediation disputes result in agreement. In pilot projects in Slovenia in 2002, mediations in civil disputes were successful in 52% of the cases. The Dutch pilot project of mediation based on 2200 mediation cases showed positive results; 61% of mediations resulted in agreements; after three months, mediation agreements were met in 66% of the cases and were partially met in 22% of the cases (Mediácia. Príručka pre odbornú a laickú verejnosť, 2015). We also found that 91 (87%) mediators consider unwillingness of the parties to reach agreement the most common reason of mediation failure; 12 (12%) mediators stated that the most common reason of mediation failure was unwillingness of the parties to use mediation; one (1%) respondent stated that termination of mediation by mediators was the most common reason of mediation failure.

In the third partial task we were interested in the opinion of the mediators on time necessary for successful resolution of civil disputes. We found out that 38 (36%) mediators stated that mediation conference lasts 60 minutes in average; 27 (26%) respondents stated that one mediation conference lasts 90 minutes in average. In the question if it is possible to resolve disputes after the first mediation conference, 44 (42%) respondents answered Certainly yes. Vanková (2015) states that whole mediation process takes several meetings. Ideally, the parties can reach agreement in the first mediation conference. If the parties are to reach agreement, it is necessary to participate in the mediation conference. We wanted to find out how many mediation conferences are necessary to successfully resolve the dispute. We found out that 67 (42%) mediators consider three mediation conferences necessary to resolve disputes successfully; five (3%) mediators stated that it is individual. Our findings correspond with the findings by the mediator Kubová that “the number of mediation conferences is individual and varies between the cases, but mostly it is 1-3 conferences (each of them lasts 60-90 minutes). Maximal recommended number is 5-6 mediation conferences” (Vanková, 2015; translated by the author). In the question about decreasing probability to resolve disputes successfully, 43 (41%) mediators stated that the probability of successful resolution is lower after the third mediation conference.

In the fourth task we were interested in the opinion of the mediators on advantages of mediation versus court proceedings. As Vanková (2015) states, the main advantage of mediation is the fact that it can help the parties improve their relationships, give them adequate basis in the form of mediation agreement, and thus provide space for good relationships in the future. We found out that 97% of the mediators consider mediation cheaper than court proceedings. As Vanková (2014) states, financial expenses for mediation are significantly lower than for court proceedings. Up to 98% of the mediators stated that mediation is faster than court proceedings. The results correspondent with Vanková (2014) who states that “a great advantage of mediation is its speed. Practically, mediation can start immediately after contacting a mediator; on the other hand, court proceedings are a slow process because of slow dealing with disputes, inadequately long delays and a number of discussed matters; it happens very often that court proceedings start even several months after filing a motion” (translated by the author). In the question why clients should prioritize mediation over court proceedings, 89 (37%) respondents stated that mediation is faster and cheaper than court proceedings. The third most common answer was that mediation is held in pleasant and less stressful environment, as stated by 24 (7%) respondents. All partial objectives and the main objective were met.

There are many disputes between people but not everybody knows they can be resolved out of court. The first pilot projects on mediation in Slovakia were in 2002. The biphasic project “Improving Access to Justice in Slovakia” lasted from February 2002 to March 2003. The Ministry of Justice conducted this project within bilateral cooperation with the United Kingdom of Great Britain and Northern Ireland, the country which has a long tradition in using mediation. Its main objective was implementation of mediation into Slovak legislation. Another experience was a twining project PHARE SR 01/IB/JHA/01 “Enhancing Judicial Independence” . The project lasted from February 2003 to October 2004, and focused on basic issues of out-of-court resolving of civil disputes. Project work groups significantly helped in finalization of the bill on mediation. During their study stays in Great Britain, the Slovak experts directly contacted the mediators and mediation services in England and obtained first knowledge on mediation in practice. The bilateral project of the Ministry of Justice of the Slovak Republic and the Department of Constitutional Affairs of Great Britain lasted from June 2004 to December 2005. Its main objective was preparation for the use of mediation at five district courts in Slovakia as a part of the prepared pilot project approved by the Minister of Justice of the Slovak Republic in 2004. This pilot project was the first experience of implementation of mediation in Slovakia. The first implementation project used mediation as out-of-court resolution of disputes within the judicial system at district courts in Bratislava 2 and 3, Banská Bystrica, Prešov, and Košice; it brought the first outcomes on the effects of mediation in the judicial system. In 2005, in the selected courts, a pilot project of mediation was started; its objective was that judges, in some cases, advised the parties to try to resolve their disputes by mediation. The final report of the pilot project on mediation in civil and commercial disputes and the recommendations for increasing the effectiveness of mediation showed that the pilot courts recommended mediation mostly in disputes related to paying the claims, child’s maintenance, settlement of a tenancy by entirety; civil, commercial, family and employment disputes; disputes of civil, commercial and guardian agenda; adult child’s maintenance; disputes related to compensation, lease of residential and non-residential premises, and contract for work. According to the representatives of the pilot courts, there were more than 3600 disputes recommended for mediation (Marušicová, 2012). The main objective of the project “Mediation Promotion in Civil Affairs for Professional and Lay Public” of the Ministry of Justice of the Slovak Republic was to use the previous experience to develop the pilot implementation project in 2006 by including two other district courts in Slovakia, and to increase awareness of mediation among people with the use of the series of promotion and education activities among selected target groups including secondary schools and universities, professional associations, and judicial system, particularly senior judicial officers and judges.

Research limitations: It would be interesting to find out how the results were affected by the fact

that only about 40% of the addressed mediators responded.

Conclusion

In conclusion, we can state that the most common civil disputes are property disputes; most of the disputes result in agreement; one mediation conference lasts 60 minutes in average; the disputes can be solved already after the first mediation conference; there are three mediation conferences necessary to resolve the disputes successfully; and mediation is faster and cheaper than court proceedings.

We came to the conclusion that mediation service in civil law offers a new way of dealing with disputes, conflicts and problems. It expresses autonomy of the parties and provides them with contractual freedom. Mediation in civil law fills the gap between unsuccessful attempts to resolve the problems by the parties themselves and resolving the problem by the third party – an authority. We have to mention the fact that it is the best and universal way of resolving disputes. Court proceedings cannot be fully replaced by any out-of-court alternatives; however, using mediation in civil law can help reduce the number of less complex disputes resolved at courts.

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Cite this article as:

Vankova, K. (2016). Study of Civil Dispute Resolutions by Social Mediation Services in Civil Law. In Z. Bekirogullari, M. Y. Minas, & R. X. Thambusamy (Eds.), Cognitive - Social, and Behavioural Sciences - icCSBs 2016, May, vol 8. European Proceedings of Social and Behavioural Sciences (pp. 76-89). Future Academy. https://doi.org/10.15405/epsbs.2016.05.9