Archive for 01:53 PM
Latest News: On the Transparency of the Mediation Council
As promised, I will also post comments on the latest news in the mediation field. In this post I decided to bring to your attention the decision n° 1374/17.12.2010 regarding the publication on the Mediation Council website of its members meetings attendance records. This decision follows the decision n°1160/30.10.2010, regarding the publication, on the Council’s website, of members’ compensation surveys. The two decisions constitute an important step forward taken by the Council (the regulatory body in the field of mediation) in the direction of subjecting its members’ activity to public scrutiny.
As far as I’m concerned, during the meetings I had with different Council members, I have always insisted on the need for total transparency regarding the Council’s activity, starting with its members’ initiatives and endeavors. Information concerning members’ compensations, attendance, initiatives, and contacts with other public institutions, etc., should also be disclosed. The Mediation Council’s two decisions are a step forward in this direction.
Nevertheless, there is still much more to be done in order to reach the total transparency I mentioned above. We have yet to see a detailed budget plan of the Mediation Council, with revenues and expenses columns, so that mediators know exactly how the money they give the Council is being spent. We have yet to see an annual management plan clearly stating each member’s projects for the respective year. We have yet to see annual reports that evaluate members’ activities in relation to the objectives stated in the annual management plan, so that the effectiveness of its members can be accurately assessed. These would be only a few of the minimum requirements for a transparent and hence credible Mediation Council.
It is clearly visible for council members, too, that lack of transparency leads to suspicions, especially in a country that is notorious for the lack of accountability of its public institutions. The Mediation Council could easily solve the conflicts it has with different mediators by adopting measures that lead to total transparency and that allow public scrutiny over members’ activities. Some of these measures have already been adopted. We’re looking forward to seeing what comes next.
On community mediation, again
In last week’s post I was writing about community mediation and its use and benefits. It all sounds good on paper, but reality fails to confirm the success of community mediation. Both citizens and public institutions are reluctant to using alternative dispute-resolution methods. They seem to prefer the costly, intricate, traditional method. Citizens’ attitude towards community mediation could result from their lack of interest and ignorance and they are entitled to choose how they want to spend their resources (time and money). But in the case of public institutions things ought to be completely different.
Though representing the Romanian state, that publicly declared its support for mediation as part of the process of European integration (support that led to the Law 192/2006), central and local public authorities were slow when it came to including community mediation in their dispute-resolution methods; also, they did little to encourage citizens or private companies to choose mediation. The conservatory spirit and the indolence of public institutions are well known by now and so there is no need to go into further details here. What is even worse is their ignorance, their incapacity of fully understanding the advantages of mediation. Public institutions insist on favoring the traditional legal channels, even when it is obvious that they cannot win in court and when the other parties (citizens or private companies) are willing to reach an agreement by other means than a court of law.
This leads not only to an unnecessary waste of taxpayers’ money, but also to a series of other effects that are ignored by the decision-makers: the discontent of citizens and the private sector (two of the major contributors to the funds the public institutions waste in courts), followed by the spreading of a general belief regarding the authorities’ lack of consideration towards community members’ needs. All this ends in other deeper and longer conflicts that have a very slight chance of being effectively and conclusively solved.
In the public sector, especially at a local level, mediation would apply in numerous situations, a comprehensive description of the situation being beyond the scope of this post. Nevertheless, some are worth mentioning. For example, mediation could be used to solve disputes between neighbours, without repeatedly bothering the police, who are usually involved in a great number of missions and have limited means and equipments. Another example would be the disputes between citizens and local authorities, especially those arising from citizens’ or other interest groups’ opposition to local authorities’ decisions (e.g. building parking lots, closing down playgrounds, granting construction permits to entities that are in opposition with house tenants and flat owners’ associations, changing the name of the streets, etc.).
Experience shows that mediation and its techniques can be successfully used for designing local public policies that are supported by the local communities. Public debate sessions are necessary, but many times they don’t lead to the expected results or lead to conflicts, instead of preventing them. Hence, mediation techniques could be used to reach a consensus between parties. This way, money is saved and further discontentment at community level is avoided.
If public authorities used mediation more often, this would lead to major progress in communicating with communities. This way, public policy design and community sustainable development would be more effective. And, who knows, maybe the elected local authorities would realise that this way they could also score some points on the political board.
On Community Mediation
Mediation was first introduced in Romanian society through the Law 192/2006 and it gradually found its place in society. Mediation is defined as an amicable way of solving disputes with the help of a neutral and impartial third party. The mediation process respects both the confidentiality principle and the disputants’ right to self-determination. Thus, mediation seems like a tempting alternative method for those who seek to rapidly settle a dispute, behind closed doors. As it guarantees confidentiality, mediation, compared to the traditional legal channels, is a more attractive method of family dispute resolution (especially those that lead to a divorce) and of commercial dispute resolution. Moreover, in the cases where mediation is chosen after a case court has been open, the stamp tax is reimbursed, the amount being quite significant to some.
Mediation had a difficult start, mostly due to potential beneficiaries’ resistance to change, to a mistrust generated by lack of information concerning the methods used by mediators and their efficiency and finally, but certainly not least, due to mediators’ indolence. Despite all this, mediation eventually received the public and the law-makers’ attention. Thus, the Law 202/2010, regarding measures aimed at accelerating the legal procedures of a case court, brought a series of amendments to the Procedure codes, and mediation became an independent step of the dispute-resolution process. As a consequence, for various types of litigations, the judges now recommend an informative session on mediation; moreover, they have to favor the methods of amicable dispute resolution and thus mediation becomes a distinct, clearly stipulated method of settling disputes.
Mediation is used to solve many conflicts and types of litigation. The Law 192/2006 stipulates that mediation can be used to solve commercial, family, civil and even, in some specific cases, criminal litigations. This is by no means a comprehensive list of contexts in which mediation can be used; mediation can actually be used in any situation in which the parties can dispose of their rights; in other words, in any situation in which the parties themselves can decide on the way to solve the dispute they are involved in and in which there is no legal provision expressly forbidding them to do so.
One of the most encountered type of mediation is community mediation. Community disputes are usually difficult, sometimes impossible to solve using traditional dispute-solving methods. The reason: these methods are not suited for solving disputes between neighbours, for example; the dispute settling is often left with the Police force, who have neither the time, the resources, nor, in most cases, the appropriate training to handle such situations. For other community conflicts, such as those related to the implementation of certain decisions or public policies at a local level, there is no clear solving mechanism, hence the parties resort to petitions, public gatherings, public demonstrations, and even to force in order to reach their objectives.
When the gap between the citizens and the public institutions widens to the point of no communication, these initiatives don’t have the expected results; this lack of communication can lead either to a situation in which communities are impossible to govern, or to uncontrollable and unrealistic behaviour on the authorities’ side, or to both.
Community mediation is one of the essential instruments for building a healthy relationship between local public institutions and communities, an efficient way of developing local public policies by ensuring constant communication and cooperation between the local authorities and citizens. Community mediation is also a constructive means of settling disputes between public institutions and citizens or private companies, in ways that are beneficial for all parties and do not lead to a further deterioration of the relationship, as it is often the case with traditional dispute-resolution methods. Mediation is the most efficient means of building peaceful relationships between neighbours, between citizens and the authorities, between public institutions and businesses whenever conflicts – incidental to such relationships – appear. It would be an important step forward if Romanian society understood this and acted accordingly.