DESCRIPTION OF TYPES OF DISPUTES OF CIVIL, CRIMINAL AND ADMINISTRATIVE NATURE

Lecturer: Dana Rone

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A dispute according to the Oxford dictionary

• A conflict
• A debate
• A quarrel
• A controversy
• A disagreement
• A fight
• A struggle

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A conflict

• Repeated incompetence in dispute resolution – over centuries, in all societies irrespective of geographic, ethnic or religious origin.
• Internal and external conflicts
• Family against family
• Tribe against tribe
• State against state

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Origin of conflict

• Value systems
• Self-esteem
• Freedom of choice
• Emotions
• Psychological aspects

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Aristotle (384 – 322 BC)

Conflict between reason and emotion

Emotion and rationality – always in conflict

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Heraclitus (d. 460 BC)

Conflict is a natural condition of the universe and is part of the holistic entity of being.

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Rene Descartes (1596 – 1650)

Human beings consist of 2 controversial entities: the body, including the brain, which is extended and divisible, and the mind, the consciouness that is indivisible.

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Carl Rogers (1902 – 87)

By emphathy, warmth, genuineness, congruence and an unconditional positive regard, one can establish a therapeutic relationship which is not only curative, but also enables clients to resolve their own disputes.

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Carl Rogers

• For a good and effective human relationship, a person needs “non-judgmental acceptance of every feeling, every thought, every change of direction, every meaning that she finds in her experience” (1987)

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Morton Deutsch (1920 )

The conflict shall not be eliminated, but made productive.

Constructive and destructive conflict.

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Mediator and conflict

• Mediators should accept conflict as an inescapable facet of human existence, with the possible consequence of reconciliation.
• A mediator’s desire to eliminate conflict entirely may be an impediment for the ADR process.

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A field of dispute

• Unlimited number of fields:
• Family
• Friends
• Colleagues
• Businesses
• Criminal violations
• Administrative and state level
• International

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Severity of dispute

• Daily dispute – defence of position
• Unexpected dispute – new situation, stressful for all parties
• Legal dispute – law behind situation
• Multiparty dispute – all participants have their positions

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Aspects of disputes

• Legal aspect
• Pshychological aspect
• Economical aspect
• Systemic aspect
• Political aspect

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Civil law disputes

• The most popular in mediation – Family law disputes
• Between sposes: husband and wife
• Divorce cases
• Meeting rights with children
• Support money for children
• Division of property
• Communication with new partners

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Civil law disputes

• Inheritance law cases:
• Relations among successors
• Division of property
• Management of inherited property
• Disputes over the will

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Civil law disputes

• Landlord – tenant disputes (rent payment, use of property, prolongation of agreement)
• Employer – employee disputes (performance, salary, attitude, mobing – bossing cases)
• Commercial law disputes – between merchants on business aspects

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Civil law disputes

• Monetary aspect – gains and losses, profit and interest per cent
• Interests from the past
• Future interests
• Possible cooperation with the oponent

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Civil procedure law principles

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Civil procedure law principles

1) Rights of a Person to Court Protection

• Every natural or legal person has a right to protection of their infringed or disputed civil rights, or interests protected by law, in court.
• A person who has applied to a court has the right to have their matter adjudicated by the court in accordance with the procedures prescribed by law.
• Mediation – a step away from this right?
• Rights to justice – not absolute right?

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Civil procedure law principles

2) Adjudging of Civil Matters by Courts

• Courts in accordance with the procedures prescribed in law shall adjudge civil matters.
• Mediation – rules created by mediator and the parties.

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Civil procedure law principles

3) Application of Legal Norms

• Courts shall adjudge civil matters in accordance with laws and other regulatory enactments, international agreements and the legal norms of the EU
• If there is no law regulating disputed relations, the courts shall apply a law regulating similar legal relations, but if no such law exists, the courts shall act in accordance with general legal principles and meaning.
• In applying legal norms, the court shall take into account case law.
• Mediation – law exists, but opinion matters.

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Civil procedure law principles

4) Determination of Facts in a Civil Matter

• The court shall clarify the circumstances of a matter, examining evidence, which has been obtained in accordance with the procedures prescribed by law.
• The court shall explain to the participants in the matter their rights and duties, and the consequences of performing or failing to perform procedural actions.
• Mediation: there are facts, opinions, feelings and emotions.

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Civil procedure law principles

5) Equality of Parties in the Civil Procedure

•  In regard to procedural rights, parties are equal.
• The court shall ensure that the parties have equal opportunity to exercise their rights in order to protect their interests.
• Mediation: parties are equal as well, however reality is recognized.

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Civil procedure law principles

6) Adversarial / Contest Proceedings in Civil Procedure

• Parties shall exercise their procedural rights by way of adversarial / contest proceedings.
• Adversarial proceedings shall take place through the parties providing explanations, submitting evidence and applications addressed to the court, participating in the examination of witnesses and experts, in the examination and assessment of other evidence and in court argument, and performing other procedural actions in accordance with the procedures prescribed by law.
• Mediation: friendly, free from bias atmosphere.

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Civil procedure law principles

7) Open Adjudication of Civil Matter

• Civil matters shall be adjudicated in open court, except for some sensitive matters .
• Mediation: closed, confidential sessions. Supporters are allowed at some cases.

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Civil procedure law principles

8) Language of Court Proceedings

• Court proceedings shall take place in the official language.
• The participants in the matter shall submit foreign language documents accompanied with a translation thereof into the official language, certified in accordance with the procedures prescribed by law.
• Mediation: the parties agree about language.

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Mediation principles

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Mediation principles

1. Neutrality and impartiality
2. Self-determination
3. Confidentiality
4. Voluntary

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Neutrality

• The primary tenet in mediation is neutrality. As a neutral, the mediator is charged with being impartial throughout all communication and involvement with the parties in the conflict.
• A mediator cannot take a side or advise either party in the dispute.

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Neutrality

• Neutrality can only truly exist when there is no prior relationship between the mediator and any person involved in the dispute.
• Bias is virtually impossible to avoid otherwise.
• The prior relationships to avoid include friendships and acquaintances as well as professional relationships.
• Lawyer, therapist, financial analyst or coach to one person cannot be an effective neutral, no matter what the circumstance.

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Impartiality

• Impartiality - one of the more commonly recognised aspects of the role of the mediator.
• This does not mean that the Mediator should somehow become inhuman and not have a feeling of bias towards one party or another, but that they practice in a way that minimises any manifestation of this bias.
• Important distinction: No-one can genuinely claim to be impartial, but they can continually review their own feelings and thoughts about someone or a situation in order to acknowledge this and then monitor, and adjust where necessary, their practice as a mediator in the light of this awareness.

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Self-determination

• Mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement.
• Any party may withdraw from mediation at any time.
• The mediator may provide information about the process, raise issues, and help parties explore options.
• The primary role of the mediator is to facilitate a voluntary resolution of a dispute. Parties shall be given the opportunity to consider all proposed option.

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Confidentiality

• What's said in mediation stays in mediation.
• Obligation for mediator
• Obligation for parties and participating persons
• Prohibition to question in court proceedings or criminal investigations

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Voluntary

• Mediation it is both voluntary and mandatory.
• It is voluntary as far as particular jurisdiction does not provide for the opposite.
• In some countries – mandatory: for instance, US, Arkansas.

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Criminal procedure law principles

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Criminal procedure law principles

1) Mandatory Nature of Criminal Proceedings

•  The official who is authorised to perform criminal proceedings has a duty within his or her competence to initiate criminal proceedings and to lead such proceedings to the fair regulation of criminal legal relations provided for in the criminal law in each case where the reason and grounds for initiating criminal proceedings have become known.
• Mediation: are negotiations possible?

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Criminal procedure law principles

2) Principle of Equality

•  The Criminal Procedure Law shall determine a uniform procedural order for all persons involved in criminal proceedings irrespective of the origin, social and financial situation, employment, citizenship, race, nationality, attitude toward religion, sex, education, language, place of residence, and other conditions of such persons.
• Mediation: let’s face the truth. Equality in many times remains just on paper.

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Criminal procedure law principles

3) Presumption of Innocence

•  No person shall be considered guilty until the guilt of such person in the committing of a criminal offence has been determined in accordance with the procedure specified by the law.
• All reasonable doubts regarding guilt that it is not able to eliminate shall be evaluated as beneficial for the person who has the right to defence.
• Mediation: a possible offender can participate in mediation even if his/her fault has not been prooved yet.

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Criminal procedure law principles

4) Rights to Assistance of Counsel

•  Each person regarding whom an assumption or allegation has been expressed that such person has committed a criminal offence has the right to assistance of a defence counsel, that is, the right to know what offence such person is suspected of committing or is being accused of committing, and to choose his or her position of defence.
• If a person may not invite a defence counsel due to his or her financial situation, the State shall ensure assistance of a defence counsel for such person and decide on the remuneration of the defence counsel from State resources, completely or partially discharging such person from such payment.
• Mediation: is a lawyer a good idea?

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Criminal procedure law principles

5) Rights to Compensation for Inflicted Harm

•  A person upon whom harm has been inflicted by a criminal offence shall, taking into account the moral injury, physical suffering, and financial loss thereof, be guaranteed procedural opportunities for the requesting and receipt of moral and financial compensation.
• Mediation: compensation amount and possibilites.
• Mediation: compensation in money and in kind.

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Now a practical task

• Divide in pairs
• Share your experience of conflict you have witnessed
• Discuss:
• What were your inner feelings while observing the conflict?
• What A) needs / B) concerns / C) expectations had all those involved in conflict?

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