Published Online: Apr 21, 2020
Page range: 1 - 15
DOI: https://doi.org/10.2478/danb-2020-0001
Keywords
© 2020 Urbanová Martina et al., published by Sciendo
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Mediation as a form of conflict solving based on negotiations and with the engagement of a neutral person who has good knowledge of psychology, social psychology, social work, sociology, the law and other disciplines saw dynamic growth in the last decades of the 20th century. The development of mediation corresponds to a growing demand in Europe for alternative conflict-solving methods, which places higher requirements on the legal governance of this field, i.e. finding the right place in the legal system. Its position in the legal system of the EU member countries is to a large part influenced by legal regulations at the level of this supranational institution.
As mediation was dynamically growing in Europe, there were also multiple discussions about institutionalising it in separate mediation legislation in civil disputes. Act No. 257/2000 Coll. on the probation and mediation service and the separate mediation act No. 202/2012 Coll. on mediation and the change of some acts were two important milestones in the development of mediation. This gave formal support to the state to use this amicable method in conflict solving and legal pre-conditions were created for a broader application of mediation. Mediation was however not promoted and no instruments leading to better awareness of this alternative option were available.
The EU adopted the
Our text investigates mediation in the Czech legal framework and deals with law acquaintance represented by the mediation awareness, which is the main focus of our empirical research. The utilised data, which has not been published yet, comes from the survey under the project
In countries with different cultural and legal traditions we will find different forms of mediation that will differ in its organisational arrangement and dependent mostly on the judicial system, the degree of mediation’s institutionalisation, involvement of community organisations and mediation requirements as such. When investigating mediation awareness in the context of law acquaintance, we must not disregard these cultural and legal aspects. The possibilities of using mediation are connected with the values of the society and the conflict-solving methods preferred by that society. If the society values compactness, natural human relationships, traditions, habits, mutual closeness and solidarity, then good social and cultural conditions exist for mediation. The research by Lakis (2012) is very inspiring here, because it was investigating how social transformation events in a post-socialist society affect the quality of the social environment. Lakis (2012) was separately analysing the legal, cultural, organisational and educational conditions for the use of out-of-court conflict-solving methods, mostly negotiations and mediation. He found that these conditions are affected by three factors: manifestations of conflicts, institutionalisation of alternative procedures and conflict management.
Mediation dates back to the beginning of the 1990s in the Czech Republic. By the end of 1989 the communist regime fell and the political establishment changed to pluralistic democracy (the so-called Velvet Revolution). The changes were accelerated by the break-up of the former Eastern Bloc and growing dissatisfaction of the population with the economic and political situation in the country. Mediation emerged as a social initiative in the USA. It was perceived as a symbol of freedom, independence, equality, volunteering and one’s own civil and individual accountability for conflict solving. Initially it developed outside the judicial system – from education in mediation through the practical performance of mediation to the emergence of organisations covering mediators (e.g. the Association of Mediators of the Czech Republic) (Holá, 2018).
Legal pre-conditions are essential if mediation is to be adopted in court. The law must allow an agreement between the parties as a way or part of conflict solving before the court. In the Czech Republic mediation was first covered by the law in the criminal domain (act No. 257/2000 Coll. on the probation and mediation service), so the Czech Republic was among the first post-communist countries where this restorative element was introduced in criminal proceedings.
In civil proceedings the Czech legal framework had not long been ruling out the possibility of mediation, but it was not supporting it either through giving it a stronger legal basis. Indications of conciliatory conflict solving can be found in act No. 2/1991 Coll. on collective negotiations. Conflict solving through consensus is preferred in the general code of private law (act No. 89/2012 Coll., the Civil Code) establishing the principle saying that possible disputes between citizens shall be firstly solved by an agreement. A legal process amendment follows this thesis and in act No. 99/1963 Coll. of the Code of Civil Procedure it establishes that the court shall seek to solve the dispute in an amicable manner. The amendment of the Code of Civil Procedure, made in act No. 59/2005 Coll. and effective since 1 April 2005, placed a new provision – section 114, lit. c) which imposes, among other things, a duty on the senate chairman to seek an amicable solution when preparing the proceedings. Section 100 says that the court shall seek an amicable solution even after the start of the proceedings. While these efforts of the court to reach a deal were driving the whole Czech civil justice system in the right direction, we could not consider this as mediation.
The first explicit and hence important mention of mediation in connection with civil disputes in a law is only in the amendment of the Code of Civil Procedure No. 99/1963 Coll. effective 1 October 2008. Section 100, paragraph 3 says that the judge shall suspend the proceedings if
The text below speaks about law acquaintance as part of the knowledge about law where the knowledge about the law together with opinions about it constitutes legal consciousness. We will highlight certain research that brought evidence of insufficient knowledge of legal regulations. We will work with a classification according to Kutchinský (1973) who classified the knowledge about law as a) consciousness, law awareness meaning whether the legal entity is aware that a certain type of behaviour is legally regulated and b) law acquaintance which he understands as the extent to which the legal entity knows the law. The term “legal literacy” has been gaining importance as one with a meaning similar to “law acquaintance” (Zariski 2014). Legal literacy can be however understood also as a higher state of law acquaintance that contains not only the actual knowledge about law, i.e. ability to understand the expressions used in the legal context, but draw corresponding conclusions and act accordingly based on them. It is therefore no coincidence that the expression “legal literacy” was originally connected with the work of lawyers.
Legal consciousness is a form of social consciousness involving many views, feelings, emotions, thoughts, theories, concepts and standpoints, characterising relationships between persons, social groups and the society as a whole and current or required legal regulation and everything subject to legal regulation (Urban 2013).
Legal consciousness is the connecting element between objective law and legal behaviour. Many law and sociology analyses show how important legal consciousness is as a certain mediator between the law and the actual behaviour of entities. Legal consciousness is often labelled in this respect as intervening transformation that “intervenes” between two otherwise “independent variables”: law and social behaviour of legal entities (Večeřa and Urbanová 2011). Legal consciousness is formed in the socialisation process and sets the foundation for a real, realistic and responsible relationship between individuals and the law. So-called legal socialisation is part of the life-long socialisation process and shall mean adoption to the requirements of the legal system, ability to use the legal system in the necessary extent and utilise everything what is necessary and what the legal system provides to individuals and groups. Empirical studies of legal consciousness are often based on two components of legal consciousness (see Cotterrell 2005, 138) who divided legal consciousness into:
knowledge about law – containing cognitive elements (information, knowledge). Knowledge about law involves consciousness, law acquaintance and legal literacy, opinion about law – containing assessment elements (emotional and rational assessing judgements and ideas) and opinion elements. These include legal values and standpoints. Even excellent knowledge about law is useless if there is no willingness to obey the standards. We will not consider this aspect in detail in our investigation.
We can relate the first elements, i.e. knowledge about law, to the individual, a group or the entire society. It can be well covered from the empirical perspective. Knowledge about law corresponds to our practical knowledge about the content of the specific legal standard, to our consciousness about what applies as law in the respective society and what action is illegal. This is the cognitive level on which we obtain information and knowledge about applicable law. Poor knowledge about law has been repeatedly brought to light in empirical research (Cotterrell 2005, Večeřa and Urbanová et al. 2015).
When interpreting the results of sociological research into the knowledge about law in detail, we will find many differences between the levels of the knowledge about law, particularly regarding age, gender, education, place of residence, political affiliation, religion, etc. (Podgorecki 1966, Urban 2013, Večeřa and Urbanová 2015). We can draw a general conclusion that the knowledge about law is of instrumental nature: it allows taking steps in new conditions and offers better adaptability to complicated social structures and bureaucracy of social life. As social activities and the way of life are very complex, it is essential to acquire certain knowledge about law. Knowledge about law is generally higher (Večeřa and Urbanová, 2011):
among men than among women, among people in productive age, among people doing mental work, among people with higher education, among people with higher social and political engagement, among people living in bigger municipalities.
As already stated, “legal literacy” is now a term used in parallel with “law acquaintance” (Zariski 2014). Even when literacy is mentioned mostly in connection with the ability to read and write, the term “legal literacy” does not only mean the ability to read and write legal texts. The term
Life in contemporary society requires that we acquire a certain level of legal literacy, though it need not be on the professional level. And if we want to find our way through the legal code, we need access to IT systems. Section 13 of act. 309/1999 Coll. on the Collection of Laws and Collection of International Treaties states that self-governing entities shall have the duty to allow everyone to inspect the Collection of Laws. The law does not speak about the obligation to provide everybody with access to an information system containing the full wording of legal regulations in electronic form. It is obvious that gaining an orientation in the legal system of the Czech Republic is impossible without the possibility to use these systems, but the application of the general principle “Ignorantia iuris nocet, neminem excusat”, according to which the lack of knowledge about law is no excuse, is still being challenged.
Fuller points out that the requirement to publish all legal regulations does not assume that
Tomlinson concentrates in her paper on mediation progress and acquisition of legal literacy. The author asks how mediators contribute to legal literacy that can eventually raise the chance for people from lower social layers of finding their way through the bureaucratic system. She uses data from the Dispute Resolution Section of the Supreme Court of Ohio. Contrary to traditional negotiations, mediation is confidential and takes place between two parties on non-public premises. Discussions between the participants are much more open and flexible than before the court. On the other hand, the participants must – like before the court – obey certain rules and requirements set by the mediators. Even though this process is shorter than court proceedings, the participants meet the mediator several times and can always clearly show better awareness of what legal methods are available to them and what legal instruments can be used. They are therefore building up their legal literacy. The participants in mediation state that thanks to their involvement in mediation they can better understand legal terms. Tomlinson (2009) adds that legal education of participants takes place also during traditional court proceedings, but the process is much more “depersonalised” and the participants are often only asked to approve questions of judges.
Opinion about law as the second components of legal consciousness is hard to capture by empirical evidence. Opinion about law is the rational and emotional assessment of the legal domain through personal evaluation (judgements about courts, attitudes towards the law) as long-term, fixed assessment approaches to law, with opinions being their non-verbal form and specific action being their actual result. Both components of legal consciousness, i.e. knowledge about law and opinion about law, are intertwined.
Kourilsky-Augeven came in their study (2007) to the conclusion that the way how we learn the law in our childhood has a major impact on our later legal behaviour, attitudes towards the law and opinions about the law. The essential age of 13–14 is viewed as the divide, because it is at this age that the way of thinking is usually changing. Kourilsky-Augeven also points out to differences in the development of both genders: women tend to resolve disputes amicably and in line with the rules they learnt. Men, on the other hand, tend to protect individual rights and if they believe that these rights are being compromised, they do not hesitate to get involved in a conflict and are generally more critical of rules.
From these two dimensions (knowledge about law and opinion about law) we will primarily focus on the knowledge about law. This can be understood at two levels: as the knowledge about what complies with law (and/or what is permitted) and what contradicts law (and/or what is forbidden). Knowledge about law does not necessarily have to be considered as knowledge about law as such, but rather as our consciousness about the existence of law.
In 2005 the Scottish Consumer Council did a survey of mediation acquaintance of the public, divide into age groups, the socio-economic status and gender. They interviewed 1016 adults aged 16 and more (Scottish Consumer Council 2005). The results were split in two categories: mediation acquaintance and mediation perception. Mediation acquaintance is far from widespread. Even when more than half of the respondents (57%) heard about mediation, 43% have not. Higher acquaintance was found among people aged 55–64 (69%) and people from higher socio-economic levels (73%). On the other hand, only one third of people aged 16–24 has ever heard about mediation, like those coming from lower socio-economic levels. Geographical differences in acquaintance were insignificant – people in the west of Scotland were less informed than people from other parts of the country. What is however interesting is that it was the residents of western Scotland for who it was more likely that they would consider mediation. Regarding mediation perception, 59% of those surveyed said that they consider mediation as an efficient way of conflict solving. A total of 38% of respondents say “no” and 3% did not know. No differences in mediation perception by gender were found. Slight differences were found in the types of disputes where people would consider mediation; men would tend to use mediation in dealing with conflicts with the employer, in trade or services. Women would do so in family relations, disputes with doctors or a health facility, a school or a home taking care of their child. From respondents who would most likely consider mediation most of them would do so to solve disputes with the employer (47%) or neighbour (43%). Only about one third (35%) would use mediation in disputes in trade and service, in family matters (32%) and children’s education (32%).
To give a complex view of the acquaintance of the public, the Scottish findings can be supplemented by research of opinions of mediators about mediation acquaintance of the public in Macedonia. The mediation act was passed in Macedonia in 2006. The research was done in 2014 among 82 certified mediators through a questionnaire with 22 questions. The starting hypothesis was that mediation acquaintance of the public contributes to solving some disputes. The mediators believed that the public lacks information on mediation and its benefits. This has a major impact on decision-making by the people whether mediation makes sense. To raise awareness of mediation among the public, the respondents believe that a media campaign is necessary and information must be spread in different forms. They considered information about the efficiency of mediation and time and financial costs as particularly important. The Chamber of Mediators was an important entity of mediation promotion and awareness campaign leader. In their answers they were however critical about its current activities. The competence of mediators was found to be an essential factor in how the public trusts mediation. If the participants in mediation are satisfied with the mediation progress and result, they will promote mediation as an efficient conflict solving tool. Mediation was said to be the new paradigm in cognitive conflict solving. Mediators recommended a deeper institutionalisation support and creation of jurisprudence mechanisms allowing mediation already at the start of the conflict (Stoilkovska, Ilieva, Mucunska Palevska, 2015).
Cholenský (2013) comes to similar conclusions and says that courts represent entities that might change the view of the general and professional public of mediation. He also points out that some judges have a distorted idea about mediation and can misinform the public. Gaschen (1995) is even more critical and says that if judges are not familiar with mediation and do not like it, this will affect the way how information is passed on the parties in the dispute. These parties then do not show sufficient trust in the process and use mediation to a smaller extent. Similarly, Spencer and Brogan (2006) say that there is a deeply ingrained idea among some lawyers that mediation is a “conference with extra decoration” that shall resolve the conflict. They criticise promotion and supply of mediation and say that these should follow real results supported by experience and research. This was already noted in the late 1990s by the American author Press (1997), who said in her paper about the institutionalization of mediation that no one can make an informed decision about the use of mediation when he/she does not even know that this option exists.
Basic research in mediation has been lacking in the Czech Republic. This has changed due to a three-year research scheme of the Palacký University in Olomouc done in partnership with Masaryk University in Brno called “Mediation conditions in the Czech Republic under the mediation act” (GA18-01417S). The project investigates the acquaintance of the public with mediation, identifies the ways how the public obtains information and sets efficient standards and practices to improve mediation acquaintance in the Czech Republic. Empirical data was collected in November 2018 in a public survey. The CAWI method of data collection was based on selected sample of adult Czechs representative by age, gender, education, region and size of municipality. The STEM/MARK research agency collected the data, meeting the quality criteria of the SIMAR and ESOMAR associations and MSP rating, ensuring that the whole process was following the highest standards and a representative sample (including the geographical dimension) was chosen. There were 479 respondents in total. This pooled sample can be seen as representative for the Czech population and its size is sufficient for standard statistical analysis techniques.
Mediation acquaintance of the Czech public is generally low, because according to Figure 1 only 34% of respondents chose in question “What does mediation mean in your opinion” the correct answer “A way of out-of-court conflict solving”. On top of that, 29% of respondents admitted they did not know the answer and 38% chose one of the wrong answers “Expressing one’s opinion about a current social topic”, “A method of offering a new product” or “A process of enforcing new rules”. The high share or wrong answers shows that people tend to guess rather than admit their lack of knowledge, so even the 34% of those who gave the right answer contained respondents who merely guessed right.
Figure 1
Overall mediation acquaintance of the Czech public, in %
The lack of knowledge of detailed information on this type of conflict solving (shown in Figure 2) is evidence of the very low acquaintance. This knowledge was detected in the question “What type of information have you so far heard about mediation?” and eight options were offered. About 17% of respondents learnt something about the goals of mediation in the past, 12% learnt something about its benefits and disadvantages and 11% learn something about its progress. The knowledge of the price of mediation, its duration and quality of mediators is significantly lower still – around 2% for all these items. We can generally say that the knowledge of specific information on mediation is much worse than the knowledge of the expression itself. This knowledge is almost non-existent for some key topics.
Figure 2
Acquaintance of the Czech public with detailed information on mediation
The question of the source of information, which the broad public usually uses, is closely related to mediation acquaintance. The source of information was investigated in the survey using question “How did you first hear about mediation?”. Figure 3 shows that the internet is the most frequent source of information among the Czech public (45% of cases), followed by other types of media (29%) and other sources than those included (13%). An expert, acquaintances and promotion materials are almost negligible sources of information.
Figure 3
Most frequent sources of information about mediation
Differences in mediation acquaintance across the Czech public were also investigated. Figures 4 to 7 are devoted to this and show the frequency of a correct answer to “What is mediation in your opinion” depending on gender, age, education and size of municipality. The degree of the effect of these characteristics is expressed by the correlation coefficient and its significance for the respective association, even though the data collection sample is only the approximation of the probability sample and these statistics based on random sampling must be interpreted tentatively. Associations with
Figure 4
Mediation acquaintance of the Czech public, by gender
Figure 5
Mediation acquaintance of the Czech public, by age group
Figure 6
Mediation acquaintance of the Czech public, by the level of education
Figure 7
Mediation acquaintance of the Czech public, by municipality size
Figure 5 shows relatively big differences between age groups where middle-aged respondents aged 30–44 years and 45–60 years showed the best knowledge of mediation. An acquaintance of people aged 18–29 and over 60 is about 15% lower when compared with the groups above. The Cramer V coefficient is significant for this relationship and its value is 0.15, which indicates mild association in the Czech population.
The differences in mediation acquaintance based on the level of education, as presented in Figure 6, indicate that the knowledge of mediation grows with the level of education. Specifically, 57% of respondents with a university degree and 22% of respondents with basic education or a secondary school degree without the general final exam chose the right answer. This association is significant with Cramer V being 0.28.
Differences in mediation acquaintance based on the size of municipality where the respondent lives (Figure 7) are not high, but the acquaintance shows a relatively stable growth from 23% of correct answers from respondents living in municipalities with less than 1 000 inhabitants to about 45% of correct answers from respondents living in towns with more than 100 000 inhabitants. The statistically significant Cramer V coefficient of 0.14 also brings us to the conclusion that there is a weaker but still existing relationship between the size of municipality and mediation acquaintance. All relationships between mediation acquaintance and the personal characteristics tested, except for gender, are weak to moderate strength and can be expected in the whole population of the Czech Republic.
The Czech Republic is a country with a relatively short tradition of mediation and mediation generally began developing in post-communist countries later than for example in the Anglo-Saxon world. Although it is governed by legislation in many of these countries, its knowledge and use are low. We can assume that this low mediation acquaintance is connected with little personal experience of the people with this form of conflict solving. But there is no doubt that higher mediation acquaintance generates its more frequent use. The authors of the text introduced empirical findings based on a web-survey data collection of a representative sample of the Czech population. The results showed that mediation acquaintance is very low. This general conclusion applies to the knowledge of the term “mediation” and knowledge of more details about this conflict solving method. There is no doubt that this lack of knowledge about the possibility of mediation is connected with the infrequent use of mediation and only a set of comprehensive measures can reverse this situation.
When we look at the knowledge of mediation in different socio-demographic groups, we see how uneven the knowledge is among the Czech population. People who reached higher education, middle-aged respondents (aged 30–59) and people living in bigger municipalities show better knowledge of mediation. Gender is the only one of the individual characteristics tested without differences between the reference groups. The similar level of mediation awareness among men and women could be connected to the generally higher law acquaintance among men, which is not indicated by studies focusing on mediation as an amicable conflict solving method appealing more to women. One of the possible explanations is that women are more interested in mediation, because they want to solve disputes amicably.
We can say that the knowledge about mediation as a potentially effective and amicable conflict-solving method is very low. This is even more alarming in the context where member countries of the EU have an obligation to inform the general public about the possibilities of alternative dispute resolutions by all means. A possible information campaign carried out among the population should target those citizens whose access to this information is more difficult, while the state should play a more active role in this effort.
We cannot assume that the recipients of the legal standard will find the information by themselves and believe that promotion is necessary for raising legal literacy. This was actually already mentioned, for example, in Article 9 of European Parliament and Council Directive No. 2008/52/EC where it is explicitly said that member states shall support the information campaign for the general public that would explain how to contact mediators and media service providers, so that they encourage legal service providers to inform clients of the possibility of mediation. It is apparent that the Czech Republic still has significant gaps in fulfilling this commitment. It has turned out that the recent promotion of mediation on the level of professional or various other initiatives is not and cannot be as effective as nationwide promotion, which has not taken place yet.