Beruflich Dokumente
Kultur Dokumente
ABOUT MEDIATION?
By
POP CATALIN
MARIAN
THEORY AND
PRACTICE OF SOCIAL
RESEARCH
TABLE OF CONTENTS
1.
RESEARCH INQUIERIES...2
LITERATURE REVIEW...3
3.
3.1
HYPOTHESIS ......................................................................................... 3
5.
CONCLUSIONS..26
6.
BIBLIOGRAPHY.27
1. RESEARCH INQUIERIES
1.1 THEME AND DEFINITIONS
The current theme is important due to the fact that mediation is a quite new
procedure in Romania. The bases were put in 2006, when the first law of mediation
was proclaimed. Since mediation is one of the fastest and cheapest ways to resolute
a dispute between sides, it is important to see what people actually know about this
procedure, and how many of them have actually been in a real mediation.
1.2 RESEARCH TYPE
http://legal-dictionary.thefreedictionary.com/mediation
2. LITERATURE REVIEW
What is Mediation?
1. Most people would try to resolute their conflicts in a peaceful way, and if
they cant they would most probably sue one another, or would go to a
lawyer to ask for advices;
2. Only a few people know about Mediation, and less people are willing to
contact a mediator when a dispute appears;
3. People will most likely resort to a mediator if they have a civil conflict, and
very few people would contact a mediator if they have a criminal dispute;
4. Most of the people believe that mediation is not a viable alternative dispute
resolution method for Romania;
3.2 QUESTIONS
3.3 OBJECTIVES
0%
20%
26%
1. Age
54%
Under 16
Between 16-25
Between 25-50
Between 50-70
More than 70
As we can see from the chart above most of the people questioned 54 % are
from the range between 16-25 years old, followed by the group of people between
25-50, with 26 %, and the last group between 50-70 with 20 %. People under 16
were not questioned because they are irrelevant for this study.
2. Education
11%
12%
secondary education
21%
28%
28%
specialized secondary
superioare incomplete
incomplete higher education
postgraduate
3. Ocupation
6%
6% 3%
52%
33%
Ocupation
schoolgirl/schoolboy
student
employee
unemployed
retired
business owner
Series1
I will try
to resolve
the
conflict
peacefully
I will go to
court
I will
contact a
lawyer,
police or a
prosecutor
I will seek
advice
from a
jurist
41
I will seek
advice
from
family,
friends or
work
colleague
10
It
depends
on the
type of
conflict
As we can see from the chart above most people (41 from a total of 65)
believe that they can solve their conflicts in a peaceful way, without implicating
other persons or institutions, 3 persons would go directly to court and sue the
person they are in conflict with, 7 of them will contact a lawyer, police or a
prosecutor, none will ask for advice from a jurist, 10 persons will seek advice from
family, friends or work colleagues, and 4 people said that it depends on the type of
conflict.
partially
no
yes
10
15
20
25
30
35
Most of the persons questioned (33 out of 65) know partially about
mediation, probably heard a few things from the press or read about it on the
internet. 18 persons dont know anything about mediation. 14 persons believe that
they know what mediation is. After this question, the definition of mediation was
given in the questionnaire in order to see if people would resort to it in case of a
conflict.
63%
Nu
Nu stiu
Most of the people dont know if they would resort to mediation in case of a
civil conflict between them and another person or institution (63%), 15% are not
willing to use the services of a mediator, and 22% would consider to use the
services of a mediator in case of a civil conflict.
34%
Nu
60%
Nu stiu
60 % of the people questioned said that they would not resort to mediation in
case they are involved in a criminal conflict, 34 % dont know what they would do,
and only 6 % affirmed that they will be able to resort to mediation.
40
35
30
Civil Conflict
25
20
Criminal Conflict
15
10
0
yes
no
don't know
10
8%
11%
29%
52%
I would do anything in my
powers to solve this problem
withouth the implication of
other sides
It depends on the type of
conflict
It depends on the
relationship i have with that
colleague
In case of a work conflict more than half of the people questioned (52 %)
said that they will try to solve the problem without implicating somebody else, this
means they want to keep their issues confidential. 29 % would ask the boss or
another superior to give a decision, this procedure is similar to arbitration, it does
not matter if you agree with it or not you need to respect it. 11 % of the people said
that it depends on the type of conflict and 8 % care about the relationship they have
with that colleague. For example if they are beer buddies after work they would try
to solve their problem without implicating somebody else, or if its a colleague that
he/she is rarely in contact with most probably would ask the boss to solve their
problem.
11
10
0
disagreement
confrontation
escalation
This question was answered only by people who are willing to use the
services of a mediator in case of a conflict. None of the people who answered
would go to mediation when they have a disagreement with someone. 7 out of 18
people would go to mediation when the conflict is at the confrontation stage, and
11 people would go to mediation only if the conflict escalates. This proves that
people tend to postpone things and only if there is no way out they would resort to
mediation.
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Series1
I don't trust
that a
mediator
can be
impartial
The costs
are to high
I am afraid
that I can
take a
decision
based on
emotions
that I might
regret in
the future
7
I am
capable to
deal with
any kind of
conflict
without
going to
court
Don't
know/don't
answer
20
Even though people read the definition of mediation which states that the
mediator is impartial, and has no decision power, 4 people are still afraid that
impartiality may still occur during the mediation process. 3 persons believe that the
costs of mediation are too high, even though costs were not mentioned in the
questionnaire, 7 persons dont trust their capabilities to take a durable decision, 9
persons believe that they can sort any conflict by themselves and they do not need
to go to court when they have a problem, and 20 people said that they dont know
or they refused to answer.
13
14
17%
11%
72%
15
17%
22%
12%
49%
49 % of the people stated that they would try to negotiate personally with the
person who owes money, 22 % would ask for the services of the mediator.
Probably they gave this answer because they saw mediation as an opportunity to
reschedule the debt. 17 % would do another loan to a family member or a close
friend to be able to pay the initial debt and 12 % prefers to be sued because they are
certain that the process can take years and this way they will be able to postpone
the payment.
16
10
20
30
40
Interviewer: Im here with Paul Merlyn, founder of New Resolution. Paul, youre
a divorce mediator. Help me understand why divorce mediation is becoming such a
popular choice for couples today.
Paul: I think its because people are increasingly recognizing that divorce actually
creates a set of problems rather than a contest. The problems are things like how
should we divide our property? How will we coparent our children after the
divorce? And Will I need financial support? I think you see the difference: Contests
beget winners and losers, whereas problems need solutions. If you think of divorce
as a contest, then you should probably roll the dice and play the litigation game. If
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you think of divorce as a set of problems, then mediation starts to look like a better
way to go.
Interviewer: So youre saying mediation is more solution-oriented than litigation.
But I imagine some people feel a lot of emotion that makes it hard for them to be
practical.
Paul: Youre right. Most divorces are steeped in emotion. You know, people are
people. Yet some mediators think they can somehow force emotional parties into
logical and cooperative behaviors. I personally think that approach to mediation is a
mistake. It seems to me that our emotions are expressions of our authentic feelings.
So I like to work WITH emotions rather than pretend their not there. So, for
example, I spend a lot of time validating, reflect, and redirect emotions to help
clients settle their disputes. At the same time, Ill manage emotions when they get
out of hand. I need to ensure that sessions provide a safe environment for clients to
express their emotions without making anyone too uncomfortable.
Interviewer: Divorce is notoriously expensive. But are there other reasons besides
saving money to try mediation?
Paul: Yes, there are several other reasons, though youve hit upon the biggest
reason when you mentioned cost. The average litigated divorce in California costs
about $50,000 in attorney fees per spouse or $100,000 total. And Ive known
people spend as much as $150,000 when child custody is an issue. Thats enough to
diminish or even completely deplete the estate of some couples. Mediation, in
comparison, costs a fraction of that.
Interviewer: And the other reasons to try mediation?
Paul: I think we list a dozen reasons on our web site. Perhaps the most important is
that mediation empowers people to make their own decisions rather than delegate
decision-making to judges. I think thats important because studies show people
who are active in resolving their disputes do better emotionally as well as
financially than those who pursue litigation.
Paul: Uhh. Another benefit is that mediation works. About 80% of cases actually
settle in mediation.
Interviewer: Wow
Paul: Yeah, and people are much more likely to stand by the terms of their
settlement. I think thats because they feel less resentment when theyve
participated in shaping its terms.
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Interviewer: So, higher compliance. That makes sense. But does mediation ever
fail?
Paul: Chances are that mediation will keep you out of a costly and emotionally
damaging litigation. But it doesnt always produce a settlement. Here I think its
reassuring to recognize that trying mediation doesnt diminish any of your rights to
pursue litigation if mediation fails.
Interviewer: Okay
Paul: I like to think of mediation as a first resort, a provisional alternative to
litigation. Uhh. Other important benefits are protecting children from the oftentraumatic experience of an adversarial divorce; speed (mediation is usually much
quicker than an adversarial litigation), and also convenience. We provide mediation
in locations throughout the Bay Area, and we do our best to accommodate peoples
schedules by offering evening and weekend appointments.
Interviewer: Thats great. Now I dont really like confrontation, so Im
wondering: What do you say to people who hate confrontation and just cant face
the idea of being in the same room as their spouse.
Paul: Well, we do offer telephone mediation, but thats usually when one spouse
lives outside the Bay Area or out of state. But in general mediation really works
best when parties are in the same room with each other and the mediator. (Just in
passing, thats totally different from litigation, which isolates people, making
them UNABLE to communicate directly with one another.) So, we emphasize joint
sessions in which both parties are in the same room with their mediator. However,
we do also meet privately with each party to explore concerns or at points of
impasse.
Interviewer: So each person has a chance to raise any issues theyre maybe
uncomfortable saying while their spouse is in the room?
Paul: Thats right. Im also watching the parties body language to detect any
moments of discomfort. But hopefully there wont be too many of those. The
process is informal, open, and intrinsically non-confrontational. That said, its not a
free-for-all. The mediators guiding the process at every step towards settlement
without ascribing blame, fault, or guilt.
Interviewer: Youre not an attorney, right? Where do attorneys fit into mediation?
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Paul: Im not an attorney. There are attorney-mediators, but they arent allowed to
give legal advice to either party while acting as mediators. If they did, theyd
compromise their neutrality and face a conflict of interest.
Interviewer: That makes sense.
Paul: Yeah. I see the role of mediator and attorney as complementary but separate,
Mediators are experts in conflict resolution. Of course, we have to know
Californias Family Code, which is the divorce statute for California, but our
primary purpose is to guide parties through a complex set of interlinked disputes
around custody, support, and property division. Usually, the real blockages to a
settlement are emotional issues, especially fear: Will I have enough money? Will I
see my children? Will I have to find a new place to live? Its these kinds of things
rather than questions of law that are usually at the heart of why a husband and wife
cant just agree settlement terms over the kitchen table.
Interviewer: So what role would attorneys play in the divorce?
Paul: I think attorneys can play a very valuable role as legal consultants during a
mediation process rather than as legal representatives in a litigated divorce. In fact,
I recommend my clients consult attorneys for independent legal advice so their
informed and empowered. And they should always have independent attorneys
review any proposed settlement agreement before they sign it. Likewise, they might
need to consult other experts during the mediation process such as real estate
appraisers, business appraisers, CPAs, financial planners, and career counselors.
Interviewer: What are the best and worst parts of your work?
Paul: Thats a fun question! Id say the best part is definitely watching the
transformation that takes place from when people begin mediation to when they
leave. In fact, theres often a discernible moment during a session when I can feel
the session tipping from conflict to collaboration. Those moments are electrifying. I
think I do good work in saving people from an adversarial litigation, and I think I
really make a difference in situations that are very high stakes in peoples lives.
Interviewer: And the worst part?
Paul: [Laugh] Mmmm. Well, Id say this is hard work. My clients are often in a
tumultuous phase of their lives. Theyre sometimes scared, hurt, angry, anxious,
worried. And you have to be comfortable inserting yourself in the middle of
conflict.
Interviewer: It sounds like you really love what you do.
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Paul: I do.
Interviewer: And I want to thank you for letting me interview you.
Paul: Its been a pleasure. (Merlyn)
Paul Merlyn a mediator from US, that talks about the advantages of
mediation in a divorce, or a family conflict.
Analyzing this interview I reached the conclusion that mediation, is the
best alternative to court when talking about a divorce because it is a
confidential procedure, and the couple wont need to wash their laundry in
public, another advantage is that children are less affected as long as they are
not dragged in a court room full of people to testify for a parent or the other.
Mediation is also cheaper than the court because you dont pay taxes to the
state. If the degree of hostility between sides is high they have the possibility to
talk with the mediator in separate sessions without meeting each other. If they
follow the mediation procedure they can split they assets faster. In mediation
they have the possibility to negotiate themselves, or bring a lawyer; in court
the lawyer does most of the talking. The most important fact about mediation
is that it helps maintain a healthy relationship between the separated couple in
most of the times from which benefits the children.
4.2.2 DIALOG INTRE VICEPRESEDINTELE CONSILIULUI DE MEDIERE ZENO
SUSTAC SI JUDECATORUL CSM CRISTI DANILET
21
22
one of the first judges that promoted mediation in Romania. He believes that a
few adjustments are needed to be done to the family law in order for the
mediation law to be more efficient. He confirms what divorce mediator Paul
Merlyn stated above that mediation is very useful for family conflicts, and he
also sees mediation as a fast way for a conflict resolution.
4.2.3 INTERVIU REALIZAT DE REVISTA MEDIERII FOSTEI PRESEDINTE AL
CONSILIULUI DE MEDIERE ANCA CIUCA
23
country is growing by each day and will continue to grow in the future. She
appreciates the role of judges that have promoted this relatively new
institution.
4.2.4MEDIEREA IN CAZURILE PENALE (CRIMINAL CASES)
24
25
have a criminal record for the rest of its life. This is very useful especially for
foolish teenagers that commit minor crimes, because in mediation they have
the possibility to face the party that they injured and apologize or pay for their
losses.
5. CONCLUSIONS
I structured the conclusions based on the hypothesis and objectives. The first
hypothesis confirmed that most of the people are trying to solve their conflicts by
themselves. It is known that is a Romanian hobby to be good at everything and
have knowledge in every domain. The second hypothesis according to which only a
few people know about mediation was also confirmed by the questionnaires. The
third hypothesis according to which people will most likely resort to a mediator if
they have a civil conflict and only very few would contact a mediator if they have a
criminal conflict confirmed, but at this question I observed a big degree of
reservation, a lot of people did not knew how they would handle a conflict. The
final hypothesis did not confirmed, and to my surprise a lot of the questioned
people believed that mediation is a viable option for Romania, more than half of
them. There was also a category of people that did not know what to answer and
those who believed that mediation is no a viable alternative to traditional justice in
our country.
In my opinion more elaborated studies about mediation should be done in
order to know what is needed to be done in order to better promote the institution
of mediation, from which the people have most benefits. By promote I mean laws
and financial aid to support it. Conflict surrounds us every day and is only up to us
to how we approach it. Not all of us have the capacity to negotiate, this is why
sometimes we must surpass our ego that knows everything and talk to a
professional.
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6. BIBLIOGRAPHY
Bellman, H. (1998). Some reflections on the practice of mediation. Negotiations Journal,
205-210.
Merlyn, P. (n.d.). http://www.newresolutionmediation.com/. Retrieved from New resolution
mediation: http://www.newresolutionmediation.com/mediator-interview.shtml
Predut, M. C. (n.d.). Medierea in penal. Retrieved from http://avocat-mediator.net/:
http://avocat-mediator.net/mediere_penal.php
Sustac, Z. (n.d.). Interviu Anca Ciuca. Retrieved from http://medierea.ro:
http://medierea.ro/interviuri/646-interviu-acordat-revistei-medierea-de-ctredoamna-anca-elisabeta-ciuc-preedinte-al-consiliului-de-mediere
Sustac, Z. (n.d.). Zeno Sustac in dialog cu judecatorul Cristi Danilet. Retrieved from
http://medierea.ro: http://medierea.ro/interviuri/554-zeno-sustac-in-dialog-cujudecatorul-cristi-danilet
http://legal-dictionary.thefreedictionary.com/mediation
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