2018-02-21

Benjamin Franklin stated: “time is money”, however, this only applies when we do not have time.  

One of the "vulgarities" of "crazy, crazy, crazy world" is a very fast pace for which thousands of Lari or US Dollar, Euro or Lira is spent. There is one motto - the faster, the more expensive. However, regulator of the futility of capitalist ideology, the public relations and well-known field for us has offered the new regulation - mediation, i.e. to resolve the dispute without "nervous war" and significant financial losses.

Mediation, as the alternative dispute settlement, counts the millenniums - do not resemble it as the gain of the Cold War and neither we consider its existence as the modern era trophy. Historians have discovered its origins in ancient India, about 10,000 BC. The institute was well known for the ancient Greek and Antique Roman culture - according to the Justinian Digesters, the Romans referred to the mediator as internuncios, medium, intercessor, philanthropus, interpolator, conciliator, interlocutor, interpres and finally mediator. The importance of the "Mediation Court" is well thought out and familiar to Georgians - the Beka-Aghbuka’s law book ("Book of Law for All Things") refers to the Mediation Court that settles the dispute according to the law. According to the Vakhtang the VI law book, the mediators were reluctant to solve a relatively lightweight case. The mediators, who had the role of the conciliator, were the head of the chief priest or respected persons, known for their wisdom and age in the mountains of Georgia, who were resolving the conflicts in accordance rules of society and customs. We must admit that the fact that everything is a newly forgotten is the old one, but it would be wise to look at the modernization of mediation - and the question is - what is the novelty offered by Mediation today and is it the light bulb for the dark side of the principle of competition, through which the legislation apologizes before us?

Mediation is an alternative resolution to dispute settlement (ADR), where a third, neutral person - mediator is involved with the parties. What is the difference between the judge and the advantage of mediating in comparison with the judicial review? H. Kelsen said that justice should be purified from unjustified impurities and this idea was answered by his thesis "The Pure Theory of Law". If we understand this in the minds of people living in Laconia, it's easy to conclude that "justice does not believe in tears" and he shares a minimum of ethics, but it is also interesting to think that justice is the result of public relations, created by people, while the inter-people relations are largely based on emotion. According to Article 42(1) of the Constitution of Georgia, every person has the right to appeal to the Court to protect his rights and freedoms and Article 85 provides a very interesting provision - litigation is based on the principle of equality and adversity of the parties. This is reflected in the fourth article of the Civil Procedure Code of Georgia - the proceedings are conducted on the basis of adverse conditions. Parties enjoy equal rights and opportunities to justify their requirements, to reject or defy the requests, opinions or evidence provided by the other parties. The parties themselves determine what facts should their demands rely on or which evidence must be confirmed by these facts. The law is abstracted from the facts based on emotions and feelings - "We are under the constitution, but the constitution is what the judges say it is" (Charles Evans Hughes), and in order to create an internal belief, we need our truth (?) solid to argue with arguments - and in case of victory, "winner will take all". Inquisitorial principle restrictions (in family-legal cases the court at least partially maintains this principle) gave way to the adversity - it may have with the modern liberal tendencies, but do not forget the fact that the law is often cut off from the values ​​of justice and the winning crown is delivered to the justified position. It is perfectly right to say that in this situation, "San Salvador" is the mediation, which the court recognizes itself - the court directs the parties to dispute through the mediator by means of mediation! Civil Procedure Code of Georgia has been amended and a new 21st prima chapter was added to it on the 20th of December 2011, which regulates with matters related to court mediation concerning family, heritage, neighborhood and other disputes if the parties agree so. As we can see, the list, which the court mediation is subject to special emotional factor and the relationship of the vulnerable nature of the stand, which is evidenced by the fact that in spite of the hard nature of law, a positive nature, it obeys the very nature of the human origin - the mediator is the same person, to whom the parties are able to fully disclose their information, position and formalities without limitation, to cooperate with each other and aim to restate the earlier and warm relations existing before the of the reason causing satisfaction – restitution.

Who can be considered as a mediator, and what criteria should you satisfy this person? The mediation process is distinguished by a high level of confidentiality and confidence - the mediator has no right to be a representative of one of the parties or to disclose the information disclosed to him in case of disagreement. Mediator is a loyal, formal and strictly dogged person (it is difficult to imagine a legal entity as a mediator, but the mediation bureau as an employer can be freely managed), the main goal of which is to help parties to resolve dispute - can appoint separate meetings with each of them. The mediator should be a good psychologist, but because it settles public relations in accordance with legal aspects, one of the criteria will be its knowledge in the field of law. The mediator's reliance on the part of the media should in itself facilitate the maximum openness of the meeting by the parties in order to make the decision as quickly and painless as possible. Mediation does not declare war to the nerves, on the contrary, it may even be a tranquilizer through psychological and financial aspect. In the process of mediation, the party does not stand up, it stays in a position of self-reliance and courage. Mediation is a direct negotiation agreement that resolves the issue more or less painlessly.

And yet, what is the goal of the legislator in the case of mediation in case of solving the problem? Maybe he puts the competition and formal equality under question - there is no absolute, material uniformity even before the law, because human mind is reflection of the super idea. All things, including the worldly law, are the ideal nature of the super nature, which is called "The dry tree will be turned into the damp”. Competition is nothing more than a well-played scene with the Oscar holding actors and experienced jury, and the mediation is an apologetic lawmaker for an uneven legal system and a staged performance.

Mediation may soon replace the competence of the courts to examine the case. F. D. Roosevelt, "has not exchanged the democracy for hunger", and we should not be fined. Mediation is a unique way to achieve the fastest, most well-spent and less expensive, saving nerves and stable emotional background, to settle the matter, "mediator for the law of the law," but we should take into account that everything simple is genius and everything  genius, quick and cheap replaces conservatorium and makes grounds for completely new thing – novation, which is a fresh fruit for individuals seeking novation and easily makes to forget above  everything and old-fashioned and out of date.

P.S. "Carpe diem, quam minimum credula postero" - Horace - We will justify our "Truth" by setting up equal conditions with the judge by looking at the argument and asking for a reasonable time. There is a danger that the innovative idea of the law through the mediation is full of new symphonies, but let's not forget - the world  and the law well obeys to eternal, rotating posture.

BA Student of TSU,

Faculty of Law.