CC BY
44
Mediation as an important factor in the formation of civil society institutions
Section 6. Sociology
Hasanov Rafail Musa oglu, Baku State University, Dr., Professor of the Sociology Department E-mail: has_rm62@yahoo.com
Mediation as an important factor in the formation of civil society institutions
Abstract: Although Azerbaijan has not yet adopted a law on mediation, its roots go back to antiquity. It shows itself both in folklore and in the laws of Islam, and in today’s Code of Civil Procedure of the country. Citizens, getting the opportunity to resolve disputes without resorting to help public show a willingness to engage in constructive dialogue with each other. This shows that the country has gradually formed its own model of mediation.
Keywords: Mediation, civil society, conflict, culture, legislation, traditions, Islam.
Mediation may be defined as means of conflict regulation by the third, neutral side before the court. This institute has actively developed in the West. For example, 95% of US economic disputes are resolved in this way. One reason for the popularity of this procedure — it is much cheaper to come to an end. Calculations in the UK show that the resolution of disputes through mediation costs 10 times less than their resolution in the courtroom [1].
Mediation is located at the intersection of sociology, psychology and law: any conflict covers these three areas.How-ever, unlike a sociologist mediator does not study the relationship between society and the individual, as a psychologist is not interested in the inner motivations of the conflict, and as lawyer does not disclose the motives of legal conflict.
The mediator can be anyone. However, there are groups of people who can act as an official mediator. This are international organizations (e. g., UN, OSCE), state legal institutions, specialized state commissions, heads of institutions, public organizations (e. g., trade unions).
Unofficial mediators are those people who are well respected and treated them because of their position in society, education and experience. It can be the representatives of religious organizations, psychologists, teachers, lawyers, professional conflictologists or just people who gain prestige through their behavior and wise decision. However, these categories are relative. The mediator can be any person who knows both sides close [2, 89-91].
The mediator must first be smart, authoritative and fair man, which is, how they say, “real aqsaqal” [3]. He should be able to listen patiently to people to debate with them, putting them side by side. Here is an important condition impartiality, fairness, gaining the trust and support of both parties.
Mediation is the most flexible and democratic way of resolving disputes. The mediator tries to take such conciliatory solutions, which will take into account as much as possible
the interests of all parties involved in the conflict, where everyone is a winner.Mediation as a technology solution to the conflict that creates the conditions for a negotiated consensus through dialogue. The parties have the opportunity to not only free solution of disputes arising between them, a decision that serves the interests of everyone, they also gain experience of communication that meets the interests of both parties and directing the conflict in a constructive direction. Hence mediation is an instrument not only an effective conflict resolution, as well as a means of improving the legal culture of the population.Citizens, getting the opportunity to resolve disputes without resorting to help of public authorities become more responsible in the protection of human rights, are ready for constructive dialogue with each other.
Mediation, turning into an important factor in the formation of civil society institutions, creates the conditions for the approval of freedom, justice and security values in society. Taking its origin from the disputes between citizens, mediation gradually goes beyond this sphere, creates the conditions for approval of tolerance, openness to dialogue and consensus.
Though the real subject of the dispute may be one or more factors, in general, there are six “areas of conflict”, where each of them acts as a potential cause or driving factor.Here refer “values” (ideas about what is good or bad, just or unjust), “relations” (satisfaction or dissatisfaction of the relationship between two or more parties.Here the main factor in the relationship is associated with the past, which prevents the parties to move forward), “mood” (factors not related to the conflict, but prevent the parties make the right decision.For example, a small family quarrel or a serious problem associated with health), “information” (information that is considered acceptable for one side and unacceptable to the other side), “structure” (the presence of factors that create controversy in the structure of the situation.Forexample, a lack of resources, i. e., money, time, people, etc.) and “interests” (physical, pro-
53
Section 6. Sociology
cedural and psychological interests of the parties involved in the dispute) that the mediator must take into account in their activities [4]. The real subject of the conflict can be one or more factors.
We believe that to resolve conflicts on the basis of mutual consent to the judges in carrying out their duties are necessary to pay attention to some of the mental characteristics that are specific to each country, including the peoples of the South Caucasus.
We note that the mediation, as an alternative way of resolving conflicts among the peoples of the Caucasus, including Azerbaijan, known since ancient times. We know from history the crucial role of the authority of the mediator in the reconciliation of blood enemies. Even today, in some regions, villages, lineages, and tribes of Azerbaijan dissatisfaction, conflicts are resolved elders who create peace.
In chapter (4) sürat l-nisäa (The Women) verse 35 of the holy book of Muslims “Quran” husband and wife are called to reconciliation: “If there appears to be discord between a wife and her husband and if they desire reconciliation choose arbiters from the families of both sides. God will bring them together; God is All-knowing and All-aware” [5] Verse 114 of the same chapter of “Quran” says: “There is nothing good in much of their secret talks except for that which is for charity, justice, or for reconciliation among people to seek thereby the pleasure of God for which We will give a great reward” [6].
Generally speaking, in the “Koran” and Sharia laws (whichform the basis of Islamic law) broadly describe the solution of disputes and conflict issues in a friendly manner, with the participation of friendly intermediaries.
In actual practice in Muslim societies as the official mediator historically advocated religious leaders, imams. Even today, people in solving conflicts, disputes are turning to their authority. In the Muslim east such classic concepts as a divan, an institute of qadi from this point of view are more important.
In history, literature and customs of the peoples of the ancient East there formed the fundamental criteria for understanding the modern mediation. Here is an example ofMulla Nasreddin [7] Folktales:
Once a rich man asked Mulla, who left the conflict with the poor. The unfortunate poor wretch smelling pi-
laf cooked in a cauldron of rich, the sleeves of his clothe to enjoy at least the fragrance of food. The rich man in return demanded compensation, because the smell was taken from his pilaf. Without thinking Mulla Nasreddin got small coins and shook it at the ear insatiable rich. “Now your conflict is settled — summed up the sage — it took you smell, instead you get the sound of coins!”
As can be seen, the concept of mediation is based on the lifestyle of the people and its roots can search in the culture of any nation.
For centuries, people have seen that any serious disputes can be solved on the basis of mutually acceptable negotiation rather than through norms and hierarchical order.
Note that the mediation in the modern sense of the word is a new method for the civilized world. Its revival is due to the elimination of a rigid hierarchy that exists in society, the development of relations and globalization in the world. This situation is reflected in all spheres of society — the family, the economic and labor rights, in the experience of public administration, where the disputes and conflicts require new approaches and solutions.
Mediation in the second half of the twentieth century began to spread from the countries of Anglo-Saxon law to the countries of continental Europe. Definitely, in every national culture mediation taking its place, parallely combines the local features. In the post-Soviet space the institution of mediation is a new phenomenon and as such, it is integrated into the country’s legal system. No coincidence that in Russia, Kazakhstan, Georgia and Moldova have already passed laws on mediation, and in Ukraine prepared a bill that has already been submitted to the legislature of the country.
Accordingly, Azerbaijan formed its own model of mediation. In 2006, for the first time in Azerbaijan was launched two-year project to provide mediation services to the population. Acting in this area the Free Consumers Union, NGO is busy with the protection of consumers’ rights, the market of goodsfrom dangerous to human life and environmental goods and services.
The society “international Commercial Arbitration” on November 11, 2003 founded the Azerbaijan International Commercial Arbitration Court, in accordance with the law of AR “On International Commercial Arbitration” electedits arbitrators, the secretariat, organized apparatus and approved the main regulations.
By the employees of the Azerbaijan International Commercial Arbitration Courthas been prepared a draft law “On Mediation” based on the practice of international and national legislation.
In co-sponsorship with the Center for Arbitration and Mediation in Azerbaijan were created Baku Mediation and Conciliation service and also Mediation Center Alliance that belong to the group “Alliance Consulting”.
The Civil Procedure Code (CPC) ofAzerbaijan Respub-lic identified opportunities to resolve disputes peacefully. Examples of this are the Articles 14 (the third paragraph), 183, 190, 261, etc.of CPC.
Thus, what are the prospects of mediation institute in Azerbaijan? Without a doubt it may be stated that mediation in the near future will take its place in the legal culture and the business community of Azerbaijan.
References:
1. http://www.business -gazeta.ru/readblog/3026/3391/
2. Mübahisalarin alternative halliüsullari. Beynalxalqsanadlar, §arhlar, qanunvericilik. Baki, 2009. S. 89-91.
54
Mediation as an important factor in the formation of civil society institutions
3. The word “Aqsaqal” ((or aksakal), in Turkic languages, literally means «white beard»)) refers to the male elders of the community in Central Asia and Caucasus. Traditionally an aqsaqal was the leader of a village or aul until the Soviet times. Acting as advisors or judges, these elders have or had a role in politics and the justice system in countries and tribes.
4. http://www.pushkin-town.net7.tpp/rus/tpp_primpalata.htm
5. http://corpus.quran.com/translation.jsp?chapter=4&verse=35
6. http://corpus.quran.com/translation.jsp?chapter=4&verse=114
7. Nasreddin, a Seljuq satirical Sufi, believed to have lived and died during the 13th century in Ak§ehir, near Konya, a capital of the Seljuk Sultanate of Rum, in today’s Turkey. He is considered a populist philosopher and wise man, remembered for his funny stories and anecdotes. A Nasreddin story usually has a subtle humor and a pedagogic nature.
55
