Mediation without Trust: Critique of the Hungarian Mediation Law

Introduction

Having changed its socio-political-economic system in favor of democracy fourteen years ago, Hungary joined the European Union in May 2004, enacted the first Act on Mediation in December 2002 ^[1] and yet still might not be ready to trust an alternative method of dispute resolution; mediation without built in guarantees for strong state control.

One of the reasons why I came to the US after graduating from the ELTE School of Law in Budapest and starting to practice in a small law firm was to study ADR. ^[2] I became a certified mediator by the Institute for Mediation and Conflict Resolution in New York where the Court Dispute Referral Center, Unified Court System of the State of New York, referred most of the cases I took on. I found that the transformative mediation worked well in harassment and small claims type of cases and I also realized that it made a lot more sense in terms of dispute resolution than the litigation back in Hungary. After this experience I became very curious about the new Hungarian Mediation Law when I first heard about it, but at closer examination I found a very different philosophy from the mediation I learnt here.

In the first part of this article I try to describe the social psychological dynamics of Hungarian society in the 20th century and how it relates to the practice of mediation and then offer some critical observations on the Hungarian Mediation Law itself. This new Hungarian mediation law established a hybrid institution, also called mediation, which has a similar set of foundation principles as the American model but at the same time it’s setup is such that it might indirectly create more conflicts than it resolves. It will be a real challenge for any Hungarian mediator to find a way to facilitate the parties’ informal private discussions while empowering rather than judging them, maintaining an open channel of communication, staying impartial and confidential and at the same time keeping aligned with the rules of the Act on Mediation.

The issue of trust in the post communist Hungary

In my view the lack of trust rooted in its cruel 20th century history will become the biggest obstacle in implanting mediation into the Hungarian dispute resolution system. In the past century Hungarian society was traumatized three times dramatically and has been unable to recover.

First, in 1920 by the Treaty of Trianon that concluded the First World War and reduced the size and population of Hungary by two thirds, leaving families divided by international borders. The impact of this historical event is still hurtful for the majority of Hungarians and they have not been able to overcome it.

Then the Second World War, the Holocaust happened. 600,000 Jews were killed. Even after two or three generations, survivors are unable to discuss openly, constructively the history and its psychological impact. [Not forgetting that every violent conflict such as World War II. creates tremendous psychological drama in everyone’s life for a long time and that goes beyond the Holocaust.]

Then, the 45 years of communist-socialist regime was a long, subtle but effective source of a complex and deeply imbedded trauma. Living in constant fear, suspicion and injustice for such a long time created mistrust in society and formed many layers of linguistic expression (different meanings of the same words) in order “to survive every day life” In such a society it is difficult to apply successfully such a fragile process as mediation that is very much based on communication patterns. Another social psychological outcome of the feudalistic society that lasted for a long time and has been maintained during communism is a mental numbness, an inability to take ownership of one’s own life, to control conflicts and seek for solutions from one’s own creative initiative rather than wait for an outside source of help that will not arrive and so frustration, anger continues to build up. During mediation, parties take ownership of their case by participating in the process and this is one of the main driving forces of this non-violent way of dispute resolution. Unless Hungary is be able to heal from the terrible events of the 20th century, by being mindful of the current self destruction and by practicing a more constructive cooperative behavior among each other, it will not be possible to practice mediation. My experience after getting my law degree in the transitional years (early 1990’s) was that there is a need for clarity and common understanding of justice and fairness after the tremendous legal and moral chaos that has been the residue from the past.

According to Mary E. Clark ^[3] social change requires participation in face to face conversation at every level. Furthermore, I think mediation requires trust in the participants, in the process, in the legal system and because of the history, in fairness of the political leaders. None of these exists in the society and that makes it very difficult to imagine what type of mediation would grow on that soil.

ADR in Hungary

The history of mediation started with the Partners for Democratic Change in Hungary in 1996 ^[4] Arbitration was the first ADR method that has been practiced in Hungary. In the current law there are labor dispute, general, sport and consumer protection arbitration codes. The General Arbitration Code has been enacted in 1994 and mostly used in commercial disputes. It has been widely used by foreign investors and multinational cooperations ^[5] since its procedure is much faster and more flexible than traditional litigation. Surprisingly, according to the new Mediation Code it is easier to become an arbitrator than to be a mediator. To be an arbitrator, only the two parties to the dispute need to agree upon a mutually agreeable person. Whereas a mediator has to hold a university degree and have five years work experience in the same field before filing an application at the Ministry of Justice. The Ministry conducts a detailed bureaucratic process before the Minister makes a final decision on whether a license should be granted. Yet, there is no requirement to complete mediation training according to the 2002 Act on Mediation. Matyas Eorsi MP ^[6] points out that the nature of the Act on Mediation resembles negative aspects of the Lawyers Act. It has detailed regulations for acquiring a license to practice and rules for loosing it as well as numerous different sanctions against the unlawfully practicing mediator.

Although the political aim behind the 2002 Mediation Act was to ease the already overwhelmed court system and make it more effective in general, it is necessary to recognize that there was a financial reason behind it as well. The fact that a group of lawyers in Hungary who wish to make more or any profit choose to sign up to be lawyer-mediators but do not consider training a necessity or appear to have any real interest in the field is disturbing. One may explain this phenomenon with a long lasting transitional period and the difficult current financial conditions. However, if I also add to the picture the intolerance and inability to appreciate volunteer work in general (possibly inherited from the socialist regime where volunteering was obligatory and too often meant having to do meaningless work); I see a lot of disturbing elements coming together. It might not be necessarily idealistic to follow purely the American model where most of the mediators work as volunteers however as the other extreme to have a dominantly greedy approach is way to far from the objectives of mediation.

Critique of the Mediation Law

It seems to me that the Act on Mediation is extremely centralized with strong and detailed administrative type of regulations and control. Eventually it might generate an adversarial climate, which would mean that the dispute resolution process while physically located outside the courtroom would not provide a real alternative. Even though the Act on Mediation contains the foundation principles of mediation, like confidentiality, impartiality, interest-based negotiation, open communication and trust, the way the actual process is described suggests a more competitive than cooperative approach. What is more, the power and control the Ministry of Justice is given over the mediation process violates the principles of privacy and confidentiality. The mediator has to report to the Ministry of Justice certain data each year, including the reason for any unsuccessful mediation. The Ministry of Justice has to check the mediator’s work regularly and make a decision whether the practice is legal or not. By these regulations, both the mediator and the Ministry endanger the confidentiality of the process. Even though the law requires confidentiality as a principle, the parties are almost encouraged to agree not to keep the mediation confidential. The rule of confidentiality itself operates the opposite way to the American practice since the mediator is allowed to share private information with the other party unless it was explicitly told not to. Even during a trial that follows a mediation process, the parties may disclose any information from the mediation in accordance with their disclosure agreement. My concern is that by not emphasizing the importance of confidentiality, mediation in Hungary will increase mistrust between the parties, thus undermining the process.

The Act on Mediation has another conflicting regulation related to the possible court procedure after reaching an agreement at mediation. The plaintiff, having opted for a trial after successful mediation, is forced to pay all the expenses of the court procedure regardless of the outcome of the lawsuit. This is not, under normal circumstances, the usual practice laid down by the rule of expenses.

In my experience, one of the most powerful tools in mediation is the situation that it creates: that the parties voluntarily sit down at the same time at the same table to discuss a mutually identified issue. This is especially true for interpersonal conflicts. In the Hungarian Act however, the parties do not need to participate during the mediation sessions personally. Instead they can send their representative to act on their behalf, with the exception of the first meeting when they sign a mediation form to confirm their intention to subject their dispute to mediation. The Act on Mediation sets the maximum length of mediation at four months and opens up the discussion for evidence by making it obligatory to invite third parties who might have some information about the case to participate and allows the mediator to inform the parties about legal aspects or professional facts of the case at the pre mediation session. It is unclear what impact these aspects of the law will have on the mediation process. What is certain is that it creates a very different process than that practiced in the United States for example. How, under these circumstances, will the mediation provide a real alternative to the adversarial dispute resolution that is the norm? How will it be possible for the mediator to create an appropriate climate for cooperation where the parties understand each other’s perspective and are willing to move towards resolving their conflict?

Conclusion

In my view the enactment of a court referral system with required training and full jurisdiction allocated to mediators in divorce cases as an option would really change the effectiveness of the judicial system in Hungary. The Act on Mediation is the first step towards that goal. A few questions still remain for the future: how will the mediation actually work in practice? How much is it influenced by the culture that is obviously very different in Hungary? What will be the mediator’s ethical standing in the face of political pressure to mediate “at all costs”?

End Notes
1See Act on Mediation in 2002. evi LV.

2 Even though arbitration has been in practice since 1994, there have been no classes at the law school or specific training that would have explored negotiation techniques and other practical aspects of ADR. To study arbitration at law school meant memorizing the text of the Act, not understanding the process.
3Symptoms of Cultural Pathologies: A Hypothesis in Conflict Resolution Theory and Practice: Integration and Application, 43., 52-53; cited by Emily Stewart Haynes, Mediation and Postsocialist Legal Institutions in Central and Eastern Europe, in Ohio State Journal on Dispute Resolution, Vol. 15:1 1999
4Partners Hungary is part of Partners for Democratic Change, see at www.partnersglobal.org. Partners Hungary was a strong advocate of mediation and has been the main training provider in Hungary so far. Their three-day training is based on the US model, teaching negotiation techniques, the stages of mediation, the mediator’s role, ethical issues as well as a number of skill building exercises. They trained about three hundred social workers in the past three years who are now successfully practicing mediation, mainly in family disputes, including divorce related issues, child visitation and child custody cases. (Only the court has jurisdiction over divorce according to the Hungarian law. Partners Hungary is working towards a new law based on an Austrian model that would allow mediation of small criminal disputes.
5Hungary had a lot of business transactions with international corporations during the time of privatization, in the early ‘90s. The Act on Mediation for Health Care Disputes was enacted in 2000. It covers malpractice related disputes between the health care provider and the patient but it has showed very little if any success at all. Although the process provides an opportunity to discuss the issues between the patient or the relative of the deceased and the health care provider, the process, as described in the law, does not help to build trust or foster cooperation between the parties. It creates a system that is just as uncomfortable and bureaucratic as a trial would be except that it takes place outside of the courtroom. The parties still have to file a request, provide evidence and establish who is eligible to mediate. See the Act on Mediation Health Care disputes in 2000. evi CXVI. Torveny

6Matyas Eorsi MP is an attorney and started the first private mediation practice in Hungary a few years ago. Eorsi supported the Draft Bill on Mediation with some amendments. His argument was rooted in the current situation that makes every lawyer’s work impossible. There is currently a fuzzy judicial system where the outcome depends on the judge. It takes too much time and money and at the end all the participants feel that they lost something, as opposed to a properly structured mediation process that has only advantages: the parties participate voluntarily and feel a sense of ownership over their case.

                       

Judit Revesz

Judit Revesz graduated from the ELTE Law School in Budapest, Hungary. She practiced law before moving to the US where she has studied and practiced mediation. Currently she is employed by Nagy & Trocsanyi LLP, a Hungarian law firm based in NY. MORE >