Mediation and the degree of its institutionalization in the Czech Republic within the context of the development of the discipline in Europe

• Published date: 01 June 2021
• Author: Lenka Holá,Martina Urbanová,David Fiedor
• Date: 01 June 2021
• DOI: http://doi.org/10.1002/crq.21306

RESEARCH ARTICLE

Mediation and the degree of its

institutionalization in the Czech Republic

within the context of the development

of the discipline in Europe

Lenka Hol

a

1

| Martina Urbanov

a

2

| David Fiedor

1

1

Department of Political Science and

Social Sciences, Faculty of Law, Palacký

University in Olomouc, Olomouc,

Czechia

2

Department of Legal Theory, Faculty of

Law, Masaryk University in Brno, Brno,

Czechia

Correspondence

David Fiedor, Department of Political

Science and Social Sciences, Faculty of

Law, Palacký University in Olomouc, tř.

17. listopadu 8, 771 11 Olomouc, Czechia.

Email: david.fiedor@upol.cz

Funding information

“Mediation in the Czech Republic in

Accordance with the Mediation Act”of

the Grant Agency of the Czech Republic,

Grant/Award Number: GA18-01417S

Abstract

The paper aims at analyzing the degree of institutional-

ization of mediation. Samuel Huntington's concept of

an institution is applied to mediation in the Czech

Republic, in the development context of mediation in

Europe. The degree of institutionalization of mediation

is analyzed using the dimensions of adaptability, auton-

omy, coherence, and integrity. The question of examin-

ing the degree of institutionalization of mediation has

not been addressed by research yet. Using the example

of the Czech Republic, the paper illustrates new ways

of analyzing the degree of the institutionalization of

mediation. This should help with focusing on its

dimensions, which are still underdeveloped.

1|INTRODUCTION

The increasing efforts to use alternative methods of conflict resolution in Europe place higher

demands on their formal regulation, namely on finding a suitable place for them in the national

legal systems, partly with regard to foreign legislation.

Researchers have consequently focused on analyzing the conditions and quality of media-

tion in European Union (EU) countries. One of the first such studies was carried out by De Palo

and Trevor (2012) in response to the urgent demand for relevant and updated data in this field.

The study reveals substantial differences in the quality of mediation services and the low levels

of its application in practice. It highlights the need for a single European concept of mediation,

while promoting its adaptation to the specific circumstances of each country. The role of the

EU was assessed by Member States as vital for developing an effective European mediation

Received: 21 August 2019 Revised: 8 April 2021 Accepted: 9 April 2021

DOI: 10.1002/crq.21306

Conflict Resolution Quarterly. 2021;38:387–403. wileyonlinelibrary.com/journal/crq © 2021 Wiley Periodicals LLC. 387

policy. According to the Explanatory Memorandum to the Government Bill on Mediation

(Parliament of the Czech Republic, 2019), experience from countries where mediation is

established, has a tradition, and is used on a wider scale, suggests that the development of medi-

ation undergoes two basic phases. The first phase consists of creating conditions for mediation,

namely legal and qualification conditions. The second phase of the mediation development

involves measures enhancing the broader use of mediation. For this reason, we consider it nec-

essary to address the issue of institutionalization of mediation and to examine the degree of that

institutionalization.

In general, the more institutionalized the mediation, the more likely the community is to

opt for amicable conflict resolution, as is evident in judicial (institutionalized) forms of dispute

resolution.

The paper analyzes the degree of the institutionalization of mediation by applying

the political concept of Samuel Huntington. It is modeled on the Czech Republic in

the context of the development of mediation in Europe.

First, we explain the importance of examining the evolution of institutionalization of media-

tion in individual EU countries and in the context of harmonization efforts as well as the politi-

cal and social forces of the EU. Studies by the European Parliament and the European

Commission (De Palo et al., 2014; European Commission, 2016; European Union, 2019) have

repeatedly examined how individual countries have approached the EU regulations in question,

how they have complied with them, and what the results have been. The results can be consid-

ered to constitute overview studies of the operation of mediation in the EU Member States, con-

ditions for development in individual areas, and examples of good practice, as well as obstacles

and limits to be addressed in the future. For this reason, the paper presents partial results of

these studies rather than the experience of particular countries (without a more thorough knowl-

edge of the factors that influenced them at that time). Subsequently, we introduce the issues of

mediation and institutionalization and focus on the characteristics of mediation as an institution

in the Czech Republic. All this serves as a basis for the section in which we then address the def-

inition of a theoretical construct for examining the degree of mediation's institutionalization.

The degree of institutionalization is understood as the level of its development. In our case, it is

measured using Samuel Huntington's political science concept (Huntington, 1968). Details on

this research tool and our reasons for choosing it can be found in the section “The Degree of

Institutionalization of Mediation in the Czech Republic.”

Using the example of the Czech Republic, the paper introduces how to analyze the degree

of the institutionalization of mediation, how to understand it, and thus focus on its future devel-

opment in areas that remain underdeveloped. The degree to which mediation is institutional-

ized has not been researched to date. This is the greatest benefit of our research in mediation—

the theoretical construct of the degree of institutionalization of mediation could be used in the

future for empirical research in other countries.

2|MEDIATION WITHIN THE CONTEXT

OF THE EUROPEAN UNION

With the modernization of judicial systems and search for new forms of access to justice, extra-

judicial dispute resolution methods have been becoming increasingly available in the European

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