Brazil grew 2.4 percent per year on average in the last 25 years-somewhat less than Latin America, a good deal less than the world, far less than the emerging countries of Asia in the same period, and indeed far less than Brazil itself in previous decades. If anything stands out favorably in recent Brazilian experience, it is not growth but stabilization and the successful opening of the economy. The purpose of this paper is more modest. It is limited to setting out the authors' particular view of recent efforts to consolidate democracy in Brazil while controlling inflation and resuming economic growth. At the same time the paper presents, as objectively as possible, some thoughts on the limits but also the relevance of action by political leaders to set a course and circumvent obstacles to that process. Here and there, the paper refers to the experiences of other Latin American countries, especially Argentina, Chile, and Mexico, not to offer a full fledged comparative analysis but merely to note contrasts and similarities that may shed light on the peculiarities of the Brazilian case and suggest themes for a more wide-ranging exchange of views.
The aim of this study is to identify the peculiarities of a hospitalization process of the health care institution X and to find out their optimisation possibilities, also to determine how this process is evaluated by health care professionals and their managers working in the orthopaedic traumatology units. The aim was to determine how the management methods of health service can be used in order to improve the quality of these processes. Recently, the ISO management quality standards have been used mainly, and Lean is often implemented as one of the most successful management concepts. Aim: to reveal the possibilities to optimise processes of orthopaedic services in the health care institution X in terms of employees and managers. Tasks: 1. To reveal features of planned hospitalization processes of orthopaedic services in the health care institution X; 2. To identify disadvantages of optimal functioning of planned hospitalization services in the institution X from the point of view of employees and managers; 3. To reveal the possibilities of improving services of planned hospitalization and health care process in the institution X. Methods and sample of the study: the study was carried out in March and April 2019 at the Orthopaedic traumatology units at the institution X. The research instrument was an anonymous standardized questionnaire, with a response rate of 89.47 percent. During the study it was chosen to analyze the non-random target sample for the evaluation of the processes of hospitalization. 51 respondents took part in the current study: 68.6 percent (n=35) of women and 31.4 percent (n=16) of men; 46.9 percent of doctors, 53.1 percent of nurses; 15.7 percent (n=8) of administrative staff and 84.3 percent (n=43) of clinical specialists. Results: 39.2 percent of respondents indicated that the implementation of information technologies was important for the work optimisation, 33.3 percent FOR updating of work procedures, 78.4 percent FOR upgrading of medical equipment, 72.5 percent FOR staff qualification improvement, 86.3 percent FOR salary increasy and motivation. 75 percent of managers pointed out that the implementation of information technology improves the efficiency of work, which was statistically significantly different from those employed in the medical unit (p=0.024). It was found that the lack of qualified professionals (51 percent) and medical equipment (52.9 percent) are the main obstacles for the improvement of medical services. 62.9 percent of female respondents noted that the lack of qualified professionals influenced the availability of orthopaedic services, which was statistically significantly different from men (p=0.012). 73.1 percent of nurses pointed to a shortage of skilled employees, and 78.3 percent of doctors indicated a sufficient number of qualified staff (p=0.001). According to the respondents, lack of funds (84.3 percent) was the main source of improvement in the quality of medical services. Managers stated that the lack of initiative of health system politicians and heads of the institution plays an important role for optimising quality of services compared to medical unit workers (75 percent), p=0.016. Planned hospitalization process was well rated by respondents (54.9 percent). The patient's transport process was well rated by 72.5 percent, and unsatisfactory only 9.8 percent (n=5), had no opinion 17.6 percent (n=9) of respondents. 37.5 percent of managers judged the process unsatisfactory, and medical staff 4.7 percent, p=0.01. 67.9 percent of nurses supported the establishment of a new courier unit for patient's transportation, p=0.017. The study revealed that the patient's hospitalization process is mostly prolonged by the insufficient number of medical staff (51 percent) and technical barriers (52.9 percent). 73.7 percent of nurses pointed out that late discharge of patient's from hospital is one of the reasons for prolonged hospitalization, doctors 26.3 percent, p=0.021. 87.5 percent of managers stated that medical equipment was not sufficient, and medical staff 42.2 percent, p=0.024. 65 percent of nurses indicated that the patient was insufficiently prepared, therefore the operation delayed, and doctors 35.0 percent, p=0.032. The prolonged discharge of patients from the hospital was mainly influenced by late document delivery (51.0 percent), late patient transfer to another department (39.2 percent), inadequate patient information about departure from hospital (31.4 percent). A statistically significantly more nurses than doctors indicated that late delivery of the medical documents to the patient was an important cause of late discharge, respectively, 69.3 and 34.8 percent, p=0.016. More doctors than nurses indicated that late patient transfer to another specialized department influences late patient discharge a lot, respectively 72.2 and 27.8 percent, p=0.007. Conclusions. 1. Stages of processes of planned hospitalization of the health care institution X and their peculiarities starting with arrival of patient to discharge from hospital were analysed, as well as the main obstacles of processes identified. The study revealed the following findings: insufficient number of professional workers is an obstacle to improve medical services. In order to optimise the process of a patient transportation in the orthopaedic units, a new courier unit could be established. Late discharge of patients from hospital is one of the reasons for prolonging hospitalization time in hospital. The greatest reason for a patient's delay in surgery is poor preparation of a patient. Delay of medical documentation to the patient was a more important cause for a late discharge compared to doctors. 2. The processes of implementing orthopaedic services of the institution X and their optimisation possibilities are differently perceived by medical staff and managers. Employees of the administrative division paid more attention to the implementation of information technologies in order to optimise work. They have stated that the lack of initiative of health politicians and heads of the institution is very important for improving the quality of medical services. A transportation process of patient's to an operating room was more unsatisfactory. Medical equipment was reported more often as inadequate for diagnostics, treatment, and research compared to the medical unit. The research indicated that managers (administrative staff) emphasize upgrading and purchasing of medical equipment. Medical staff though underlined qualification improvement, motivation incentive, and a lack of medical personnel. 3. It was found out that all staff should be involved in the improvement of processes, and processes of planned hospitalization of the institution X should be optimised. Questions and decisions concerning patient flow should be addressed to a social worker or unit administrator who does not require for medicine qualification, not to the medical staff. The Ministry of Health, international funds could be considered as a source to apply for finances for upgrade and purchase of medical equipment. Since the number of nurses seems to be too low search and hiring of new qualified nurses is advisable. Issuing patient's medical documentation on time ensures the process of hospital discharge. Informing patients timely about being discharged from hospital or moved to a different unit is also recommended.
The aim of this study is to identify the peculiarities of a hospitalization process of the health care institution X and to find out their optimisation possibilities, also to determine how this process is evaluated by health care professionals and their managers working in the orthopaedic traumatology units. The aim was to determine how the management methods of health service can be used in order to improve the quality of these processes. Recently, the ISO management quality standards have been used mainly, and Lean is often implemented as one of the most successful management concepts. Aim: to reveal the possibilities to optimise processes of orthopaedic services in the health care institution X in terms of employees and managers. Tasks: 1. To reveal features of planned hospitalization processes of orthopaedic services in the health care institution X; 2. To identify disadvantages of optimal functioning of planned hospitalization services in the institution X from the point of view of employees and managers; 3. To reveal the possibilities of improving services of planned hospitalization and health care process in the institution X. Methods and sample of the study: the study was carried out in March and April 2019 at the Orthopaedic traumatology units at the institution X. The research instrument was an anonymous standardized questionnaire, with a response rate of 89.47 percent. During the study it was chosen to analyze the non-random target sample for the evaluation of the processes of hospitalization. 51 respondents took part in the current study: 68.6 percent (n=35) of women and 31.4 percent (n=16) of men; 46.9 percent of doctors, 53.1 percent of nurses; 15.7 percent (n=8) of administrative staff and 84.3 percent (n=43) of clinical specialists. Results: 39.2 percent of respondents indicated that the implementation of information technologies was important for the work optimisation, 33.3 percent FOR updating of work procedures, 78.4 percent FOR upgrading of medical equipment, 72.5 percent FOR staff qualification improvement, 86.3 percent FOR salary increasy and motivation. 75 percent of managers pointed out that the implementation of information technology improves the efficiency of work, which was statistically significantly different from those employed in the medical unit (p=0.024). It was found that the lack of qualified professionals (51 percent) and medical equipment (52.9 percent) are the main obstacles for the improvement of medical services. 62.9 percent of female respondents noted that the lack of qualified professionals influenced the availability of orthopaedic services, which was statistically significantly different from men (p=0.012). 73.1 percent of nurses pointed to a shortage of skilled employees, and 78.3 percent of doctors indicated a sufficient number of qualified staff (p=0.001). According to the respondents, lack of funds (84.3 percent) was the main source of improvement in the quality of medical services. Managers stated that the lack of initiative of health system politicians and heads of the institution plays an important role for optimising quality of services compared to medical unit workers (75 percent), p=0.016. Planned hospitalization process was well rated by respondents (54.9 percent). The patient's transport process was well rated by 72.5 percent, and unsatisfactory only 9.8 percent (n=5), had no opinion 17.6 percent (n=9) of respondents. 37.5 percent of managers judged the process unsatisfactory, and medical staff 4.7 percent, p=0.01. 67.9 percent of nurses supported the establishment of a new courier unit for patient's transportation, p=0.017. The study revealed that the patient's hospitalization process is mostly prolonged by the insufficient number of medical staff (51 percent) and technical barriers (52.9 percent). 73.7 percent of nurses pointed out that late discharge of patient's from hospital is one of the reasons for prolonged hospitalization, doctors 26.3 percent, p=0.021. 87.5 percent of managers stated that medical equipment was not sufficient, and medical staff 42.2 percent, p=0.024. 65 percent of nurses indicated that the patient was insufficiently prepared, therefore the operation delayed, and doctors 35.0 percent, p=0.032. The prolonged discharge of patients from the hospital was mainly influenced by late document delivery (51.0 percent), late patient transfer to another department (39.2 percent), inadequate patient information about departure from hospital (31.4 percent). A statistically significantly more nurses than doctors indicated that late delivery of the medical documents to the patient was an important cause of late discharge, respectively, 69.3 and 34.8 percent, p=0.016. More doctors than nurses indicated that late patient transfer to another specialized department influences late patient discharge a lot, respectively 72.2 and 27.8 percent, p=0.007. Conclusions. 1. Stages of processes of planned hospitalization of the health care institution X and their peculiarities starting with arrival of patient to discharge from hospital were analysed, as well as the main obstacles of processes identified. The study revealed the following findings: insufficient number of professional workers is an obstacle to improve medical services. In order to optimise the process of a patient transportation in the orthopaedic units, a new courier unit could be established. Late discharge of patients from hospital is one of the reasons for prolonging hospitalization time in hospital. The greatest reason for a patient's delay in surgery is poor preparation of a patient. Delay of medical documentation to the patient was a more important cause for a late discharge compared to doctors. 2. The processes of implementing orthopaedic services of the institution X and their optimisation possibilities are differently perceived by medical staff and managers. Employees of the administrative division paid more attention to the implementation of information technologies in order to optimise work. They have stated that the lack of initiative of health politicians and heads of the institution is very important for improving the quality of medical services. A transportation process of patient's to an operating room was more unsatisfactory. Medical equipment was reported more often as inadequate for diagnostics, treatment, and research compared to the medical unit. The research indicated that managers (administrative staff) emphasize upgrading and purchasing of medical equipment. Medical staff though underlined qualification improvement, motivation incentive, and a lack of medical personnel. 3. It was found out that all staff should be involved in the improvement of processes, and processes of planned hospitalization of the institution X should be optimised. Questions and decisions concerning patient flow should be addressed to a social worker or unit administrator who does not require for medicine qualification, not to the medical staff. The Ministry of Health, international funds could be considered as a source to apply for finances for upgrade and purchase of medical equipment. Since the number of nurses seems to be too low search and hiring of new qualified nurses is advisable. Issuing patient's medical documentation on time ensures the process of hospital discharge. Informing patients timely about being discharged from hospital or moved to a different unit is also recommended.
Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.
Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.
Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.
In the present work the author reviews the two scientific monographs and twenty scientific articles in which the history of the Lithuanian legal system is investigated. The author aspires to elucidate how did the main subsystems of the Lithuanian legal system – legislation, jurisdiction and jurisprudence – appeared and developed up to the end of the 20th century in the context of evolution of the Western legal tradition. The basic methods of research used in the works are historical, comparative and teleological. The main theses of the reviewed scientific monographs and articles are these: The law of the Grand Duchy of Lithuania (GDL) was created by the Government on the basis of the national Lithuanian law and some elements of the custom Slav law. Substitution of the custom Slav law for the Lithuanian public and private law took place in those provinces in the 14th-16th centuries. The custom Slav law hampered forming of the system of law of the GDL. It was created finally in the middle of the 16th century. The law of the GDL was a medieval estate law. Estate is a legal phenomenon and law determines signs and features of any estate. Main sign of any estate is rights leaved to him by law and protected by state. Estate system, that is an organization of society into classes rigidly divided for political purposes and defined primarily by law, is based on a legal inequality of estates. Any estate is a stable order closed to outsiders. In order to belong to estate any person must correspond to certain conditions determined by law. At the same time any person can belong to a few different social groups but only to one estate. The estate system of the GDL was formed finally in the middle of the 16th century. It was defined by the Second Statute of Lithuania and consisted of four estates: nobility, clergy, peasantry and townspeople. The nobility and the clergy were privileged. They governed the state and exploited bondsmen. In the towns which obtained the Magdeburg Law the townsmen were free, but haven't political rights and privileges. The author believes that all persons were subjects of medieval law of Lithuania, but their legal capacity was not equal. This inequality was determined by law. Volume of legal capacity of these persons depended upon their age, sex, citizenship, religion and estate. It could be changed in accordance with law. Under certain conditions loss of legal capacity also was able. Collective subjects of law were the GDL itself (not its government bodies or officials), the people of Lithuania as a political unit (not estates or ethnographic nations), political confederations of noblemen (if they were sanctioned by the Grand Duke), self-governing territorial units (counties, towns, etc.), guilds organized by craftsmen and merchants and self-governing religions communities. The author believes that a land-ownership in the GDL was divided. Two persons held the same land. One of them was an immediate owner, the second was a superior owner of the land. An immediate owner's right to dispose the land was limited by a superior owner's rights to this land. In the 14th-first half of the 16th century an ancestral land was the main form of land-ownership in the GDL. At first an ancestral land was owned without obligation of vassalage. Since the beginning of the 16th century an owner of an ancestral land was obliged to military service from his land. Since the 14th century a benefice was the second form of feudal land-ownership in the GDL. Gradually a benefice turned into a feud. In 1566 the Second Statute of Lithuania gave the equal rights to all owners of ancestral lands and feuds. They got the freedom to dispose all their lands, but were obliged to military service from their real estate. In the middle of the 16th century the domain of the Grand Duke was divided into the State lands and Throne lands. The Grand Duke's freedom to dispose these lands was limited. Up to the middle of the 16th century there were no permanent circuit courts for land disputes in the Grand Duchy of Lithuania. All state courts heard land cases in their permanent quarters and moved in locality to survey borders only if it was very necessary. The Government of the GDL stimulated activity of arbitration and village courts and set them to resolve land disputes in locality. The first permanent circuit court (Sub-Chamber court) for boundary disputes was established in every county during the court reform in 1564-1566. Up to the middle of the 16th century jurisdiction of the Church determined by canons was very wide and came into collision with jurisdiction of the State. Besides clergymen and other subjects of the Church spiritual courts prosecuted noblemen, peasants and townsfolk. Competence of secular and spiritual courts was delimited clearly by the Third Statute of Lithuania. In accordance with this Statute spiritual courts could prosecute noblemen, peasants and townsfolk only if a certain case was bound up with religion or marriage. The medieval conception of formal evidences existed and dominated in the GDL from the 13th century up to the 18th century. The court was passive because all evidences were collected and produced by the plaintiff or by the defendant, and legal force of any evidence was determined by Lithuanian custom law and by the Lithuanian Statutes. The author believes that compurgators were not eye-witnesses of crime or event, there testified on oath only about good name of somebody. Compurgators swore together with plaintiff or defendant. Witnesses testified to or against somebody without oath. The legal status of witnesses and compurgators determined by the Lithuanian custom law and the First Lithuanian Statute was partly corrected by the Second and the Third Lithuanian Statutes in 1566 and 1588. Dietsky office appeared in the Ancient Slav State about the 11th century. From the 13th century onwards this office functioned in the GDL. Vizh office was instituted in the end of the 15th century or in the beginning of the 16th century in the GDL. Dietsky and Vizh were court officers executed judgements. Vizh was also official witness in criminal and civil cases. Vozny office was established in the GDL during the judicial reform in 1564-1566. Vozny was an important official of a court of law. He used to be elected by county noblemen. His duty was to inspect damages, wounds, and to witness at a trial. He was an executor of court's sentences. The number of lawyers who took scholastic degrees increased in the GDL in the 16th century. They developed legal terminology, introduced the written form of contracts and elaborated many legal acts. The Lithuanian Statutes should be regarded as the acme of progressive legal theoretical thought and practical activity. They surmounted the codification of the legislation of the GDL and brought the country to the leading position among other European countries. Yet the high standard, progressive spirit and intrinsic humanistic ideas by themselves did not mean that the Statutes were properly applied. In the 16th century, the lack of qualified lawyers complicated application of the Lithuanian Statutes. The legal sophistication of judges was often rather poor. Even members of the Lithuanian Tribunal of the GDL were not professional lawyers. The requirement constituted in the Lithuanian Statutes that only nobility were eligible to the position of judges was hardly observed because for a long time there had been not a single law school or college in the GDL. Why the Faculty of Law had not been founded in the Vilnius Jesuits' Academy before 1641? The author believes that the problem may be viewed in the context of international relations between the Kingdom of Poland and the GDL. In the year of the foundation of Vilnius University, one more event important for the legal development of GDL took place: creation of the highest appeal court – Lithuanian Tribunal. Polish landlords did not tolerate the steps strengthening the statehood of Lithuania. Creation of the Lithuanian Tribunal was a difficult victory of the GDL nobility. It is quite possible that concession to the University of Krakow and recognition of Polish monopoly in preparing lawyers were the cost paid for the mentioned victory. It seemed then more important to have their own appeal court than to prepare lawyers in the GDL. In the one article the author aspires to elucidate what was a medieval university – integral part of the town or feudal benefice, what were professors ant students – full fledged citizens of the town or aliens, and what were courts of the university – State or private, secular or ecclesiastical. The author established that any university in the Middle Ages was a self-governing professional corporation similar with guild or craft. Doctors and scholars (like merchants or craftsmen) elected rector and some others officials who governed and administered justice. Mostly university was an integral part of the town; professors ant students could exercise their rights on an equality with citizens of the town. Sometimes university was ruled by the Bishop or King as a feudal benefice independent from the town magistrates and courts (in this case the relations between town citizens and students were exceptionally strained). A very ample jurisdiction was allowed to the Rector's court, extending to all civil cases and all criminal cases except such as involved mutilation (in those criminal cases the jurisdiction of the town Magistrates, King's or Bishop's judges was recognized). Rector was required to suppress quarrels between students and townsmen, or among the students themselves. If Rector failed to punish offenders, a scholar or doctor was amenable to the town Magistrates, King's or Bishop's judges. The Bishop always reserved to himself spiritual jurisdiction over professors ant students. An appellate civil jurisdiction was reserved to the town Magistrates, King's or Bishop's judges. It should be recognized that the legal system
In the present work the author reviews the two scientific monographs and twenty scientific articles in which the history of the Lithuanian legal system is investigated. The author aspires to elucidate how did the main subsystems of the Lithuanian legal system – legislation, jurisdiction and jurisprudence – appeared and developed up to the end of the 20th century in the context of evolution of the Western legal tradition. The basic methods of research used in the works are historical, comparative and teleological. The main theses of the reviewed scientific monographs and articles are these: The law of the Grand Duchy of Lithuania (GDL) was created by the Government on the basis of the national Lithuanian law and some elements of the custom Slav law. Substitution of the custom Slav law for the Lithuanian public and private law took place in those provinces in the 14th-16th centuries. The custom Slav law hampered forming of the system of law of the GDL. It was created finally in the middle of the 16th century. The law of the GDL was a medieval estate law. Estate is a legal phenomenon and law determines signs and features of any estate. Main sign of any estate is rights leaved to him by law and protected by state. Estate system, that is an organization of society into classes rigidly divided for political purposes and defined primarily by law, is based on a legal inequality of estates. Any estate is a stable order closed to outsiders. In order to belong to estate any person must correspond to certain conditions determined by law. At the same time any person can belong to a few different social groups but only to one estate. The estate system of the GDL was formed finally in the middle of the 16th century. It was defined by the Second Statute of Lithuania and consisted of four estates: nobility, clergy, peasantry and townspeople. The nobility and the clergy were privileged. They governed the state and exploited bondsmen. In the towns which obtained the Magdeburg Law the townsmen were free, but haven't political rights and privileges. The author believes that all persons were subjects of medieval law of Lithuania, but their legal capacity was not equal. This inequality was determined by law. Volume of legal capacity of these persons depended upon their age, sex, citizenship, religion and estate. It could be changed in accordance with law. Under certain conditions loss of legal capacity also was able. Collective subjects of law were the GDL itself (not its government bodies or officials), the people of Lithuania as a political unit (not estates or ethnographic nations), political confederations of noblemen (if they were sanctioned by the Grand Duke), self-governing territorial units (counties, towns, etc.), guilds organized by craftsmen and merchants and self-governing religions communities. The author believes that a land-ownership in the GDL was divided. Two persons held the same land. One of them was an immediate owner, the second was a superior owner of the land. An immediate owner's right to dispose the land was limited by a superior owner's rights to this land. In the 14th-first half of the 16th century an ancestral land was the main form of land-ownership in the GDL. At first an ancestral land was owned without obligation of vassalage. Since the beginning of the 16th century an owner of an ancestral land was obliged to military service from his land. Since the 14th century a benefice was the second form of feudal land-ownership in the GDL. Gradually a benefice turned into a feud. In 1566 the Second Statute of Lithuania gave the equal rights to all owners of ancestral lands and feuds. They got the freedom to dispose all their lands, but were obliged to military service from their real estate. In the middle of the 16th century the domain of the Grand Duke was divided into the State lands and Throne lands. The Grand Duke's freedom to dispose these lands was limited. Up to the middle of the 16th century there were no permanent circuit courts for land disputes in the Grand Duchy of Lithuania. All state courts heard land cases in their permanent quarters and moved in locality to survey borders only if it was very necessary. The Government of the GDL stimulated activity of arbitration and village courts and set them to resolve land disputes in locality. The first permanent circuit court (Sub-Chamber court) for boundary disputes was established in every county during the court reform in 1564-1566. Up to the middle of the 16th century jurisdiction of the Church determined by canons was very wide and came into collision with jurisdiction of the State. Besides clergymen and other subjects of the Church spiritual courts prosecuted noblemen, peasants and townsfolk. Competence of secular and spiritual courts was delimited clearly by the Third Statute of Lithuania. In accordance with this Statute spiritual courts could prosecute noblemen, peasants and townsfolk only if a certain case was bound up with religion or marriage. The medieval conception of formal evidences existed and dominated in the GDL from the 13th century up to the 18th century. The court was passive because all evidences were collected and produced by the plaintiff or by the defendant, and legal force of any evidence was determined by Lithuanian custom law and by the Lithuanian Statutes. The author believes that compurgators were not eye-witnesses of crime or event, there testified on oath only about good name of somebody. Compurgators swore together with plaintiff or defendant. Witnesses testified to or against somebody without oath. The legal status of witnesses and compurgators determined by the Lithuanian custom law and the First Lithuanian Statute was partly corrected by the Second and the Third Lithuanian Statutes in 1566 and 1588. Dietsky office appeared in the Ancient Slav State about the 11th century. From the 13th century onwards this office functioned in the GDL. Vizh office was instituted in the end of the 15th century or in the beginning of the 16th century in the GDL. Dietsky and Vizh were court officers executed judgements. Vizh was also official witness in criminal and civil cases. Vozny office was established in the GDL during the judicial reform in 1564-1566. Vozny was an important official of a court of law. He used to be elected by county noblemen. His duty was to inspect damages, wounds, and to witness at a trial. He was an executor of court's sentences. The number of lawyers who took scholastic degrees increased in the GDL in the 16th century. They developed legal terminology, introduced the written form of contracts and elaborated many legal acts. The Lithuanian Statutes should be regarded as the acme of progressive legal theoretical thought and practical activity. They surmounted the codification of the legislation of the GDL and brought the country to the leading position among other European countries. Yet the high standard, progressive spirit and intrinsic humanistic ideas by themselves did not mean that the Statutes were properly applied. In the 16th century, the lack of qualified lawyers complicated application of the Lithuanian Statutes. The legal sophistication of judges was often rather poor. Even members of the Lithuanian Tribunal of the GDL were not professional lawyers. The requirement constituted in the Lithuanian Statutes that only nobility were eligible to the position of judges was hardly observed because for a long time there had been not a single law school or college in the GDL. Why the Faculty of Law had not been founded in the Vilnius Jesuits' Academy before 1641? The author believes that the problem may be viewed in the context of international relations between the Kingdom of Poland and the GDL. In the year of the foundation of Vilnius University, one more event important for the legal development of GDL took place: creation of the highest appeal court – Lithuanian Tribunal. Polish landlords did not tolerate the steps strengthening the statehood of Lithuania. Creation of the Lithuanian Tribunal was a difficult victory of the GDL nobility. It is quite possible that concession to the University of Krakow and recognition of Polish monopoly in preparing lawyers were the cost paid for the mentioned victory. It seemed then more important to have their own appeal court than to prepare lawyers in the GDL. In the one article the author aspires to elucidate what was a medieval university – integral part of the town or feudal benefice, what were professors ant students – full fledged citizens of the town or aliens, and what were courts of the university – State or private, secular or ecclesiastical. The author established that any university in the Middle Ages was a self-governing professional corporation similar with guild or craft. Doctors and scholars (like merchants or craftsmen) elected rector and some others officials who governed and administered justice. Mostly university was an integral part of the town; professors ant students could exercise their rights on an equality with citizens of the town. Sometimes university was ruled by the Bishop or King as a feudal benefice independent from the town magistrates and courts (in this case the relations between town citizens and students were exceptionally strained). A very ample jurisdiction was allowed to the Rector's court, extending to all civil cases and all criminal cases except such as involved mutilation (in those criminal cases the jurisdiction of the town Magistrates, King's or Bishop's judges was recognized). Rector was required to suppress quarrels between students and townsmen, or among the students themselves. If Rector failed to punish offenders, a scholar or doctor was amenable to the town Magistrates, King's or Bishop's judges. The Bishop always reserved to himself spiritual jurisdiction over professors ant students. An appellate civil jurisdiction was reserved to the town Magistrates, King's or Bishop's judges. It should be recognized that the legal system
In the present work the author reviews the two scientific monographs and twenty scientific articles in which the history of the Lithuanian legal system is investigated. The author aspires to elucidate how did the main subsystems of the Lithuanian legal system – legislation, jurisdiction and jurisprudence – appeared and developed up to the end of the 20th century in the context of evolution of the Western legal tradition. The basic methods of research used in the works are historical, comparative and teleological. The main theses of the reviewed scientific monographs and articles are these: The law of the Grand Duchy of Lithuania (GDL) was created by the Government on the basis of the national Lithuanian law and some elements of the custom Slav law. Substitution of the custom Slav law for the Lithuanian public and private law took place in those provinces in the 14th-16th centuries. The custom Slav law hampered forming of the system of law of the GDL. It was created finally in the middle of the 16th century. The law of the GDL was a medieval estate law. Estate is a legal phenomenon and law determines signs and features of any estate. Main sign of any estate is rights leaved to him by law and protected by state. Estate system, that is an organization of society into classes rigidly divided for political purposes and defined primarily by law, is based on a legal inequality of estates. Any estate is a stable order closed to outsiders. In order to belong to estate any person must correspond to certain conditions determined by law. At the same time any person can belong to a few different social groups but only to one estate. The estate system of the GDL was formed finally in the middle of the 16th century. It was defined by the Second Statute of Lithuania and consisted of four estates: nobility, clergy, peasantry and townspeople. The nobility and the clergy were privileged. They governed the state and exploited bondsmen. In the towns which obtained the Magdeburg Law the townsmen were free, but haven't political rights and privileges. The author believes that all persons were subjects of medieval law of Lithuania, but their legal capacity was not equal. This inequality was determined by law. Volume of legal capacity of these persons depended upon their age, sex, citizenship, religion and estate. It could be changed in accordance with law. Under certain conditions loss of legal capacity also was able. Collective subjects of law were the GDL itself (not its government bodies or officials), the people of Lithuania as a political unit (not estates or ethnographic nations), political confederations of noblemen (if they were sanctioned by the Grand Duke), self-governing territorial units (counties, towns, etc.), guilds organized by craftsmen and merchants and self-governing religions communities. The author believes that a land-ownership in the GDL was divided. Two persons held the same land. One of them was an immediate owner, the second was a superior owner of the land. An immediate owner's right to dispose the land was limited by a superior owner's rights to this land. In the 14th-first half of the 16th century an ancestral land was the main form of land-ownership in the GDL. At first an ancestral land was owned without obligation of vassalage. Since the beginning of the 16th century an owner of an ancestral land was obliged to military service from his land. Since the 14th century a benefice was the second form of feudal land-ownership in the GDL. Gradually a benefice turned into a feud. In 1566 the Second Statute of Lithuania gave the equal rights to all owners of ancestral lands and feuds. They got the freedom to dispose all their lands, but were obliged to military service from their real estate. In the middle of the 16th century the domain of the Grand Duke was divided into the State lands and Throne lands. The Grand Duke's freedom to dispose these lands was limited. Up to the middle of the 16th century there were no permanent circuit courts for land disputes in the Grand Duchy of Lithuania. All state courts heard land cases in their permanent quarters and moved in locality to survey borders only if it was very necessary. The Government of the GDL stimulated activity of arbitration and village courts and set them to resolve land disputes in locality. The first permanent circuit court (Sub-Chamber court) for boundary disputes was established in every county during the court reform in 1564-1566. Up to the middle of the 16th century jurisdiction of the Church determined by canons was very wide and came into collision with jurisdiction of the State. Besides clergymen and other subjects of the Church spiritual courts prosecuted noblemen, peasants and townsfolk. Competence of secular and spiritual courts was delimited clearly by the Third Statute of Lithuania. In accordance with this Statute spiritual courts could prosecute noblemen, peasants and townsfolk only if a certain case was bound up with religion or marriage. The medieval conception of formal evidences existed and dominated in the GDL from the 13th century up to the 18th century. The court was passive because all evidences were collected and produced by the plaintiff or by the defendant, and legal force of any evidence was determined by Lithuanian custom law and by the Lithuanian Statutes. The author believes that compurgators were not eye-witnesses of crime or event, there testified on oath only about good name of somebody. Compurgators swore together with plaintiff or defendant. Witnesses testified to or against somebody without oath. The legal status of witnesses and compurgators determined by the Lithuanian custom law and the First Lithuanian Statute was partly corrected by the Second and the Third Lithuanian Statutes in 1566 and 1588. Dietsky office appeared in the Ancient Slav State about the 11th century. From the 13th century onwards this office functioned in the GDL. Vizh office was instituted in the end of the 15th century or in the beginning of the 16th century in the GDL. Dietsky and Vizh were court officers executed judgements. Vizh was also official witness in criminal and civil cases. Vozny office was established in the GDL during the judicial reform in 1564-1566. Vozny was an important official of a court of law. He used to be elected by county noblemen. His duty was to inspect damages, wounds, and to witness at a trial. He was an executor of court's sentences. The number of lawyers who took scholastic degrees increased in the GDL in the 16th century. They developed legal terminology, introduced the written form of contracts and elaborated many legal acts. The Lithuanian Statutes should be regarded as the acme of progressive legal theoretical thought and practical activity. They surmounted the codification of the legislation of the GDL and brought the country to the leading position among other European countries. Yet the high standard, progressive spirit and intrinsic humanistic ideas by themselves did not mean that the Statutes were properly applied. In the 16th century, the lack of qualified lawyers complicated application of the Lithuanian Statutes. The legal sophistication of judges was often rather poor. Even members of the Lithuanian Tribunal of the GDL were not professional lawyers. The requirement constituted in the Lithuanian Statutes that only nobility were eligible to the position of judges was hardly observed because for a long time there had been not a single law school or college in the GDL. Why the Faculty of Law had not been founded in the Vilnius Jesuits' Academy before 1641? The author believes that the problem may be viewed in the context of international relations between the Kingdom of Poland and the GDL. In the year of the foundation of Vilnius University, one more event important for the legal development of GDL took place: creation of the highest appeal court – Lithuanian Tribunal. Polish landlords did not tolerate the steps strengthening the statehood of Lithuania. Creation of the Lithuanian Tribunal was a difficult victory of the GDL nobility. It is quite possible that concession to the University of Krakow and recognition of Polish monopoly in preparing lawyers were the cost paid for the mentioned victory. It seemed then more important to have their own appeal court than to prepare lawyers in the GDL. In the one article the author aspires to elucidate what was a medieval university – integral part of the town or feudal benefice, what were professors ant students – full fledged citizens of the town or aliens, and what were courts of the university – State or private, secular or ecclesiastical. The author established that any university in the Middle Ages was a self-governing professional corporation similar with guild or craft. Doctors and scholars (like merchants or craftsmen) elected rector and some others officials who governed and administered justice. Mostly university was an integral part of the town; professors ant students could exercise their rights on an equality with citizens of the town. Sometimes university was ruled by the Bishop or King as a feudal benefice independent from the town magistrates and courts (in this case the relations between town citizens and students were exceptionally strained). A very ample jurisdiction was allowed to the Rector's court, extending to all civil cases and all criminal cases except such as involved mutilation (in those criminal cases the jurisdiction of the town Magistrates, King's or Bishop's judges was recognized). Rector was required to suppress quarrels between students and townsmen, or among the students themselves. If Rector failed to punish offenders, a scholar or doctor was amenable to the town Magistrates, King's or Bishop's judges. The Bishop always reserved to himself spiritual jurisdiction over professors ant students. An appellate civil jurisdiction was reserved to the town Magistrates, King's or Bishop's judges. It should be recognized that the legal system
In the present work the author reviews the two scientific monographs and twenty scientific articles in which the history of the Lithuanian legal system is investigated. The author aspires to elucidate how did the main subsystems of the Lithuanian legal system – legislation, jurisdiction and jurisprudence – appeared and developed up to the end of the 20th century in the context of evolution of the Western legal tradition. The basic methods of research used in the works are historical, comparative and teleological. The main theses of the reviewed scientific monographs and articles are these: The law of the Grand Duchy of Lithuania (GDL) was created by the Government on the basis of the national Lithuanian law and some elements of the custom Slav law. Substitution of the custom Slav law for the Lithuanian public and private law took place in those provinces in the 14th-16th centuries. The custom Slav law hampered forming of the system of law of the GDL. It was created finally in the middle of the 16th century. The law of the GDL was a medieval estate law. Estate is a legal phenomenon and law determines signs and features of any estate. Main sign of any estate is rights leaved to him by law and protected by state. Estate system, that is an organization of society into classes rigidly divided for political purposes and defined primarily by law, is based on a legal inequality of estates. Any estate is a stable order closed to outsiders. In order to belong to estate any person must correspond to certain conditions determined by law. At the same time any person can belong to a few different social groups but only to one estate. The estate system of the GDL was formed finally in the middle of the 16th century. It was defined by the Second Statute of Lithuania and consisted of four estates: nobility, clergy, peasantry and townspeople. The nobility and the clergy were privileged. They governed the state and exploited bondsmen. In the towns which obtained the Magdeburg Law the townsmen were free, but haven't political rights and privileges. The author believes that all persons were subjects of medieval law of Lithuania, but their legal capacity was not equal. This inequality was determined by law. Volume of legal capacity of these persons depended upon their age, sex, citizenship, religion and estate. It could be changed in accordance with law. Under certain conditions loss of legal capacity also was able. Collective subjects of law were the GDL itself (not its government bodies or officials), the people of Lithuania as a political unit (not estates or ethnographic nations), political confederations of noblemen (if they were sanctioned by the Grand Duke), self-governing territorial units (counties, towns, etc.), guilds organized by craftsmen and merchants and self-governing religions communities. The author believes that a land-ownership in the GDL was divided. Two persons held the same land. One of them was an immediate owner, the second was a superior owner of the land. An immediate owner's right to dispose the land was limited by a superior owner's rights to this land. In the 14th-first half of the 16th century an ancestral land was the main form of land-ownership in the GDL. At first an ancestral land was owned without obligation of vassalage. Since the beginning of the 16th century an owner of an ancestral land was obliged to military service from his land. Since the 14th century a benefice was the second form of feudal land-ownership in the GDL. Gradually a benefice turned into a feud. In 1566 the Second Statute of Lithuania gave the equal rights to all owners of ancestral lands and feuds. They got the freedom to dispose all their lands, but were obliged to military service from their real estate. In the middle of the 16th century the domain of the Grand Duke was divided into the State lands and Throne lands. The Grand Duke's freedom to dispose these lands was limited. Up to the middle of the 16th century there were no permanent circuit courts for land disputes in the Grand Duchy of Lithuania. All state courts heard land cases in their permanent quarters and moved in locality to survey borders only if it was very necessary. The Government of the GDL stimulated activity of arbitration and village courts and set them to resolve land disputes in locality. The first permanent circuit court (Sub-Chamber court) for boundary disputes was established in every county during the court reform in 1564-1566. Up to the middle of the 16th century jurisdiction of the Church determined by canons was very wide and came into collision with jurisdiction of the State. Besides clergymen and other subjects of the Church spiritual courts prosecuted noblemen, peasants and townsfolk. Competence of secular and spiritual courts was delimited clearly by the Third Statute of Lithuania. In accordance with this Statute spiritual courts could prosecute noblemen, peasants and townsfolk only if a certain case was bound up with religion or marriage. The medieval conception of formal evidences existed and dominated in the GDL from the 13th century up to the 18th century. The court was passive because all evidences were collected and produced by the plaintiff or by the defendant, and legal force of any evidence was determined by Lithuanian custom law and by the Lithuanian Statutes. The author believes that compurgators were not eye-witnesses of crime or event, there testified on oath only about good name of somebody. Compurgators swore together with plaintiff or defendant. Witnesses testified to or against somebody without oath. The legal status of witnesses and compurgators determined by the Lithuanian custom law and the First Lithuanian Statute was partly corrected by the Second and the Third Lithuanian Statutes in 1566 and 1588. Dietsky office appeared in the Ancient Slav State about the 11th century. From the 13th century onwards this office functioned in the GDL. Vizh office was instituted in the end of the 15th century or in the beginning of the 16th century in the GDL. Dietsky and Vizh were court officers executed judgements. Vizh was also official witness in criminal and civil cases. Vozny office was established in the GDL during the judicial reform in 1564-1566. Vozny was an important official of a court of law. He used to be elected by county noblemen. His duty was to inspect damages, wounds, and to witness at a trial. He was an executor of court's sentences. The number of lawyers who took scholastic degrees increased in the GDL in the 16th century. They developed legal terminology, introduced the written form of contracts and elaborated many legal acts. The Lithuanian Statutes should be regarded as the acme of progressive legal theoretical thought and practical activity. They surmounted the codification of the legislation of the GDL and brought the country to the leading position among other European countries. Yet the high standard, progressive spirit and intrinsic humanistic ideas by themselves did not mean that the Statutes were properly applied. In the 16th century, the lack of qualified lawyers complicated application of the Lithuanian Statutes. The legal sophistication of judges was often rather poor. Even members of the Lithuanian Tribunal of the GDL were not professional lawyers. The requirement constituted in the Lithuanian Statutes that only nobility were eligible to the position of judges was hardly observed because for a long time there had been not a single law school or college in the GDL. Why the Faculty of Law had not been founded in the Vilnius Jesuits' Academy before 1641? The author believes that the problem may be viewed in the context of international relations between the Kingdom of Poland and the GDL. In the year of the foundation of Vilnius University, one more event important for the legal development of GDL took place: creation of the highest appeal court – Lithuanian Tribunal. Polish landlords did not tolerate the steps strengthening the statehood of Lithuania. Creation of the Lithuanian Tribunal was a difficult victory of the GDL nobility. It is quite possible that concession to the University of Krakow and recognition of Polish monopoly in preparing lawyers were the cost paid for the mentioned victory. It seemed then more important to have their own appeal court than to prepare lawyers in the GDL. In the one article the author aspires to elucidate what was a medieval university – integral part of the town or feudal benefice, what were professors ant students – full fledged citizens of the town or aliens, and what were courts of the university – State or private, secular or ecclesiastical. The author established that any university in the Middle Ages was a self-governing professional corporation similar with guild or craft. Doctors and scholars (like merchants or craftsmen) elected rector and some others officials who governed and administered justice. Mostly university was an integral part of the town; professors ant students could exercise their rights on an equality with citizens of the town. Sometimes university was ruled by the Bishop or King as a feudal benefice independent from the town magistrates and courts (in this case the relations between town citizens and students were exceptionally strained). A very ample jurisdiction was allowed to the Rector's court, extending to all civil cases and all criminal cases except such as involved mutilation (in those criminal cases the jurisdiction of the town Magistrates, King's or Bishop's judges was recognized). Rector was required to suppress quarrels between students and townsmen, or among the students themselves. If Rector failed to punish offenders, a scholar or doctor was amenable to the town Magistrates, King's or Bishop's judges. The Bishop always reserved to himself spiritual jurisdiction over professors ant students. An appellate civil jurisdiction was reserved to the town Magistrates, King's or Bishop's judges. It should be recognized that the legal system
Trumpai apžvelgus UNESCO apibrėžtas skirtingas paveldo tipologijas, dėmesys skiriamas įvairioms kul- tūros vertybėms, kurios, nors ir nepriskiriamos "pagrindinėms" paveldo kategorijoms, simbolizuoja reikšmingą paveldo turtą, siūlantį, be savo įprastos paskirties, daugybę galimybių, kaip jį būtų galima pritaikyti "netradi- cinėms" pridėtinę vertę kuriančioms paslaugoms. Įžanginiame skyriuje pateikiami pavyzdžiai, iliustruojantys netradicinį kultūros paveldą: istorinis maršrutas "Rytų ekspresas", mėlynasis tramvajus Tramvia Blau ar funi- kulierius Tibidabo Funicular Barselonoje; parkai, sodai ir žaliosios erdvės kaip išskirtinių renginių vietos; ypa- tingos ar nykstančios augalijos ir gyvūnijos buveinės; istoriniai piligrimų keliai Via Francigena, El Camino de Santiago de Compostela ir Camí de Cel de Barcelona; Italijos asociacijos Italian Alpine Club (CAI) organizuo- jami Dolomitų kelias ir kalnų žygiai; kruizai, istoriškai reikšmingi komerciniai ir kariniai maršrutai, pavyzdžiui, Viduržemio jūros ir Baltijos jūros turai, maršrutai į Indiją; tradiciniai šou, koncertai, operos, muzikos / šokių renginiai ir ritualai; sausumos ir jūros augalija bei gyvūnija, kuriai gresia išnykimo pavojus; pajūrio ir pakrančių paveldas, pavyzdžiui, švyturiai, istoriniai uostai ir pan. Daugelyje Europos šalių "kultūros paveldui" gali būti priskiriami ir artefaktai, žmonių atrasti daugiau nei prieš 50 metų. Taigi į paveldo apsaugą gali pretenduoti daug įvairių objektų – nuo pirmojo bakelitinio radijo imtuvo ir pokarinių automobilių iki elektroninės kompiuterių įrangos ir dizaino kūrinių. Jeigu etno- gra nės kolekcijos, daug kartų žiūrėtos kino juostos ir TV įrašai taip pat vertinami kaip papildomi elemen- tai (saugomi jau beveik 60 metų), tuomet visa tai sudaro nepakeičiamą ir saugotiną informacijos "šaltinį", kurį dera perduoti ateinančioms kartoms. Be materialiojo paveldo, derėtų saugoti ir nematerialųjį paveldą, pavyzdžiui, muziką, šokius, ritualus, pasakas ir pan., taip pat naujausią, bet ne mažiau svarbų "ateities" pa- veldą. Apsidairius aplink XXI a. ateities muziejus kuratoriaus akimis, gali iškilti pagrįstas klausimas: "Ar ateities kartos, net ir artimos ateities kartos, sugebės suprasti dabartinės kartos kuriamą turinį?" Trumpai panagrinėjus milžiniškus ir įvairialypius paveldo klodus galima užduoti vieną svarbiausių klausimų: "Kaip užtikrinti tinkamą paveldo naudojimą, valorizaciją ir valdymą?" Nepakanka vien tik vadovautis esamu scenarijumi. Būtina pasirengti susitikti su ateities paveldu, galinčiu tapti tikru iššūkiu būsimiems kolekcio- nieriams ar kuratoriams. Paveldas turi daugybę funkcijų ir daugybę vertybių, tad verta gerai ištyrinėti šiuos daugiamačius ir turtingus klodus, kad būtų galima pasinaudoti visais jų teikiamais privalumais. Šiai už- duočiai veiksmingai ir kokybiškai atlikti yra būtina metodologija. "Verčių" požiūrio taikymas analizuojant paveldą galėtų prisidėti sprendžiant problemas ir užtikrintai pagrįsti paveldo išsaugojimo, apsaugos ir val- dymo strategijos apibrėžimą. Šis straipsnis supažindina su logišku požiūriu, nustatant ir grupuojant platų paveldui priskiriamų vertybių spektrą. Nuodugniai išanalizavus vertybes (pradedant nuo akivaizdžiausių), nustatomos naujos vertybės, kurios yra (tiesiogiai) susijusios su inovacijomis ir technologijomis. Vertybių, kurias galima priskirti kultūros paveldui, kiekis didėja, daugėjant suinteresuotųjų šalių, kurios laikomos paveldo naudojimo, konservavimo ir valdymo proceso dalyvėmis. Priimant su paveldu susijusius spren- dimus ir reaguojant į skirtingų suinteresuotųjų šalių poreikius, šių vertybių apibrėžimas yra lemiamas iš esmės dėl to, kad šios vertybės padeda nustatyti konkrečios teritorijos patrauklumo lygį. Kultūros paveldo samprata remiasi įvairialype paklausa, kurią būtina atpažinti visose sudėtinėse kultūros paveldo dalyse, norint nuodugniai ištyrinėti vertybių klodus, kuriuos (kaip bus pristatoma toliau) riboja skirtingi diferen- cijuotos paklausos poreikiai. Norint pasiekti šį tikslą reikia apibrėžti įrankius bei metodus, padėsiančius nustatyti ir vertinti kultūros paveldą atsižvelgiant į skirtingas jam priskiriamų vertybių perspektyvas. Kie- kviena konkreti vertybė išsamiai aprašoma, kad būtų lengviau atlikti atskiro atvejo analizę. Nepaisant visų nukrypimų, plačiąja prasme aiškinama Europos kultūros paveldo idėja perteikia šias vertybes: istorines, atminties, pilietybės, civilizacijos, pripažinimo, tradicijų, meno, mokslo, konservavimo ir technologines. Suvokti vertybių ir kitų skirtingų dalių esmę yra įmanoma pripažįstant ir veiksmingai naudojant mūsų palikimą, vertinant jį kaip sistemą sąveikų tarp įvairių aspektų: paveldo tipologijos (gamtinės, kultūrinės, . nematerialios, . ateities); daugybės "verčių" (ekonominių, investicijų grąžos, socialinių, kultūrinių, išskirtinumo / unikalu- mo ir pan.); geogra nių ypatumų (vertingumo vietinių požiūriu, nacionalinių, regioninių, globalinių, daugiau- sia nevietinių ir pan.); potencialių naudotojų / galutinių naudotojų (ekspertų, specialistų, kolekcionierių, verslininkų, miesto gyventojų, tyrėjų, bendruomenės narių ir pan.). Didžioji dalis šių vertybių yra "potencialios"; kartais nėra galimybių ar poreikio nustatyti jų piniginę išraišką. Daugeliu atvejų išlaidas dengiantis subjektas nėra tas, kuris daug uždirba iš kultūros paveldo "naudojimo", čia susiduriama su savotišku asimetrinės rinkos modeliu. Visuomenės reikmėms skirto kul- tūros paveldo atveju "verčių" "rezultatais" dalijasi skirtingi vertybių grandinės dalyviai, o kultūros paveldą prižiūrinti valstybinė institucija tarp jų būna ne visada. Kartais visas vertybių spektras neatrodo akivaizdus (bent jau) vadovams arba nemanoma, kad būtų tinkama ar "išmintinga" šiomis vertybėmis pasinaudoti. Tokių vertybių naudojimas nebūtinai turi kelti pavojų mūsų paveldui – kultūros vertybės nesivaržo tar- pusavyje, išmintingai jas naudojant, jos nebus "suvartotos". Netgi priešingai, aiškiai apibrėžus vertybių "vertę", jas būtų lengviau atpažinti ir apsaugoti, suformuluojant bazines sąlygas jų tinkamam naudojimui užtikrinti. Toks scenarijus atrodo kaip visiems naudingas susitarimas: miesto gyventojai gali pasinaudoti visais efektyvaus paveldo naudojimo teikiamais privalumais, o suinteresuotosios šalys – džiaugtis didesniu matomu ir išaugusiomis pajamomis. Sėkmingai įdiegtoje sistemoje būtų numatytas struktūrinis vertinimo procesas, atsižvelgiantis ir į speci nes vertinimo procedūras bei rodiklius, ir į ekspertus, prisidedančius prie šios blokinės schemos kūrimo. Daugeliu atvejų šios vertybės iliustruoja, kaip įgyvendinami lankytojų ir naudotojų lūkesčiai. Raktiniai žodžiai: kultūros paveldas, ateities paveldas, išmanusis paveldas, netradicinės kultūros vertybės, paveldo vertinimas, paveldo valdymas. ; Starting from a quick overview of the di erent typologies of heritage as de ned by UNESCO, the focus is made on a wide range of cultural assets that, even not classi ed the 'main' heritage families, represent, however, a relevant heritage asset that apart from the typical use o ers great opportunities to be suitable for 'unconventional' added value services. The introduction provides a selection of examples concerning unconventional cultural assets such as the historical trans- portation means Orient Express, Tramvia Blau or the Tibidabo Funicular in Barcelona; parks, gardens and green areas as scenarios of particular events or peculiar or extinct habitats of ora and fauna; historic itineraries such as via Francigena, El Camino de Santiago de Compostela and the Camí de Cel de Barcelona; the Dolomites and mountain hiking trails of the Italian Alpine Club (CAI); cruises, commercial and military routes important in history such as Mediterranean and Baltic routes, routes to India; traditional shows, concerts, opera, music/dances and rituals; land and marine ora and fauna considered to be at risk of extinction; maritime-coastal heritage such as lighthouses, historical harbours, etc. In many European countries, artefacts realised by human beings more than fty years ago are also considered potential 'Cultural Heritage'. Therefore, a variety of objects might be enlis- ted for protection such as the rst bakelite radio-set, post-war period cars, the early electronic computer equipment and design products. Furthermore, if ethnographic collections, many times movies and TV recordings are considered the complement pictures (that have already been pro- tected for almost sixty years), all of them constitute an irreplaceable 'source' of information to be protected and handed down to posterity. In addition to the tangible heritage, the intangible heritage such as music, dances, rituals, tales, etc. and last but not least the 'future' heritage should be preserved. If we look around in the shoes of a curator of a future museum of the 21st c., it is reasonable to ask ourselves 'Will future generations, even those of the near future, be able to access the content produced by this generation?' Having brie y explored the vast and heteroge- neous universe of heritage, one of the key questions posed to ourselves is 'How can we ensure a proper use, valorisation and management of it?' Along with the current scenario, we should be ready to deal with the future heritage that may represent a real challenge for future collectors or curators. As the heritage represents a multi-function and multi-value domain, there is a need to explore this multidimensional space in order to fully bene t from its richness. Thus, a metho- 129 130 dology enabling to complete the task in an e cient and productive way is required. Application of the 'value' approach in analysing heritage may contribute to solving the problem and provide a valid support in de ning a strategy to preserve, promote and manage it. The present paper outlines the logical approach for identi cation and clustering of the broad range of the values associated with the heritage. The in-depth analysis of values, starting from the more evident ones, leads to identi cation of a set of new values due to or directly connected with innovation and technologies. The plurality of values that can be associated with a cultural asset widens with the variety of stakeholders considered to participate in the process of heritage use, conservation and management. Establishing the values upon making decisions about the heritage and there- fore meeting the needs of di erent stakeholders is crucial, mainly due to the reason that such values contribute to identi cation of the degree of attractiveness of a given territory. The cultural heritage should be considered a system based on the heterogeneous demand to be recognised in its many components in order to investigate the value space throughout its extension that, as it will be outlined later, is delimited by di erent needs of the di erentiated demand; in order to do this, we need to identify and de ne tools and methods of measuring and evaluating the cultural heritage in the di erent perspectives of the value attributable to it. Each speci c value is outlined in detail to facilitate the implementation of the approach to a single case study. The concept of the European cultural heritage, interpreted in the broad sense and with all its declinations, is the bearer of a multitude of values: historical value, testimony, citizenship, civilization, recognition, traditions, artistic, scienti c, conservation and technology. The matter of values and the other di erent elements actively contributing to the overall appreciation and fruitful exploitation of our legacy might be considered a complex of interactions among the following di erent aspects: • Heritage typology (natural, cultural,. intangible,. future) • Wide set of 'values' (economic value, return of investment, social, cultural, exceptionality/uniquely, etc.) • Geographic range (valuable for locals, national, regional, global, non-local mainly, etc.) • Potential users/end users (experts, specialists, collectors, businessmen, citizens, researchers, community members, etc.) Major parts of these values are 'potential'; sometimes there is no chance or need to monetize them. It happens frequently that the one who covers the expenses is not the one who earns much money from the 'use' of the cultural asset, i.e. a kind of asymmetric market model is observed. In case of public cul- tural assets, the 'e ects' of the 'values' are shared among di erent actors in the value-chain, sometimes not including the public body looking after the cultural assets at all. Moreover, sometimes the full set of values is not evident at least to the managers or it is not considered proper or 'wise' to take advantage of them. The exploitation of such values will not necessarily jeopardize our heritage, cultural assets are not rivalling and a wise exploitation will not 'consume' them. On the contrary, a clear identi cation of their 'values' will help to identify and protect them developing the basic conditions to ensure a proper exploitation. Such a scenario looks like a win-win agreement: citizens may bene t from the fruitful exploitation of their own heritage, whereas stakeholders may bene t from enhanced visibility and inco- mes. The full implementation of the system foresees a structured evaluation process taking into account both speci c evaluation procedures, metrics and a network of experts providing their contribution in a kind of block chain architecture. In most cases, these values represent the ful lment of the present expectations of visitors and users. Keywords: Cultural heritage, future heritage, smart heritage, unconventional cultural assets, heritage valorisation, heritage management.
