Mediation as an Appropriate Tool of Settling Civil Disputes

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Mediation as an appropriate tool of settling civil disputes

1. Introduction.

2. Conflict as a starting point for a dispute.

3. Mediation as alternative way in disputes settlement.

4. National legislation of England on mediation.

5. Characteristic of international legal norms concerning mediation.

1. International aspect of mediation.

2. Mediation in the scope of European States.

6. Conclusion.

INTRODUCTION

The economic activities of the individuals and artificial persons are the basis of welfare of any state. It leads to the formation of public and legal relations which come into existence in the process of executing such activities. At the same time it must be admitted that these relations never carried smooth temper as there is always a probability for arising a dispute so far as private interests can be infringed. Most of the conflicts can be settled by the parties on compromise basis but some of them are still remaining unsolved. There are different reasons such as clash of opinions or failure to understand one another. In that case the participant of the conflict, who is of opinion that his rights are infringed, most likely will take prompt action to be rehabilitated by force of the court decision.

The centuries-old experience of doing a justice is evidence of the fact that litigation is not always able to solve a conflict and to give pleasure to all parties of a dispute. First of all the legal process is expensive and it usually takes a lot of time. At the second the litigation excludes the confidentiality as all the parties of the dispute must disclose the information to the public. Thirdly it is impossible to give a fair trial in terms of satisfying all parties of the dispute so far as there is someone who is successful in action and someone who is not. The last circumstance makes conflicting parties to seek alternative methods of solving a dispute.

For the last decades it is outlined the tendency for settling disputes, which arise from treaties and other civil legal relations, by using alternative methods than formal litigation procedures. These methods were assumed as a basis of the group of processes which are named as Alternative Dispute Resolution (ADR). According to glossary of the Civil Procedures Rules ADR is defined as “collective description of methods of resolving disputes, otherwise than through the normal trial process”. Fiadjoe (2004; 19) classifies ADR processes as: adjudicative – the third neutral party is delegated powers of decision-making by the participants of the dispute; evaluative – the facts of the case and the situation are assessed by the third party who finally gives a non-binding opinion about the outcomes of the dispute; meditative – this process represents the participation of the neutral third party in the dispute with only one aim is to facilitate to the parties to arrange a settlement with a conflict. It needs to be said that these processes are not static as progress of society and understanding the nature of the conflict (as a starting point for any dispute) make it possible to supplement the ADR with new elements. The ADR includes such methods as negotiation, mediation, arbitration, ombudsman, private mini-trial and others. Depending on the specific case all of these processes can be used separately or mixed with each other.

In spite of the variety of methods are used under the “umbrella of ADR” the mediation is one of the most popular processes as it has long-term historical progress and became widespread all other the world. Mediation is included in many cultures such as Islamic, Christian, Jewish and others which consider it as an integral part of their traditional methods of settling a dispute. At present mediation is widely held because it is involved in almost all fields of activity of humanity. Mediation can be used in international, commercial, civil,...
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