Principles of Judicial Conciliation, Mediation and Arbitration: Comparative Legal Aspects

Abstract

The paper discusses the principles of judicial conciliation, mediation and arbitration in a comparative perspective. A special attention is paid to guarantees of their implementation. Examples of judicial practice that demonstrate the prevalence of violations of certain principles are considered. On the basis of a systemic analysis of legal provisions and a relevant draft law, regulations of Russian and foreign arbitration institutions, taking into account the views of prerevolutionary, Soviet and modern researchers, the authors formulate conclusions about the declarative nature of principles of judicial reconciliation and significant differences of this procedure from mediation. In judicial reconciliation, the autonomy of the will of the parties to a dispute may be limited by choosing the conciliator’s candidature, the active role of the conciliator. The authors argue in favor of using such a form of reconciliation, in which the conciliator may be the judge who is considering the specific case. The unconditional advantages of mediation as the only one of the considered dispute resolution methods, which is really characterized by confidentiality and co-operation of the parties, are noted. The authors reveal the issues of the adversarial principle and equality of the parties in arbitration, due to abuse of rights by the parties to the dispute. The study of characteristics of formation of individual principles in the Russian pre-revolutionary and Soviet legislation allowed to formulate conclusions about the possible development of provisions on the principles of cooperation and confidentiality, on the prospects for judicial reconciliation.