Alternative Methods Of Conflict Resolution Research Articles

AUTOCOMPOSIÇÃO NO ÂMBITO DA JUSTIÇA CONSTITUCIONAL

The Federal Constitution of 1988 advocates justice as the supreme value of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, in the internal and international order, to the peaceful resolution of disputes. We sought to analyze how self-composition has been implemented within the scope of constitutional justice. The study was carried out through bibliographical research and critical analysis. Self-composition has the ability to humanize the judiciary as it encourages dialogue and changes the course of the social culture of litigation, focusing on a more pacifying, conciliatory and dialectical culture. It gives the parties the power to adapt the best solution to that conflict, and it is possible that the solution best suited to the parties may be completely counterintuitive, but it will be the one that will completely extinguish the dispute and, therefore, be the fairest for the parties. Aiming to implement self-composition in processes within its jurisdiction, the Federal Supreme Court published successive Resolutions creating centers for alternative methods of conflict resolution.

La mediación en el ámbito de familia, niñez y adolescencia, como método efectivo para optimizar el sistema procesal en la ciudad de Milagro

Mediation as an alternative method of conflict resolution is recognised in Ecuadorian legislation, that is, in our Constitution of the Republic of Ecuador, in the Law of Arbitration and Mediation, as well as in the Organic Code of Childhood and Adolescence, and other regulations that refer to it. The objective of this study was to determine the effectiveness in the area of family, children and adolescents, as a mechanism to decongest the procedural system in the city of Milagro. The research focused on a mixed, descriptive, explanatory and propositional system that allowed us to understand the procedural phenomenon and to make a proposal with the aim of optimising the principle of procedural speed and economy. In the same way, empirical level methods, methods of analysis and documentary review, theoretical level methods and techniques and instruments such as interviews and surveys were used. For this reason, the proposal was made, which implies the obligatory nature of an act of impossibility of mediation that accompanies the lawsuit, prior to the initiation of a judicial process, which promotes the achievement of amicable, fast and satisfactory agreements, as well as the decongestion of the Ecuadorian justice system, based on factors such as speed, confidentiality and a lower amount of expenses for the processing of the process, and safeguards the welfare and interest of minors. A culture of peace prevails between parties, where an agreement is reached that is centred on their needs, contributing to a fair, equitable and collaborative society.

Mediation and the feasibility of aplication in contraventional processes of violence against women and members of the family nucleus in Ecuador

The Ecuadorian State maintains a legal system with a guarantees tint, which is why it protects the constitutional rights of the legal subjects that inhabit it. However, the Ecuadorian culture itself has been responsible for establishing inequalities, putting women in a situation of vulnerability, causing gender violence that, currently in Ecuador, has increased drastically. Through this research, we seek to analyze the way in which mediation as an alternative method of conflict resolution can help women who are victims of violence without having to exhaust judicial instances, which on many occasions becomes ineffective due to the very nature of these. criminal infractions, as well as due to the procedural congestion that exists within the Judicial Units Against Violence against Women and Members of the Family Nucleus. Through a qualitative research approach, which will allow observing the object of study to determine if it is appropriate and above all the feasibility of mediation as a tool for contravention procedures of violence against women or members of the family nucleus, in order to counteract this conflict quickly and effectively.

Медіація як альтернативний метод вирішення конфліктів у кримінальних справах: світовий огляд

The article discusses mediation as one of the forms of restorative justice. Mediation is a modern way of responding to unlawful behavior without resorting to court. This approach promotes a balance of interests between society, the victim, and the offender. It is noted that mediation in criminal proceedings has a positive aspect associated with reducing the judicial workload, reducing the costs of maintaining convicted individuals. The main goal of using mediation during criminal proceedings is to facilitate dialogue between the victim and the suspect/accused, rehabilitation of the offender, awakening a sense of responsibility in the offender, and providing them with an opportunity to rectify the situation and compensate for the harm caused, with the possibility of further reintegration and rehabilitation. It is stated that in Ukraine, mediation has become increasingly popular and relevant as an alternative to judicial processes in resolving various conflicts. It is emphasized that the lack of proper understanding of the effectiveness and potential of mediation among law enforcement agencies, legal professionals, and the public can be a significant obstacle to the implementation of this conflict resolution method in criminal cases. In addition, special attention is given to the experience of foreign countries, and examples of successful implementation of mediation procedures in criminal cases in Norway, Italy, the United States, and Sweden are analyzed. This indicates that international mediation standards serve as an important tool for resolving legal disputes and conflicts outside the judicial system. The conclusion is drawn that mediation as an alternative method of conflict resolution in criminal cases is an effective and promising approach that takes into account the interests of all parties involved, promotes the restoration of harmony in society, and reduces the burden on the judicial system. The widespread implementation of mediation in different countries confirms its success and importance in modern justice. However, to achieve full success, it is necessary to actively promote this method, ensure compliance of legislation with the requirements of mediation, increase public awareness, and enhance the professionalism of mediators. Mediation can play a crucial role in building a just society where conflicts are resolved through dialogue, understanding, and cooperation.

Mediation in the administrative process

The article is devoted to the issues of the peculiarities of mediation in the administrative process of Ukraine as a kind of alternative methods of conflict resolution, which needs improvement and development, taking into account international norms and national needs.
 It was found that in the process of reforming the judicial and law enforcement system, the issue of simplified dispute resolution procedures became relevant, in particular, we are talking about alternative methods (mediation, negotiations, etc.). This approach will make it possible to relieve the courts, speed up the resolution of disputes and help maintain friendly relations between the parties participating in the mediation process.
 It was emphasized that in Ukraine there are a number of cases in administrative proceedings that can be resolved in an alternative way. Alternative means of resolving administrative disputes will allow dynamic resolution of conflicts, in particular those related to traffic accidents, offenses in the field of labor protection and others, the settlement of which is possible under the legislation of Ukraine through the mediation procedure.
 It is noted that the Law of Ukraine "On Mediation” is in effect in Ukraine, the norms of which determine the peculiarities of mediation in civil, economic, administrative proceedings, in the field of notarial activity, modify social relations and require the use of special techniques, methods and methods of regulating mediation relations in legal processes.
 Attention is focused on the fact that for mediation in the administrative process it is important to observe the norms of ethical behavior, in particular, the mediator's code of ethics. In Ukraine today, the unified rules of ethical behavior of the mediator and participants in the mediation process are not legislated. Such rules are adopted by public associations based on the European Code of Conduct for Mediators.
 In administrative and legal practice, the experience of mediation is new, but, as practice shows, it is promising and in demand. The mediation procedure will help resolve the dispute positively for all parties, saving time and money as much as possible, and will also help the parties remain on good terms with each other.

Postawy aplikantów radcowskich Okręgowej Izby Radców Prawnych w Lublinie wobec mediacji i mediacji online

The phenomenon of popularisation of alternative methods of conflict resolution is widespread in Poland, both at the state and self-government levels. Combining the interdisciplinary achievements of practice and doctrine, numerous projects and programmes are being developed to encourage parties and professional lawyers to use mediation in the process of dispute resolution. However, on the basis of statistical data showing the use of judicial mediation in cases where it could have been used at a level of 1.6%, it should be concluded that there is still a long way to go before mediation becomes a ‘fully-fledged’ method of conflict resolution, constituting a viable alternative to the traditional adjudicative method of dispute resolution. The purpose of the article is to present the results of empirical research conducted by the authors within the framework of scientific activities related to the implementation of the assumptions of the Academic Mediation Centre operating at the Institute of Legal Sciences of Maria Curie-Skłodowska University (Lublin). The article consists of three parts. The first one presents the subject, scope and objectives of the research, as well as the research hypotheses and methodological details. The second part presents the results of the empirical research conducted and the partial conclusions. The last part is a summary of the conclusions of the research carried out.

Поняття та основи правового регулювання інституту медіації: український та зарубіжний досвід

The article is devoted to the concept and legal regulation of the institution of mediation in Ukraine. The authors note that today mediation is one of the most effective ways to resolve conflicts, because the decision made as a result of negotiations or mutual agreement of the parties reflects the true interests of the parties. Modern mediation is one of the methods of out-of-court informal settlement of disputes, such as arbitration, conciliation, arbitration courts, expert evaluation. Mediation can be used both in family disputes and in disputes between large corporations or international disputes as not only an alternative method of conflict resolution, but as the most effective one. The authors, analyzing the concept of mediation, point out that the National legislation contains the definition of the concept of mediation in the Law of Ukraine "On Mediation". The authors note that despite certain differences in definitions, the following characteristic features are decisive for the concept of mediation: the involvement of a third, disinterested, independent person who helps to reach a consensus between the conflicting parties; voluntary participation in the mediation process; confidentiality of the dispute settlement procedure. Also, its non-judicial character is one of the characteristic features of mediation. In the article, the authors note that the adoption of the Law of Ukraine "On Mediation" has its positive consequences, namely: increasing public awareness of mediation as a way of resolving conflicts through negotiations; increasing trust in such an out-of-court method of dispute settlement, thanks to the legal certainty of the mediation procedure, the legal status of the mediator, the rights and obligations of the participants in the mediation procedure, and the outline of the main principles (principles) of its conduct; legalization of the profession of mediator and the corresponding type of activity; determining the mediator's status in interaction with courts, authorities in matters of the mediation procedure; not allowing the mediator to be questioned as a witness regarding the information that became known to him during the participation in the mediation procedure. Legislative regulation of mediation procedures, according to the authors, creates conditions for more active use of this method of conflict (dispute) settlement and their resolution

Psychologists family mediators – reducing the borders of interculturality

Family mediation has become a multiprofessional and multidisciplinary practice, so that mental health and social care professionals such as psychiatrists, psychologists and social workers and even law and justice professionals such as lawyers have been interested and dedicated their studies and research to area. This work is an excerpt from the master's thesis by the same author and was carried out with the aim of giving a little more prominence to Mediation as an alternative method of conflict resolution and also to value and explain its preventive therapeutic character and the importance of being carried out. by a professional Psychologist, in the necessary care of relationships between couples and intercultural parental relationships, as these relationships already face all the difficulties of communication and understanding that go far beyond “knowledge and translation of your partner's language”.

Postrzeganie przez studentów przesłanek Ruchu na rzecz Prawa Kompleksowego. Raport badawczy

The increasing crisis of the public judiciary, associated with the excessive length of court proceedings, the decline in public confidence in the institution and its excessive formalization, encourages the need to seek alternative methods of conflict resolution. According to the author, the answer to the above is the implementation of an innovative legal movement functioning under the name of Comprehensive Law Movement. The above-mentioned movement is based on the principles of positive influence of law, it promotes the development of internal virtues and at the same time revalorizes therapeutic elements in the process of law practice. In view of the multi-faceted nature of the application and social operation of law, holistic lawyers use a range of tools that constitute the modules of the Comprehensive Law Movement, such as Therapeutic jurisprudence, Procedural justice, Holistic justice, Creative problem solving, Preventive law, Collaborative law, Transformative Mediation, Restorative justice and Problem-solving courts. The development of the Comprehensive Law Movement in Poland and Europe is determined by the involvement of the legal communities, the raising of awareness of alternative methods of dispute resolution and appropriate therapeutically-oriented legal education. In order to study the possibility of implementation of the movement’s elements, research was conducted to examine the potential recipients’ attitudes towards the assumptions of the individual modules. The article describes the methods and presents the results of the conducted social research, with an indication of the influence of legal education and predispositions to perform particular legal careers on the acceptance of the various modules of the Comprehensive Law Movement.

El arbitraje como cambio de paradigma para la administración de justicia. repensando la alternatividad desde la adjudicación del derecho


 El arbitraje ha existido desde siempre en nuestra humanidad, pues los aparatos estatales de administración de justicia, en su forma incipiente y como génesis de lo que hoy conocemos, surgieron con la creación de los Estados modernos. Los conocedores de los métodos alternativos de solución de conflictos conciben ahora los mismos con una visión sistémica, pues ellos no están sólo para resolver conflictos de carácter privado sino que muestran un gran impacto social en nuestras complejas sociedades contemporáneas, en las que la justicia alternativa no puede entenderse de forma diferente a ser un ‘instrumento al servicio de la paz y del logro de una mayor y eficaz justicia en las relaciones jurídicas, sociales y políticas. Su alcance va hacia afrontar el tema de la justicia o la eliminación del conflicto que le ha sido presentado. En razón de lo anterior, el arbitraje es cada vez menos considerado como un sustituto de la jurisdicción estatal, ahora es más visto como aquella otra forma de administrar justicia. 
 

Analysis of mediator’s influence on economic efficiency of dispute and conflict resolution

Mediation as an alternative method of conflict resolution has increasingly become the subject of numerous studies. Due to its interdisciplinary nature, mediation can be viewed from the perspective of different sciences. This article analyzes the economic component of the mediator’s role as a key figure in the negotiation process and offers a phenomenological model of economic risks in dispute resolution with his participation.

Foreign experience in the implementation of mediation as an alternative method of conflict resolution (the German example)

The transformation of mediation as an alternative method of dispute resolution in Germany since the XIX century is considered. Particular attention is paid to the analysis of the main stages of the formation of mediation in Germany in order to determine the legal nature of mediation. The legal regulation of the mediation procedure in Germany and the requirements for the mediator are in the Federal Law «On the Development of Mediation and Other Methods of Out-of-Court Dispute Resolution» 2012 codified the legislation on mediation and related alternative dispute resolution procedures. The main ideas of this legal act were: voluntary mediation, autonomy of the will of the parties, full awareness of the parties about the mediation process, the obligation to implement the agreement reached by the parties in the mediation process; ensuring the confidentiality of the mediation procedure; suspension of the statute of limitations for the duration of the conciliation agreement. A characteristic feature of the definitions of "mediation" and "mediator" in the Law is the expression through them of the basic principles of the procedure, such as confidentiality and voluntariness of mediation, responsibility of the parties, neutrality of the mediator. This approach makes German law more concise and eliminates the need to include a separate article listing the principles of mediation. German law does not set requirements for the legal form for the provision of mediation services – it can be both individuals and legal entities. It should be noted that today in Germany mediation competencies are considered as one of the «compulsory elements of qualification" of law students. The priority of consolidating the legal regulation of mediation in the Ukrainian legislation is determined.

Access to justice for consumers in globalized B2C electronic commerce. Myth or Reality?

Today, the ubiquity of the Internet raises the need to study the behavior of consumers and users from a transnational perspective, not even placing them in a region or continent, but as an essential element of world economic development. For this reason, consumer trust in cross-border e-commerce is a challenge for many political and economic global operators. It is therefore essential to create alternative methods of conflict resolution, global and harmonized to ensure the legitimate rights of consumers and users, access to justice in the broad sense, and access to, both individually and collective effective judicial protection. In this paper the concept of access to justice will be analyzed from the perspective of the consumer in e-commerce and its materialization through the Online Dispute Resolution. In particular, the legal implications that it has for cross-border electronic commerce will be analyzed, the fact that the consumer subscribes with the buyer, arbitration clauses, prior to the emergence of the conflict, without the need to be ratified. For this reason, the alternative to a contradictory method complemented with mediation will be studied, different from arbitration but that does not undermine the rights of consumers by undermining their right to effective judicial protection.

Estudio del marco jurídico que rige la solución alternativa de conflictos entre marcas y nombres de dominio .MX

The objective of this article is to analyze, describe and compare the legal framework for alterna-tive dispute resolution between trademarks and .MX domain names, which is subject to a series of international administrative rules, so that they are known, understood, and differentiate the existing legal norms, and at the same time promote the defense of trademark rights against abuse due to the registration and use of domain names in Mexico.The article has been divided in two parts: a substantive part and an adjective part. The first part, the substantive law, is based on the application of the Uniform Dispute Resolution Policy regar-ding domain names and its variant, the Dispute Resolution Policy regarding domain names for .MX, for conflict resolution by domain names in the alternative or extra jurisdictional adminis-trative route, through alternative methods of conflict resolution or controversies in intellectual property matters, which are applied by the conflict resolution the service providers that are accre-dited by the Internet Corporation to the Assigned Names and Numbers (ICANN). The second part, the adjective law, is made up of the procedural administrative rules, which are applied in the case of conflicts over .MX domains and trademarks, this is a series of regulations that establish the procedure that is based on the indicated policies, the regulation of the provider and the regu-lation of the alternative mechanism used in the solution to these conflicts, the Expert decision.The study of the legal norms, which are applied in the Mexican case by .MX domains, is relevant, to expand their knowledge, share their content and establish recommendations for the defense of trademark rights in the alternative route.

Mínima intervención penal en el juzgamiento contra delitos menores: Tutela judicial efectiva y reparación integral

Este artículo de revisión aborda el estudio de las bases teóricas del principio de mínima intervención penal, incidencia y aplicación dentro de los procesos judiciales en casos de delitos menores. En este sentido, es necesario aplicar métodos alternativos de solución de conflictos ante la comisión de delitos de menor relevancia. Por ello, el objetivo consiste en proponer un programa de capacitación sobre los métodos alternativos de solución de conflictos que permita la aplicación adecuada del principio de mínima intervención penal. La metodología científica investigativa parte del paradigma cualitativo, sustentado en métodos tales como análisis y síntesis bibliográficos, así como también histórico lógico e inductivo deductivo. Se concluye que en el Ecuador existe una falta de conocimiento respecto a la adecuada aplicación del principio en mención, lo que conlleva a la vulneración de derechos fundamentales.

Mediation procedure in Ukrainian realities

In the modern world, the mechanisms of self-regulation become especially important, when the subjects of public relations have the opportunity to independently establish rules of conduct and monitor their observance. The growth of activity and responsibility of participants in civil turnover allows the state to delegate part of its powers in certain areas to civil society institutions. Reconciliation of the parties is one such institution. Today in Ukraine, court proceedings and other jurisdictional mechanisms for reviewing and resolving disputes are the main ways to protect violated rights, freedoms and legitimate interests. However, there is no denying that in today's conditions of formation and dynamic development of civil society, they are often not effective enough. Participants in disputed legal relations are becoming increasingly interested in selfsettlement of disputes arising between them. One of the alternative methods of conflict resolution is mediation. Mediation, as an effective method of pre-trial settlement of disputes, is recognized by the European Community, which recommends its introduction as the main method of alternative dispute resolution at the pre-trial stage and during court proceedings. Mediation procedure, as an effective method of pre-trial settlement of disputes, is relevant for almost all types of legal relations, but unfortunately is not always used, due to the fact that for a long time there was no relevant legislation that could clearly and effectively to settle relations in the field of mediation. On July 15, 2020, the draft Law on Mediation was adopted in the first reading. will provide an opportunity to unload the judiciary and provide a mechanism for the implementation of protection of fundamental human and civil rights and freedoms in our country, as in a modern European state. The scientific work determines the correct use of the mediation procedure and its implementation to today's Ukrainian realities.

Mediation as an alternative method of conflict resolution: A practical approach

Mediation as an alternative method of conflict resolution: A practical approach

MEDIACIÓN COMUNITARIA AL CUMPLIMIENTO DEL ACCESO A LA JUSTICIA COMO OBJETIVO DE DESARROLLO SOSTENIBLE

El presente artículo es producto de una revisión bibliográfica, cuyo objetivo está orientado al análisis de los Objetivos de Desarrollo sostenible, en particular a lo referido a la garantía del acceso a la justicia con igualdad desde los métodos alternos de solución de conflictos, especialmente la mediación comunitaria y la relación con el derecho al acceso a la justicia. Se aplicó el método de análisis documental, con enfoque cualitativo, diseño no experimental, bajo un nivel documental-bibliográfico transversal. Tras la revisión documental se observó que: existen ordenamientos jurídicos nacionales e internacionales y programas en Latino América que regulan la función y practica de la mediación comunitaria como instrumento de solución pacífica de los conflictos en la comunidad. Se concluye que la mediación comunitaria contribuye a crear ciudadanía, participación inclusiva de las personas, desarrollar la cultura de paz en las comunidades y dar cumplimiento al derecho de acceso a la justicia.

Agreements on Alternative Methods of Conflicts Settlement: Their Legal Essence and Advantages

Introduction. In the article the legal nature of agreements on alternative methods of settlement of the conflicts is analyzed. The terminological problem of use of various categories connected with alternative settlement of the conflicts is considered. The author claims that the agreement under consideration has civil character, and is directed to change of the general order of protection of the subjective civil rights of contractors. The article proves that the conclusion of the designated agreement has essential advantages to contractors since it allows them to save time and money, to keep partnership, confidentiality and to choose a professional intermediary.Materials and methods. The theoretical basis of the research rests on the works by the Russian and foreign researchers in which various methods of alternative conflict settlement are considered. In particular, the terminological issues concerning the use of the term «alternative methods of settlement of disputes» are analysed by Davydenko D.L. The works of the Russian(Inshakova A. Oh, Kazachenok S. Yu., Sevastyanova, TymchukYu.A., etc.) and foreign (Brown J., Harvey K., Kovick D., Susskind E.L.) researchers are devoted to current trends of development of alternative methods of conflicts settlement. The complex research of the existing alternative mechanisms of settlement of disputes is presented in the works «Ways of settlement of disputes in different law systems » (by Artemyev Yu.A., Ermakov E.P., Kovyrshin N.A., Rusakova E.P.), «Alternative mechanisms of settlement of disputes as the instrument of formation of the favorable environment for business activity (evidence of Russia and foreign countries)» (editor-in-chief N.G. Semilyutin. M). At the same time, it is necessary to state that there is a lack of the scientifc works exploring the issues of agreements on alternative methods of conflict settlement. The study used both general scientifc methods (dialectical method of cognition, analysis, synthesis, etc.) and particular scientifc methods (formal legal, logical, etc.) of scientifc cognition.Results of a research. As a result of the analysis, the author’s defnition of the category “agreements on alternative methods of conflict resolution” was formulated, the essential features of the agreements under consideration were identifed, and the advantages of their conclusion were justifed. The author argues that agreements on alternative methods for resolving conflicts are of a civil law nature, and, accordingly, constitute a specifc type of contract (agreement on the use of a conflict resolution complaint procedure, arbitration agreement, mediation agreement).Discussion and conclusion. The need to develop the corresponding practical recommendations is proved taking into account the advantages of the conclusion of agreements to use the alternative methods of conflicts settlement. It is emphasized that the existence of evidence-based practical recommendations about the conclusion of agreements acts as one of the factors ensuring the effectiveness of their realization.

THE INTRODUCTION OF ARBITRATION WITHIN THE BRAZILIAN LEGAL CONTEXT

The present article analyzes the introduction of arbitration as an alternative method of conflict resolution within the Brazilian legal context. In this sense, after a preliminary remark on the origins and concept of arbitration, this text focuses on the construction of the institute of arbitration within Brazilian legal framework. Thus, the aspects regarding the enactment of Law No. 9.307/96 are examined, especially concerning the requisites for the establishment of an effective arbitral convention. Finally, the structure of the law in regard to pre-arbitration facts, such as parties’ autonomy and the choice of applicable laws, and the arbitration per se as to the execution of the clause and the aspects concerning the delivery of the award are studied. As a result, the importance of the introduction of such Law it is noticed, as it deeply changed Brazil’s legal framework regarding the arbitral convention, making a more palpable and viable method of solving disputes nowadays.