Mediation Agreement Research Articles

Institute of Mediation: current state and development prospects.

This article analyzes the current state of the institution of mediation as an alternative method of resolving disputes and possible ways of its development. The most important problems of mediation that exist at the current stage of its development in the Russian Federation are studied. Among such problems, the author highlighted the insufficient level of professional education of mediators and the process of execution of the mediation agreement. Attention was also drawn to the lack of awareness among civil society participants of the nature and essence of the mediation procedure. The author conducted a study of an array of statistical data on the use of mediation procedures for the previous period 2014–2022. Based on these statistics, as well as gaps in legislation, the main conclusions of this work were drawn, aimed at the evolutionary development of the covered institution. The author’s main conclusions based on the results of the research are: the need to legislatively establish in the Law on Mediation the required level of additional education for professional mediators and, possibly, the type of document that confirms this education; legislate the principle of competence in the professional activity of a mediator (by analogy with the communities of lawyers and notaries); the need for further regulation of rules to guarantee the execution of a mediation agreement by contacting a notary; the introduction of the above innovations will resolve another problem – it will increase awareness of the essence of mediation and its significance in the eyes of potential participants in the procedure, and increase confidence in the mediator as a professional conciliator. The author also put forward a proposal to introduce a mediation procedure in disputes about the protection of consumer rights (within the framework of online trading on marketplaces), which will reduce the burden on the judicial system.

Mediation and judicial conciliation in family disputes in Russia: Issues and perspectives for development

The article considers the factors influencing Russia’s insufficient spread of mediation and judicial conciliation. It is substantiated that eliminating these factors will contribute to the development of conciliation procedures. The article aims to analyze the factors influencing the insufficient spread of mediation and judicial conciliation in Russia and offers ways to overcome them. The authors applied formal legal analysis to investigate the legal regulation of mediation and judicial conciliation. A systemic approach was used to address the mediation and judicial conciliation issues in Russia and offer ways to solve them. The article gives examples from court practice illustrating positive results in the form of concluded amicable and mediation agreements with the court’s assistance in achieving reconciliation by the parties to the dispute and studies the terms of amicable agreements. It also substantiates the ability of family disputes to be resolved by mediation and reveals procedural violations, which courts allow when approving amicable agreements

The notarial mediation as an alternative way of resolving legal disputes in the Russian Federation

Mediation technologies are one of the alternative ways to resolve judicial disputes, and extrajudicial methods to resolve legal conflicts are a priority and promising direction. The mediation institute affects many aspects of social relations and is relevant in foreign legal orders and the Russian Federation. This paper aims to analyze the concept of notarial mediation as an alternative way of resolving legal disputes in the Russian Federation, define the issues related to its implementation, and further perspectives on its development. A set of methods was used to achieve the aim of the paper. Thus, the authors applied a systemic approach to study the implementation of the concept of “notarial mediation” in the Russian Federation. Also, comparative legal analysis was used to address the development of the concept of notarial mediation in different countries from a comparative perspective. The authors concluded that notarial mediation in the Russian Federation, one of the methods of out-of-court reconciliation, is becoming increasingly popular and in demand as an institution of dispute resolution with the help of a notary and a mediator (conciliator). Participation of a notary in the certification of the mediation agreement on the results of the mediation procedure guarantees the legality of the agreements reached and gives the mediation agreement executive force.

Restorative Justice Under the Legislation of The Republic of Kosovo

Objectives: Restorative justice is also recognized and applied in Kosovo legislation and practice. As a process of involvement in the agreement of the perpetrator and the victim, always with the commitment and support of the mediator, its goal results in the achievement of compensation in relation to the victim. Therefore, its main goal remains the restoration of justice and the elimination of the damage caused as much as possible. Methods: To achive the state objective in this scientific paper, I will use a legal-normative method, statistical method. Result: In addition, we must emphasize that mediation as an alternative procedure for resolving disputes between subjects, namely as an extrajudicial activity, offers the possibility not only of solving the presented problem quickly, but at the same time is a direct contributor of creating a relaxing relationship between the parties involved in this whole process. Conclusion: In a conclusion restorative justice has a wide application in the legislation in force in the Republic of Kosovo in the criminal field and the application of restorative justice is being implemented more and more, because it is showing a legal effect for many reasons; the parties are not taking much time in solving their cases, the parties are free to choose the mediator and the they are free to decide where the meetings will be held, and the other advantage is that the mediation agreement has the legal force of a judicial decision and produces legal effect and is enforceable

Charakter prawny umowy o mediację i jej zakres w indywidualnych sprawach z zakresu prawa pracy

The purpose of this article is to present one of the grounds for initiating mediation in individual labor law cases and the subject of consideration will be the issue of indicating the form and elements of the mediation agreement and the rules of mediation that affect the concluded mediation agreement, and, above all, indicating its legal nature. In addition, the subject of consideration will be the issue of indicating the rules of mediation that affect the concluded mediation agreement.

Research on the Judicial Confirmation Procedure of Civil Mediation Agreements

After the revision of the Civil Procedure Law of the People's Republic of China in 2021, the scope of application of judicial confirmation has been expanded, but the effective application of this procedure has not been increased from the actual effect. As a non litigation procedure, it plays an irreplaceable role in the context of the reform of complex and simple separation and the establishment of a sound and diversified dispute resolution mechanism. However, since its establishment, this procedure has been controversial in terms of its nature, effectiveness, and other issues. Although it was ultimately included in the Civil Procedure Law as a non litigation procedure, there are still many shortcomings in its legal norms in terms of application subjects, initiation methods, review standards, etc. Analyze the inherent legal support and practical difficulties of these issues, and improve the connection between moral governance, rule of law, and social governance. The trinity of judicial confirmation procedures maximizes the release of the value of judicial confirmation procedures, which is of great significance for promoting the development of mediation systems, thereby promoting the governance of litigation sources to alleviate court litigation pressure, and improving diversified dispute resolution mechanisms.

ON THE QUESTION OF THE NECESSITY TO EXPAND THE LIST OF EXECUTIVE DOCUMENTS (IN CASE OF OUT-OF-COURT SETTLEMENT OF DISPUTES)

This article is devoted to the issues of improving the current legislation of the Republic of Kazakhstan in the field of enforcement proceedings in terms of expanding the list of enforcement documents. As is known, the executive document, due to its qualities endowed by law, represents the basis for the commencement of enforcement proceedings. Currently, the problem is that the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs”, while establishing a closed list of enforcement documents, does not provide for the inclusion in this list of other types of documents that at the present stage of development of legislation could be considered as enforcement documents, having the force of enforcement and which could simplify civil circulation and the procedure for restoring the subjective rights of individuals. Thus, the purpose of this article is to consider the need and possibility of expanding the range of executive documents. The article analyzes the norms of legislation of the Republic of Kazakhstan, as well as international agreements governing executive documents. The author, using the method of analysis, the formal legal method, methods of systematization and modeling makes a conclusion as a result of the research, about the need to improve the legislation of the Republic of Kazakhstan in the field of enforcement proceedings in terms of the rules governing executive documents by including a mediation agreement, notarized agreement about resolving a dispute by negotiations, agreements on the payment of alimony, decisions of the conciliation commission and labor arbitration, as well as decisions of the Eurasian Economic Commission into the list of executive documents.

The relevance for the institute of mediation in modern Russia

The article considers the problem of the relevance for the institute of mediation in Russia. Statistical data for the country concerning 2020 are presented and data for the Rostov region to the same period are analyzed. A comparative analysis is made with data for the same period in the Sverdlovsk region. The information and empirical base of the study consists of materials from: the website of the Judicial Department at the Supreme Court of the Russian Federation; the Association of Mediators of the Rostov region “Reconciliation”; “Reconciliation Rooms” in the Arbitration Court of the Sverdlovsk region. The methods of content analysis, statistical analysis, in-depth interviews, and a mass survey conducted among the employed population of the Rostov region aged 21 to 30 years were used. The study revealed: low awareness of respondents about the possibilities of using the mediation procedure, its structure and features; low level of modern mediation practice in the country. It is shown that in Russia today the courts are inundated with lawsuits, while mediation could well constructively solve many social problems. The necessity of creating favorable conditions for the development of mediation activity and its popularization is substantiated. The main reasons preventing the institution of mediation from becoming a popular activity among the population are identified: a low culture of conflict resolution, which in some cases leads to the avoidance of disputants from finding a suitable way to resolve it; a factor of insufficient confidence in the possibility of resolvinga dispute involving a third party. It is concluded that the lack of trust is primarily due to insufficient awareness of the population about the essence of the mediation procedure, about the legal status of the mediation agreement, which in the case of notarization has the force of an executive document. The wider use of all types of media, the increase in online platforms with the location of mediation webinars conducted by experienced specialists in this field will help spread the practice of mediation and will contribute to its early institutionalization.

Нотариально удостоверенное медиативное соглашение: вопросы правовой природы и исполнения

The article discusses the nature of a notarized mediation agreement and the features of its execution. It is shown that the mediation agreement has the status of a civil law transaction, contract, and does not have public law properties, including enforceability. The properties of a mediation agreement are analyzed in terms of its notarization. It has been established that indisputable, out-of-court execution is possible only in relation to those notarized mediation agreements that regulate property relations. The absence of an alternative nature of a notarized mediation agreement was stated, which does not prevent its parties from applying to the court with identical requirements. The procedure for considering disputes arising from notarized transactions, in the order of writ proceedings, has been criticized due to its inefficiency. It is proposed to establish the indisputable execution of all types of notarized mediation agreements, and to fix the presence of a notarized mediation agreement as a basis for refusing to accept a statement of claim containing identical requirements. It is recommended to review the status of notarized agreements as evidence in the civil process.

Медиативное соглашение как исполнительный документ

The article deals with the problem of using notarized mediation agreements or their notarized copies in enforcement proceedings. Based on the results of the study, conclusions were drawn about the need to improve the legislation on enforcement proceedings, for example, in terms of setting the deadline for the presentation of a notarized mediation agreement for execution.

Судебная власть в системе защиты частных и публичных прав в условиях реализации антикризисных мер

The ways of improving the civil procedural and arbitration procedural legislation in order to improve the anti-crisis measures taken by the state are considered. It is proposed to exclude the possibility of both extrajudicial and judicial reconciliation of the parties to public law conflicts. It is shown that the mandatory pre-trial (claim) procedure for the settlement of civil disputes needs regulatory regulation and the consolidation of clear criteria for determining the proper fulfillment of the obligation to resolve the dispute. It is recommended to fix the presence of a notarized mediation agreement as a basis for refusing to accept a statement of claim. The legal uncertainty of the category “economic activity” is noted, which negatively affects the delimitation of the competence of courts of general jurisdiction and arbitration courts. It is proposed to strengthen the functions of the prosecutor in arbitration proceedings.

NOTARIZATION OF A MEDIATION AGREEMENT: ANALYSIS OF THE AGREEMENT’S CONTENT

The article is devoted to the procedure for performing a relatively new notarial act - notarization of a mediation agreement. The authors propose to distinguish two components when performing this notarial act: analyze compliance with the procedural conditions for concluding a mediation agreement and check the legality of the content of the mediation agreement. This article is devoted to the second of these components. When checking the legality of a mediation agreement, it is proposed to analyze it from three positions: 1) compliance with the legislation on mediation; 2) compliance with the rules of substantive law applicable to legal structures included in mediation agreements; 3) compliance with the requirements for enforcement documents in accordance with the legislation on enforcement proceedings. In addition, the article discusses changes in legislation that are under consideration by the State Duma of the Russian Federation and are devoted to the notarization of mediation agreements.

NOTARIZATION OF MEDIATION AGREEMENT: PROCEDURAL CONDITIONS

In 2019, amendments were made to the Fundamentals of the Legislation of the Russian Federation on Notaries, which expanded the list of notarial actions. In particular, such an action as notarization of a mediation agreement has appeared. At the same time, the legislation on enforcement proceedings and the law on mediation were changed. The authors propose to distinguish two components when performing this notarial act: analyze compliance with the procedural conditions for concluding a mediation agreement and check the legality of the content of the mediation agreement. This article is devoted to procedural conditions; the authors indicate what exactly the notary should check in relation to the mediator and the mediation procedure. The article discusses documents confirming the requirements for the mediator, compliance with the rules of the mediation procedure, and also indicates circumstances that can only be established on the basis of the assurances of the parties

BENEFÍCIOS ECONÔMICOS DA MEDIAÇÃO EMPRESARIAL NO CENÁRIO BRASILEIRO

ABSTRACT This study aims to measure the economic benefits of business mediation in Brazil compared to lawsuits, investigating whether choosing mediation to resolve a business conflict is more economically advantageous than filing a lawsuit in the judiciary and whether opting for extrajudicial mediation to settle a business dispute is more economically advantageous than reaching an agreement in judicial mediation. The research, conducted in the Southeast region of Brazil after the implementation of the Brazilian Code of Civil Procedure in 2016, employed quantitative methods, analyzing 397 judicial processes. The results indicated that extrajudicial mediation is the most cost-effective option, while the judicial lawsuit is the most costly. This article provides essential information for businesses to make informed decisions in the resolution of business disputes

The legal view of out of court mediation agreements becomes the object of Nebis in Idem in court

The principle of ne bis in idem in the procedural law of the Constitutional Court is found in Article 60 paragraph (1) the Constitutional Court Act, in the form of a prohibition to re-trial the previous norm been tested. Different from the Criminal Code and the Civil Code that determines the clear element ne bis in idem, Article 60 paragraph (1) contains only one element form of testing objects. This study addresses two issues: how characteristics of the principle of ne bis in idem, and what are its elements in the procedural law of the Constitutional Court? Normative juridical research methods used to understand the principle of ne bis in I mean, elitist. Adoption of the principle of ne bis in idem in MK procedural law resulted in a broad philosophical shift and did not result in his death the legal position of the applicant and the legality of the object that can be prosecute Based on the systematics of the decision, the Constitutional Court put the proposition ne bis in idem on Conclusion, so it is not a verdict amar. While the conclusion is part of the legal consideration contains an analysis of the subject matter of the case, so it is not possible to generalize the decisions of the court on the case ne bis in idem as a negative verdict. In the case of the bus, the law the constitutional court event is supported by several norms, but the Constitutional Court law contains only two elements in the form of an object of law and a subject-legal relations. While the elements the third form of legal developments found in the decision of the Constitutional Court. Because not disruption of the legal status of the applicant and the legality of the object that can these three elements are not accumulative, which is the element the development of law is more determinant than the other two elements. Aftermath actualization of constitutionality does not only occur through positive decisions grant the application of the applicant, but also occurs in the case being assessed nebis in idem. This study is a type of normative juridical research, namely the type of research by using the provisions of laws and doctrines or principles in the science of law.36 nature of this study is normative juridical is qualitative research that refers to legal norms contained in various laws and rulings court. The author connects the data with other data and analyzed based on the provisions of applicable law, then draw conclusion by deductive means that draw conclusions from things general to specific. Furthermore, the results of the analysis will the authors associate with the problems in this study to produce a objective research that answers the problems in the study. Specifications research conducted by the author is research descriptive analytical. Descriptive analytical research which means this study describe a particular object and explain things related to or describe systematically related facts or characteristics of the population certain in certain areas factually and carefully. Through research descriptive, researchers tried to describe the events and events that become Research Center without giving special treatment to the event. The findings of this paper are that there is a need to expand the meaning of the application of the Nebis in Idem principle as referred to in the Circular Letter of the Supreme Court of the Republic of Indonesia number 3 of 2022 concerning the handling of cases related to the Nebis in Idem principle by including a clause that "the object of a mediation peace agreement outside the court becomes part of the application of the Nebis in Idem principle so that the aquo object (which has been agreed outside the court through mediation) can no longer be used as an object for a lawsuit in court (expansion of the meaning of the application of the Nebis in Idem principle).

On the Validity of Administrative Mediation Agreements in China

On the Validity of Administrative Mediation Agreements in China

MEDIATION THROUGH THE PRISM OF TIME. GENERALIZATION OF LEGAL POSITIONS, ANALYSIS OF PROBLEMS OF MODERN PRACTICE

The article is a generalization of legal positions and focuses on the problems of modern practice. The author analyzes the historical development of mediation with the participation of intermediaries, summarizes gaps in existing legislation and suggests ways to solve them. The author concludes about the prospects for the development of mediation agreements with the participation of notaries.

Sporazum o poravnanju iz medijacije prema Singapurškoj konvenciji kao instrument prekograničnog restrukturiranja

Since its adoption, the UN Convention on Mediation has been signed by 58 states. It provides an important legal framework for resolving commercial disputes and allows for the cross-border enforcement of such agreements. The less formal, less expensive, and more confidential nature of the process makes its use even more attractive to potential parties compared to other instruments. Once a settlement agreement is reached, the Convention also enables the parties to enforce it without the need for complex recognition proceedings. Due to these characteristics, mediation can be used as an instrument for restructuring and preventing insolvency. The purpose of this paper is to highlight the advantages of using mediation in cross-border restructuring under the rules set by the UN Convention on Mediation. The authors analyze the application of mediation agreements in practice throughout each stage of the process, as well as the advantages and disadvantages of mediation and their effects on cross-border restructuring proceedings. This paper employs dogmatic, normative, comparative, and case study methods.

A SETTLEMENT AGREEMENT AND A NOTARIZED MEDIATION AGREEMENT AS THE RESULTS OF RECONCILIATION IN ECONOMIC DISPUTES

The article analyzes the legal nature, content, procedure and consequences of approving a settlement agreement by a court and certifying a mediation agreement by a notary, as well as the range of cases in which these reconciliation results can be used. Based on the results of the study, proposals are formulated to improve arbitration procedural legislation and legislation on notaries.

On the Validity of Administrative Mediation Agreements in China

On the Validity of Administrative Mediation Agreements in China