Mediation Agreement Research Articles

ПРОБЛЕМЫ СУДОПРОИЗВОДСТВА ПО ДЕЛАМ О РАЗДЕЛЕ ИМУЩЕСТВА СУПРУГОВ В РОССИЙСКОЙ ФЕДЕРАЦИИ

The article analyzes the issues of interpretation and application of legislation regulating the disposal of the common property of former spouses. The main idea of the article is the absence of social and economic prerequisites for the current legal practice of changing the procedure for disposing of the common property of former spouses after divorce, but before the division of property between them. This gap in the legal regulation of the procedure for disposing of the common property of the former spouses creates a disproportion in the degree of protection of the property interests of the former spouses and thus leads to a significant violation of their property rights. The latter, in turn, leads to a significant violation of the fundamental principle of family law of the Russian Federation - the principle of equality of spouses. The article considers the procedure for the division of spouses' property for different regimes of common property (both during marriage and after its dissolution). If the spouses could not come to a mutual agreement on the division of property, then the division will be carried out in court. The author analyzes the difference between a marriage contract and an agreement on the division of property between spouses, the establishment of a regime of common joint and common shared or separate ownership. Novels about digital notaries allow spouses to avoid conflict in the division of jointly acquired property. In addition, the article discusses the conclusion of a mediation agreement on the division of jointly acquired property between spouses as a result of the application of the mediation procedure as an alternative settlement of the dispute.

ФОРМИ АДМІНІСТРАТИВНОЇ ДІЯЛЬНОСТІ МЕДІАТОРА (МЕДІАЦІЙНА УГОДА)

Current trends in the system of public relations indicate the development of innovative technologies in management, in turn, the widespread introduction of information and communication technologies stimulates further work on the maximum availability of administrative services. One of the topical issues of modern Ukrainian jurisprudence is the issue of settlement of social relations that were formed during the last period of development of the Ukrainian state - the period of independence. These processes were accompanied by the replacement of Soviet models of society, the adoption of positive world experience, the ratification of international regulations, the rules of which were gradually implemented in the Ukrainian system of law and legal relations. In fact, the article is devoted to one of such issues - the administrative and legal aspects of the activities of mediators, as well as the forms in which it is carried out. The establishment of the institute itself stimulated research on mediation by specialists in various fields of scientific knowledge, and falls in the second half of the XX - early XXI centuries, but within the national legal system, and therefore research of this institute in Ukraine intensified in the late 1990s and are of great relevance today. This is due to systemic transformational changes in society, the formation of information, democratic, legal society, reform of public administration, the judiciary, decentralization processes and more. Mediation is one of the forms of resolving administrative and legal disputes. To achieve this goal it is necessary to implement the following tasks: to explore the categorical meaning of the concepts "forms of administrative activity", "mediation agreement", "mediator"; to formulate own vision of problems of forms of administrative activity of the mediator. The formation of a clear understanding of the basic categorical apparatus and mechanisms for the implementation of norms in the field of mediation is the key to further development of this institution in our country. The study found that mediation is the best way to resolve conflicts as the most acute contradictions, based on modern research of society, the state, aimed at the development of civil society institutions. This type of dispute resolution is currently gaining popularity in the world. The analysis of the situation in the field of mediation in Ukraine makes it possible to identify a set of problems that require further regulation, the formation of quality human resources, ie entities that provide mediation services.

Gray Peace: Is Part of a Peace Sufficient?

Abstract Completed negotiations often end in shortfalls, half glasses, and way stations. Is that enough to claim success and is a half-loaf sometimes sufficient? The nine articles in this thematic issue examine various forms of incomplete negotiations, from a full-worded agreement that is bypassed, through a formal ceasefire, an agreement among only the agreeables, a mediated but non-transforming agreement, a confidence-building agreement, and finally, claimed resolution that drives violence underground. Sufficiency has different meanings in each case, but generally refers to making some progress in handling the conflict, whereas insufficiency refers to not making progress at any level that is lasting.

How Buddhism Plays a Role through Victim-Offender Mediation in Handling the Challenges of Crime in China’s Tibet

Religion plays a significant role in the way Western societies respond to criminal offenses. However, the research on how religion plays a role in handling the challenges of crime in non-Western countries is lacking. In this study I try to close this research gap by analyzing the victim-offender mediation in China’s Tibet, where influenced by religion, history and culture, a set of local solutions to control criminal offenses have traditionally been formed. Based on the field survey and second-hand information, I discuss how religious factors play a role in local victim-offender mediation in terms of the basis for mediation, mediator, mediation tactics, and guarantee for mediation agreement. While Buddhism acts as a form of self-control over the adherents of Buddhism, it works as a form of social control as well. Buddhist lama as the main mediator strategically uses Buddhist principles as mediation tactics in victim-offender mediation. After the mediation agreement is reached, religious ceremony is usually conducted as a guarantee. In conclusion I summarize the possible contribution of the research findings to the basic issues of restorative justice.

The enforceability of mediation clauses: A critical analysis of English case law

This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than the latter, which leads to frequent refusals to enforce mediation clauses in situations where enforcement should be granted. These decisions discourage parties from agreeing to multi-tier dispute resolution clauses providing for preliminary mediation, thus undermining the general policy favouring the use of alternative dispute resolution (ADR) mechanisms. Moreover, judicial discretion in deciding whether to give effect to a valid mediation agreement is unjustified and exercised on the basis of questionable considerations.

Mediation as an Alternative Form of Dispute Resolution: Comparative-Legal Analysis

The article under studies surveys the system of methods of alternative dispute resolution (ADR). It presents the definition of such structural concepts of ADR as negotiations, mediation, judicial conciliation, and arbitration. Particular emphasis is laid on the peculiarities of applying the ADR institutions in Ukraine and European countries, as well as on their advantages and disadvantages. To carry out a comparative-legal analysis of the alternative forms of dispute resolution, there has been developed a special system of indicators. The latter aims to assess the effectiveness of the ADR institutions.These indicators are: availability of the procedure; possibility to enter and leave the ADR process; public or private nature of the procedure; conciliatory and competitive nature of the procedure; conducting the procedure out of court or in court; presence of an intermediary in the ADR procedure; taking final decision on the dispute directly by the parties or a third party; freedom to choose a mediator in the dispute; substantiating the decision on the dispute on formal or informal norms, rules, standards; opportunity to go to court in case the decision is impossible to enforce; recognition of the dispute as the one being resolved; intermediary’s fee; cost and time saving. Relying on the comparative-legal analysis of the alternative forms of dispute resolution, it has been determined that most of the comparative advantages belong to the institution of mediation. However, there are a number of shortcomings that hinder the effective functioning of the institution of mediation. Among them are insufficient requirements for the mediator's competencies and lack of mechanisms for fulfilling the terms of the mediation agreement. Taking into account the existing drawbacks that hinder the effective development of the institution of mediation, the article offers a number of institutional innovations.They include: legislative establishment of the norm on the procedure of executing the mediation contract; enhancing the qualification requirements for the mediator (mandatory higher legal education); adoption of the law on mediation; consequently, introduction of amendments to material and procedural legislation regarding mediation procedure by means of remote (distance) regulation of legal disputes and actions that accompany this process with the use of special technical facilities (videoconferencing, electronic digital signature, electronic document management, electronic payments, etc.). In addition, the article singles out the main peculiarity of the institution of mediation, which favorably distinguishes it from other ADR institutions - humanism (human-centrism). Unlike mediation, other ADR institutions (negotiations, judicial conciliation, arbitration) are marked with a factual and mostly competitive procedure. Mediation, due to its being rather human than factual oriented, as well as because of its being focused rather on conciliation than on competition, has a wider range of opportunities to better meet the requirements of the parties to the dispute. The main asset of mediation is its high potential to unite the parties, to continue their business and social communication after the resolution of the dispute. The latter integration potential favorably distinguishes mediation from all other forms of alternative dispute resolution and, at the same time, indicates positive external effect (externalia), which lies in uniting society.

Защита права и примирение сторон: проблема понятий и соотношения

The article analyzes the concept of legal protection, reveals its features. A distinction is made between protection of law and protection of law. Self-defense of civil rights is investigated. It is shown that self-defense is not an independent method of legal protection, since its result is not guaranteed by the state, and self-defense measures can be qualified as an offense. The concept and grounds for concluding an amicable agreement are revealed. It has been proved that amicable agreements can be concluded only in cases of a private law nature. Settlement agreements in public-law conflicts are allowed by the current procedural legislation, but they can be a means of committing corruption offenses. The author distinguishes between an amicable agreement as a procedural act and agreements on conciliation concluded out of court and having a civil law nature. Mediation is investigated as an out-of-court procedure for resolving civil conflicts. It was proposed to supplement the requirements for the candidacy of mediators with an indication of the obligatory presence of a higher legal education. It was also proposed to supplement the procedural legislation with sections on the procedure for challenging mediation agreements and on the issuance of writs of execution on them (by analogy with the decisions of arbitration courts), as well as an indication that the presence of a mediation agreement concluded by the parties is grounds for refusing to accept the statement of claim and for terminating proceedings on the case.

The Implication of the Interim Measures Issued by Arbitrator (A comparative analysis)

Article 173 of the Kuwaiti Arbitration Act, as a general principle, preserves the authority to issue interim measure to the court. By the language of Article 173, it can be inferred that the legislator intended to imply a number of legal prohibitions. The language of exception in Arabic legal text reflects the following norms, first: the exceptional law should be narrowly interpreted to avoid any incompatible meaning which conflicts with the general intention of the legislator.  Second, it cannot be relied on in a comparative analysis to examine the legality of similarly situated issue. For instance, if the parties drafted a mediation agreement, they cannot consent to allow the mediators to issue interim relief relying on the permissibility contained in Article 173. Hence, the Arbitration Act adopted the ‘duality principle’ which enables courts to issue any type of preliminary relief notwithstanding parties’ consent to confer this power to the arbitral tribunal. The problem is that the law does not address whether the interim relief issued by arbitral tribunal should be enforced or whether cannot be appealed, therefore the matter cannot be litigated again. This article will trace the arbitration law approach of Kuwait, in a comparative method, in relation to the applicability of the interim measures to the resolution of the final dispute. This study will attempt to answer the question of whether the arbitrators can grant this type of relief and whether this type of orders can be enforceable according to the convention.

Notarization of a Mediation Agreement as a Way to Implement and Protect Consumer Rights Mediation Services

Тhe article provides a comprehensive assessment of the new legislation on the introduction of the Institute of notarial certification of a mediation agreement as a result of mediation services. The authors come to the conclusion that it is necessary to introduce new rules for certifying mediation agreements, while identifying the problems of the procedure and rules for notarizing mediation agreements as a way to implement and protect the rights of consumers (parties to the dispute), the legal status of the mediator as a person responsible for conducting mediation services, and the inclusion of agreed terms in the mediation agreement. Elimination of the identified problems and suggestions of ways to overcome them will allow the new institution to develop and become an effective tool in ensuring the implementation of mediation agreements.

Contract as a Basis for Mediation Confidentiality

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

A legal analysis of labour dispute prevention and resolution under individual employment law in Zambia: Willard Mutoka v Chambeshi Water and Sewerage Company Limited (Comp. IRCLK/382/2018)

This case note is a legal review and analysis of Willard Mutoka v Chambeshi Water and Sewerage Company Limited, a Zambian case relating to a labour dispute under the individual employment law sphere. The authors/reviewers herein were retained as counsel for the respondent company in the matter in casu. Appreciating that Zambia has both individual and collective labour dispute prevention and resolution mechanisms, the authors/reviewers in consultation with all parties involved opted to pursue the alternative dispute resolution approach under the High Court for Zambia (Amendment) Rules, 1997 (Court-Annexed Mediation Order XXXI Rule 4), instead of litigation, resulting in the faster, cheaper and final settlement of the case in full satisfaction and accord of both parties as discussed hereinafter. Unlike arbitration awards which are conclusive and final, mediation agreements or settlements need to be registered in the courts for them to be recognised as binding.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

МЕДІАЦІЯ ЯК АЛЬТЕРНАТИВНИЙ СПОСІБ УРЕГУЛЮВАННЯ КОНФЛІКТІВ У БІЗНЕСІ

This article analyzes the possibilities and features of the implementation of mediation at the enterprise. The main prerequisites for the emergence of conflict situations in business have been established. Proposals have been developed for the use of mediation methods at the enterprise for the settlement, prevention of corporate conflicts and disputes, as well as for improving the company management process. The mediation procedure is characterized by an effective way of reconciling the parties. Mediation helps not only to resolve a dispute, but also to analyze the relationship between people, to find out the emotional side of the conflict, which is often a key factor in a dispute. The advantages of using mediation in business disputes are determined. A comparative analysis of the judicial procedure and the mediation process was carried out and the significant advantages of the latter over the first in resolving disputes and conflicts at the enterprise were revealed. In general, Ukrainian society is ripe for settling this area. The adoption of the Law on Mediation is currently necessary for two important reasons: to create an effective mechanism for the operation of the Convention, and to provide citizens with understanding and certain guarantees regarding the use of this procedure. But it is also widely believed in Ukraine that the mediation agreement will not be implemented. Some people think that a court decision with a wet seal is more reliable than any agreement. Thus, it can be unequivocally stated that mediation is enshrined in law in almost all developed countries and is successfully used there. As a rule, when the Ukrainian judicial system is discussed in Ukrainian society, the society immediately complains about the imperfection of the law, deliberately "delayed" trials, corruption in the courts and in general in all government agencies. Under such conditions, there is a need for out-of-court (alternative) means of resolving disputes and conflicts. To meet such societal needs, the mediation procedure is an ideal alternative to litigation. Meanwhile, the profession of mediator in Ukraine and in the world is becoming increasingly important in all areas. The corporate sphere is no exception. Mediation as a way of pre-trial dispute resolution is a very important institution of law that will help enrich the legal culture and help change the Ukrainian judicial system.

International Commercial Mediation and Dispute Resolution Contracts

Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation) or before an arbitral tribunal (arbitration). However, there are numerous other alternative dispute mechanisms4 available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between them in a more time and cost-efficient manner, and with a stronger focus on the commercial interest of the parties. Mediation is one of these mechanisms. This chapter provides an overview of the basic concepts of mediation; how it distinguishes itself from but can also be employed together with other dispute resolution mechanisms such as, in particular, arbitration; the legal framework; and practical guidelines when drafting a mediation agreement in the context of international commercial contracts.

Specific features of the mediation agreement in the system of market relations

Specific features of the mediation agreement in the system of market relations

МЕДИАЦИЯ КАК АЛЬТЕРНАТИВНЫЙ СПОСОБ УРЕГУЛИРОВАНИЯ СЕМЕЙНЫХ СПОРОВ В РОССИЙСКОЙ ФЕДЕРАЦИИ

The article examines the specific goals and objectives of family mediation, the characte-ristics of the status and work of the mediator and the characteristics of the procedure of recon-ciliation of the parties to the family legal conflicts, touches on the problems of legislation and practice of mediation in the consideration of family legal conflicts. The article substantiates the need to distinguish mediation in disputes arising from family legal relations as a separate type of conflict resolution procedures with the participation of a mediator. Modern formation and development of civil society in conditions of democracy reveals more and more interest of participants of legal relations in independent settlement of disputable situations. With the adoption of Federal Law No. 193-FZ of 27.07.2010 "On alternative dis-pute resolution procedure with the participation of a mediator (mediation procedure)" media-tion is increasingly being used as one of the most efficient non-jurisdictional means of dispute resolution. The article substantiates the need to distinguish mediation in disputes arising from family legal relations as a separate type of conflict resolution procedure with the participation of a mediator. The methodology of the study is based on the formal-legal method, which is used in the study of the legal institution of mediation. In addition, as part of the study of the fre-quency and nature of the use of mediation procedures for the resolution of disputes referred to the court, the statistical method was used. The paper examines the legislation on mediation of the Russian Federation, identifies some problems of law enforcement, and proposes possible ways to solve them. The article proposes to eliminate legislative contradictions regarding the possibility of recourse to court with an agreement on mediation, to indicate in the Federal Law "On Mediation" the existence of a mediation agreement is not a condition but a basis for mediation, as well as to legislate the possibility of mediation by telecommunication.

Enforceability of the mediation agreement

Enforceability of the mediation agreement

Notarization of a mediation agreement as a way to implement and protect rights

Notarization of a mediation agreement as a way to implement and protect rights

The Singapore Convention on Mediation and the New York Convention on Arbitration: Comparing Enforcement Mechanisms and Drawing Lessons for Asia

This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context. Arbitration, Mediation, New York Convention, Singapore Convention on Mediation, International dispute resolution

К вопросу об исполнительной силе медиативного соглашения, удостоверенного нотариусом

The article deals with a new law, part of the judiciary reform — validation of mediation agreement executive force by its notarial certification. Some aspects of such mediation agreement complicated legal nature are explored. First results of the notarial practice concerning certification of mediation agreements are concluded.