Mediation Procedures Research Articles

Legal Sanctions Against the plaintiff and Defendant Not in Good Faith in the Mediation Process of Civil Cases

In the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures, it provides settlement efforts for the plaintiffs and defendants in civil cases. Mediation is carried out by a mediator, either from a judge mediator or a non-judge mediator. The absence of a mediation meeting by the plaintiff or the defendant who has been properly summoned by the court, in article 7 paragraph (2) is stated as behavior not in good faith. In the provisions of article 22 and article 23 of the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures, it is stated that legal sanctions can be given by parties who do not have good intentions at mediation meetings.

The Mediation Role of Fatness in Associations between Cardiorespiratory Fitness and Blood Pressure after High-Intensity Interval Training in Adolescents.

Background: Low cardiorespiratory fitness (CRF), elevated blood pressure (BP), and high fatness are cardiovascular disease risk factors. It remains unknown how fatness affects the influence of CRF on BP. Therefore, the aim was to examine whether the associations between baseline CRF and HIIT-postintervention resting BP were mediated through fatness in adolescents. Material and methods: The sample (n = 64) comprised 28 boys 36 girls aged 16 years. The analysed factors were fitness index- reflecting CRF, body fat mass (BFM), fat mass index (FMI), and body mass index (BMI). Bootstrapped mediation procedures were performed. The mediation analysis was conducted concerning the sex moderation effect. Results: The mediation effect of sex was confirmed; therefore, mediations models were designed separately for boys and girls. The results showed a statistically significant inverse relationship between baseline CRF and post-intervention systolic blood pressure (SBP) in both sexes (boys: B = −0.603, p = 0.010; girls: B = −0.394, p = 0.037). The relations between CRF and SBP revealed the mediation effect of the BFM and the FMI only in boys. Conclusions: Fatness mediated associations between CRF and SBP in boys. Therefore, both CRF and fatness are necessary to maintain positive results of the BP revealed in normal SBP ranges after HIIT.

Do leaders have an influence on strengthening entrepreneurial orientation? Empirical evidence from SMEs of Turkish techno-parks

PurposeIn this study, the authors aim to test the reflections of two so-called universal leadership styles -paternalistic leadership (PL) and transformational leadership (TL)- on entrepreneurial orientation (EO) and ultimately on firm performance (FP) within the context of SMEs of a developing country, Turkey. Moreover, examining the contingency of uncertainty avoidance (UA) on the relationship between EO and firm performance is another aim of the study.Design/methodology/approachIn this explanatory cross-sectional study, by studying a dataset of 345 small and medium-sized (SME) Techno-park companies in Turkey based on using the Partial Least Squares (PLS) method, the authors try to examine the antecedent role of PL and TL on EO and ultimately on FP. Moreover, we followed a mediation procedure to reveal the mediator role of EO on the relationship between leadership style and firm performance. Finally, the authors also conducted a moderation analysis through SmartPLS 3.0 to explore the contingency of UA on the relationship between EO and firm performance.FindingsStudy results indicate that TL is a significant antecedent of EO that results in higher firm performance. However, while PL has a negative impact on entrepreneurial orientation, the results provide no statistical evidence in support of a significant relationship between PL and firm performance. Moreover, the findings indicate that the higher UA, the weaker the relationship between EO and firm performance.Practical implicationsManagers, following a TL approach, can successfully encourage their subordinates to be innovative and creative. Transformational leaders are conducive to both entrepreneurship and firm performance within the context of technology-based startups. Besides, avoiding the risks and uncertainties naturally weakens the consequences of EO. Hence, EO, as an essential intangible resource, requires a proper cultural context to result in a competitive advantage.Originality/valueThis research provides a comprehensive understanding regarding the interrelationships amongst transformational and paternalist leadership styles, EO and firm performance within an UA context in Small Business and Technology Development Centers (SBTDCs) and Techno-parks. To the best of the authors' knowledge, no other researcher has studied those links in a holistic manner in general, particularly on the SMEs of Techno-park firms of a developing Eastern country. The findings significantly enrich the literature on paternalist leadership and entrepreneurship orientation in a cultural context.

Проблематика осуществления медиативных процедур в производстве по делам об административных правонарушениях

This article examines the problematic aspects of the implementation of mediation procedures in proceedings on cases of administrative offenses. The study examines the positive aspects of the use of mediation procedures, identifies the shortcomings of the current Russian legislation that do not allow the use of mediation procedures in proceedings on cases of administrative offenses, the conclusion provides the author’s conclusion and view of the problem.

Alternative extrajudicial forms of worker's labour rights protection: challenges and prospects

The author considers extrajudicial forms of protection of the employee's labor rights, not provided for in Art. 352 of the Labor Code of the Russian Federation. Analyzing the title of the article and its content, the author concludes that the title of the article does not correspond to its content, and therefore a change in the title of the article is proposed. Analyzing such a form of protection of the employee's labor rights as direct negotiations with the employer, the author draws attention to gaps in the legislation regarding the timing of their implementation and the legal mechanism for fixing them, in this regard, proposals are made to supplement the Labor Code of the Russian Federation. As the main reason for the low number of referrals to mediation in individual labor disputes, the author identifies her compensation for the employee, and therefore proposes to exempt the employee from the costs of paying for the mediation procedure. The article also considers the prospects for using the “complex” as a form of protection of the employee's labor rights.

Is the effect of cognitive reserve in longitudinal outcomes in first-episode psychoses dependent on the use of cannabis?

BackgroundCognitive reserve (CR) is a protective factor against cognitive and functional impairment in first-episode psychosis (FEP). The aim of this study was to evaluate the differences in clinical presentation according to the use of cannabis (cannabis users vs non-users) among patients presenting a FEP (non-affective vs affective psychosis), to investigate the impact of CR and cannabis use on several outcomes and to explore the potentially mediatory role played by CR in the relationship between cognitive domains or clinical status and functionality, depending on the use of cannabis. MethodsLinear regression analysis models were carried out to assess the predictive value of CR on clinical, functional and cognitive variables at baseline and at two-year follow-up. The mediation analyzes were performed according to the principles of Baron and Kenny. ResultsCR was associated with better cognitive performance, regardless of cannabis consumption or diagnosis. In both diagnoses, CR was associated with better clinical and functional outcomes in those patients who did not use cannabis. In terms of mediation procedure, CR mediates the relationship between some cognitive domains and functioning at follow-up only in patients without cannabis use. LimitationsThe small sample size of the affective group. ConclusionsCR plays a differential role in the outcome of psychoses according to whether patients are cannabis users or not. Both in affective and non-affective groups CR exerted a greater effect in patients without cannabis use. Our results suggest that the deleterious effect of cannabis use on functioning in FEP surpasses the protective effect of CR.

The features of mediation in the criminal proceedings of Ukraine

Resolving a criminal conflict through dialogue, taking into account the interests of both its parties, namely the victim and the suspect/accused, correcting the perpetrator of the corresponding criminal offence, as well as reducing the number of re-offenders – all are the real results of restorative justice.
 One of the most common forms of restorative justice is mediation in the criminal proceedings. The introduction of mediation in Ukraine today is one of the urgent areas of reforming the system of citizens' access to fair justice.
 What is mediation and what is its legal regulation? What are the features of the use of mediation in the criminal proceedings? The purpose of this scientific article is to clarify the above issues.
 The article reveals the concept of mediation in the criminal proceedings. The current legislation, the Draft Law of Ukraine «On Mediation» as well as international legal acts regulating mediation issues in the criminal proceedings are analyzed.
 The article also highlights the features of mediation in the criminal proceedings, reveal their essence. Particular attention is paid to the peculiarity of the subject composition, gravity and type of the criminal offense as one of the criteria for the application of the mediation procedure or its impossibility.
 Modern Ukrainian legislation is known to provide sufficient prerequisites for the possibility of reconciliation between the victim and the offender, and hence for the application of restorative justice programs, including mediation. The legal institution with which mediation is often compared, and sometimes equated, is a reconciliation agreement between the victim and the suspect/accused. Within the article, the authors present their own vision of the correlation between the abovementioned legal institutions.
 Consequently, the article states the existence of all prerequisites for the introduction of the institution of mediation in the criminal proceedings as well as the necessity of its enshrinement at the legislative level.

New legislative accents in the mediation procedure and legal principles of alternative dispute resolution

The article analyzes the latest versions of federal laws that made changes to the mediation procedure — allowed judges to resign to perform the procedure of professional mediation; provided an opportunity to notarize a mediation agreement, giving force to an enforcement document; the procedure of «judicial reconciliation» appeared. It is proved that mediation in its essence is not the «activity» of professional intermediaries, mediators, but a «procedure», namely, a structured process that is an alternative dispute resolution technology. The legal principles of the mediation process are disclosed: voluntariness, confidentiality, neutrality, passionlessness and independence of the mediator, independent decision-making by the parties, equality of the parties.

МЕДІАЦІЯ ЯК АЛЬТЕРНАТИВНИЙ СПОСІБ ВРЕГУЛЮВАННЯ ТРУДОВИХ СПОРІВ

The article is devoted to the study of mediation as a way of solving individual labor disputes. Mediation as an alternative out-of-court method of conflict resolution, which simultaneously serves as one of the ways to protect the labor rights of employees and employers, is still at the beginning of its development. The differences between the judicial process, the resolution of labor disputes in the commission on labor disputes and mediation are defined. Some advantages and disadvantages of the Law of Ukraine "On Mediation" are identified. It was found that the Law of Ukraine "On Mediation" explicitly states that the mediation procedure (dispute settlement with the participation of a mediator) excludes collective and is applicable only to individual labor disputes. It is noted that the principles enshrined in the Law of Ukraine "On Mediation" apply to all stages of mediation, and not only to the stage of preparation for mediation. The article also emphasizes that in the field of labor, labor disputes can also arise from these relations, which formally and legally do not belong to labor. Similar conflicts can also be resolved using the mediation procedure, but for this the Codex of Labor Laws of Ukraine must specify the subject of regulation. It is noted that it is possible to note the obvious benefits of mediation as a way of settling labor disagreements and disputes, but in the event that mediation will be marked in the laws as a mandatory stage in the resolution of individual labor disputes. Otherwise, the low role of mediators in the settlement of such disputes is guaranteed. It is proposed to legislate confirmation of mediation as a way of protecting the labor rights of employees and employers at the stage of concluding an individual employment contract by including in the content of the employment contract a clause on the possibility of resolving an individual dispute with the help of conciliation procedures, including in the form of mediation. It is proposed to add a provision to the Law of Ukraine "On Mediation", according to which the deadline for filing a lawsuit in court is suspended for the duration of the mediation procedure.

THE MEDIATION PROCEDURE IN THE FRAMEWORK OF RESTORATIVE JUSTICE IN CANADA AND THE REPUBLIC OF KAZAKHSTAN

Mediation is a method of resolving cases involving third parties, usually used in civil law. The use of mediation in criminal law aims to make criminals realize that their criminal act is wrong and to convince victims of the need to restore their rights. Current trends in jurisprudence show a commitment not to punitive and adversarial practices, but to restorative justice in civil cases and nonserious criminal offenses. In general, this approach is driven by several underlying goals. First, the need to reduce the burden on the courts, particularly in cases that do not require lengthy investigations and the trial itself, but which take time to comply with all procedural rules. Secondly, the widespread humanization of spheres of life of citizens requires the expansion of appropriate mechanisms for resolving conflicts between parties. The purpose of this study: to analyze the experience of introduction and use of mediation in the framework of restorative approach to justice in Canada. To conduct a comparative analysis of the history of the emergence of restorative justice in Canada and the Republic of Kazakhstan, as well as to consider the history of prototypes of mediation procedures based on Kazakh common law. As a result, to identify the current problems of the operation of mediation procedures in Kazakhstan and to propose our own ways to solve them. According to the results of the study we can conclude that the mediation procedure is a relevant method of restorative justice. Current trends in the development of criminal policy are similar to processes that have already taken place in Western legal history. In general, foreign, and domestic legislators adhere to the same goal in achieving restorative objectives and moving away from punitive and repressive methods. At the same time in Kazakhstan, despite the overall positive effects of the introduction of mediation procedures, as well as restorative justice in general, there are several problems that significantly slow down the development of conciliation procedures in criminal proceedings.

Медіація як засіб вирішення суперечок у публічному управлінні: гуманістичний аспект

In the article, in the context of establishing the rule of law in Ukraine, the problems of introducing mediation as a means of resolving legal disputes, including those in the field of public administration, are considered, with the definition of the humanistic nature of this procedure. It was revealed that the principle of the rule of law presupposes the priority of human rights, legal justice, the possibility of access to court, the obligation of a court decision for public authorities, which correlate with moral virtues – equality, conscientiousness, tolerance, which characterize mediation as a stable guideline in resolving legal disputes. Emphasis is placed on the use in the terminological apparatus of mediation corresponding to the Russian word «dispute» used in the legal field of Ukraine – the term «superеchka», which corresponds to the national nature of law and the essence of mediation. It was found that in addition to the parties to a legal dispute, an intermediary takes part in the mediation process – a mediator who monitors the observance of the procedure, without deeply interfering in the dispute; can assess the positions of the parties without influencing the resolution of the conflict, but only offering their opinion on this matter. The parties must, in cooperation with him and among themselves, proving their position, eliminate the dispute, which forms a sense of confidence in the fairness of the final decision. It is noted that the public administration in the case of a mediated resolution of an administrative conflict turns from a leading structure into a client one, becomes equal with private individuals, and the mediator does not allow the interests of administrative bodies to become over the interests of individuals, which implements the principle of due care in the activities of public administration. As a conclusion, it is determined that the mediation procedure is characterized by a humanistic nature, characterized by confidentiality, peaceful settlement, consistency, equality of the parties; the ability to control the entire procedure and make a final decision that complies with the principles of mediation – voluntariness, confidentiality, neutrality, independence and impartiality of the mediator, self-determination and equality of rights of the parties, through negotiations making a fair decision.

МЕДИАТИВНОЕ СОГЛАШЕНИЕ КАК РЕЗУЛЬТАТ ИНДИВИДУАЛЬНОГО РЕГУЛИРОВАНИЯ ГРАЖДАНСКИХ ПРАВООТНОШЕНИЙ

The article presents the analysis concerning legislator’s position in respect of mediation; the author analyses principles underlying reconciliation of parties concluding mediation agreement; special attention is paid to the principle of confidentiality. The author considers mediation procedure as the type of individual regulation of civil legal relations. The analysis is conducted regarding preconditions advanced for figure of mediator in the light of current legislation, as well as with the view of the bill drafted by the Ministry of Justice of the Russian Federation. The author makes a conclusion that mediation agreement is the result of voluntary individual regulation of legal relations at issue.

POSITION AND ROLE OF MEDIATOR IN THE MEDIATION PROCEDURE – AN COMPARATIVE OVERVIEW BETWEEN KOSOVO, ALBANIA, AND MONTENEGRO

The role of the mediator is essential in the implementation of the mediation procedure. Taking this fact into consideration, the laws of contemporary countries have paid special attention to specifying its position within this alternative dispute resolution procedure between the parties. The purpose of this study is to reflect the role of the mediator in the mediation procedure in Kosovo and ascertain the adaptability of Kosovo's legal solutions that address the mediator's position with the solutions of other Western Balkan countries, especially the relevant laws of Albania and Montenegro, countries with which Kosovo has multidimensional ties, but which, compared to Kosovo, are some steps ahead in the Euro-Atlantic integration processes. Furthermore, the results of this study suggest that the Law on Mediation of Kosovo should be amended concerning the role and conditions required for licensing mediators.

НА ШЛЯХУ ДО РЕАЛІЗАЦІЇ ПРИНЦИПУ ЗАБЕЗПЕЧЕННЯ НАЙКРАЩИХ ІНТЕРЕСІВ ДИТИНИ ПІД ЧАС МЕДІАЦІЇ: УКРАЇНСЬКИЙ ДОСВІД

The adoption of the Law of Ukraine "On Mediation", which defines the legal basis for mediation as an out-of-court procedure for resolving a conflict (dispute), remains issues of child participation in this procedure remained unresolved. However, such experience in the activities of mediators is, which was confirmed during a survey conducted on a questionnaire prepared within the project "Implementation of the principle of the best interests of the child in mediation in matters concerning the exercise of parental authority and contacts" under the leadership of Professor Joanna Mucha, Adam Mickiewicz University in Poznan, which was carried out jointly by Ukrainian and Polish scientists during 2021. The stage of this project is to conduct similar research in Lithuania. The purpose and objectives of the study are to determine the specifics of the mediation procedure on issues related to the interests of the child and with the direct participation of the child. The article presents and analyzes the results of a survey conducted among Ukrainian mediators working with parties in conflict over the interests of children and the performance of their duties by parents or persons replacing them and who expressed a desire to settle the dispute out of court. The specifics of the choice and application of certain methods by mediators to ensure the clarification of the child's opinion on issues that are the subject of discussion in the procedure, without additional psychological burden on the minor or juvenile. The attitude of mediators to certain methods for their application is analyzed, considering the age of the child, his psychological state and emotional maturity. Provision and observance by mediators of the principles of mediation with the personal participation of the child in the procedure. The article concludes that mediation as the alternative dispute resolution can be an effective tool for implementing the principle of ensuring the best interests of the child. If it is necessary to conduct mediation with the direct participation of the child, the entities that ensure its conduct, should be more careful in choosing the person of the mediator, considering his or her possible specialization, specialized training. Keywords: protection of children's rights; mediation; child-friendly justice; parents' rights; representatives of the child.

Leader Extraversion as a Boundary Condition in the Relationship between Transformational Leadership, Vitality, and Job Improvement.

We examine the relationship between transformational leadership and job improvement behaviors by considering the moderating effect of leader extraversion and the mediating role of employee vitality. Multi-level path analysis on data from 101 leaders and 619 subordinates provided support to the moderating effect of leader extraversion, such that the relationship between transformational leadership and employee vitality is stronger when the level of leader extraversion is high. Moreover, a moderated mediation procedure showed that the indirect effect of transformational leadership on job improvement via employee vitality was conditional to the level of leader extraversion. We highlight the original contributions of these findings by discussing the moderating role of leader extraversion as an understudied theoretical alternative to its already well-explored role as an antecedent to leadership behaviors. On a practical level, our results indicate that organizations should consider not only what leaders do (transformational leadership behaviors) but also how these behaviors are contextualized by leaders' typical approach (extraversion) to instill a maximum of positive emotion such as vitality in employees.

Regulatory and legal establishment of the application of mediation procedure in different branches of procedural law of Ukraine

Regulatory and legal establishment of the application of mediation procedure in different branches of procedural law of Ukraine

Договірне регулювання процедури медіації в Україні та ЄС

This article demonstrates that the regulation of mediation procedures by means of agreements can be an important tool in settling disputes, both in the European Union and Ukraine. It is believed that such regulations can result in a smaller number of cases pending in courts and a more professional approach of domestic courts in terms of considering and deciding cases. As the author’s analysis shows, at present mediation is not regulated by law in Ukraine. Nevertheless, following the European integration processes taking place in Ukraine, a bill regulating mediation procedures is under consideration, with special focus on agreements made during and after the mediation procedure, as well as the role and content of the conditions of mediation.

DECISION OF THE COURT REFERRING THE PARTIES TO MEDIATION – AS THE BASIS TO INITIATE MEDIATION IN INDIVIDUAL LABOUR LAW CASES

The purpose of this article is to provide legal analysis in the scope of one of the bases of mediation in individual labor law cases i.e. decision of the labour court referring the parties to mediation in terms of its compliance with the voluntary principle applicable in mediation. This issue is of great importance not only because of its practical nature, but also because of its theoretical nature. From the pure formal perspective, it is the basis for initiate the mediation procedure. The right to initiate mediation in genere has inter alia employee, employer or, indirectly the labour court

Институт медиации и его роль в укреплении молодой семьи в России

The article analyzes the social, everyday and psychological problems of young families in the modern world, examines the attitude of young people to unregistered marriages and the main difficulties in popularizing the mediation process in the territory of the Russian Federation. The main attention is paid to the real practices of the mediation procedure.

Legal regulation of mediation as an alternative method of dispute resolution: legal tax aspect

In the Russian Federation, mediation as an alternative method of dispute resolution was officially applied with the introduction of a separate regulatory act in 2010. Starting in 2019, mediation is used in public legal relations. At the end of 2020, the first case of mediation in the tax sphere was recorded. Within the framework of this publication, the authors analyze the current situation of mediation and, in particular, tax mediation, and express their proposals on the popularization and application of mediation procedures in dispute resolution.