Mediation Proceedings Research Articles

WPŁYW MEDIACJI NA EFEKTYWNOŚĆ INSTYTUCJI WARUNKOWEGO UMORZENIA POSTĘPOWANIA KARNEGO

The Influence of Mediation Proceedings on The Effectiveness of the Institution of Conditional Discontinuation of Criminal ProceedingsSummaryThe aim of this article is to present the theoretical and practicalaspects of the specifics of mediation proceedings. I present my ownresearch results, consisting of an analysis of the court records for 405cases on the effectiveness of conditional discontinuance of criminalproceedings within the areas of jurisdiction of the Appellate Court inKraków in 2003-2009. I will continue the analysis for the successivestages of criminal proceedings.

Przerwanie biegu przedawnienia roszczeń przez wszczęcie mediacji

Artykuł dotyczy kwestii przerwania biegu przedawnienia roszczeń przez wszczęcie mediacji. W artykule poddano analizie ten przypadek, przedstawiając go najpierw w kontekście pozostałych przewidzianych w Kodeksie cywilnym przyczyn przerwania biegu przedawnienia, które budzą liczne kontrowersje, i na tym tle pokazano, że wątpliwości interpretacyjne powstają także w odniesieniu do tej przyczyny przerwania biegu przedawnienia, zwłaszcza jeśli chodzi o mediację inicjowaną przez stronę. Wynikają one przede wszystkim z tego, że choć zgodnie z art. 1836 § 1 k.p.c. wszczęcie mediacji następuje z chwilą doręczenia przez stronę mediatorowi wniosku o przeprowadzenie mediacji (z dołączonym dowodem doręczenia jego odpisu drugiej stronie), to jednak nie uregulowano prawnie sytuacji, gdy wniosek taki zawierał będzie braki formalne (a poglądy doktryny co do tego, czy możliwe jest ich uzupełnienie i wszczęcie wówczas mediacji, a co za tym idzie – przerwanie biegu przedawnienia, są diametralnie zróżnicowane). Ponadto źródłem wspomnianych wątpliwości jest też art. 1836 § 2 k.p.c., w którym ustawodawca przewidział cały szereg przypadków, w jakich pomimo prawidłowego doręczenia wspomnianego wyżej wniosku nie będzie dochodzić do wszczęcia mediacji. W artykule poddano je dokładnej analizie, ze szczególnym uwzględnieniem wpływu takich sytuacji na przerwanie biegu przedawnienia roszczeń (w tym oceniając zasadność tych rozwiązań prawnych oraz odnosząc się do poglądów doktryny i zgłaszając uwagi de lege ferenda). Podniesiono także kwestie wiążące się z przedawnieniem w przypadku, w którym to sąd kieruje strony do mediacji.

Italian 'Class Action' Suits in the Field of Consumer Protection: 2016 Update

Italian 'Class Action' Suits in the Field of Consumer Protection: 2016 Update

Mediation and Arbitration in Vienna – One-Stop-Shop Solution for Parties under the Vienna Rules and the new Vienna Mediation Rules

The Vienna International Arbitral Centre (VIAC) possesses more than 40 years of experience in international arbitration and conciliation. Due to the new Vienna Mediation Rules it may now administer not only arbitrations but also mediations and other ADR-proceedings where a neutral third person supports the parties in finding a solution for their dispute as well as combinations like Arb-Med(-Arb). The new rules entered into force on 1 January 2016 and are applicable to all proceedings initiated after 31 December 2015. The rules have been drafted by national and international mediation experts thus ensuring an exceptional high standard and state of the art solutions. The overriding principle when drafting the rules was party autonomy. The aim was to provide a functioning framework for parties and mediators alike, but all provisions may be altered by agreement provided their compatibility with the overall idea of the Vienna Mediation Rules is still pertained. As a further incentive for parties to use the new rules, VIAC administrative costs may be off-set in the later proceedings in case of subsequent mediation and arbitration proceedings between the same parties and concerning the same subject-matter in dispute. With its new Mediation Rules, VIAC is convinced to foster its position as the leading international arbitration institution in Central and Eastern Europe.

Effectiveness of Mediation Proceedings in Employment Relations

Effectiveness of Mediation Proceedings in Employment Relations

Корпоративные споры и развитие альтернативных механизмов разрешения споров

The article presents analysis of the practice of the corporate disputes resolution in commercial arbitration as well as in the state courts. According to the author the example “Maksimov case” which was often mentioned as an example of a corporate dispute resolved in commercial arbitration but set aside by the state justice proves that the line between corporate disputes and non-corporate dispute is almost invisible even after the legislation has been changed. The attempts to make corporate disputes non-arbitrable makes the regulation of the market relations unpredictable and spoils th investment climate. The so called “pocket arbitration” (or “corporate arbitration”) may be useful for the improvement of intercorporate relations, or resolution of the disputes among professionals. The “one-side” or “optional” arbitration clauses sometimes may serve as a form of investor protection of consumer protection as it gives the weak party advantage of choice of the form of the legal protection of its interests. According to the article, publication of arbitration rules and awards would make arbitration more transparent and more effective. The confidentiality should be preserved for the mediation proceedings. Author gives examples of various mediation proceedings. On the basis of the analysis the author makes recommendations for the improvement of the national legislation. Understanding arbitration and mediation as part of the judicial systems reform in Russia author recommends to use the international standards of regulation reflected in th UNCITRAL Model Arbitration Law.

The regulation of the Spanish Copyright Commission and the 2014 reform: a missed chance for change in Spain and Europe?

On the occasion of the recent reform of the Spanish Copyright Act, which entered into force on January 1, 2015, this paper focuses on the evolution of the Spanish Copyright Commission. The Commission is a public body that, inter alia, carries out arbitration and mediation proceedings in conflicts regarding the establishment of tariffs by copyright collective management societies. In order to facilitate the readers understanding of the real use and efficiency of the Spanish Copyright Commission, this paper shall describe: 1) its origins and legal developments; 2) its main characteristics and ultimate objectives; 3) how, in general terms, similar bodies operate in certain other European countries; 4) the principal changes introduced by the last reform of the Spanish Copyright Act and its compatibility with the provisions of the new Directive 2014/26/EU.

Mediacja z udziałem małoletniego - zagadnienia wiktymologiczne

A child can participate in mediation in criminal cases where he/she is a party to the proceedings and in juvenile cases. This occurs in the basic situations where he/she is either the perpetrator or the victim of a criminal act. These are obviously very different roles. A child is involved in proceedings for different purposes when he/she has been wronged than when he/she is the wrongdoer. In either case, however, the child requires special protection and treatment on account of his/her physical, psychological, emotional and intellectual immaturity. The Polish legislature recognises this and has introduced special provisions for children, i.e. juvenile and youth offenders and minor victims. Mediation with juveniles has acquired its own regulations. It might not be overly popular, but it is relatively well formulated. There are no such special provisions, however, for minor victims of criminal acts. Nor has this issue been given much consideration in the literature. As if that were not worrying enough, the key statement of the courts (Supreme Court Decision I KZP 9/12 of 20 June 2012) gives additional cause for concern as it shows that the objectives and principles of mediation are not sufficiently understood by the Supreme Court. Determining whether mediation can be conducted with a child who has been wronged by a crime committed by one of his/her parents is the primary goal the authors have set themselves. This does not so much concern the normative layer – where the law does not impose any limitations – as the ability of the child to take part in a mediation meeting and the possibility of assuring him/her adequate protection. These considerations raise several detailed issues whose specifications require a “child”, a “victim” and a “wronged party”. The nature of reconciliation and forgiveness, as distinctive features of mediation agreements, have to be analysed. Whether certain types of criminal cases (and not just those involving children) are suitable for mediation proceedings is another question that has to be answered). Children are often victims of violent crimes. These types of cases are highly contentious in the context of mediation, even when the victims are adults. This issue is evaluated against the main principles of mediation, viz. that it be voluntary and that the two sides be evenly matched. Accepting the admissibility of children participating in mediation raises the following questions as to how this admissibility is to be qualified: the minimum age of the child; representation of the child by a parent, guardian or probation officer; and special mediator training. The problems identified in the study acquire a particularly drastic dimension when the perpetrators of crimes against children happen to be the children’s own parents. Mediation between a child-victim and a perpetrator-parent is so fraught with danger as to make it inadmissible in such cases. The authors’ reservations concerning mediation with minor victims do not

Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads

The aim to develop transnational principles for the regulation of Alternative Dispute Resolution (ADR), which deal, inter alia, with whether and how the use of ADR should be promoted by the state and how ADR should be regulated, brought leading experts from different European countries, the USA and Japan to the University of Bayreuth from 14-16 September 2012. ADR refers to dispute resolution mechanisms outside the state court system. It includes procedures such as negotiation, mediation, conciliation, (binding) expert opinion, arbitration and ombudsman proceedings. In suitable cases, ADR offers solutions which are faster and cheaper than court procedures, especially for cross-border conflicts. The parties have greater control over the conflict resolution procedure. They can arrive at a sustainable compromise adapted to their interests. The procedures are conducted in private; the parties can agree to keep the result confidential.

Mediation and Precautionary Measures

Article 10.2, second paragraph, of Act 5/2012 of July 6, on mediation in civil and commercial matters provides for the adoption of precautionary measures while mediation proceedings are pending. In this paper, I analyze the relationship between precautionary measures and mediation. In particular, I consider the possibility of precautionary measures before the beginning of judicial proceedings and the effects of the start of mediation proceedings. After this, I develop the adoption of precautionary measures while the mediation proceedings are pending. Finally, I study the effects of the termination of the mediation process on any precautionary measures adopted and as regards a new request.

Medierea în Italia (Mediation in Italy)

Recently, the Law No. 69 of 18 June 2009 imposes a duty on Government to draft the texts aimed at setting up the mediation and conciliation for almost all the civil and commercial disputes. According to the Law, the purpose of mediation is to settle disputes. The eventual legislation will likely follow the established pattern employed for disputes involving companies, that lead to a high level of agreements (Decree-law No 5/2003).Therefore, from now on, the training process for mediators and the mediation proceedings shall not be carried out by an Italian practician, unless he/she will be able to establish he/she meet the criteria set by the Ministry of Justice.

TUG OF WAR: EVALUATIVE VERSUS FACILITATIVE MEDIATOR

Mediation can be defined as a process where a neutral third party seeks to facilitate communication between the disputing parties to help them arrive at an amicable solution of their disputes culminating in a win-win situation for the parties. Though ‘... there is no single limiting definition of mediation, in part because mediators function in accordance with different philosophies and in statistically different ways’, the most commonly accepted definitions of mediation incorporate two essential elements: ‘(1) third-party facilitation of dispute settlement, and (2) lack of third-party power to determine the resolution of the dispute.’ The central focus of mediation is based on the principle of parties’ self-determination. To further this basic principle, the role of a mediator must be well defined. Looking at mediation from a historical perspective, mediation was confined to the facilitative role of a neutral third party. Gradually, however, there came a sharp divide amongst the existing mediators as regards the scope of intervention by a mediator in the mediation proceedings. At one end of the broad spectrum of a mediator’s role, lies his or her active role as an evaluator and at the other, that as a facilitator of communication between the parties. These two positions are, however, in contrast with each other and hence, the debate as to the most suitable role of a mediator’s intervention in the process. In part II(a) of the present paper I attempt to portray the distinction between mediators and decision-makers. Because of the emergence of evaluative forms in mediation. In part II(b) I sketch the differences between the approaches taken by the facilitative and the evaluative mediators. In part III I try to indicate the dangers posed when mediators strive to put on the evaluative cloak and finally and in part IV I sum up the paper with an appropriate conclusion.

The Relationship between Mediation and Judicial Proceedings in China

AbstractAfter a period of decline, judicial mediation has been recently revived in China. The revival has occurred as a result of a combination of political and juridical forces. China's courts have been struggling to meet demand for access to justice and the revival of judicial mediation is part of a broader policy to promote mediation as a mainstream dispute resolution mechanism. At the same time, the revival of judicial mediation also reflects the disaffection of China's political elite with an emphasis upon adversarial, western style legal process. China's establishment appears to be seeking a more responsive multi-door style of court system. This article traces recent developments in China which track the rise, fall and rise of judicial mediation.

Art of Mediation in the Engineering and Construction Industry

This essay includes a presentation on the art of mediation in the engineering and construction industry, It explains mediation as it applies to the engineering and construction industry in the United States and other common law legal systems and describes how mediation is viewed in Asian and Shari’s legal systems. In addition, this essay includes a review of the effectiveness of different types of mediation proceedings. The first section provides a discussion on what mediation is, how it is used, why it is used, and what mediators attempt to accomplish when they are dealing with disputing parties that are not able to reach an agreement. The second section provides a definition for Mediation/Arbitration, which an alternative dispute resolution (ADR) technique. The third section describes how mediation is viewed in other cultures, as contrasted with the information provided in the first two sections, which are related to mediation in the U.S. and other common law legal systems. The last section discusses the effectiveness of different types if mediation proceedings.

Impact of the EU Mediation Directive on the German Construction Sector

The European Union (EU) Mediation Directive of 2008 has to be transposed into German law by 2011. German law already complies with the Directive to a large extent. The only action that needs to be taken concerns the loosely defined obligations regarding the quality of mediation and the mediator’s right to refuse to give evidence. In both cases, only the law governing cross-border disputes needs to be amended. Nevertheless, it is likely that the Directive will have a significant impact on the German construction sector. In terms of cross-border disputes, German companies involved in other EU member states will feel the impact directly because the Directive makes mediation more effective by creating a consistent European framework that provides a balanced relationship between mediation and judicial proceedings. In terms of domestic mediations, the impacts of the Directive will be more indirect. The German lawmaker is likely to go beyond the requirements set out in the Directive, at least by applying the new...

Can a Good Mediator also be a Good Arbitrator?: Reflections on the role of Mediators and Arbitrators

This Article considers whether a good mediator can also be a good arbitrator. It provides examples of domestic legislation which allow mediators to serve as arbitrators, even in the same dispute. The requirements of natural justice, which are integral to the arbitration process, are largely ineffective in mediation proceedings. It is argued that, because of the ineffectiveness of the application of the rules of natural justice in mediation proceedings, the roles of mediators and arbitrators are distinct and incompatible.

Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med–Arb and Arb–Med Proceedings

Having the same person act as both arbitrator and mediator to resolve a dispute may be an effective means of dispute resolution but is not without pitfalls for the unwary. There are many inherent problems with this combination that, if left unresolved, can jeopardize the arbitration proceedings or the enforceability of any resulting arbitration award. This article examines the conduct that may give rise to a successful challenge of a dual role arbitrator for his/her conduct during the arbitration or mediation proceedings and how such a challenge may be avoided. Specifically, this article demonstrates how parties can explicitly or implicitly waive their rights to challenge the dual role arbitrator in this regard.

Propozycje nowych uregulowań dotyczących mediacji w sprawach nieletnich

The aim of the article is to take a deeper look at the new regulations on mediation in juvenile cases. At the beginning of the paper, the author refers to the effects of mediation proceedings as assessed by its participants, including both the victim and the offender. The problem highlighted in the paper is connected with the still insufficient number of practical referrals of juvenile cases to mediation, caused mainly by imperfections in the legal regulations, which the new draft bill of 2008 attempts to eliminate. The subject of the text is therefore an in-depth analysis of the new regulations. Beata Czarnecka-Dzialuk points out such changes asbroadening the circle of people who can apply for proceedings to be submitted to mediation (by including the director of a juvenile correctional institution or a youth detention centre), making voluntary the withdrawal from the mediation proceedings at any stage, and extending the mediation model by educational activities other than just reparation. Additionally, the author points out the establishment of the principle of impartiality of the mediator and the right to exclude a judge whose impartiality may be questioned in such proceedings, and finally the introduction of a provision guaranteeing the confidentiality of mediation and the prohibition to request from a mediator information obtained during mediation. Czarnecka-Dzialuk focusses on the issue of regulations that should be improved and introduced into the Act in order to make it practically possible to apply these ideas in the future.

Zjawisko wiktymizacji wtórnej: pojęcie, przyczyny, przeciwdziałanie (na przykładzie niektórych polskich regulacji karnych)

In the article, Bienkowska analyses the phenomenon of secondary victimisation on the basis of selected penal regulations in Polish law. The author investigates whether the selected legal regulations actually serve to protect victims of crime and whether they adequately contribute to the protection of victims’ interests. The author begins her analysis by discussing the very notion of victimisation. Bienkowska first clarifies the concept of primary victimisation. Then she focusses on an in-depth analysis of secondary victimisation, which results from a victim’s contact with the system of law enforcement and the courts. The article also discusses the crux of disclosing crimes and bringing them under criminal proceedings. It presents a breakdown of factors that affect the way a victim is treated by law enforcement authorities in the context of legal regulations. The author also focusses on the approach to victims in individual cases whilst pointing to the need to transform the justice system in this area. In the next part of the article, she analyses penal regulations, showing the differences between an action for adhesion and an obligation to offerrestitution in the form of a penal measure. The author lists a number of defects, such as the lack of transparency and the risk that the awarded compensation will not fully cover the damages suffered by the injured party. Other regulations described in the study include mediation proceedings and an agreement between the defendant and the wronged party regarding the redress of damages or compensation. Bienkowska also lists the shortcomings of both solutions. The first one lacks confidentiality and secrecy; the mediation agreement has no legal force. The second one is not supervised by any external body; the victim may be submitted to pressure from the offender and his/her defence counsel in order to bring the case to a conclusion as quickly as possible. In conclusion, the article lists the most significant shortcomings of the regulations in force in criminal law which directly contribute to the secondary victimisation of victims. The non-transparency and existing gaps in the regulations are also pointed out, which have a negative impact on the successful resolution of the victim’s case and cause additional stress to the victim. As a solution to the situation, Bienkowska proposes an in-depth analysis of the current provisions of criminal law in the area in question and their modification so as to ensure the appropriate treatment and protection of victims.

Law and Practice of Escalation Clauses

ESCALATION CLAUSES are also known as ‘multi-tiered’, ‘multi-step’ or ‘ADR-first clauses’. They are being increasingly used in international construction1 and engineering contracts.2 Escalation clauses provide that, in the event of a dispute between the parties, dispute resolution is to proceed through a sequence of ‘multi-step levels’ of dispute resolution processes. Arbitral proceedings will not be initiated until the end of such sequence.3 As a preliminary phase to arbitral proceedings, informal discussions or formal negotiations between technicians or decision-makers at management level, mediation proceedings, expert adjudication by a ‘Dispute Review Expert’ (DRE), a ‘Dispute Adjudication Board’ (DAB) or a ‘Dispute Review Board’ (DRB) will usually be agreed upon. The clauses thereby combine adversarial procedures with proceedings derived from the artillery of Alternative Dispute Resolution (ADR),4 resulting in a system of multi-tiered dispute resolution tailor-made for each contract. Arbitration as the ultimate level should only be reached as...