Dispute Resolution Methods Research Articles

The Singapore Mediation Convention and International Business Mediation

Summary The article deals with the International Business Mediation and Singapore Mediation Convention on enforcing cross-border mediated settlement agreements. Mediation, as an alternative dispute resolution method, is widely preferred by parties with disputes in many countries. For this reason, in relation to ADR methods including mediation, both in Anglo-American Law and in Continental European Law, various technical and legal arrangements have been made. Mediation Laws in the EU have become one of the regulations bringing out rules that are in conformity with the new developments reflected also in the Singapore Convention on Mediation. Harmonisation initiatives in the EU and in the global world are not confined to intergovernmental activities. The same is also currently ongoing in the field of unification. Also, the private business sector, less restricted by jurisdictional boundaries, is increasingly driving harmonisation in mediation practice and law. As applicable national mediation law is often the same for cross-border and domestic applications, the Singapore convention introduces a contemporary definition of mediation procedural law and offers positive factors that shape it globally. Relevant national and international aspects are presented throughout the first part of this study, with specific sections on international business mediation and international instruments of private international law.

Epieikeia or “Better Justice”: Formalism in Tax Law Revisited

ABSTRACT For Aristotle, “the essence what is equitable is that it is an amendment of the law, in those points where is fails through the generality of its language”. The application of legal rules produces appropriate (just) results in the majority of cases, but not in all. When its application would lead to injustice, a legal rule can be defeated by equity. The idea of epieikeia (equity) sheds light on the modern discussion about the nature of legal rules, the distinction between rules and principles, and mechanisms of adjudication. This idea is also relevant in the tax law domain. In this area, the dominant theoretical position is legal formalism, with its focus on (strictly conceived) legal rules in legislation and in the application of the law. The Aristotelian reflection on epieikeia poses challenges to this traditional view: legal rules are deficient, and thus, as demonstrated, so is the formalistic approach to tax law. In particular, the equitable resolution of a tax dispute can be achieved through alternative dispute resolution methods: on the basis of a consensus between a taxpayer and a tax authority that is not strictly based on a legal rule.

Mediation as one of the alternative ways of solving individual labor disputes: expe-rience of foreign countries

The work examines the experience of foreign countries regarding the introduction of mediation as one of the alternative ways of resolving individual labor disputes. It is noted that today mediation as an alternative to litigation is quite developed in foreign practice and is considered one of the effective ways of resolving labor disputes, in particular, it is an effective, financially economical and timely way of reaching consensus, resolving a conflict compared to resolving a dispute in court. The popularity of mediation is due to the fact that, as a pre-trial way of resolving labor disputes, it is one of the means of quickly coordinating the interests of employers and employees, contributes to the achievement of social peace in society, and gives the parties the opportunity to save time and costs associated with the resolution of labor disputes. It is also very important that in foreign countries the mediation process is legally established in the form of laws that regulate not only the process itself, but indicate that the mediation process can be appointed by the court or the parties can voluntarily turn to an institution engaged in mediation, a legally protected by the state, the status of the institution authorized to carry out mediation. It was concluded that the introduction of mediation in Ukraine and its consolidation at the legislative level is a step in the right direction. To date, this is one of the fastest and relatively inexpensive ways to resolve disputes, which is conducted through negotiations and is used exclusively by mutual consent of the parties to the dispute. Its implementation is an effective mechanism for the reconciliation of the parties during the resolution of individual labor disputes with minimal expenditure of financial, time and human resources. The main feature of this procedure and the difference from other methods of dispute resolution is its maximum autonomy, confidentiality and voluntariness, because the decision as a result of conflict resolution comes not from the mediator (or judge or arbitrator, as in the usual dispute resolution procedures), but from the parties to the conflict, and is set out in the agreement of the parties to the dispute based on the results of mediation.

Mediation as an alternative method of dispute resolution: International and national practices in legal regulation

The relevance of the subject under study is conditioned upon the fact that the strengthening of Ukraine’s European integration requires the introduction of new, alternative methods of dispute resolution in national legislation and practice, among which mediation occupies a prominent place, the functioning of which has successfully proven itself in developed European countries. The purpose of this study was to figure out the current state of development of legal support for mediation in Ukraine, to outline prospects for improving legal regulation, considering International and European standards of mediation. The study used a system of general scientific methods of cognition (dialectical method, formal logical method, method of analysis and synthesis), as well as special legal methods (comparative legal method, formal legal method). The authors analysed the international and national practices of legal regulation of mediation in the system of alternative dispute resolution methods. Doctrinal and legislative approaches to the interpretation of the mediation were described, its main advantages in the system of alternative dispute resolution methods were found, types of mediation were outlined, and the content of the main international, European, and Ukrainian regulations governing relations in mediation were covered. It was found that mediation occupies a priority position in the international practices of conflict resolution, since it is much more effective than judicial and administrative forms of protection of rights and legitimate interests. It was proved that the attractiveness of mediation lies precisely in the simplicity and convenience of the procedure, a calm atmosphere of dialogue and the obligation to consider the opinions of all involved parties. It was found that this legal institution is based on voluntariness, confidentiality, impartiality, and neutrality, the possibility for participants to make their own decisions, and the presence of independent support of each participant from the mediator. It was noted that, despite the national legal framework for mediation developed in Ukraine, the outlined sphere of public relations requires improvement of the relevant legal mechanism and the institutional basis for its implementation. The results obtained can be used in further studies, as well as in the development of new and changing the existing regulations that determine the legal basis of mediation in the practice of implementing relevant legislation.

THE RECOGNITION AND ENFORCEMENT OF AGREEMENTS RESULTING FROM MEDIATION: AUSTRIAN AND UKRAINIAN PERSPECTIVES

Background: The recognition and enforcement of settlement agreements resulting from mediation are of key importance for the effectiveness of this alternative dispute resolution method. Austria is considered to be one of the pioneers of mediation practice in Europe, and its developments can be helpful and interesting for other countries, especially for Ukraine, which obtained the EU candidate country status. In Austria, there are three main possibilities for making such settlement agreements enforceable: a notarial deed, approval by the arbitration tribunal, and approval by the court. In cross-border disputes, enforceability can be reached within the Brussel Ia Regulation, the New York Convention, and national procedures for the recognition and enforcement of foreign court judgments and other acts. In Ukraine, there is the possibility of court approval and approval by arbitration of such settlement agreements. Methods: The present research is based on a comparative approach. The authors juxtaposed Austrian and Ukrainian national models of recognition and enforcement of agreements resulting from mediation. The comparison allows us to see both models’ strengths and drawbacks. The analytical method was used to interpret national legislature and international instruments. Using hypothetical models, the authors make a prognosis about the legal effects of recognition and enforcement of agreements resulting from mediation in cross-border disputes in national legal orders. Results and Conclusions: The authors propose amendments to the Ukrainian legislation, in particular, to enshrine in the CPC of Ukraine a new procedure of approval of settlement agreements resulting from out-of-court mediation and the possibility of the enforcement of such agreements as notarial deeds; to provide direct enforcement of arbitration awards; to introduce a new simplified procedure for the enforcement of judgments and other enforceable titles for the implementation of the Brussel Ia Regulation during the adaptation of Ukrainian legislation to the EU law; to adopt the Law on ratification of the Singapore Convention and enshrined simplified procedure for enforcement of the international settlement agreements resulting from mediation.

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

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

THE ANTECEDENTS OF INTENTION TO SETTLE IN CONSTRUCTION DISPUTE NEGOTIATION

Negotiation can be an art, given the paradox of preserving one’s profits and maintaining a relationship with the counterpart. Negotiation is the most recommended dispute resolution method in construction projects due to its cost and time efficiency. It is not uncommon to find that some negotiations achieve an amicable outcome but far less tractable in others. Intention to settle has been proved indispensable for a fruitful negotiation. The chance of reaching a settlement is doomed if one or both parties have no such intention. However, it is quite complicated to explain what causes or impedes negotiators’ settlement intention. In this regard, this study aims to explore the antecedents of intention to settle (ITS) in the context of construction dispute negotiation (CDN). From the perspective of the intrapersonal level and inter-organizational level, four antecedents were summarized. More specifically, prosocial motive and perceived justice are incentivizers of intention to settle, while proself motive and perceived relative power are dis-incentivizers. An in-depth knowledge of these antecedents can provide the necessary groundwork for a more effective CDN.

금융소비자보호법상의 금융분쟁조정절차에 관한 절차법적 측면의 고찰

Whether to emphasize the principle of private autonomy in the procedural aspect in mediation or the number and outcomes of case resolution through mediation is a matter of individual values and philosophy of each country or individual. In the former case, emphasis is placed on the provision of a fundamental resolution to a dispute such as satisfaction of the parties with the procedure or a genuine agreement between the parties, and in the latter case, the focus is on the cost-effectiveness of the mediator’s work. The former represents mediation based on the Singapore Mediation Convention(United Nations Convention on International Settlement Agreements resulting from Mediation), the latter represents the UK's Ombudsmen service.
 In general, emphasizing party-leading civil procedure countries are place importance on the parties' right to form the procedure itself or take the party’s initiative in mediation proceedings. On the other hand, court-leading civil procedure countries which are strengthening the authority of the courts taking the position that mediator must be a lawyer, or at least a person with a lawyer's qualifications. They thought mediation is fundamentally the same system like civil litigation.
 Unfortunately, the latter point of view could only be used as specifying mediation system of the country, but it is contradictory to the origin of ADR(Alternativie Dispute Resolution) system or mediation system. It goes without saying that it also contradictory to the standards for mediation of the Singapore Mediation Convention.
 This my view does not mean that there is no need for a dispute resolution method which emphasizes the number and outcome of case resolution. I am fully understand the reason why the performance-oriented dispute resolution method was activated in Korea.
 Therefore, I propose to establish a separate performance-oriented dispute resolution system from the party-leading mediation process. In that case, the dispute resolution procedure can play its own independent role as another form of alternative dispute resolution.
 In the case of the financial sector, between the roles of the Financial Supervisory Service and the Financial Dispute Mediation Committee’s work must be distinguished, and the Financial Dispute Mediation Committee needs to be operated as an independent institution. The goals of the Financial Supervisory Service should be different from the goals of the Financial Dispute Mediation Committee. While the Financial Supervisory Service should play the role of a representative financial regulatory body, the Financial Dispute Mediation Committee is not a tool to increase the regulatory effect of the Financial Supervisory Service, but rather stands impartiality between financial consumers and financial institutions to resolve financial disputes fairly.
 Korea's financial dispute mediation, which gave the same effect as a final judgment effect to the decision of the Committee, without guaranteeing the independence of the Financial Dispute Mediation Committee, could be problomatic in Dispure Resolution System. This ends to blocking the path to judicial review of court.
 In case both parties do not object within two weeks of the financial mediation committee’s decision which regards as consent of both and only on party’s consent(usually finantial consumer’s consent) regards as bilateral consent (acceptance) is not fit for Korea civil procedure system. The Korea civil Procedure Act grants Res Judicata effect to settlement and the effect also recognized in mediation of the Financial Dispute Mediation Committee’s decision.
 It is also not appropriate to translate the UK Financial Ombudsmen Service as a mediation. There is also a big problem in combining the UK financial ombudsmen service that recognizes unilateral consent within a very limited scope. UK Ombudsmen service is a unique system which is different from the existing worldwide ADR or mediation.

Kajian Yuridis Terhadap Transaksi Jual Beli Online Dengan Menggunakan Fitur Paylater

Introduction: Shopee Paylater is a payment method which means users or consumers will get loans instantly. Each agreement of the parties has an obligation to fulfill achievements to other parties, in practice some of the Consumers do not carry out their obligations properly and correctly, some of the Consumers are not in good faith when carrying out product or service transactions, there are also buyers who do not pay in accordance with the agreed maturity date, therefore the Consumer is deemed to have defaulted.Purposes of the Research: Analyze and review the dispute resolution process if the consumer defaults on the Shopee Paylate payment method. Methods of the Research: : This research is included in normative legal research, namely research examining various positive legal provisions, various legal principles, legal principles and doctrines to answer legal issues faced by.Results of the Research: The results of the study show that the The procedure for carrying out online buying and selling transactions through Shopee using the Paylater feature can be done with the payment method in cash or installments. Furthermore, the process of resolving consumer disputes who default on paylater on the shopee marketplace is by paying a fine of 5% of the total bill and will continue to increase if it is not paid, consumers cannot checkout through shopee and the existing shopee paylater limit will be reduced because of this. the. does not carry out dispute resolution methods through litigation or non-litigation, the Shopee Paylater organizer only takes steps to resolve the dispute internally and provides administrative sanctions for defaulters on the Shopee Paylater usage agreement.

URGENSI KEBERADAAN PERJANJIAN ARBITRASE DALAM PROSES ARBITRASE DI INDONESIA

Arbitration is one of the non-court dispute resolution methods that can be applied to process disputes. The implementation of arbitration is related to the entry into force of the arbitration agreement, which raises questions regarding the importance of the presence of the arbitration agreement and how to realize its presence. This study aims to determine the urgency of the existence of an arbitration agreement in the arbitration process in Indonesia and to find out how to realize the existence of an arbitration agreement used in arbitration proceedings in Indonesia. The results show that the presence of an arbitration agreement is crucial in the arbitration process in Indonesia because it proves that the parties agree to resolve disputes through arbitration and eliminate the jurisdiction of the district court to adjudicate disputes. Arbitration agreements are made in writing, but technological developments make arbitration agreements can be made online.

МІСЦЕ МЕДІАЦІЇ В СИСТЕМІ СПОСОБІВ ЗАХИСТУ ПРАВ СУБ’ЄКТІВ ГОСПОДАРЮВАННЯ

Today, mediation is one of the most popular alternative ways of resolving disputes (conflicts) in developed countries. It involves the participation of a mediator (mediator), who helps the parties to the conflict to establish a communication process, analyze the conflict situation so that the parties can choose a solution that will meet the interests and needs of both parties to the dispute.The relationship related to the conduct of mediation and the implementation of the agreements reached during it requires regulatory regulation, given the importance of both the procedure itself and its results. Regulation of the mediation procedure, determination of the rights and obligations of its participants, the rules of registration of agreements between the parties are the basis for achieving the goals of mediation and ensuring a balance between the institution of mediation and the legal system of the country. Therefore, every mediator and every lawyer who is involved in the mediation procedure as a consultant or representative of his client must have legal knowledge and knowledge of the ethical and regulatory principles of mediation. The need to introduce the institution of mediation has long been ripe in the domestic legal system, which is due to the inefficiency and imperfection of the judicial system of Ukraine and the low rate of execution of court decisions. Given the successful application of the institution of mediation in many countries and the course of harmonization of national legislation with the legislation of the European Union, on November 3, 2016, the parliament of Ukraine adopted in first reading the draft Law of Ukraine "On Mediation". For the Ukrainian legal system, the legislative initiative to introduce regulations on the institution of mediation is a very important step. Because in the absence of national legislation that determines the legal basis for the process of out-of-court settlement of disputes, the practical application of the institution of mediation was carried out only on the basis of established practice of the European Union. According to the draft Law of Ukraine "On Mediation", mediation is defined as an alternative (out-of-court) method of dispute resolution, by which two (or more) parties to a dispute try to reach an agreement to resolve their dispute within a structured process involving a mediator. A mediator is an independent mediator who helps the parties to resolve a dispute through mediation.

The role of ṣulḥ in Sahrawi state-building

ABSTRACT ṣulḥ is a well-known Islamic legal method of dispute resolution through amicable settlement practiced in Western Sahara. It standardly includes different phases, including negotiation between the affected parties mediated by local elites, the payment of compensation (sometimes symbolic), and a ceremony in which the conflict is resolved and social peace restored. This paper examines the implementation and evolution of this practice in the Sahrawi refugee camps from their creation in 1975 to the present day. The article proposes that ṣulḥ has played a central role in building social cohesion in the refugee camps, highlighting the importance of the institutions through which cohesion is maintained in contexts of prolonged conflict.

Restrictions on the principles governing mediation proceedings in settlement agreements concluded by the Social Insurance Institution (ZUS) pursuant to Article 54a of the Public Finances Act

Introduction: This paper shows to what degree other principles of mediation proceedings, i.e. voluntariness and advantages compared to conventional court proceedings, i.e. lower costs and swifter resolution, are limited in the case of public entities that enter into settlement agreements pursuant to Article 54a of the Public Finances Act as compared to non-public sector entities that enter into such agreements. Objective: Analysis of the restrictions faced in practice by public finances sector units [government entities] when entering into settlement agreements referred to in Article 54a of the Public Finances Act as a result of mediation proceedings regulated in the Civil Procedure Code (CPC). Materials and methods: Having analyzed the existing regulations both under civil and public law, the author attempts to determine whether or not public finances sector entities, including the Social Insurance Institution, are in fact taking full advantage of the same guarantees and rights as those enjoyed by commercial entities regarding the use of out-of-court dispute resolution methods. The analysis adopted the dogmatic and legal method and the criticism of the literature on mediation. Results: While mediation proceedings are conducted pursuant to the CPC, which means that they are secret, voluntary, swift and inexpensive – these guarantees and benefits of mediation are not fully enjoyed by public entities, which detracts from the confidence and trust of parties to a dispute who might otherwise choose this form of conflict resolution. The same holds true of the confidentiality of documents created during and for the needs of such proceedings, i.e. the opinions referred to in Article 54a(2) of the Public Finances Act, as well as the settlement agreement that results from amicable negotiations between the parties.

THE FORMATION OF THE E-ARBITRATION AGREEMENT IN THE DIGITAL WORLD

To start with, the Internet and information technology have a practical influence on conflict resolution procedures: papers are instantly transferred to arbitrators at a low cost, and parties avoid paying travel expenditures. Electronic papers provide substantial benefits to arbitrators, particularly when the parties' submissions are voluminous, because they may do a keyword search without having to study the full file. Furthermore, arbitrators are already making extensive use of modern technologies. Aside from the regular usage of information technology (IT) equipment, the Internet has had a significant influence on dispute resolution methods. Although conventional alternative dispute resolution depended on interviews and meetings between plaintiffs and the arbitrator or mediator, the Internet increasingly facilitates distant conflict settlement.

Attributes of ADR in the Sri Lankan Construction Industry

Alternative dispute resolution (ADR) methods were introduced to the construction industry to avoid the negative effects of litigation in relation to the cost, time, and business relationships of a construction project. This study focused on identifying the current ADR practices in the Sri Lankan construction industry and examined the specific attributes of each method to create a more effective process. A qualitative research strategy was carriedout with interviews with industry professionals working in the Sri Lankan Construction Industry. Content analysis using NVivo software was used to analyse the data. The key findings revealed that the neutral third party has good knowledge of construction. Despite the differences in each ADR method, disputing parties do not have the confidence in the neutral third party or trust in the process. This study also revealed that the unavailability of these key attributes will finally affect the cost and reputation of the ADR methods. Therefore, the research suggests that to improve the ADR process and its success there should be awareness studies on ADR methods and training for ADR practitioners within the Sri Lankan Construction Industry. KEYWORDS:Construction industry, ADR, Attributes

A History of Alternative Dispute Resolution: Analyzing its Role and Significance

The research paper covers the historical analysis of how legal systems—both formal and informal—that were in place in various civilizations and historical periods were used to settle conflicts. This study briefly examines the development of several legal systems in antiquity. This study demonstrates that while both platforms were supported by human civilizations dispute resolution (ADR) was the most often used method globally and is still in practice today. According to research, people through the ages have chosen dispute resolution (ADR) above formal litigation as their preferred method of resolving disputes. The advantages and significance of resolving disputes through an informal judicial system have been demonstrated by research. The study shows that the ADR mechanism has been very effective in the past and with simple and cost-effective methods of dispute resolution, it can provide speedy access to justice today.

AVRUPA ÜLKELERİ’NDE TİCARİ ARABULUCULUK UYGULAMALARI

Dünya genelinde, uyuşmazlıkların mahkeme dışında alternatif uyuşmazlık çözüm yolları ile çözülmesi konusunda artan bir eğilim bulunmaktadır. Alternatif uyuşmazlık çözüm yollarından biri de arabuluculuktur. Arabuluculuk gönüllük esasına dayanan bir uyuşmazlık çözme biçimidir. 
 Arabuluculuk sistemi, Avrupa Birliği’ne üye bazı ülkeler başta olmak üzere birçok ülkede özellikle ticari uyuşmazlıklarda uygulanmakta ve sonuçları itibariyle tarafları memnun etmekte, sonuç itibariyle yargının yükünün de ciddi şekilde azaltılmasına destek olmaktadır. Yargının iş yükünün hızla arttığı, yargılamadaki gecikmeler nedeniyle adalete duyulan güvenin azaldığı bir ortamda Avrupa ülkelerindeki ticari arabuluculuk uygulamaları birçok ülkeye örnek olmaktadır.

Arbitraj kelishuvlari va yurisdiktsiya xalqaro tijorat arbitraji

The text provides a comprehensive analysis of the role and evolution of international commercial arbitration as a method of alternative dispute resolution. It emphasizes the growing preference for arbitration in international commerce due to its speed, confidentiality, and perceived fairness. The text also highlights the efforts made by the Republic of Uzbekistan to develop its arbitration infrastructure, including its adherence to international conventions and the establishment of the Tashkent International Arbitration Center. The article further delves into the legal intricacies of arbitration agreements, discussing their validity, enforceability, and the formal requirements they must meet. It concludes by noting the ongoing changes in international standards and laws governing arbitration, suggesting that these are in response to the changing needs of the global market

A SOCIOLOGICAL REVIEW OF LONG PROCEEDINGS IN THE COURTS FROM THE POINT OF VIEW OF JUDICIAL OFFICERS AND ADVOCATES

From the perspective of judicial officers and advocates, this study investigated the factors and impacts of long proceedings in the courts within a sociological setting. Phenomenology was utilized as a research design and the thematic method was used for data analysis. Data were collected on a semi-structured questionnaire through face-to-face interviews with 20 judicial officers and advocates. Eight themes were derived from interviews of the participants. Weak economic position, mutual understanding in terms of acquaintance, exercising influences, using relationships, systematic and inborn corruption, benefits in terms of money, the social position of parties, the experience of a lawyer, political and media reported cases identified as factors of delays. Whereas, long proceedings in the courts are considered negatively and it gives birth to negative perception and results in damaging the expectations of the public about the courts. Social disorder, anger, losses of time and money, and promotion of customary methods of dispute resolution were revealed as impacts of delayed proceedings.

Comparing Performances of Machine Learning Techniques to Forecast Dispute Resolutions

This paper compares classification performances of machine learning (ML) techniques for forecasting dispute resolutions in construction projects, thereby mitigating the impacts of potential disputes. Findings revealed that resolution cost and duration, contractor type, dispute source, and occurrence of changes were the most influential factors on dispute resolution method (DRM) preferences. The promising accuracy of the majority voting classifier (89.44%) indicates that the proposed model can provide decision-support in identification of potential resolutions. Decision-makers can avoid unsatisfactory processes using these forecasts. This paper demonstrated the effectiveness of ML techniques in classification of DRMs, and the proposed prediction model outperformed previous studies.