ALTERNATIVE FORMS OF DISPUTE RESOLUTION TO COURT PROCEEDINGS. GENERAL COMMENTS ON NEGOTIATIONS AND MEDIATION IN POLISH LAW

2020 ◽  
Vol 4 (XX) ◽  
pp. 225-234
Author(s):  
Katarzyna Zadora

In my article I described the general assumptions of two legal institutions, i.e. negotiation and mediation as an alternative form of dispute resolution to court proceedings. Negotiations were characterized in the current legal status with a brief historical outline. I have indicated the scope of matters in which negotiations can be used as one of the ways of concluding an agreement that are binding in the Civil Code. At the same time, I drew attention to frequent mistakes made during negotiations, which result in the transfer of a dispute to court. In turn, mediation was described on the basis of civil procedure regulations. I described the way of conducting out-of-court and court mediation. I listed the types of cases in which we can use this institution and those in which mediation has been excluded from the Act.

2019 ◽  
Author(s):  
Clemens Bushart

Choosing the appropriate conflict resolution procedure is paramount to proper and effective conflict management. An important impetus for the choice of the most suitable procedure is provided by § 278a of the ZPO (Germany’s Code of Civil Procedure), which enables judges to suggest a range of out-of-court alternative dispute resolution procedures, including mediation. In this study, the author analyses the regulatory content of § 278a of the ZPO as well as the function and potential of the provision to act as an interface between court proceedings and extrajudicial mediation. Using the finding that judges rarely propose that litigants switch to extrajudicial mediation, the author empirically examines the reasons for the cautious application of § 278a of the ZPO and develops a set of comprehensive recommendations to optimise the procedural interface.


2020 ◽  
Vol 55 ◽  
pp. 11-20
Author(s):  
Teresa Gardocka

The subject of these considerations is the deprivation of freedom ordered to diag-nose the state of an individual’s/person’s mental health. Polish law provides for such a diagnostic deprivation of freedom in the event of a suspected offense with a simultaneous doubt as to the person’s sanity at the time of the committing the act (Code of Criminal Procedure), doubt as to mental illness beings a cause of behavior threatening one’s own life or health, or the lives of others (Act on the Protection of Mental Health) and the exist-ence of a mental illness as a reason for incapacitation (Code of Civil Procedure). These legal institutions differ as for constitutional justification (Article 31 point 3) of the Polish Constitution) and their permissible duration. These differences are the main subject of the analysis. Particularly doubtful seems the possibility of diagnostic deprivation of freedom provided for in the proceedings on incapacitation, as to its duration (it may last up to 3 months).


2017 ◽  
Vol 7 (2) ◽  
pp. 147
Author(s):  
Anna Bartoszewicz

The Origins and Development of the Law on the Presumption of Death and Declarations of DeathSummaryThe article presents the history of the presumption of death and declaration of death. It provides an insight into the relevant concepts of the Roman law as well as chosen examples of the laws of the ancient Middle East. It also focuses on the Polish and foreign laws which were in force on the historically Polish territory during the period of the country’s loss of independence (1795-1918). It identifies the origins of the presumption of death and declaration of death in the Polish law and examines their development (including the relevant civil procedurę provisions) until 1964, when the present civil code and civil procedurę code came into force.By presenting and comparing the laws governing the presumption of death and declarations of death, the author highlights the different approaches of the laws that applied at the time of the loss of independence: those of Prussia, Russia, Austria and the Polish Kingdom, as well as the law in effect in the Grand Duchy of Warsaw. The article also considers the extent to which the laws introduced after Poland regained independence in 1918 were influenced by the foreign regimes previously in force.The gradual developments in the law following the Second World War are presented against the background of the major changes in Polish civil law over the same period, which occurred mainly via the codifications of the law in the civil code and the civil procedure code.


Author(s):  
Susan Cunningham-Hill ◽  
Karen Elder

Civil Litigation introduces the processes and procedures involved in making and defending civil litigation claims. Following the chronological progression of a civil litigation claim, the volume offers practical guidance on advising clients whilst ensuring that the principles of the Solicitors’ Regulation Authority Handbook and Code of Conduct 2011 are maintained. Diagrams at the beginning of chapters make clear the way in which the litigation procedure works and help with the understanding of the nature of the process as a whole. Examples provide a realistic context for learning, while issues of cost, best practice, and professional conduct are clearly highlighted. Alternative dispute resolution is given appropriate practical emphasis, and references to the Civil Procedure Rules throughout make sure that students are ready for life in practice. This edition has been revised to reflect the most up-to-date law and practice in all aspects of litigation practice. In addition to the chapters highlighted below, there are additional chapters online on injunctions and other equitable remedies, a practical guide to court hearings, instructing counsel, and enforcement of judgments.


2017 ◽  
Vol 52 (1) ◽  
pp. 41-56
Author(s):  
Anna K. Drabarz ◽  
Tomasz Kałużny ◽  
Stephen Terrett

Abstract The frustration in Polish society arising from excessive costs of conducting court proceedings and lengthy delays for dispute resolution has resulted in a genuine limitation in access to judicial justice for citizens. This paper argues that the answer to the dilemma between ensuring both justice and efficiency lies in language being a tool for the active participation of the parties in building mutual trust and shaping solutions in conflictual circumstances. How should the postulate of effective communication leading to dispute resolution in modern justice be achieved? The authors present the advantages of oral communication in proceedings on the way to finding agreement, pointing out the content and quality of language that make dispute resolution possible.


2021 ◽  
Vol 2 (1) ◽  
pp. 182-187
Author(s):  
Putri Anggun Puspasari ◽  
Ni Luh Made Mahendrawati ◽  
Desak Gede Dwi Arini

Mediation is an alternative form of dispute resolution. Mediation has grown and developed, running fast, the desire of humans or the community to resolve disputes quickly, and satisfying both parties to the dispute, According to PERMA No. 1 of 2016 concerning Procedure for Mediation in the Court determining that Mediation is a way to settle disputes peacefully, quickly, right, and effective, can open wider access to the parties to the dispute to obtain a settlement of the case, and get a sense of justice. Accounts payable is an agreement that creates rights and obligations between creditors and debtors who are reciprocal. Accounts payable is regulated in Chapter Thirteenth of the Third Book of the Civil Code, in Article 1754 of the Civil Code. The problem is how is the application of mediation in resolving disputes over debt defaults in the Gianyar District Court? And what are the factors that influence the success of mediation in the Gianyar District Court? The research used is empirical legal research, which is looking at society in the real sense. And the problem approach used is the approach of cases in the Gianyar District Court. The conclusion obtained from this study is that the application of mediation in the Gianyar District Court is in accordance with Supreme Court Regulation No. 1 of 2016, and the factors that hinder the mediation process in the Gianyar District Court, namely both litigants do not come in the mediation process so the mediation process failed.


2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.


2021 ◽  
Vol 11 (1) ◽  
Author(s):  
Gregory D. Clemenson ◽  
Antonella Maselli ◽  
Alexander J. Fiannaca ◽  
Amos Miller ◽  
Mar Gonzalez-Franco

AbstractGPS navigation is commonplace in everyday life. While it has the capacity to make our lives easier, it is often used to automate functions that were once exclusively performed by our brain. Staying mentally active is key to healthy brain aging. Therefore, is GPS navigation causing more harm than good? Here we demonstrate that traditional turn-by-turn navigation promotes passive spatial navigation and ultimately, poor spatial learning of the surrounding environment. We propose an alternative form of GPS navigation based on sensory augmentation, that has the potential to fundamentally alter the way we navigate with GPS. By implementing a 3D spatial audio system similar to an auditory compass, users are directed towards their destination without explicit directions. Rather than being led passively through verbal directions, users are encouraged to take an active role in their own spatial navigation, leading to more accurate cognitive maps of space. Technology will always play a significant role in everyday life; however, it is important that we actively engage with the world around us. By simply rethinking the way we interact with GPS navigation, we can engage users in their own spatial navigation, leading to a better spatial understanding of the explored environment.


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