Common and distinctive features of judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power

The article examines the place of disputes over appeals against decisions, actions or omissions of the subjects of power in modern conditions. Some scientific views on the classification of types and kinds of mediation as a legal institution are analyzed. Existing models of mediation are identified. It is stated that in the Ukrainian legal system there are two possible models of mediation: judicial and extrajudicial. The own concept of «judicial mediation» is formulated. It is argued that judicial mediation is provided by administrative procedural law in the form of dispute resolution with the participation of a judge. The content of out-of-court mediation and its significance in administrative disputes are revealed. Features and signs of judicial and extrajudicial mediation are described. It is stated that judicial mediation is rarely used in administrative proceedings, and there are no mechanisms for the use of out-of-court mediation. The essence of judicial and extrajudicial within the framework of resolving disputes concerning appeals against decisions, actions or omissions of subjects of power has been studied. Modern scientific approaches to the ratio of components of judicial, extrajudicial mediation and litigation are generalized. It is proved that in science there is no single approach to the characteristics of extrajudicial and judicial mediation. For the first time, the author provides a comparative description of the main elements of judicial and extrajudicial mediation in disputes concerning the appeal of decisions, actions or omissions of the subjects of power. The role of judicial and extrajudicial mediation as legal institutions is defined. The possibility of using judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power has been established. The basic principles of judicial and extrajudicial mediation are formulated. The status of a mediator in judicial and extrajudicial mediation is revealed. The functions of the mediator are highlighted. The duration of judicial and out-of-court mediation procedures is stipulated. The cost of judicial and extrajudicial mediation procedures is substantiated. The essence and content of the result of judicial and extrajudicial mediation procedures are determined. It is proved that judicial and extrajudicial mediation in disputes with public authorities and their officials have their advantages and disadvantages. In particular, it was found that, compared to judicial, out-of-court mediation in disputes over appeals against decisions, actions or omissions of subjects of power is a more effective conciliation procedure, but there are questions about the level of professionalism and education of the mediator. Ways are provided to improve the implementation of judicial and extrajudicial mediation in resolving disputes concerning appeals against decisions, actions or omissions of the subjects of power.

Institutions of court settlement and Judicial /court-annexed mediation as part of the unified system of justice

In Georgia, the existence and strengthening of two important legal institutions - court settlement and court mediation may provide opportunities, in order to ensure the common goal – the satisfaction of the interests of individuals, in the civil proceedings, much faster, and with less expanses, than it can be achieved in civil process. Consequently, in the court system, highlighting their importance, may excel the unified chain of justice and ensure trust towards the judiciary. In the paper, it is considered relevant, to describe the fact of settlement in the court with the term "court settlement" and not like "settlement", as the term “settlement” can also be considered to describe an agreement, reached by the parties, before the litigation process. At the same time, in order to ensure the institutionalization of mediation in Georgia, it is necessary to continue attempts, not only in the direction of improving the legislation, but also to introduce and implement new mediation programs. The implementation of the presented recommendations, as a result, may facilitate the introduction of legal institutions and the improvement of the unified chain of justice.

ARAH PEMBAHARUAN HUKUM PIDANA INDONESIA DAN KONTRIBUSI HUKUM PIDANA ADAT DI TENGAH PLURALISME HUKUM INDONESIA

Tujuan penelitian ini untuk mengetahui ara pembaharuan hukum pidana Indonesia di tengah pluralisme hukum Indonesia; dan kontribusi hukum pidana adat dalam pembaharuan hukum pidana di Indonesia. Hasil penelitian ini menunjukkan bahwa Pembaharuan hukum Indonesia saat ini diarahkan kepada upaya re-orientasi substansi aturan-aturan hukum pidana yang dianggap tidak lagi relevan dengan kehidupan masyarakat Indonesia karena banyak perbuatan jahat dalam optik masyarakat tidak termasuk sebagai perbuatan jahat dan dilarang dalam optik hukum positif; dan Kontribusi hukum pidana adat dalam pembaharuan hukum pidana di Indonesia tercermin dari adanya penyelesaian perkara di luar pengadilan atau dikenal dengan istilah mediasi penal, berdasarkan Hukum Pidana Adat mengenai kebiasaan masyarakat Indonesia yang sudah sejak dulu menyelesaikan tindak pidana atau perselisihan di luar pengadilan (mediasi penal) telah membuktikan bahwa kontribusi Hukum Pidana Adat relevan dengan pembaharuan Hukum Pidana di Indonesia. The objective of this research to reveal direction of reforming Indonesian criminal law in the midst of Indonesian legal pluralism; and the contribution of customary criminal law in reforming criminal law in Indonesia. The result of this research indicates that The reform of Indonesian law is currently directed at efforts to re-orient the substance of criminal law rules which are considered no longer relevant to the life of the Indonesian people because many evil acts in society's optics are not considered evil and are prohibited in the optics of positive law; and The contribution of customary criminal law to reforming criminal law in Indonesia is reflected in the settlement of cases outside the court or known as penal mediation. Penal mediation is actually not something new for the Indonesian nation, the provisions regarding penal mediation, based on the Customary Criminal Law regarding the habits of the Indonesian people who have long since resolved criminal acts or disputes outside the court (mediation penal) has proven that the contribution of Customary Criminal Law is relevant to the reform of Criminal Law in Indonesia.

The Implementation of Supreme Court Regulations Number 1/2016 Concerning The Procedure of In-Court Mediation on Economy Sharia Dispute (A Case Study in Blitar Religious Court)

The sharia economic dispute resolution process in Indonesia has two paths which can be taken by litigants, namely litigation in court and non-litigation. This research was motivated by sharia economic dispute cases handled by Blitar Religious Court which were carried out through a mediation but failed. The failure of this mediation process and the factors behind the failure are important issues to be studied. Consequently, Supreme Court Regulation No. 1/2016 becomes important to be used as the basis of analysis, whether this regulation has been implemented or not. Therefore, this study aims to describe and analyze the implementation of the Supreme Court Regulation Number 1/2016 concerning the procedure of in-court mediation on economy sharia disputes in Blitar Religious Court, along with various obstacles and solutions.

I Won’t See You in Court! Mediation, arbitration and the nonjudicial resolution of estate and trust disputes

This article will summarize the provisions of the Arbitration Law 1968 (the “Arbitration Law”), the Courts Regulations (Mediation) 1993 (the “Mediation Regulations”) and a few court cases involving prominent families for which information is publicly available. In addition, the article will discuss the availability of out-of-court proceedings in trust disputes.