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.

LEGAL ESSENCE OF MEDIATION AND PROCESS OF MEDIATION FOR A A СONFLICT-FREE DISPUTE RESOLUTION

The relevance of the research topic is due to the fact that in today’s world there is an urgent need to promptly, legally, and most importantly justice to resolve the dispute that has arisen between the parties. Nowadays, such activities as mediation are becoming more and more popular. The article provides a definition of mediation and the mediation process as concepts in the relationship between statics and dynamics, identifies their features and the main principles that should be followed in mediation and the mediation process. Emphasis is placed on the historical experience of the existence of the beginnings of mediation in the ancient world. Proposals are provided for the effective implementation of this institution in modern legislation, as well as requirements for persons who must carry out mediation activities. The objectives of this article, correlating with the conclusions and suggestions, are to separate the legal institutions of mediation and the mediation process as a static concept and a dynamic process; identification of general features as signs of mediation and special features as signs of the mediation process; defining special principles specific to the mediation process; substantiation at the legislative level of basic educational requirements for a mediator and ethical rules of a mediator. Consider the possibility at the legislative level to provide for the possibility of appealing the mediation agreement under certain conditions, for example, if the information considered in the mediation process was misrepresented by one or both parties, or it turns out that the mediator abused his position or rights. It turns out that mediation and the mediation process can become an equal tool for resolving disputes with the highest effect of positivism to protect the rights and interests of the parties.

How Buddhism Plays a Role through Victim-Offender Mediation in Handling the Challenges of Crime in China’s Tibet

Religion plays a significant role in the way Western societies respond to criminal offenses. However, the research on how religion plays a role in handling the challenges of crime in non-Western countries is lacking. In this study I try to close this research gap by analyzing the victim-offender mediation in China’s Tibet, where influenced by religion, history and culture, a set of local solutions to control criminal offenses have traditionally been formed. Based on the field survey and second-hand information, I discuss how religious factors play a role in local victim-offender mediation in terms of the basis for mediation, mediator, mediation tactics, and guarantee for mediation agreement. While Buddhism acts as a form of self-control over the adherents of Buddhism, it works as a form of social control as well. Buddhist lama as the main mediator strategically uses Buddhist principles as mediation tactics in victim-offender mediation. After the mediation agreement is reached, religious ceremony is usually conducted as a guarantee. In conclusion I summarize the possible contribution of the research findings to the basic issues of restorative justice.

CLASSIFICATION OF MEDIATION AGREEMENTS

Автором анализируется понятие медиативного соглашения, его правовая природа и элементный состав. Рассматривается возможность использования медиативных соглашений при разрешении споров, связанных с расторжением брака. Дается классификация медиативных соглашений. The author analyzes the concept of a mediation agreement, its legal nature and its elemental composition. The possibility of using mediation agreements in resolving disputes related to divorce is being considered. A classification of mediation agreements is given.

The enforceability of mediation clauses: A critical analysis of English case law

This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than the latter, which leads to frequent refusals to enforce mediation clauses in situations where enforcement should be granted. These decisions discourage parties from agreeing to multi-tier dispute resolution clauses providing for preliminary mediation, thus undermining the general policy favouring the use of alternative dispute resolution (ADR) mechanisms. Moreover, judicial discretion in deciding whether to give effect to a valid mediation agreement is unjustified and exercised on the basis of questionable considerations.

Right Protection and Reconciliation of the Parties: The Issue of the Concepts and Correlation

The article analyzes the concept of legal protection, reveals its features. A distinction is made between protection of law and protection of law. Self-defense of civil rights is investigated. It is shown that self-defense is not an independent method of legal protection, since its result is not guaranteed by the state, and self-defense measures can be qualified as an offense. The concept and grounds for concluding an amicable agreement are revealed. It has been proved that amicable agreements can be concluded only in cases of a private law nature. Settlement agreements in public-law conflicts are allowed by the current procedural legislation, but they can be a means of committing corruption offenses. The author distinguishes between an amicable agreement as a procedural act and agreements on conciliation concluded out of court and having a civil law nature. Mediation is investigated as an out-of-court procedure for resolving civil conflicts. It was proposed to supplement the requirements for the candidacy of mediators with an indication of the obligatory presence of a higher legal education. It was also proposed to supplement the procedural legislation with sections on the procedure for challenging mediation agreements and on the issuance of writs of execution on them (by analogy with the decisions of arbitration courts), as well as an indication that the presence of a mediation agreement concluded by the parties is grounds for refusing to accept the statement of claim and for terminating proceedings on the case.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.