Mar
AJEE Collection of Articles on Mediation
AJEE Collection of Articles on Mediation
Mediation is undoubtedly one of the most current trend in legal science.
Here we collect the most read articles on mediation, published in AJEE:
- mediation and a child
- the online mediation
- new Law of Ukraine on mediation
- Singapore Convention on mediation
and more.
The Law of Ukraine ‘On mediation’ was adopted on 16 November 2021. A few publications on mediation were placed under these links and maybe useful for further research:
C.H. Van Rhee Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective
Nowhere in Europe are disputants forced to settle their civil or commercial disputes by way of mediation or any other form of alternative dispute resolution. Settlement is also completely voluntary in light of the fundamental right of access to court of Art. 6 of the European Convention of Human Rights.
This does not, however, mean that potential disputants may not be requested to attempt to settle their case before going to court, for example, by way of mediation, especially if strict time limits are observed for such procedure. In some European jurisdictions, attempting mediation or other forms of alternative dispute resolution before court action is initiated is mandatory, at least in certain cases.
The present contribution will focus on such preliminary mandatory mediation attempts in a selection of jurisdictions.
The article is devoted to distinctive features of the new Ukrainian legislative mediation regulation that are decisive for the national mediation model, such as the definition and principle of mediation, its principles and scope, requirements for mediators, etc. Special attention is paid to the perspective and challenges for the mandatory mediation in terms of the provisions of Art. 124 of the Constitution of Ukraine and European standards for access to court (para. 1 Art. 6 of the ECHR).
This article addresses organisational and procedural aspects of integrating mediation into judicial proceedings. Different models of integrating mediation into the Ukrainian court system piloted in Ukraine are analysed. The authors define current trends in the development of mediation in Ukraine.
The Singapore Convention on Mediated Settlement Agreements: A New String to the Bow of International Mediation? By Elisabetta Silvestri
On 7 August 2019 the Singapore Convention on recognition and enforcement of international mediated settlement agreements (hereinafter, the Singapore Convention) became open for signature.
This multilateral treaty was drafted by UNCITRAL after a labourious discussion that spanned several years and was adopted by the United Nations General Assembly on 20 December 2018. In order to mirror the provisions of the Singapore Convention, the UNCITRAL Model Law on International Commercial Conciliation of 2002 was amended and renamed as UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation.
The purpose of this essay is to present an overview of the major contents of the Singapore Convention, a treaty aimed at providing uniform enforcement mechanisms for the mediated settlement agreements by which international commercial disputes are resolved.
The hope is that the Convention will promote a wider use of cross-border mediation. Just as the New York Convention of 1958 has been a successful instrument of international arbitration, the Singapore Convention is expected to make mediation more appealing thanks to specific and harmonized rules that are intended to make enforcement of settlement agreements easier and quicker to obtain.
Mediation and Court in Ukraine: Perspectives on Interaction and Mutual Understanding
In this note, the authors identify some problems concerning the introduction of mediation in Ukraine in terms of its use in the consideration and resolution of court cases. Despite the lack of clear legal regulation for mediation, courts in Ukraine still try to use this mechanism of pre-trial dispute resolution. Particular attention is paid to the law enforcement activities of courts in criminal and administrative cases, in which courts try to equate the conciliation procedure with the mediation procedure. These approaches clearly follow from the Resolutions and Recommendations of the Committee of Ministers of the Council of Europe and the settled case-law of the European Court of Human Rights (ECtHR) since, back in 1975, the ECtHR in its decision Golder v. The United Kingdom ruled that it is unlikely that the rule of law can be imagined without access to justice.
However, the presumption that the courts are the main institution for resolving disputes continues to be undermined by the proliferation of alternative forms of dispute resolution, both agreement-based and judicial.
Online Mediation: a Game Changer or Much Ado About Nothing? By Victor Terekhov
This paper focuses on the phenomenon of Online Mediation, which is gaining in popularity in recent years.
Being part of the Online Dispute Resolution family, this particular method is the one applied most often. The very idea of disputes being heard and resolved in the global network seems exciting and quite appealing to some, while for others it presents a source of major concern. New technologies influence the ways parties and the neutral interact, share ideas and reach a settlement. Moreover, they have a clear impact on how people evaluate the other party, their mediator and the whole procedure they are involved into. This makes trust a significant issue for online mediation, one that is not so easy to establish while relying on the old techniques. Another important thing is the absence of positive regulation for the sector. In spite of recent instruments adopted by the EU, online mediation is still a field largely unknown to lawyers, consumers, business players and national regulators.
The present article aims at clarifying the notion of ‘online mediation’ (which, surprisingly, has not been properly done yet), showing some of the most obvious benefits and drawbacks of this dispute resolution method (a deeper, more profound look on them will only be possible over time, when online mediation proves itself in practice and more statistical data are available) and providing valuable remarks on the solutions for the problems determined.
Book Review
Joanna Bodio Review of the book 'Implementation of the principle of the best interests of the child in mediation in matters concerning the exercise of parental authority and contacts', edited by Joanna Mucha (published in 2021 by Wolters Kluwer, Poland)
The monograph Implementation of the principle of the best interests of the child in mediation in matters concerning the exercise of parental authority and contacts, edited by Joanna Mucha is based on the thesis that in court proceedings in matters relating to a child and mediation in matters concerning the exercise of parental rights and contact with a child, the primary value to be protected should be the best interests of the child. The analysis and research allowed the researchers to determine the extent to which the applicable regulations and mediation practice implement this principle and what instruments adopted in legal regulations and used in mediation serve to respect it.
The authors emphasised that in many acts of international law and the provision of Art. 72 of the Constitution of the Republic of Poland, the order to protect the best interests of the child is a fundamental and overriding principle of the Polish system of family law. All regulations in the sphere of relations between parents and children are subordinated to this principle. It signifies the primacy of the child’s best interests over the interests of other people, especially parents, and is the purpose of exercising parental authority and contacts. This analysis was supplemented with positions based on other legal systems – Ukraine and Italy. In both cases, the importance of the best interests of the child was confirmed in the procedures for resolving conflicts related to the separation of parents.
