Legal Bulletin. 2021. №2.

Постійне посилання колекціїhttps://dspace.krok.edu.ua/handle/krok/2311

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Georgian model for regulating mediation in the background of legislative reform
(Університет «КРОК», 2021) Dzagnidze, Dimitri
Article provides a general overview of legislative provisions of law of Georgia “On Mediation” and accom- panying legislative amendments adopted by the Parliament in Georgia in 2019 and highlights the specific characteristics of Georgian regulatory model of mediation. The paper examines the evolution of mediation in Georgian legal system from its initial introduction in sectoral legislation in 2011 to adoption by the parliament of Georgia of a new law “On Mediation” and its accom- panying legislative changes. The article argues that sound legislative basis is one but not the only precondition for the well-func- tioning mediation system. Public trust and awareness of stakeholders is another factor in order to achieve that aim. Article explores the legislative novelties and highlights the important changes in this field of law. In author’s opinion the new law fills the legal gaps that existed prior to the reform. At the same time, the article underlines the weaknesses of new legislation that need to be addressed for further development and full implementation of mediation in Georgia.
Confidentiality principle in mediation and its exceptions in Latvia
(Університет «КРОК», 2021) Rone, Dana; Kīsnica, Ivita
The article analyses confidentiality principle in mediation and its exceptions in Latvia. Since 2014, when Mediation Law was adopted in Latvia, a number of mediated disputes has significantly increased. Although from the surface a principle of confidentiality seems to be with explicit content and clear borderlines, nevertheless theory and practice shows zones of still undefined concepts, which until now have not been analysed in Latvia. The object of the research is a concept of confiden- tiality principle. The aim of this work is to analyse scope of subjects of confidentiality principle, and elaborate on preconditions to for exceptions from mediation confidentiality. Methods of scientific and professional literature review, document and comparative analysis, as well as interview method was applied in this research. The topic of the article is discovered both from theoretical and practical aspect.
Negotiations and mediation: from differentiation to mutual complementarity
(Університет «КРОК», 2021) Bartusiak, Pavlo
Due to the permanent crisis in the judicial system Ukraine is constantly reforming the organization of courts, improving the legal regulation of the administration of justice. On the other hand, from the society itself, like mushrooms after the rain, there emerge alternative ways of resolving disputes, including negotiations and mediation. The purpose of this article is to study the variants for understanding by the scientific community of such concepts as «negotiation» and «mediation» through the use of methods of comparison, analysis and synthesis. The article demonstrates the existence of several approaches to the definition of negotiation and mediation, which are characterized by the differentiation of these phenomena or their complementarity by each other. The models for understanding of negotiation and mediation, that proposed in the article, will help all those, who are interested in these ways of alternative disputes resolution, to better understand their essence and purpose, to successfully apply negotiation techniques during mediation sessions.
Prospects of development of the mediation model in Ukraine on the example of some Post-Soviet Union republics (Belarus, Moldova, Georgia)
(Університет «КРОК», 2021) Dolianovska, Inna; Lotariev, Andrii; Доляновська, Інна Миколаївна; Лотарєв, Андрій Григорович
Alternative dispute resolution (ADR) is a group of processes through which disputes and conflicts are resolved without recourse to the formal judicial system. These include: negotiation, arbitration and mediation. Mediation is an alternative method of resolving disputes with the involvement of a neutral third party - a mediator. Mediation has been used successfully in many European countries and has proven to be an effective method of settling disputes. However, each country has taken its own authentic path to the introduction and promotion of mediation. Despite the fact that mediation has existed in Ukraine for more than twenty years, we remain at the beginning of the path of development and implementation of this alternative method of dispute reso- lution. Mediation has not yet become a common method of resolving conflicts in our society, moreover, some participants in conflicts are unaware of the existence of such a method or have a misconception about where and when mediation can be used. Like many countries where mediation is already a mandatory pre-trial procedure, Ukraine has faced a number of challenges in implementing this alternative method of conflict resolution. Research on these issues and obstacles to the implementation of mediation in Ukraine will facilitate its rapid implementation. A comprehensive and in-depth study of all the positive and negative factors that have ac- companied the introduction of alternative dispute resolution methods in other countries will allow to avoid mistakes, strengthen the positive aspects and influence the negative factors. Therefore, the article will consider models of mediation development in some post-Soviet countries to find the most optimal way of development in this direction for Ukraine.
Access to profession of mediator in Georgia: gender, education and other dimensions
(Університет «КРОК», 2021) Devadze, Ketevan
In this article, we discuss the profession of the mediator, what kind of requirements or restrictions are pre- scribed for professional mediators in different countries, how different characteristics of a mediator can affect the mediation process or the outcome of the mediation. The article provides review and the comparative analysis of eligibility criteria for access to the profession of mediator set by the law in Georgia and other countries with further survey of Georgian mediators' gender and education based on the official data of Unified Register of Mediators in Georgia. The analysis of the data that includes 54 medi- ators shows that 57,4% of mediators are female and that most mediators have a degree in law (88.8%). Other fields of education are Psychology (7,4%), Economics(1.8%), and Public relations (1.8%).
Why Businesses in countries of Eastern Partnership Need Mediation (Brief Theoretical Discussion)
(Університет «КРОК», 2021) Maisuradze, Davit
Businesses are eager to use the dispute resolution mechanisms which are fast and require less costs. At the same time, these mechanisms should be neutral, free from corruption and must not have negative influence on business processes. Mediation is considered as one of the popular methods for solving the conflicts in business sphere. It is distinguished not only from courts but also from other methods of alternative dispute resolution. Gradually, mediation becomes popular in Eastern Europe and in post-socialist world as well. The court systems which are overwhelmed by disputes can benefit from mediators who can relieve the judges from the immense number of cases. Moreover, popularizing the mediation can be profitable for businesses too. Article gives the basic analysis of positive aspects of mediation and underlines its superiority in comparison to traditional courts and other methods of alternative dispute resolution.
Mediatin in family business: finding a solution in family and commercial issues
(Університет «КРОК», 2021) Yuriichuk, Illia; Moisei, Heorhii
This article is about the aspects of mediation in family business disputes. Nowadays, all developed countries of the world are considered the recognition mediation as one of the most efficient methods to resolve a dispute. A mediator is a profes- sional who acts as a third party to resolve a dispute and helps opponents to communicate with one another, to guide the parties in their finding a solution that satisfies the interests and needs of both parties. In the article we discover a correlation between a family and business interests, analyze the meaning of the “family business conflict” concept, and discover a detailed and structured proce- dure of mediation in family business disputes. Moreover, it was compared the basic pros and cons of the family business mediation, which helps us to find out the strong and weak sides of such brand new type of mediation.
The place of mediation in the system of social sciences
(Університет «КРОК», 2021) Savchenko, Viktor; Neskorodieva, Inna
In modern conditions, mediation has been increasingly becoming the subject of discussion to determine its place in the social sciences. In this regard, the need for an analysis of the social sciences, which are most closely related to mediation, will be updated. The aim of the article was to determine the structural components of the concept of "mediation" and to determine the place of mediation in the system of social sciences. The main problem in determining the place of mediation in the social sciences is the lack of a unified approach to this issue. Used the content analysis, the following components of the concept of "Mediation" have been identified: process, conflict, mediator, parties. It was found that mediation is an interdisciplinary science, which is at the junction of a number of social sciences: law, economics, sociology, and psychology. Based on the results of the study was made conclusions: today, mediation does not have its definite and fixed place in the system of social sciences. It has been established that at present mediation cannot be considered only within the framework of one science. The scientific results obtained in the study could serve as the basis for the development of the conceptual foundations of mediation and the disclosure of the practical potential of this process in conflict resolution.
Mediation as a value and chance for Ukraine
(Університет «КРОК», 2021) Patsurkivskyy, Petr; Havrylyuk, Ruslana
In the article mediation as a qualitatively isolated self-sufficient value (culture) of a developed civil society is investigated from the standpoint of anthroposociocultural approach. It is substantiated that the quintessence of mediation is the preservation and protection of human dignity in resolving conflicts by their participants with the assistance of professional medi- ators, as well as revealed the basic principles of mediation – human-centrism, denial of violent orders in society and paternalism. It is proved that mediation has a complex nature – it is dialogical, it exists as both a public good and a social service, it is a form of freedom, justice and social partnership, and the attributes of mediation are the trust of the conflicting parties to each other and social optimism. It is substantiated conclusions that: a) the assertion of mediation as a value (culture of mediation) in society is a real Copernican revolution in public views on methods of conflict resolution and one of the most important manifestations of the subjectivity of the individual; b) mediation belongs to paradigmatically opposite values in comparison with the values of state ju- diciary; c) mediation embodies the postmodern way of being and thinking, and therefore can be adequately perceived through the corresponding categorical-conceptual apparatus of non-classical standards of science, from the worldview and methodological approaches of postmodernism.
Online mediation - tool for dispute resolution during lockdown
(Університет «КРОК», 2021) Dzimistarishvili, Ucha
Article reviews the development process and stages of online mediation. Online Dispute Resolution and online mediation became even more important tool due to pandemic situation in whole world, than ever before. Therefore, article aims to discuss advantages and risks for online mediation. Article provides main characteristics of traditional mediation and their link with online mediation tools.
Psychologist as family mediator: role and significance
(Університет «КРОК», 2021) Beridze, Ketevan; Ketchakmadze, Rusudan
The article reveals important role of the psychologist as a mediator in family disputes on examples from history and current practice of mediation in Georgia, focusing on activities of the project "Advocacy for the Protection of Children and Youth" implemented on the basis of the psychology clinic at Batumi Shota Rustaveli State University.
Concept of liberal peace management through mediation
(Університет «КРОК», 2021) Sheliazhenko, Yurii
Theoretical study of peace as dynamics of life free from violence from perspective of management science reveals instrumental potential of mediation, i.e. organization of peace in communication among people, in liberal peace management, which is process of organization and development of peaceful life by nonviolent means. Liberal peace management through mediation in private and public contexts maintains dialogue, negotiations, and decision-making ensuring maximum autonomy of the parties to achieve agreements between people and voluntary compli-ance with the agreements. As a peaceful way of dispute settlement, liberal peace management through mediation helps to build peace within and between societies ensuring the right of every-one to enjoy just and prosperous peace free from fear and want, as urges 2016 Declaration on the Right to Peace.
Mediation in conflict management: general approaches and practices in Ukraine and EU
(Університет «КРОК», 2021) Andreieva, Kateryna; Parkhomenko, Olena
In the context of global changes and the intensification of conflict situations in society, the problem of their ef- fective resolution becomes especially relevant. The experience of leading countries confirms the high effectiveness of mediation in this area. The purpose of this paper is to study the general approaches in mediation, its role in conflict management based on the analysis of best EU practices. Using a set of general scientific cognition methods (analysis, synthesis, comparison, etc.), the main approaches to defining the concept and components of the mediation process in Ukraine and European countries are analyzed. The key principles and stages of the mediation procedure are summarized too. Quantitative and qualitative indicators of mediation implementation for a number of countries have been identified on the basis of comparative analysis. The peculiarities of the spread of mediation in Ukraine are considered, the main obstacles to the active spread of alternative conflict resolution in the state are identified. With the method of generalization, the results of the implementation of a number of projects in the field of law and medi- ation in Ukraine are presented, which made it possible to determine the further trajectory of dissemination of mediation practices in the Ukrainian reality. As a result of the study, the proposals to increase public awareness and trust in the mediation procedure are provided too. The results of the study may have the practical interest to scientists in the field of mediation, conflict, law and management, as well as to NGOs, universities and other stakeholders.
Mediation in criminal cases: comparative legal analysis
(Університет «КРОК», 2021) Fedorchuk, Maryna
The article is devoted to the comparative analysis of mediation in criminal cases in particular countries. The article analyzes the approaches of researchers to the understanding of mediation in criminal cases and restorative justice. The international standards in the field of mediation in criminal cases and restorative justice, which are applied by states and imple- mented in national legislation, are considered. It has been studied that mediation is a form of restorative justice. It was found that in most countries, mediation in criminal cases was introduced through the implementation of pilot projects, and over time, rele- vant laws on mediation were adopted or legislation was amended. The current state of development of mediation as a restorative justice in Ukraine is analyzed.
Online mediation in Spain and the new challenges posed by Covid-19
(Університет «КРОК», 2021) Aranda, Serna Francisco J.
This article examines the impact that COVID-19 pandemic is having on mediation processes in Spain. For that purpose, the guiding principles that feed mediation are analyzed together with the problems arising from the implementation of the use of new technologies an electronic media in the online mediation area. This assesment is delimited by the Spanish legislative framework and the legal and social consequences that COVID-19 has generated during 2020.
Comparative analysis of experience of Georgia and Ukraine in implementation of mediation in commercial disputes
(Університет «КРОК», 2021) Francuz, Anatolij; Polishchuk, Viktoriia; Француз, Анатолій Йосипович
This article is devoted to the analysis of the practical experience of mediation application in commercial disputes. A comparative analysis of the historical development of mediation in Georgia and Ukraine has been made. In the past in Georgia, mediators were found to be individuals, who enjoyed authority and trust among the members of society and who knew laws very well. In Ukraine, mediation has developed as a part of negotiations between the disputing parties. It is determined that current mediation in Georgia and Ukraine is developing in different ways. The starting point of the mediation development in Georgia can be considered a creation of a mediation clinic at the university. Thereafter, an institution that was focused on social dialogue was created in Georgia in 2008. Further development of mediation in Georgia was accompanied by the introduction of pilot projects and the active development of the training system for the new profession, namely a mediator. The result of pilot projects in Georgia was the adoption of amendments to the Civil Procedure Code, which established two forms of mediation. Mediation has become a must in family disputes and in settling disputes between neighbours. For other types of disputes, including commercial disputes, mediation was a recommendation. It was researched that financial incentives and accountability have been also applied to encour- age mediation in Georgia. For parties, who have used mediation before applying to the court but have not reached an agreement, a lower court fee is set. If the parties have waived the obligatory mediation, the defaulting party shall pay a fine. Georgian law also stipulates the possibility of enforcement of a decision made in the mediation process if one of the parties fails to comply with it. The author analysed that the draft law on mediation in Georgia will stimulate the state and all its bodies and businesses to actively use mediation in any disputes. In Ukraine, the development of mediation began in the 1990s. It is researched that Ukraine and Georgia have a similar start in the introduction of mediation into the legal system. An authority that is engaged in social dialogue has also been set up in Ukraine. However, in the absence of effort consolidation of all stakeholders in the legal definition of the mediation process in Ukraine, paths of mediation development in Ukraine and Georgia had split. It is concluded that the criterion of the success in implementation of mediation in legal terms is the need to introduce mediation disciplines in higher education institutions and to carry out educational work among the population on the effectiveness of this method of dispute resolution.