Academic journal article European Research Studies

Comparative Legal Analysis of Mediation in Russia and the EU

Academic journal article European Research Studies

Comparative Legal Analysis of Mediation in Russia and the EU

Article excerpt

Introduction

Mediation--a procedure in which an impartial third party helps to understand and resolve the conflict of interest that has risen in between the other two opposing parties. The advantage of this method of dispute resolution is that the mediator helps the parties to develop their own terms of agreement between them.

It is important to point out that mediation was first developed and outlined in the United States in the 20th century. US economy at the time witnessed a completely new form of conflict in the struggle between the trade unions and employers on the matter of wages and working conditions. It was necessary to resolve the dispute expeditiously to eliminate the risks of protests and continuous strikes. Then the US government issued a proposal for the parties to refer to the Ministry of Labor in order to resolve the dispute in a neutral way. In 1947, to fulfill this function a special federal agency--the US Federal Service for Mediation and Conciliation (Federal Mediation Conciliation Service, FMCS) created, which still exists today. For the first time the term "mediation" was used. The second prerequisite for the emergence of mediation was the emergence of such organizations as <> and <> in the late 1960s. These local nongovernmental organizations, whose activities are focused on resolving conflicts between families, neighbors, as well as low-income groups. Thus, citizens are provided access to justice. The third prerequisite that was established in the 60s, features the American civil procedure. Mediation became a fully independent procedure only since mid 1970s.

The first countries to take on mediation after the US took over the Anglo-Saxon legal system were UK and Australia. So in the UK mediation found its primary use in the resolution of labor disputes. As a result since 1976, there is Advisory Conciliation and Arbitration Service operating in the UK, the objectives of which are: to contribute to the improvement of industrial relations, in particular, support collective bargaining process.

In Australia, the protection of rights of the native population (that by initiating numerous lawsuits tried to defend their right to cultural autonomy) required an efficient settlement. To resolve the dispute, the National Court of Rights for Indigenous Population has established the possibility of the judge forwarding claims to the independent mediator.

In Russia, the first step towards the implementation of mediation was seen in the adoption of the Federal Law of 27.07.2010 N 193-FZ "On alternative dispute resolution procedure involving a mediator (mediation procedure)."

In this work, the leading hypothesis formulates that the development of mediation in Russia is inevitable; it is just due to the peculiarities of the law enforcement practices.

The authors of this work aim to test this hypothesis, the definition of the concept of mediation, the development of this institution in Russia and abroad, as well as the relationship of mediation with other spheres of legal activity in modern Russia.

Literature review

History of development of mediation and its periodization have been affected the works of many foreign lawyers and legal scholars (H. Besemer, 2004; Parkinson, L. 2010; Russ K. 2008). Besides, Europe has progressed far enough in exploring mediation, which is confirmed in the works of foreign scientists (Joerg Risse, 2005; Grefin, K. von Schlieffen, 2005; R. Fisher, 2006). The mediation of the Russian Federation has also attracted attention of both practitioners and legal theorists (Blazheev, B. 2008; C. A. Shamlikashvili, 2010; Nosyreva, E.I. 2012; Emelkina, 2016; Famina, 2016). Neither did mediation escape the eyes of philosophical theorists (Berzele, 2000; Solovyov, V.S. 1990). It is said that following the adoption of the federal law in Russia (2010) mediation began to penetrate many spheres of human life. …

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