Academic journal article European Research Studies

Comparative Analysis of Mediation Procedures and the Judicial Settlement of Conflicts

Academic journal article European Research Studies

Comparative Analysis of Mediation Procedures and the Judicial Settlement of Conflicts

Article excerpt

Introduction

Nowadays, recourse to court remains the most popular form protection of violated rights in many countries. The court, as the supreme body of justice is not always optimal form resolution of the conflict for the parties to the dispute. Trial in court entails considerable legal costs, withdrawal a huge amount of money which is a matter of dispute from the money turnover and also can damage business and personal relationships of the parties. Besides, it is cause of the serious overwork of courts that affects their performance (Paltsev, 2012).

Judges are on the top of the legal hierarchy. But besides the respect and high public reputation of this kind of activity everywhere in the world, the work of judges in conditions today has many difficulties. There isn't more independent work than a judge in the world. That is why judges have constantly to take care of their objectivity and impartiality, to fulfill and overfulfill legal rule, which is putting pressure on them. Often, it seems that the burden of many social failures is on their shoulders, so often they are guilty in everything. They are the most silent profession. Judges are strict, formal, unavailable, pedantically apply the law, don't permit anything not to relate to law, don't take into account the emotions and interests, they make decisions not by justice, but by the letter of the law,--and everything often leads them to a moral dilemma.

Today, for the resolution of any disputes people always turn to the courts. As a result, the courts are overloaded with cases, and judges under the circumstances (at least in large courts) can't resolve disputes within a reasonable time because of the large number of lawsuits. Everybody constantly talks about the number of judges towards the population, but nobody talks about the number of cases towards the number of judges or the public. They are horrendous if we compare number of cases per judge, for example, in the countries of Europe. Nowadays, one of the sequels the congestion of our courts are countless claims for compensation for a case not within a reasonable time demands, threatening new lawsuits that, in the circumstances, at least pointless (Srdjan, 2010).

In our opinion, in disputes that have already trialed, judicial mediation is a great alternative to the blind instrument of controversial litigation. It unites the legal and moral authority proceedings with the flexibility and adaptability of mediation. Thus, it is not just a qualitative leap in the dispute resolution efficiency, but also a rethinking the role of courts and judges in the administration of justice.

Literature review

The effectiveness of mediation during the court proceedings has been affected the works of many foreign lawyers and legal scholars (Otis, 2011; Organsims, 2010). Besides, many European and American lawyers see a wide sphere of application of the mediation procedure, both in commercial dispute, and other areas (Richbell, 2011; 2010; Crawley and Graham, 2010). The mediation of the Russian Federation has also attracted attention of both practitioners and legal theorists (Fingers, 2012; Shamlikashvili, 2016; Smyg, 2012). It is said that following the adoption of the federal law in Russia (2010) mediation began to penetrate many spheres of human life. Practicing lawyers, judges and legal theorists began to talk about the successful use of mediation in areas such as family law, labor and business. Foreign experience allows us to use the works of European lawyers (Parkinson, 2010; Pel, 2009; Crowley, 2010) as the basis for the formation of our own well-functioning system (Lisitsyn, 2010; Belov, 1998).

Methods of carrying out research

As the methodological basis of the research--dialectical, phenomenological and synergistic methods were used. The dialectical method is the objectivity of the study, historicism, taking into account the unity of qualitative and quantitative determination, determinism and compliance with the principle of negation of negation. …

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