Mediation as an Appropriate Tool of Settling Civil Disputes Essay

Custom Student Mr. Teacher ENG 1001-04 10 January 2017

Mediation as an Appropriate Tool of Settling Civil Disputes

INTRODUCTION

The economic activities of the individuals and artificial persons are the basis of welfare of any state. It leads to the formation of public and legal relations which come into existence in the process of executing such activities. At the same time it must be admitted that these relations never carried smooth temper as there is always a probability for arising a dispute so far as private interests can be infringed. Most of the conflicts can be settled by the parties on compromise basis but some of them are still remaining unsolved. There are different reasons such as clash of opinions or failure to understand one another. In that case the participant of the conflict, who is of opinion that his rights are infringed, most likely will take prompt action to be rehabilitated by force of the court decision.

The centuries-old experience of doing a justice is evidence of the fact that litigation is not always able to solve a conflict and to give pleasure to all parties of a dispute. First of all the legal process is expensive and it usually takes a lot of time. At the second the litigation excludes the confidentiality as all the parties of the dispute must disclose the information to the public. Thirdly it is impossible to give a fair trial in terms of satisfying all parties of the dispute so far as there is someone who is successful in action and someone who is not. The last circumstance makes conflicting parties to seek alternative methods of solving a dispute.

For the last decades it is outlined the tendency for settling disputes, which arise from treaties and other civil legal relations, by using alternative methods than formal litigation procedures. These methods were assumed as a basis of the group of processes which are named as Alternative Dispute Resolution (ADR). According to glossary of the Civil Procedures Rules ADR is defined as “collective description of methods of resolving disputes, otherwise than through the normal trial process”.

Fiadjoe (2004; 19) classifies ADR processes as: adjudicative – the third neutral party is delegated powers of decision-making by the participants of the dispute; evaluative – the facts of the case and the situation are assessed by the third party who finally gives a non-binding opinion about the outcomes of the dispute; meditative – this process represents the participation of the neutral third party in the dispute with only one aim is to facilitate to the parties to arrange a settlement with a conflict. It needs to be said that these processes are not static as progress of society and understanding the nature of the conflict (as a starting point for any dispute) make it possible to supplement the ADR with new elements. The ADR includes such methods as negotiation, mediation, arbitration, ombudsman, private mini-trial and others. Depending on the specific case all of these processes can be used separately or mixed with each other.

In spite of the variety of methods are used under the “umbrella of ADR” the mediation is one of the most popular processes as it has long-term historical progress and became widespread all other the world. Mediation is included in many cultures such as Islamic, Christian, Jewish and others which consider it as an integral part of their traditional methods of settling a dispute. At present mediation is widely held because it is involved in almost all fields of activity of humanity. Mediation can be used in international, commercial, civil, family disputes or even social conflicts. This method proved its effectiveness not only because of the possibility of the disputants to save money and time. Mediation helps to the parties to find mutually acceptable solution which is based on their own understanding of the situation. Moreover it enables to the parties to keep their relations on the same level or prevent them from worsening of it (Fiadjoe, 2004; 57-58).

Nevertheless, there are some unsolved issues concerning whether the mediation neutral and voluntary process or in some cases there are circumstances which force us to enter into negotiations and settle a dispute through intermediary of the third party without neutrality to the process by virtue of direct awareness of the state of affairs and close relations with disputants (international conflict) or indirect interest in the positive outcome of the mediation by reason of self-respect or desire to acquire complementary skills (Boulle, 2001; 14-19).

In addition to that the nature of conflict must be examined, so long as the mediation handles with dispute is arisen from impossibility to manage a conflict. It must be admitted that conflict is an integral part of our life as every individual is unique and it is inevitably to avoid the situation when our interests, aims, ways and means of achieving these goals may come into collision (Fiadjoe, 2004; 8). Boulle (2001; 43-45) supposes that conflict can be fruitful for the disputants as they are given an opportunity for self-examination and renewal of old friendship. Moreover the causes of conflict are examined by the third party as it is indispensable condition for identifying appropriate mediation approaches and acceptable limits for intervention in the process.

It is evidently that institution of mediation must be based mainly on the faith of the parties in the professional competence and integrity of the mediators. It seems that in order to achieve these objectives mediation must be regulated by the legislative acts. Striking example is the Model Law on International Commercial Conciliation (2002) was adopted by United Nations Commission on International Trade Law. This Model Law promotes the use and uniformity of mediation to resolve international commercial disputes. It offers basic rules for the mediation process. The European Code of Conduct for Mediators was worked out and adopted by European Commission in 2004. It establishes main principles such as payment for services, competence and mode of appointment of mediators as well as demands for defining mediator as an impartial and neutral party of the dispute.

CONFLICT AS A STARTING POINT FOR A DISPUTE

There is a well-known fact that community development represents a complicated process is executed on the basis of origination, unwrapping and settlement of objective contradictions. In certain cases the lack of consent between two or several parties (individuals or groups) causes an emergence of conflicts as their necessities cannot be satisfied. The conflict inherently is a situation inclusive either contradictive stands of the parties by virtue of one or another reason or contrary goals and remedies of its achieving or divergence of interests, desires, inclinations and so on. The people frequently experience a conflict as encumbrances, dangerous, destructiveness and pain. That is why from one hand the conflict is a negative phenomenon, undesirable for all of us and it is seen as something that should be avoided whenever it is possible.

Considering conflicts from the point of view of its perception and consciousness by the actors, Bühring-Uhle (1996; 218-219) distinguishes conflicts as “manifest” and “underlying”: the former are developed by means of transformation in a specific structure with following emergence of the situation which leads to the tense struggle and confrontation (usually it is expressed in “blaming” or “claiming” by the parties); the latter are expressed as a recognition of the conflict as a fact but do everything in the power of the parties to ease the tension between each other and try to sort out disagreements step by step in order to bring to light the seed of discord.

Mediation, in the first place, should be understood as a process that allows moving the conflict toward its resolution. It is a purposeful intervention that can initially reduce the conflict, then prepare the ground to make informed decisions and finally to resolve some problem. Even through all the elements of the dispute are not resolved, the current conflict through mediation can be better understood by its participants and translated into manageable level.

There is a point of view suggests that some conflicts even in the most efficient organization with the best relationships are not only possible but desirable. Boulle (2001; 43) believe that within the scope of mediation conflict is positive and it is of benefit to all participants of a dispute. Fiadjoe (2004; 8) states that conflict is “a fact of life” and it can be considered “as the result of the differences which make individuals unique and the different expectations which individuals bring to life”.

Aubert V. distinguishes conflicts from the position of personal interest of actors in arising of a disputed situation for the purpose of achieving their goals and from the position of infringed rights defending by means of justice and other legal remedies. Bühring-Uhle (1996; 219) supposes that rights-based approach is more perceived as a negative phenomenon and it “leads to an escalation of the conflict” so far as the process of asserting the rights makes impossible to reach mutually acceptable solution or compromise. At the same time Bühring-Uhle (1996; 219) states that most of the conflicts are represented as a mix between interests and rights as “most rights can be understood as standardized manifestations of interests and the interests of a party are in turn influenced by the remedies it possesses”.

Obviously, interests-based approach is more flexible in respect of interaction of the individuals as on the emotional level of perception the confronting parties have different aims but with the only one desire is to get an outcome with minor losses. Under such circumstances, actors move in the same direction by waiving with their principles and opinions. Interest-based approach refers to a style of mediation which guides the parties to concentrate their attention on the underlying interests and goals rather than on the perceived outcome of litigation. The participation of the third party in such form of mediation has as its objective is to identify substantive areas of the dispute and leave unsolved issues to the parties who have greater understanding of the facts (Fiadjoe, 2004; 61-62).

Rights-based approach in mediation mainly focuses on legal aspects of a dispute. The role of a mediator is to grant expert advice concerning likely outcome of the case in absence of mutually acceptable solution. It is emphasized that mediator must possess some real knowledge in the substantive are of the dispute in order to provide sensible view to state of affairs and rights of the disputants. This style of mediation is sometimes referred to as “muscle mediation” as mediator is entitled to have an influence upon the process (Fiadjoe, 2004; 61).

Hirshleifer J. in his article states that in economic activity the conflicts are represented as a struggle between actors who incur costs competing with each other for the resources which become impoverished in the exercise of its redistribution. Indeed, such conflicts have accompanied mankind since its origination. On the initial stage of human development, the possession of a right to dispose of resources could be reached only by means of force and struggle. In order to stabilize relations inside the group (tribe) and decline the range of violence, the scopes of permitted behavior in primitive society were established.

In addition, there were an individuals or a group of people who were delegated authority to perform peacemaking or judicial power. Consequently, the system of norms, which was based on social principals of behavior, assumed a special character with set of rules. These first few steps led to formation of system of principals including rights of actors which could be exercised in the form of permission or prohibition and carrying out of relevant obligations. Thus, taking part in production and consumption of resources, mankind came to the conclusion that if there is a set of laws are implemented in an established order the better order is emerged in the economic relations between relevant actors. Therefore, in the making of statehood judicial procedures transformed the economic conflict into the legal dispute.

MEDIATION AS ALTERNATIVE WAY IN DISPUTES SETTLEMENT

According to Bühring-Uhle (1996; 273) mediation is “the non-binding intervention by a neutral third party who helps the disputants to negotiate an agreement”. Fiadjoe (2004; 58-59) describes mediation as a consensual flexible process which includes participation of the neutral third party without any authority to make binding decision for the disputants but with the only one duty is to facilitate to the parties to negotiate a solution to a problem.

It needs to be said that there are two forms of mediation such as private and institutionalized. The former is characterized as a well-resourced process with clear time frame and participation of well-qualified mediator. The latter is usually used by virtue of a court decision or required by statute or court order and does not have same features as private mediation (Boulle, 2001; 4).

The concept of voluntarism is one of the elements which constitute the base of mediation so far as the participants of the dispute are entitled to enter into mediation on their own free will. In addition, the acceptable solution may be reached in absence of settlement pressure and only by mutual consent. If it is founded impossible to make a compromise with issues on the agenda, parties of the dispute have a right to withdraw from mediation without obligations to give any explanations. This concept is more dominated in private mediation process.

Nevertheless, there are cases which demonstrate mediation as involuntary process. In case Cable&Wireless plc v IBM United Kingdom Ltd. (2002) both companies had entered into an agreement containing an escalating mediation clause. The terms of the contract were that the parties would first attempt to resolve any dispute through negotiation, and then, “If the matter is not resolved through negotiation, the Parties shall attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as recommended to the Parties by the Centre for Dispute Resolution. However, an ADR procedure which is being followed shall not prevent any Party or Local Party from issuing proceedings.” Cable&Wireless refused to attend mediation and issued proceedings. IBM sought to enforce the agreement to meditate and sought a stay of the court proceedings pending mediation. Colman J. held that the agreement to mediate was sufficiently certain to be enforceable in law and stated:

“For the courts now to decline to enforce contractual reference to ADR on the grounds of intrinsic uncertainty would be to fly in the face of public policy as expressed in the CPR and as reflected in the judgment of the Court of Appeal in Dunnett v Railtrack.”

This case is the latest piece of evidence to demonstrate the courts’ firm commitment to mediation (institutionalized form). It is a striking example of enforceability of ADR clauses in contracts as the decision to enter into the mediation process was entirely involuntary, so far as the participation in the settlement of a dispute through intermediary of a third party was imposed by the contractual obligations and court decision.

Neutrality is another crucial part of mediation. Folberg and Taylor (1984, 7-8) refers to mediation as a process involving “the assistance of a neutral person or persons”, while Moore’s (1986) definition refers to an impartial and neutral third party. Neutrality is usually associated with conceptualist approach to the definition of mediation which has more normative content and may not reflect the real state of affairs in mediation practice. There is an opinion that neutrality is the most misleading myth about mediation as it has many-sided meanings without providing of comprehensive understanding what neutrality is.[1]

Theoretically, the term neutrality includes issues such as a lack of interest in the outcome of the dispute, a lack of bias towards one of the parties, a lack of prior knowledge of the dispute and/or the parties and the idea that the mediator will be fair and even-handed. But, it is acknowledged that “not all mediators are neutral in all senses” (Boulle, 2001; 17). There is measured approach to neutrality from the position of disinterestedness and fairness. The letter is referred to impartiality which is distinguished from neutrality. Whereas neutrality is used more to describe a mediator’s sense of disinterest in the outcome of the dispute, impartiality is said to refer to “an even-handedness, objectivity and fairness towards the parties during the mediation process” (Boulle, 2001 17-18). However, it is possible to justify certain mediator interventions or actions in the mediation process, which might strictly contradict the notion of neutrality but still sit within the concept of impartiality.

Mediation is ideal for resolving disputes that are the basis for a significant number of problems and suggesting the continuation of the relationship, because it is able to create a model of interaction that is suitable for resolving future conflicts. It is important to emphasize that mediation is a more interactive process and to a lesser the usual interpersonal interaction. Of course, the particular behavior of the participants, that can cause problems, can be discussed. However, in case if they do not block the process of mediation, the person is not the main focus of this procedure.

Mediation increasingly focuses on how the parties will resolve the conflict and prepare a plan of action than deepening of personal stories and concerns. In other words, mediation is aimed at understanding the motives of prospective behavior of the individual, rather than an explanation of its past behavior. Mediator should be more interested in the present and the future than the past. It focuses primarily on the results, and only partly on the identification of the internal reasons of the conflict.

Objectives of mediation:

• Decision-making – according to Boulle and Nesic (2001; 7) mediation is not always faced with dispute resolution so far as for some participants

NATIONAL LEGISLATION OF ENGLAND ON MEDIATION

In the 80’s of the last century crisis hit the court system in Western Europe. As a result, it began to revive, develop and acquire a variety of popular conciliation procedures. According to Berman (1983) mediation is the most common in the United Kingdom and it is actively used in the following categories of cases: civil and commercial disputes, family disputes and disputes with neighbors (eg, due to noise, abusive behavior, the behavior of children, etc.).

Over the past few years there were a variety of specialized programs for the mediation of specific types of disputes, such as debt collection, providing education for children requiring special care, medical negligence, housing repairs, disputes with landlords.[2] There are specialized organizations providing assistance in the settlement of disputes, primarily commercial, such as the London-based Centre for Effective Dispute Resolution (Centre for Effective Dispute Resolution – CEDR)[3] and the group of alternative dispute resolution (ADR Group).[4]

Currently the most popular and widespread in the mediation of England was associated with litigation. In the English courts began to take shape the practice of mediation, the parties applied to the initiative of the court. Major reforms of the English civil procedure occurred in 1999 after the publication of the Report by Lord Woolf on Access to Justice in 1996 (Final Report to the Lord Chancellor on the civil justice system in England and Wales), which was a turning point in the development of non-family civil mediation of disputes.

The report states that alternative means of dispute resolution is “obvious” benefit in the preservation of scarce judicial resources, and that they offer “a variety of benefits to litigants or potential parties to litigation. Alternative Dispute Resolution is cheaper than the judicial process, and achieve results faster”. However, not suggested that conciliation was required as an alternative or as a preliminary stage before trial, but Lord Woolf was convinced that the courts should play an important role in the “dissemination of information about the usefulness of mediation procedures, and encourage their use in appropriate cases”.[5]

Recently, the Department for Constitutional Affairs (formerly the Department of the Lord Chancellor) set a goal of reducing the number of disputes resolved by the courts. A key element of the strategy to achieve this goal is to promote both judicial and extrajudicial bodies on the use of conciliation procedures. Program for Judicial use of conciliation procedures will be judged on the success and the number of initiatives undertaken, in particular the pilot program “did not participate” according to which the case will be referred to the house in order and not in court until the parties have not come out of the program.[6]

Under the new Rules of Civil Procedure, adopted in April 1999, the Court has considerable authority in the administration, including the right to oblige the parties to use mediation or another form of alternative dispute resolution and suspend this process.[7] Recent changes to the Rules of Civil Procedure, the parties have a requirement to use an appropriate conciliation procedures before filing an application to the court. It also includes talks on the settlement of claims and the possibility of failure aside, not recycled to make concessions, reimbursement of legal costs.

One of the most debated issues of the conferment of the court the authority to bind the parties to resolve the dispute mediation against their will. According to the English judges, forcing parties who do not wish to resolve the dispute through mediation, means creating unacceptable obstacle to the realization of the right of access to justice.

Taking into account the approach of the European Court of Human Rights to the arbitration agreement, the English judges are considering forcing the use of ADR as an unacceptable obstacle to the right of access to justice and thus a violation of Article 6 of the European Convention on Human Rights[8]. Even if the court had the authority to order unwilling parties to refer the dispute for resolution of the mediator, it is very difficult to imagine circumstances under which it would be possible to implement. The hallmark of mediation procedures, and perhaps the key to their effectiveness in individual disputes is that the parties voluntarily participate in such procedures, and the result achieved is not mandatory. Consequently, the court cannot order them to use, but only to encourage and facilitate.

If the judge decides that the matter can be resolved through ADR, then he is certainly not obliged to simply accept the failure of the parties to use ADR. In such a case the judge should explore the reasons for refusal. But if the parties (or, at least one of the parties) would be totally against mediation by the court if it would be wrong to force the adoption of mediation.

However, the practice begins to emerge, in which the court has a power to order to the parties to use mediation, even if one party is not ready to submit the dispute to the means of alternative dispute resolution. In the case of Kinstreet Ltd v. Balmargo Corporation Ltd (1999), in absence of agreement between parties concerning implementing of mediation, Judge Arden nevertheless ordered alternative dispute resolution, in her opinion, Rule 1.1 of the Rules of Civil Procedure relating to the “primary purpose” of justice, gives this reason.

Then in Muman v. Nagasena (2000), the proceedings were suspended by Judge Mummery until such time as “both sides will try to resolve the dispute through mediation”. In the case of Shirayama Shokusan Co Ltd v. Danovo Ltd (2003), the company “Sirayama” said that is not ready for mediation. The company “Danites” asked the court to issue an order requiring the mediation. Judge Blackburn has satisfied this requirement, citing on above-mentioned cases in support of relevant authority. Thus, by 2003, it became clear that the courts have the powers to order using of mediation.

It should be noted that, despite the widespread mediation in England there are still those who do not believe in the benefits of mediation. Meanwhile, many authors of the opinion that most part of disputes can be resolved through mediation. This approach is consistent and supported by Lord Woolf reforms. This is also consistent with the fact that now there are several programs in civil court mediation (except family) business, which operates with different levels of success. On the advantages of mediation is also indicated in the Manual of the court Lord Chancellor (see paragraphs 17.1 and 17.3), the Court of Queen’s Bench Guide (Section 6.6), Guide Court Admiralty and Commercial Court (see paragraph B8.8). Judges of the Commercial Court routinely tolerate “the use of ADR orders” in the form prescribed in Annex 7 to the Admiralty Court Guide and Commercial Court.[9]

Summing up, it is worth emphasizing that the main goal pursued by English legislation is to reduce the number of cases before the courts. Overloading of courts pushed English lawmakers to seek an alternative to judicial resolution of disputes. Thus, encouraging the use of mediation to resolve disputes, the law is primarily aimed at “public” purpose – reducing the burden on the judicial system, and only then the “private” – to achieve results that would satisfy both sides, preserving the relationship between the parties, saving time and money parties.

CHARACTERISTIC OF INTERNATIONAL LEGAL NORMS
ON MEDIATION

Economic conflicts with the participation of foreign persons (both physical and legal) are particularly difficult to resolve in order to achieve a mutually acceptable outcome. In view of the differences in the legal regulation of the procedure of mediation in various states, the need to create universal standards for the harmonization of legislation governing mediation to successfully resolve external conflicts.

International aspect of mediation

However, if an international civil procedure and international commercial arbitration to unify through the adoption of international legal norms is a long time, then relative to mediation only at the beginning of the XXI century in connection with the growing popularity of most of the mediation of international organizations have begun to actively work towards the harmonization of legal regulation of mediation through the adoption of the recommendations.

As a rule, in the process of creating such recommendations international organizations include the formulations which represent new rules in the field of international relations. These rules do not only have any analogues in the ever-existing norms of international law, but cannot be regarded as valid at the time of creation. They seek, rather, in the future and are treated as program in international relations from the perspective of lex ferenda.

Statutes of the organizations they are defined as rules are not mandatory, but advisory nature. Meanwhile, these recommendations are often very effective control of international relations, including the private character. In international legal doctrine such recommendations have been called “soft law”.

As many countries have begun to enact laws on conciliation with the participation of a mediator, to expand the use of mediation and settlement procedures at the international level, questions the admissibility of certain evidence in subsequent judicial or arbitral proceedings, the role of mediator in the subsequent proceedings, procedures for the appointment of intermediaries, the principles applicable to conciliation procedures, and enforceability of the settlement agreement, the United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on International Commercial Conciliation (2002).[10]

Model Law contains uniform rules in respect of the conciliation process in order to promote conciliation and to ensure greater predictability and certainty in its application. In order to avoid uncertainty due to lack of legal provisions in the Model Law deals with procedural aspects of the conciliation proceedings, including the appointment of conciliators, commencement and termination of conciliation, of conciliation, the relationship between the mediator and other parties, confidentiality and admissibility of evidence in other proceedings, as well as typical of the period at the end of the conciliation procedure, such as the fulfillment of duties of an arbitrator mediator, as well as ensuring compliance with international agreements.

Very important is enshrined in Article 9 of the Model Law provisions on the confidentiality of conciliation, as the conciliation will be more appealing if the parties are confident that confidential information communicated in connection with the conciliation procedure will continue. With the principle of confidentiality is closely related to the question of admissibility of evidence in other proceedings. In conciliation, the parties typically can express their views and opinions on proposals for a possible settlement, make admissions or indicate their willingness to resolve the dispute.

If, despite such efforts, conciliation does not result in a settlement and a party initiates litigation or arbitration, such opinions, suggestions, or expressions of willingness to recognize a settlement can be used to the detriment of party who made them. Such a possibility, “dissemination” of information may discourage parties from actively trying to reach a settlement in conciliation proceedings, which may damage the appropriateness of their conduct. Thus, Article 10 “The admissibility of evidence in other proceedings” of the Model Law is intended to facilitate frank and candid discussions in conciliation by prohibiting the use of information obtained during conciliation under any subsequent proceedings.

It is important to note that the establishment of the possibility of interrupting the limitation period and the possibility of enforcement of the settlement agreement, developers of the Model Law is left to the discretion of states to enact laws that will be on conciliation based on it. In a footnote to Article 4 “Commencement of conciliation proceedings” of the Model Law contains the text of the optional provisions on suspension of the limitation period. This article does not contain in the body because the question of limitation raises complex technical problems and it is difficult to reconcile with national procedural regimes that use different approaches to solving this issue.

However, despite the high degree of uniformity, not all the provisions of conciliation are proposed in the Model Law can be unified on the grounds that the procedural law of individual states are too different. At the present time, the laws are based on the UNCITRAL Model Law passed only in Hungary (2002), Canada (2005), Croatia (2003) and Nicaragua (2005). Thus, the option of forming a universal uniform legal regulation of international mediation procedure, the Model Law does only partly because as a rule of “soft law” it has no binding force. At the same time maintain the distinction in the legal regulation of mediation in Europe, which requires no recommendation, binding international instruments.

Mediation in the scope of European States

At European level, efforts are applied to conciliation were central to the conflict-management tools. By seeking the Council of Europe and the European Union that have adopted the recommendation of mediation in various disputes, such as civil, family, commercial, administrative, with the participation of consumers, and even in criminal cases.

In recent years, the Council of Europe is often discussed issues related to the development of alternative methods of dispute resolution, particularly mediation. The Committee of Ministers, which is the executive and administrative body, has chosen a multi-faceted approach to this issue and endorsed the following recommendations to member states on mediation: Recommendation Rec(98)1 on family mediation, Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties and the Recommendation Rec(2002)10 on mediation in civil cases. [11]

The recommendations stated on the advantages of mediation procedures, the rate of reaching solutions, the minimum formality, correct and friendly nature of the procedure, an appeal to the experts, the possibility of settling the dispute on the basis of the principles of justice and procedural economy. However, despite all the advantages of mediation, it cannot replace an effective, fair and easily accessible judicial system, ie, an appeal to the mediator should not restrict the right to appeal to the court as the highest guarantee of protection of the rights of the parties. The recommendations of the Committee of Ministers draws the attention of Member States within the statute of limitations and the possibility of interruption in the circulation of the parties to the mediator, because the state should discourage the use of mediation to delay resolution of the dispute.[12]

Given the importance of mediation procedures, the Committee of Ministers of the Council of Europe was not limited to the adoption of the recommendations. By adopting Resolution Res(2002), Committee of Ministers established the European Commission on the efficiency of justice (Commision). In 2006, the Commission established a Working Group on Mediation Center (Working Group), which should contribute to better implementation of the recommendations of the Ministerial Committee on Mediation[13]. To perform the tasks the Working Group should, in particular, to assess the impact of the legislation of the Member States of the above-mentioned recommendations of the Committee of Ministers, to develop, if necessary, recommendations and specific actions to improve implementation of the recommendations, to propose, if necessary, areas in which to useful to develop a new international legal acts, or to adopt amendments to existing acts, taking into account the work of other institutions, particularly the European Union.

Despite the fact that the recommendations are not binding, the Committee of Ministers under the Charter of the Council of Europe may invite the governments of member states of the Council of Europe information on the implementation of its recommendations. At each session of the Parliamentary Assembly of the Council of Europe Committee of Ministers makes the message about the result of their work and submit the relevant documents.

It should be noted that according to paragraph b of Article 3 of the Treaty establishing the European Community harmonization legislation is one tool to achieve the purposes of this contract[14]. In accordance with this provision, the convergence or harmonization of the laws of the Member States of the European Union are required to the extent that what is needed for the functioning of the common market. At the level of the European Union has recently carried out work on the adoption of common principles for the use of conciliation procedures.

BIBLIOGRAPHY

1. Aubert, V. (1963) Competition and dissensus: two types of conflict and of conflict resolution. In: Freeman, M. ed. Alternative Dispute Resolution. New York, New York University Press, pp. 151-167.

2. Boulle L., Nesic M. (2001) Mediation. Principles, Process, Practice.
Butterworths, a Division of Reed Elsevier (UK) Ltd.

3. Bühring-Uhle C. (1996) Arbitration and Mediation in International Business. Designing Procedures for Effective Conflict Management. The Netherlands, Kluwer Law International.

4. Berman, Н. J. (1983) Law and Revolution: the Formation of the Western Legal Tradition. London, Harvard University Press.

5. Blanpain, R. (2001) International Encyclopedia of Laws. Civil Procedure. Volume 1. London, Kluwer Law International.

6. Fiadjoe A. (2004) Alternative Dispute Resolution: A Developing World Prospective. Great Britain, Cavendish Publishing Limited.

7. Folberg, J. and Taylor, A. (1984) Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation. San Francisco, Jossey-Bass.

8. Hirshleifer, J. (1991) The technology of conflict as an economic activity. American Economic Review, 81(5), pp.130.

9. Klabbers, J. (1998) The Undesirability of Soft Law. The Nordic Journal of International Law, 67.

10. Kurien, G. (1995) Critique of Myths of Mediation. Australian Dispute Resolution Journal, 6, 43 at 52.

11. Ministry of Justice (2012) Civil Procedure Rules [Internet], UK, Ministry of Justice. Available from: [Accessed 18 February 2012].

12. Moore, C.W. (1986) The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco, Jossey-Bass.

13. Access to Justice Final Report, by The Right Honourable the Lord Woolf, Master of the Rolls, July 1996, Final Report to the Lord Chancellor on the
civil justice system in England and Wales

———————–
[1] Kurien, G. Critique of Myths of Mediation.

[2] International Encyclopedia of Laws. Civil Procedure. Volume 1 / General Editor: Roger Blanpain [3] http://www.cedr.com/
[4] http://adrr.com/
[5]http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/index.htm [6] http://www.justice.gov.uk/
[7] http://www.legislation.gov.uk/uksi/1998/3132/contents/made [8] http://www.echr.coe.int/
[9] http://www.legislation.gov.uk/uksi/1998/3132/contents/made [10] www.uncitral.org/

[11] https://wcd.coe.int
[12] Klabbers, J. The Undesirability of Soft Law
[13] https://wcd.coe.int
[14] http://ec.europa.eu

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