Mediation is the procedure for settling a dispute by entering into voluntary negotiations in the presence of a neutral person, a mediator (mediator), with the aim of achieving mutual understanding and drawing up an agreement that resolves the disputed situation.
World practice of its application
– As a means of settling disputes, mediation is recognized in Article 33 of the UN Charter.
Mediation is very effective in resolving civil disputes. Especially developed conciliatory procedures in the Anglo-Saxon system of law, in the countries of continental Europe. Within the European Community, over the past decade, there has been a tendency to appeal to mediation as one of the opportunities to ensure the protection of the rights, freedoms and interests of participants in public relations.
Here are some figures of its effectiveness. In the US, 95% of cases that have undergone this procedure do not reach court. In Germany, more than 90% of the negotiations end in an amicable agreement, in particular in Lower Saxony – 97%. In the UK, 90-95% of disputes are resolved before the trial. The European indicator of the effectiveness of mediation is 40-80%.
In these countries, the view has been established that mediation is one of the ways to ensure access to justice. In the modern world, courts are overloaded with cases, so society is looking for other methods of resolving disputes. These include, in particular, arbitration courts, commercial arbitration. Usually state courts promote the development of these methods, because they reduce the burden of state courts, and therefore create conditions for more effective administration of justice.
Fundamental principles of mediation
– Voluntariness. Unlike litigation, the parties to the mediation process enter voluntarily, and the mediator is chosen by them. All decisions are taken only by mutual agreement of the parties, and each of them at any time can terminate the negotiations.
Equality. Neither party has procedural advantages. They are given the same right to express their opinions, determine the agenda of negotiations, assess the acceptability of proposals and the terms of the agreement, etc.
Neutrality, impartiality of the mediator, which maintains an impartial attitude towards each side and provides them with equal rights in negotiations. If the mediator feels that it is difficult for him to remain neutral, he refuses to keep the process.
Confidentiality. All that is said in the mediation process remains within it. The mediator can not act as a witness if the case is still submitted to the court, and does not inform one party about the information he received from the other in the course of an individual conversation, unless he received a special permit for this.
Advantages of mediation before the state court or arbitration proceedings
– The main difference is that the mediator in itself does not take any decision as to the nature of the dispute. All decisions are made only by the parties and only on the basis of mutual consent. In court, the dispute ends in power by issuing a binding decision by the judge, which can be enforced.
Mediation is a flexible process – the parties can, at their discretion, settle it, they are given the freedom to discuss the problem. In addition, the mediator himself helps to find a solution to the dispute.
Judgment does not always lead to the desired result of the parties. At least one party may remain dissatisfied with the outcome of the case. This circumstance causes evasion from not only voluntary, but also compulsory execution. In the course of mediation, all decisions are taken only by mutual consent of the parties, and both parties voluntarily take upon themselves the obligation to carry out the decisions they have taken.
Among the undeniable advantages of mediation is the maintenance of normal, friendly relations between the parties. The most effective mediation in solving problems related to the division of property, the resolution of disputes between spouses, parents and children, in labor disputes.
Trends and prospects for the development of this method in Uzbekistan
– This tool is not so new for our country. Mediation in one form or another has long been used in the territory of modern Uzbekistan. Now conciliatory procedures are widely used by self-governing bodies of citizens (makhallyas) in resolving various disputes arising between neighbors in families.
The application of mediation coincides with the tasks specified in the Concept for the Implementation of Priority Directions of Reforms in the Sphere of Reform and Further Liberalization of the Judicial and Legal System. This document aims to revise the attitude to entrepreneurship, business and the private sector by strengthening the protection of their interests, creating for them a favorable legal framework, a system of benefits and guarantees. In this perspective, mediation can be viewed as an effective element of the legal framework for business entities in settling certain categories of disputes in a simplified manner.
Our legislation provides an opportunity for the parties to use pre-trial ways of resolving disputes. In civil and economic proceedings, the parties can complete the trial at any time and at any instance by concluding an amicable agreement. To reach it, the parties can turn to mediation.
The law firm “S.Verenin’s legal group” is ready to assist in resolving various kinds of disputes between the parties. We have sufficient experience in this field. Our practice shows that mediation is one of the most effective ways before the trial, in which both parties are satisfied, in contrast to the court decision.