Mediation in different countries

Mediation is a process in which a third party (the mediator) seeks to assist two or more parties involved in a dispute to reach a voluntary, negotiated resolution of their differences, usually embodied in a formal written agreement. Mediation differs from adjudication and arbitration in that the mediator, unlike a judge or arbitrator, has no authority to impose a solution on the parties. Mediators seek to have parties to a dispute focus on their interests in resolving their differences rather than their declared positions. Successful mediations result in "win/win" solutions rather than "win/lose" outcomes produced by third party decision-makers such as judges and arbitrators. Advocates of mediation believe that it is not only more cost effective than other forms of dispute resolution, but that mediated solutions are superior since they are crafted by the disputing parties themselves.

The relative success of mediation in resolving certain types of disputes in the United States, the United Kingdom, Australia, New Zealand, Argentina, China and other countries can be attributed to a number of factors, the most important of which are probably: dissatisfaction with other available forms of dispute resolution (due to the unpredictability of outcomes, the high cost of litigation or arbitration, and the length of time needed to obtain a final decision), and the existence of a legal framework supportive of the mediation process.

It is our belief that for mediation to be successfully applied in Russia and Ukraine on a large scale, in particular with respect to commercial and investment disputes, the parties to such disputes must not only believe that mediation has the potential to yield better solutions to their disputes than other processes, they also must be confident that if they fail to achieve a successful outcome through mediation, they will not suffer any significant adverse consequences solely as a result of attempting the mediation (other than lost time and expenses incurred).

In October 1995, Argentina, a civil law country adopted a Law on Mediation and Conciliation. In part to alleviate the problems of court overcrowding, Argentina provided for mandatory mediation of most cases. Once a case is filed in an Argentine court, it is assigned to a mediator, and mediation is scheduled to begin within sixty (60) days of the notification of the respondent and relevant third parties. W e outline below some features of the law:

Attendance of parties at a mediation is mandatory and parties must be represented by an attorney.:

- A party that fails to attend is subject to a fine (Articles 10 and 11)

- Mediation proceedings are confidential. The mediator has discretion to hold joint or separate sessions with the parties (Article 11)

- If the parties enter into a mediation agreement, it shall be signed by the mediator, the parties, and their attorneys. Such agreement shall be enforceable as if it were a court decision. If the parties are unable to settle their dispute, the mediator shall issue a document to the parties allowing them to proceed with the claim in a court (Articles 12 and 14)

- The Ministry of Justice maintains a Register of Mediators consisting of persons who have a law degree and other specialized training (Articles 15 and 16)

- Mediators must recuse themselves from handling cases according to principles similar to those requiring judges to decline to hear particular cases. Parties may request a new mediator to be assigned to the case if they present a valid reason (Article 18)

- Mediators shall be compensated according to a set schedule established by regulations romulgated by the Ministry of Justice.

- If the mediation is successful, the parties themselves will apportion among themselves the cost of the mediator; if the mediation does not result in an agreement, the mediator's fee is paid out of a special state fund (Article 21)

The Argentine Law largely assigns to the legal community a monopoly over the conduct of mediation.

Section F

Test

The Law of Ukraine «On international commercial arbitration"

a) contractual	d) foreign investments	g) disputes	j) be applied
b) international associations	e) rules	h) legal entities	k) be referred
c) arbitration	f) commercial enterprise	i) foreign trade	l) participants

The present Law proceeds from the acknowledgment of usefulness of ____(1)____ as a means which is widely used to settle ____(2)____which arise in the sphere of international trade, and the need to regulate the international commercial arbitration on a legal basis.

The following disputes shall ____(3)_____to international commercial arbitration, under the agreement of the parties disputes on ____(4)____and other civil and legal relations which arise in the process of maintaining ____(5)____ and other international economic contacts when a ____(6)____ of at least one party concerned is located abroad and also disputes of enterprises with ____(7)_____ and _____(8)_____ and organizations created on the territory of Ukraine, with one another, disputes among their ____(9)____ and their disputes with other _____(10)____ of Ukraine.

If the international agreement of Ukraine establishes other _____(11)_____ than those stipulated by the present Law on arbitration, the rules of the international agreement shall _____(12)______.

13. Is mediation less final than adjudication?

a) YES. There is no guarantee that mediation will result in a settlement.

b) NO. Mediation can address a wider range of issues and settle the entire conflict, not just the part of the dispute that can be framed as a cause of action.

c) NO. Disputants who settle in mediation tend to be more satisfied, resulting in less post-settlement disputing.

d) All of the above are true, so this issue is controversial.

14. Suppose you are a paralegal, and have a number of clients who are considering whether to use mediation or litigation to resolve their dispute. Take each of their statements AT FACE VALUE, and, using the pros and cons of mediation and litigation presented in the text, which of the following expressed desires of a client would be better addressed in LITIGATION rather than MEDIATION?

a) I want to save time and money.

b) Getting creative solutions to the conflict is very important to me.

c) It would be very difficult for me to get to court to enforce any agreement or order, so it is very important that the other disputant willingly abide by the outcome.

d) I feel the other disputant did some very evil things, so I want someone in a position of authority to declare who's right and who's wrong.

15. Of the following situations, the one for which courts are most clearly and strongly recommended is one in which:

a) There is a need for reform in the existing law.

b) Resolving the conflict will have little or no impact on the course of legal reform.

c) It is anticipated that there will be no difficulty in obtaining enforcement of the outcome.

d) The disputes for which causes of action are stated do not address the underlying conflict.

16. Many scholars recognize advantages of arbitration over litigation. These advantages include:

a) expertise of a specialized tribunal

b) savings in time and expense

c) greater compliance with arbitration awards

d) (a), and (b)

17. Which of the following is not true regarding ADR?

a) ADR techniques adhere to the Federal Rules of Civil Procedure

b) ADR is flexible and can be customized for most problem situations

c) ADR is more informal and less structured than litigation

d) ADR is generally less expensive than litigation

18. Which of the following is not considered to be a form of ADR?

a) negotiation

b) mediation

c) small claims court

d) arbitration

19. What of the following describes the role of the mediator?

a) makes a binding settlement

b) chooses between two alternatives

c) helps the parties reach a decision

d) represents the parties in court

20. Which of the following is true about mediation?

a) It is not binding on the parties.

b) It involves the skillful use of a jury.

c) It is the same as negotiation.

d) It provides a fixed award that splits the difference between what is requested by each party.

21. Alternative dispute resolution is

a) a pretrial motion in support of discovery

b) a broad term for various methods of dispute resolution other than litigation

c) required by statute

d) imposed upon the parties

22. Negotiation is considered to be one of the methods of ADR because

a) disputes are often settled through skillful negotiation

b) sometimes mediation doesn't work

c) arbitration is too expensive

d) the same person serves in both mediation and arbitration

23. Which of these statements is most accurate?

a) Tribunals are superior to courts

b) Tribunals are equal to courts

c) Tribunals are inferior to courts

d) Tribunals are completely different to courts in terms of their functions

24. The phrase "getting to the table" describes what difficulty?

a) avoiding problem-solving negotiations

b) getting all interested parties to agree to meet with each other

c) making emotional barriers go away before final agreement

d) seating arrangements

25. If an agreement contains an arbitration clause, then:

a) The parties can never go to court

b) The parties can only go to court after they have been to arbitration

c) Either of the parties can choose to go to court

d) If both parties agree, they can choose to go to court

26. What is arbitration?

a) Where cases are allocated to a particular track

b) Where parties refer a dispute to a third party rather than go to court

c) Where parties go to court

d) Where parties agree which court to go to

27. The decision of the arbitrator is called a/an:

a) judgment

b) verdict

c) award

d) arbitrage

28. What is the main aim of ADR?

a) To reduce the need for the parties to go to court at all

b) To delay the process before the parties can go to court

c) To speed up the process before the parties can go to court

d) To guarantee a full court hearing

29. Why is arbitration preferable in a business dispute?

a) It is speedier than a court case

b) It is less expensive than a court case

c) It is less damaging to business relationships than a court case

d) All of the above

30. Which of the following areas of law is particularly suitable for mediation?

a) Criminal law

b) Family law

c) Property law

d) Administrative law

31. What is the role of the third party in mediation?

a) To make a decision on the facts of the matter

b) To act as judge

c) To tell each side what to argue

d) To help the parties reach a resolution

32. What is the role of the third party in conciliation?

a) To make a decision on the facts of the matter

b) To suggest appropriate solutions

c) To act as judge

d) To tell each side what to argue

33. What is the primary weakness of both mediation and conciliation?

a) They are extremely expensive

b) They do not involve litigation

c) They do not always lead to an outcome

d) They are not adversarial

34. Which is not a reason to arbitrate a dispute:

a) Faster than litigation

b) Costlier than litigation

c) Crowed court dockets

d) Arbitrators may be experts in the field of the dispute issues

35. An arbitrator's award is valid when:

a) It settles the entire controversy and states which party has to pay

b) It is ratified by a judge

c) Both parties are satisfied

d) All of the above

36. To be an arbitrator a person must:

a) Be licensed in the state where the dispute occurred

b) Be agreed upon by all the disputing parties

c) Meet objective criteria to certify expertise in the area of dispute

d) All of the above

37. All disputes ____________ as far as possible by means of negotiations between the Parties.

a) will settle b) will be settled c) would settled

38. The Party which wishes to refer the dispute to Arbitration __________the other Party by a registered letter.

a) shall notify b) shall be notified c) notify

39. If the Party which has received the notification of the dispute ____________to Arbitration fails to choose its arbitrator within the said period.

a) submitted b) have been submitted c) being submitted

40. If the arbitrators fail to agree upon the choice of an Umpire within 30 days after they have been nominated, the latter ____________, at the request of either Party by the President of the Chamber of Commerce in Stockholm, Sweden.

a) will appointed b) will be appointed c) had been appointed

41. The award __________ by a majority of votes in accordance with the terms.

a) is to be issued b) is issued c) is to be issue

42. The arbitration award is ________ and binding upon both Parties.

a) finally b) final c) finish

43. Arbitration clauses in some contracts stipulate that all disputes and differences
_________________ by arbitration in a third country.

a) should settled b) should be settled c) should be settle

44. Arbitration may sometimes be compelled __________.

a) with law b) under law c) by law

45. Most arbitration in the United States _________ labor or commercial disputes.

a) has involved b) has been involved c) is involved

46. Labor arbitration is concerned _______ with disputes between employers and employees over interpretation or application of the terms of collective bargaining agreements, and occasionally with new contract terms.

a) large b) larger c) largely

47. It was formerly thought that so-called public law disputes, such as those arising under antitrust, securities, or patent laws,_______________.

a) is not be arbitrated b) could not be arbitrated c) could not arbitrated

48. Arbitration ___________ a meaningful part in settling various disputes among countries with different legal systems.

a) play b) plays c) is playing

49. If three arbitrators are to be appointed, each party __________ one arbitrator.

a) shall appoint b) shall be appoint c) should appoint

50. If a party __________ to the challenge, the decision will be made by the competent body which is chosen by both parties.

a) shall not agree b) should not agreed c) does not agree

Unit 8

CONTRACT LAW

Section A

Warmer:

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