Oleksandr Zhukov: the history of mediation UA2DAY

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The use of intermediaries was developed in the trade of the Phoenicians and in Babylon. In Ancient Greece, there was a practice of using intermediaries (proxenetas). Roman law, starting with Justinian’s code (530-533 AD), also recognized mediation. The Romans used different terms to denote the concept of “mediator” – internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and, finally, mediator.
Mediation in its modern sense began to develop in the second half of the 20th century, first of all, in the countries of Anglo-Saxon law – the USA, Australia, Great Britain, after which it began to spread in Europe. The first attempts to use mediation, as a rule, concerned the resolution of disputes in the field of family relations. Over time, mediation has gained recognition in the resolution of a wide range of conflicts and disputes, ranging from conflicts in local communities to complex multi-party conflicts in the commercial and public spheres.

Expression “alternative dispute resolution” (ARS), which has become almost traditional, is a literal translation of the term “alternative dispute resolution” (ADR).
Despite the fact that the term “ARS” is widely used and practically does not require special explanations in the legal professional environment, it is usually used in relation to the practice of foreign countries, primarily the USA and Canada. ADR is an out-of-court settlement of legal disputes (arising primarily from civil legal relations) using special procedures.
Conciliation procedures usually mean such forms of ADR, which are aimed at a mutually acceptable settlement and resolution of the dispute that has arisen, based on the voluntary expression of the will of the parties.
Main features of conciliatory procedures:

  • the latter are aimed at a peaceful (voluntary) settlement of the dispute, when the parties and other participants in the dispute take actions to find mutually acceptable solutions. Settlement of the dispute during the use of conciliation procedures is usually achieved through mutual concessions (in particular, in the form of a settlement agreement);
  • they are possible only at the voluntary will of the parties. When using the conciliation procedure, no one except the parties can authorize the end of the dispute resolution.

In addition to the above-mentioned types of ADR, which can be called traditional, in world practice there are many other procedures for settling legal disputes; according to some estimates, their number is close to 30. They include procedures with and without the participation of third parties, in addition, some types of ADR provide for consideration of a dispute by a state or arbitration court as one of the stages of dispute resolution. The following types of ADR can be given as examples: negotiations; negotiations with the participation of an intermediary (facilitated negotiation, or facilitation); pre-arbitration proceedings; independent expert determination (expert determination); mini-trial (mini-trial); conciliation proceedings; private court (private judging); “multi-door courthouse”; arbitration-mediation (arb-med), mediation-arbitration (med-arb); court conferences (settlement conference); negotiations with the help of computer programs, etc.

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