Mediation: Practice in the Corporate World (original) (raw)
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JUDICIAL MEDIATION IN THE CONTEXT OF THE COMPANY (Atena Editora)
JUDICIAL MEDIATION IN THE CONTEXT OF THE COMPANY (Atena Editora), 2022
This article aims to deal with judicial mediation in the context of the company, whose measure is inserted as one of the alternative means of conflict resolution (these being understood as divergence between two or more parties): alternative dispute resolutions (ADRS), in which the solution is delivered to them, whether individuals or legal entities are involved. This institute is foreseen in Brazil in the Judicial Mediation Law under n. 13.140/2015 [1], in the Code of Civil Procedure - Law no. 13.105/2015 [2] and in Resolution number 125/2010 of the National Council of Justice [3]. Submitting a process to mediation, applicable in the case of a conflict involving available rights or unavailable rights that admit a transaction (when there is the possibility of some kind of negotiation), a third neutral element, called a mediator, assists the parties. In this environment, autonomy of the will is privileged, valuing consensus, which the doctrine calls procedural consensualism. There are legal principles governing the matter. Mediation aims at dialogue between those involved. Companies will have a lot to gain if, facing conflicts in their midst or among other companies, they choose this path. This, little by little, is being known and adopted. In the business sector in Brazil, the challenges are many. And so also when, in the commercial sector, in general, there are conflicts. Our civil procedural law requires that the parties be accompanied by a lawyer or public defender (very important figures in the process), especially in the sessions they hold. These will play a key role in the success of the respective procedures. The present work makes use of bibliographical research, focused on the study of the theories emitted by the authors that expose the subject. It uses national and foreign doctrine, the Law, Court resolutions, the National Council of Justice and the Constitution of the Federative Republic of Brazil. The method will be inductive. Judicial mediations in the country are carried out in the Judicial Centers for Conflict Resolution and Citizenship (CEJUSCS) and also in the Judicial Courts that have jurisdiction. Many countries are familiar with the institute under study, including the United States, France, Japan, Canada and Australia. If a mediation procedure is successful, the result will be consecrated win x win, without loser or winner. In the last two decades, this medium has been used with time gain (shorter process duration) and lower costs. Finally, it is concluded that companies must be suggested, when appropriate, to submit conflicts to mediation, as it is healthy for them, as we understand that it is defined as a public policy measure. If there is a satisfactory result, there is empowerment of the parties.
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The purpose of the research subject to this paper is to find proper solutions for the increase of the volume and efficiency in the field of commercial mediation. Starting from practical remarks, after an analysis of the substance, a new concept is suggested to be included and put into operation, namely the special commercial mediation, and a plead is made for its use in the current activity of alternative dispute resolution. The first major objective of this paper is to demonstrate once again the need and utility of mediation in the commercial field, insisting though on its remarkable specific nature. The second objective is, starting from the outlined differences between the commercial mediation and the classical mediation, to define and to conceptualize the special commercial mediation, as a separate branch of mediation. The third objective of this paper is to draw the regime of the newly defined category of commercial mediation from a regulatory point of view, of the implementati...
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The resolution of international business disputes by litigation in national jurisdictions is restricted by many practical factors, such as conflicts of jurisdictions, conflicts of law as well as the enforcement of foreign courts´s decisions. Therefore, such conflicts are generally solved by means of professional mediation and arbitration whereby arbitration is moving to the court rooms whereas mediation is progressively taking the role of Arbitration.
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International business environment is changing, due to a speed at which commercial transactions take place today, so that the phrase "time is money" is more actual than ever. For this reason, conflicts between companies, on the quality of services or paying bills which is solved by the court represent additional costs and time lost. This calls, increasingly, to alternative methods of solving conflicts from the system of ADR (Alternative Dispute Resolution), among which mediation is distinguished, seen as an alternative to traditional justice, more fast, efficient, confidential and above all, less expensive. This article aims to present the main procedures and techniques used in mediation, in order to draw conclusions about the usefulness of this alternative method of solving commercial disputes
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Intercession is a serene interaction wherein the questioning gatherings present their settlement to a go between to accomplish a reasonable result for the two players to the debate. One of the reasons and considerations of the Supreme Court to issue PERMA Number 1 of 2008 is the implementation of Article 130 HIR/154 RBg to reduce the accumulation of cases in court, namely through mediation. The research method used in this research study is normative juridical, which is presented in a descriptive form to give a clear picture to the readers. Intervention in court is viewed as a quicker and moderately cheap debate goal process with the goal that it can make a positive commitment in satisfying a feeling of equity and give acceptable outcomes to the gatherings to the question. It is because of framework combination. Intercession focuses on an agreement approach in uniting the interests of the questioning gatherings.
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Mediation is an effort to resolve a conflict by involving a neutral third parties. A conflict of dispute in the field of employment is a problem faced by almost all countries in the world. The purpose of this research is to analyze and finding the characteristic of mediation as an option in resolving dispute on work termination of employment in South Sulawesi, to analyze and identify the role and the purpose of mediator in resolving the dispute of work termination, mapping the success rate of mediation in resolving the dispute in working relations. The type of research that will be used is a normative research and empirical research (sociology of law) with a statutory approach, conceptual approach, historical approach, also comparative approach. The result of this research showed that the problem related to with employment happened because the job opportunity is getting narrower, while the number of populations is increasing, the basic need and normative right are not guaranteed fro...
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As commercial mediation makes its advance into the dispute resolution arena in South Africa, the article analyses the role of the mediator in the process from a legal and regulatory perspective. After discussing the qualities, skills and role of the mediator, the piece analyses the models of mediation most appropriate to the resolution of commercial disputes. The article proceeds to deal with education, training, accreditation and standards with particular reference to best practice experience from the EU and USA as a guide for the developing commercial mediation industry in South Africa. The possibility that legal proceedings might be brought against mediators is a significant form of accountability. Experience from other jurisdictions suggests that proceedings are likely to be taken against mediators by aggrieved disputants or third parties in South Africa. A number of situations are identified and analysed in light of existing jurisprudence where parties could seek to hold commercial mediators liable, as well as the steps that can be followed in order to limit exposure. The article also discusses mediator immunity before concluding with a discussion on the relationship between mediation and the practice of law in order to avoid confusion between the two roles of mediator and lawyer.