Alternative dispute resolution – Abstract


Introduction


Alternative
settlement of disputes — a set of
procedures to facilitate extrajudicial
resolution of disputes (conflicts). In
the English practice is indicated
a steady turnover of eng. Alternative
dispute resolution (acronym — ADR). In
Australia also used the wording
external dispute resolution[1]. Despite
some resistance, alternative
methods of dispute settlement in the last
years has received wide recognition as
among the General public and
among lawyers in the United States, Europe, Australia
and begin to infiltrate law enforcement
the practice of Asian countries. Growth
the popularity of alternative
settlement of disputes, vyzvan next
factors:high download of traditional
vessels, a relatively low level
associated with the procedure
litigation, confidential
the nature of the procedure as well as the desire
the parties to the conflict have a greater
control over the choice of persons who will
to settle their dispute.[2].



1.
Methods and techniques alternative
settlement of disputes


To methods alternative
dispute resolution is usually referred
arbitration, negotiation, mediation and
Collaborative law (a term that does not have Russian
analog means a procedure for the joint
development of rules of dispute resolution
(conflicts)).


Alternative
settlement of disputes in relation to
formal judicial procedures may
to be used in two ways: first,
for the resolution of disputes outside the
the official judicial mechanisms and,
second, in conjunction with the official
judicial mechanisms.


1.1.
The arbitral Tribunal


Arbitration courts are
two types:



  • arbitration
    the court formed by the parties for
    resolution of a specific dispute (lat. ad
    hoc
    — for a particular case);


  • formed and
    acting on an ongoing basis with
    formed legal entities
    where the subjects of civil relations
    their agreement can pass on
    investigate and resolve or already
    the dispute, or disputes that may
    arise between the parties in
    future (institutional).



The arbitration proceedings
can be used to resolve
disputes between ordinary citizens
not entrepreneurs, but most often
arbitration is used
merchants in disputes among themselves.
Arbitration courts can be resolved
not all disputes — for example, administrative
disputes disputes between the owner and
the state can not be resolved
the arbitration courts. The state may
to participate in the arbitral dispute as
the participant of civil legal relations
for example, when it acts as
buyer or seller, but such cases
are extremely rare[3].


1.2.
Negotiations


Conflict isolated
two kinds of negotiations going on within
conflict relations and conditions of
cooperation. The negotiations
collaborative, not
exclude the possibility that the parties may
appear differences and on this basis
there is a conflict. But it is possible
the opposite situation, when after
conflict resolution former
rivals start to cooperate.


The types of joint decisions
the talks:



  • Compromise;


  • Asymmetrical
    solution;


  • Finding
    a fundamentally new solution by
    cooperation.



Compromise means
the parties go on mutual concessions.
Compromise is real then
when the parties are ready to meet
at least a part of each other’s interests.


When the interests of the parties
do not allow them to find the “middle”
the decision, the parties can take
asymmetric the solution, the relative
compromise. In the case of an assignment of one
side significantly exceeds assignment
other. The first side is deliberately
on it, otherwise it will incur even greater
loss.


The negotiators
can also resolve contradictions
by finding a fundamentally new
solutions. This type of joint solution
were extensively developed by us
researchers R. Fisher and W. URY, in
1980-ies[4]. This method
based on an open, hard
the analysis of the true alignment of interests
opponents and allows them to consider
the existing problem is wider than initially
the specified positions. The search for fundamentally
the new solution opens up a completely
additional opportunities for the parties on the basis
cooperation.


1.3.
Mediation


Mediation is
the dispute settlement procedure
(conflict) with the participation of a third neutral,
party, not interested
in the conflict parties — the mediator,
which helps the parties to develop
a certain agreement on the dispute, when
the parties are in full control
the decision-making process for the settlement of
the dispute and its resolution. Has
certain conditions and rules of conduct,
the sequence of action and is based
on the principles of voluntariness,
confidentiality, mutual respect,
equality of the parties, neutrality and
impartiality of the mediator and transparency
procedure. The scope of application of mediation
extremely broad and may include
role in resolving conflicts such
as:



  • Inter-
    and corporate konflikty;


  • Conflicts
    in the banking and insurance sector;


  • Support
    projects, implementation of which affects
    the interests of many parties;


  • Labor
    conflicts;


  • Family
    conflicts;


  • Conflicts
    copyright and
    intellectual property;


  • Conflicts
    in educational institutions;


  • Intercultural
    conflicts, and more.



At the same time
the application of mediation, there are
certain limitations. So, mediation
can not be applied in criminal
conflicts or in cases where
any of the parties suffering from a mental
the disease may be responsible for their
actions, that is dysfunctional. Mediation
effective only when both
sides want to settle
conflict[5].


1.4.
Collaborative law



2.
National and international organizations
in the field of alternative dispute resolution
disputes


Literature



  • Mediation
    the art of conflict resolution. Familiarity
    theory, method and professional
    technology / Editors: G. Mehta,
    G. Pokhmelkin / Translation from German. Pohmelkin. —
    Moscow: Izdatelstvo Verte, 2004. — 320 p. ISBN
    5-94866-002-8


  • Parkinson,
    Lisa.
    Family mediation. — M.:
    Interregional center for management
    and political consulting
    2010. — 420 p. ISBN 978-5-98872-012-6


  • Goats
    Vladimir, Kozlov, Alexander.
    Technological approach to the negotiations. —
    Publisher: ABF, Laboratory Business
    Training, 2007


  • Lebedev
    M. a Political settlement
    conflicts. — M.: Aspect Press.
    1999 — Pp. 188-194.


  • Collaborating on Divorce,
    Forbes — January 16, 2007[6]




List
literature:



  1. Australian
    Securities and Investments Commission — Complaints resolution
    schemes


  2. Totaro,
    Gianna., “Avoid court at all costs” The Australian Financial
    Review Is Nov. 14 2008. (April 19, 2010)


  3. E. M. Morozov
    Comparative analysis of modern
    status of arbitration proceedings
    and trends of its development


  4. Fisher
    R., URY, W. the Way to an agreement, or negotiations
    without defeat


  5. The concept
    and principles of mediation


  6. Collaborating On Divorce —
    Forbes.com



Source:
http://ru.wikipedia.org/wiki/Альтернативное_урегулирование_споров

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