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Stepanova I.A. The Agreements Concluded within the Procedure of Mediation: Questions of Efficiency

DOI: https://doi.org/10.15688/lc.jvolsu.2018.4.17

Irina A. Stepanova, Notary of Volgograd, Marshala Eremenko St., 19, 400123 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.

https://orcid.org/0000-0003-2296-9


Introduction: now the high level of conflictness in the enterprise environment is observed that in turn affects load of the judicial system. The legislator, being in search of optimum ways of settlement of the arising conflicts and ways of decrease in load of the judicial system, adopted the Federal law of 27.07.2010 No. 193-FZ “About the alternative procedure of settlement of disputes with participation of the intermediary (the procedure of mediation)” which regulates an order of holding a procedure of mediation by the parties and also allocates a number of agreements to which number carries the agreement on application of the procedure of mediation, the agreement on holding a procedure of mediation, the mediativny agreement. Advantages of the conclusion of the designated agreements are caused by advantages of the corresponding alternative method of settlement of the conflicts. Result of settlement of the conflict by means of mediation without case referral for consideration to court is not declaration of the winner and defeated, and the conclusion of the mediativny agreement reflecting interests and satisfying requirements of all parties of the conflict. Proceeding from it, it is supposed that the mediativny agreement will be executed in a voluntary order. At the same time, the absence in the legislation of the mechanism of compulsory performance of mediativny agreements does not promote public awareness of this alternative method of settlement of the civil conflicts. Besides, the wording of Paragraph 1 of Article 4 of the Federal law of 27.07.2010 No. 193-FZ “About the alternative procedure of settlement of disputes with participation of the intermediary (the procedure of mediation)” actually leads to a situation of ignoring by court of the agreement on application of the procedure of mediation concluded by the parties that is inadmissible. In this regard definition of degree of efficiency of mediativny agreements and agreements on application of the procedure of mediation and also the problems of legal regulation which are negatively affecting promoting of practice of their conclusion acts as a main objective of the real research. Methods: the methodological basis of the study was a combination of general scientific (dialectic, inductive, deductive) and private scientific (formal legal, interpretative) methods. Results: in work an assessment of efficiency of separate types of the agreements connected with the procedure of mediation, and signed before case referral for considerations in court is given, the problems of their legal regulation connected, in particular, with existence of the negative judicial practice ignoring the fact of non-execution of the concluded agreement on application of the procedure of mediation and also lack of the compulsory mechanism of performance of mediativny agreements are revealed. Conclusions: following the results of the conducted research the author formulated the offers directed to an exception of the revealed problems of legal regulation of mediativny agreements and agreements on application of the procedure of mediation by means of introduction of amendments to the current legislation. Besides, the author pays attention to need of development of practical recommendations about the conclusion of mediativny agreements for increase in their voluntary execution.

Key words: mediation, mediation agreement, contract, dispute, conflict, feasibility.

Citation. Stepanova I.A. The Agreements Concluded within the Procedure of Mediation: Questions of Efficiency. Legal Concept, 2018, vol. 17, no. 4, pp. 117-124. DOI: https://doi.org/10.15688/lc.jvolsu.2018.4.17

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