International scientific e-journal

ΛΌГOΣ. ONLINE

8 (April, 2020)

e-ISSN: 2663-4139
КВ №20521-13361Р

LAW

ALTERNATIVE REMEDIES THAT CAN BE USED IN CIVIL DISPUTES

Varvara SHERUDILLO

2-year student of the master`s program, Law Faculty

Taras Shevchenko National University of Kyiv

 

UKRAINE


Abstract. The article describes different alternative ways to resolve the disputes that can be used in resolving civil cases, taking into consideration the fact, that they are not popular in Ukraine. The USA practice of legal regulation of alternative dispute resolution was considered.

Keywords: alternative dispute resolution; civil disputes; private judge; arbitration; independent case evaluation; simplified jury; mini-court; facilitation; mediation.

Presentation of the main material. Alternative settlement of disputes as a general rule is the right, not the obligation of the parties to the conflict. However, it is much rarer to be implemented than the right to court protection.

The term "Alternative dispute resolution" (ADR) was first applied in the United States to indicate flexible and informal conflict management procedures and is now official and widely used not only in legal theory, but also in the legislation of many countries. As noted in the legal literature, the borrowing of this term by jurisprudence of other countries is rather lawful, as it is not about copying the terminology, but about compliance with the modern world tendencies of interpenetration and interrelation of different legal systems. In addition, the term "alternative" is the best to describe the outer side of the studied sphere – it means not an opposition to the justice, but the distance from it and the possibility of choosing one or another form of dispute resolution [2]

It goes without saying, that there are a lot of alternative ways to resolve the dispute. Although, they are not really popular in Ukraine, we should take a look at them.

Alternative methods of dispute resolution can be classified in terms of their division into two main categories based on belonging to a particular area of legal regulation: private and public. The term "public" in this aspect is conditional to a certain extent. It indicates not the legal nature of alternative pre-trial procedures (they are a combination of private and public elements), but their belonging to the public state judicial system. [4]

We can include to private procedures those adopted solely on the voluntary will of the parties - negotiation, mediation, arbitration, mini-trial, etc. These activities are separate, independent from the judicial system in their regulation and the existence. They are characterized by a bigger degree of disposition with minimal interference from the state. The role of the latter is reduced to the official recognition of the extrajudicial system of alternative dispute resolution and ensuring proper conditions of their operation. In particular, the next aspects of private dispute resolution methods are the subject of legal regulation in many states in the USA:

  • recognition of alternative procedures as desired and widely used methods of settlement of legal conflicts;

  • identifying categories of civil cases permitted for alternative solutions;

  • establishing a list of categories of civil cases that are not subject for settlement and solution by ADR;

  • definition of the concept of a particular alternative procedure;

  • ensuring privacy guarantee as a principle of alternative dispute resolution;

  • establishment of qualification standards for people who promote fixing differences and resolving disputes in alternative procedures;

  • ensuring the possibility of enforcement of decisions rendered in the relevant procedures;

  • recognition of the agreement reached during the alternative regulation as such that is binding for both parties in the presence of their mutual will.

Classification of alternative forms of dispute resolution into private and public allows: to obtain a holistic view of alternative dispute resolution as a single element of the legal system, which includes different areas of legal regulation; to investigate the specifics of each of these areas separately; to provide a differentiated regulation of certain procedures, taking into account their private or public nature; to predict the possibility of further separation of alternative forms within each group for narrower bases. [6]

Kimberly K. Kovach Alternative divides ways of resolving disputes, to which third independent person is involved into three categories.

Firstly, the methods that suppose making the decision. This category of methods provides for the third independent party to make the final decision, mostly mandatory for the parties. The following methods include:

  • a private or special judge – allows the parties to dispute to invite the former judge or retired judge on the payment basis in order to privately consider their case and make a decision on it;

  • arbitration – as a rule, the arbitral proceedings shall be chaired by a single arbitrator or a board of three arbitrators. The arbitration procedure is inherent in the observance of many formal rules, which are similar to those governing the procedure for proving and proceeding on civil cases in state courts. However, arbitrations have their own regulations.

Secondly, evaluative ways which suppose having the evaluation procedure in which an impartial person organizes discussion of strengths and weaknesses of their positions in the case by the parties to the dispute (and often their representatives). These methods include:

  • an independent case evaluation - a procedure in which a neutral person often makes a conclusion as to what court decision can be taken on this case. The primary purpose of an independent evaluation of the case is to provide an objective, non-binding, confidential evaluation of the case that may be used by the parties and their representatives during further negotiations aimed at resolving the disputed situation;

  • simplified jury – the procedure does not involve the adoption of a decision by the parties, is held at the request of the court or at the request of the parties and constitutes a quasi-judicial process under the chairmanship of the judge;

  • the mini-court - a hybrid of several alternative ways of settlement of disputes: negotiations, independent evaluation of the case and mediation. Used to settle big commercial disputes and aims to ensure the interaction of senior managers and their lawyers.

Thirdly, the facilitative procedures, during which an independent person contributes to the parties in achieving mutually beneficial agreements, understanding and solving the problem. An independent person does not make the decision, and does not estimate judgments on the merits of the dispute, but contributes to the parties in achieving mutually beneficial agreements. There are three main facilitive procedures: mediation, reconciliation, and agreement (consensus). [3]

There are some more alternative ways to resolve disputes.

Facilitation. The facilitator is the person responsible for the organization of negotiation. The organization means the choice of time, place of negotiation. By nature, facilitation is very similar to mediation. The difference is that the mediator helps the parties to find a mutually advantageous solution for the parties, while the facilitator just helps create the negotiation conditions. The term "facilitator" is widely used in the English-speaking countries, but is not yet well known in Ukraine. For example, the International Association of Facilitators, which has existed since 1989, today includes 1200 members from 63 countries in the world. [1]

Expert opinion. The examination is a procedure with the involvement of an independent person with special knowledge in a particular field, which issues a mandatory conclusion to the parties on specific issues. The conclusion of the examination is widely used in the UK, France, Germany, Italy, the Netherlands and other countries. This procedure is most suitable for resolving disputes that are caused by disagreement of the parties for any factual circumstances. One of the main differences of the expert opinion from the arbitration court is that the expert does not usually solve the issue of law, but only establishes some circumstances that are part of his competence. [5]

Mediation is one more alternative method of dispute resolution which is known in Ukraine, though is not commonly used. Mediation is a process of negotiations involving the interested parties and the third party who is there to direct and assist the parties in their will to resolve the dispute.

The main thing is that usually there are only winners in this process. Parties discuss their wills and wishes and try to make one suitable decision that will comfort both parties. Moreover, mediation is much cheaper than trials, because parties are not to pay fees. This process is really flexible because there are fixed demands and the judge can’t go over them in his decision in court, but in mediation there is a chance to come to various types of agreements that parties are capable to fulfill. Furthermore, trials usually take much time, while parties can use this time to resolve the dispute on their own. It gets extreme importance with cases concerning copyright infringements.

Conclusions. All things considered, it can be stated that there are various types of resolving the disputes using alternative ways. American practice shows that the vast majority of cases are usually resolved using ADR, and only 30% of all cases go to court. That is why, in my opinion, our legislators should turn to the foreign practice of ensuring such procedures in national codes and laws for people to be aware that their rights and interests are secured and protected in these cases as much as they are during the court proceedings. This will allow to decrease the pressure on the judicial system and make resolving the disputes cheaper, more effective and efficient.


REFERENCES:

 

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АЛЬТЕРНАТИВНІ СПОСОБИ ЗАХИСТУ, ЯКІ МОЖУТЬ БУТИ ВИКОРИСТАНІ В ЦИВІЛЬНИХ СПОРАХ

ШЕРУДІЛЛО Варвара Андріївна,
студентка 2 курсу ОР «Магістр» юридичного факультету
Київського національного університету імені Тараса Шевченка
УКРАЇНА

Анотація.
Ця стаття описує різні альтернативні способи вирішення спорів, які можуть бути використані для вирішення цивільних спорів, беручи до уваги той факт, що вони не є популярними в Україні. Була розглянута практика закріплення в законах альтернативних способів вирішення спорів на прикладі США.


Ключові слова: альтернативне вирішення спорів; цивільні спори; приватний суддя; третейський суд; незалежне оцінювання справи; спрощений суд присяжних; міні-суд; фасилітація; медіація.

© Шеруділло В.А., 2020

© Sherudillo V., 2020

 

This work is licensed under a Creative Commons Attribution 4.0 International License.

PUBLISHED : 17.04.2020