The influence of foreign practices, including the influence of ADR (Alternative Dispute Resolution) developed in the United States, European Union is undeniable, considers to be a highly effective and secure means of communication and formalize a different reference framework for dispute resolution, in addition to the traditional form of adjudication.
Many studies have shown that the use of ARD allows the State to save a lot of money on the judiciary's operating budget. ARD transfers part of the cost to the citizen, but generally these mediations are generally less costly to the disputants due to the social costs and psychological costs are taken into account in the proceedings. It saves the time to resolve the dispute, and especially when the legal risks are no longer the case if the mediation is successful.
Honoré de Balzac wrote down: “a bad compromise is better than a good lawsuit”. A solution formed on the free will of the parties, the parties' autonomy, and their responsibilies are more welcome than an imposed trial, even by trial of court or arbitration.
Thus, in international disputes , ARD allows the avoidance of stringent legislation to find a solution that takes into account cultural and legal diversity.
The form of ARD in which the lawyer plays an active role implemented outside of the proceedings described below.
It is the mediation process through an agreement to settle a dispute, the implementation of which takes place prior to the use of all forms of judicial review and is based on a commitment of agreement between the parties and their lawyers in order to search of an overall resolution of disputes through negotiation and goodwill on the principle of satisfying the interests of each party.
Attorneys, who have been trained in mediation, are exclusively authorized to perform consultancy or negotiation tasks. These negotiations are kept confidential. The parties and their lawyers are committed to ensuring transparency, that is, to communicate with each other all useful and necessary information for a mediation arrangement between the parties. If required, the parties may seek the assistance of a neutral expert appointed by the parties.
In cases where parties go to a master agreement, the lawyers will proceed with formal recognition of the agreement.
On the contrary, in the case of continued dissent, even if it is only part of the problem, or one of the parties abuses the mediation process, does not immediately implement the cooperative process, the mediation process will be ended.
1. Teamwork: each customer has a support lawyer; two lawyers and their clients work together with a corresponding role and value in the dispute resolution.
2. Do not go to court or threaten to go to court: The parties are committed to finding a negotiated solution without using the trial agencies. Attorneys advise can not proceed with a complaint while being assigned a mediation trust.
3. Recognizing the independent status of each party and negotiating on the basis of the interests of each party: The parties shall exchange all information necessary to formulate the options and choose the solution that best meets each party's interests. The parties have an obligation to ensure transparency regarding useful and important information for the settlement of their disputes.
Mediation outside of the proceedings is based on a commitment expressed by the conciliation charter under which the participants commit. Basic mainstream of mediation.
1. Commitment of the parties:
- seek a negotiated solution without the proceedings unless there is agreement,
- the attitude of cooperation and respect around each other,
- honest in providing information to each other.
2. Commitment of lawyers:
- lawyers must be trained in mediation outside of the proceedings,
- ensure the smooth flow of the mediation process to the extent that the counsel is responsible for guiding, ensuring good faith in the implementation of the process, and respecting the customs and social order.
3. Obligations of secrecy:
Implement the terms of confidentiality
- Secrets of the negotiations: this secrecy is first and foremost warranted in the relationship of lawyers - clients and in the relationship between the lawyers under the principle of lawyer professional secrecy. The parties agree not to have any information regarding these negotiations or the information received within the framework of such negotiations transferred to another person during or after reconciliation without the prior consent of parties.
- Terms of confidentiality: in accordance with this clause, parties agree that any information, material, report or record is exchanged or prepared within the framework is confidential according to confidential principle.
- Proof of breach: the fact that a party is copying a confidential document is evidence of violation subject to legal penalties and damages compensation on the basis of agreed liability.
In summary, mediation outside of the proceedings is a very effective means of resolving disputes in which lawyers, with professional ethics, play a very active role. They use communication methods such as argumentative negotiation and active listening techniques and adjusts the manner in which the parties reach an agreement.
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