Mediation and Legal Assistance


https://doi.org/10.17589/2309-8678-2014-2-2-145-156

Full Text:


Abstract

The development of alternative dispute resolution procedures raises a number of new problems and questions for jurisprudence and legal practice. Many of these are closely related to the implementation of mediation procedures. Significant attention has been paid in the legal literature to the need for mediators’ legal education. Nowadays a professional lawyer usually performs the functions of a mediator. Nevertheless, in some countries the competence of mediators can be limited. In fact, such persons may be prohibited from providing any legal assistance to the parties. A direct prohibition of this kind exists in Russian legislation. To what degree is this prohibition realistic and reasonable? Different countries enjoy different approaches to the possibility of providing disputing parties with a mediator’s legal assistance in addressing issues requiring legal advice or in the drafting of legal documents. Different approaches to this issue have appeared for various reasons. The absence of consensus is caused by a contradiction between the principle of mediator neutrality in the conflict resolution process and the goals of dispute settlement in which a legally competent intermediary is involved. To ensure the effectiveness of the mediation process, legislators should seek out more flexible ways of regulating procedure. Mandatory regulation itself contradicts the spirit of ‘semi-formal’ alternative (extrajudicial) methods for conflict resolution. As such, the presence of direct prohibitions or severe restrictions may not only become challenging in the performance of law but such peremptory norms can also make mediation unattractive and ineffective for some particular types of dispute, such as labor disputes. The principle of preserving a mediator’s neutrality is possible if exercised within the framework of a balanced approach to reasonable limits and discretionary rules for the provision of certain types of legal assistance to disputing parties.
The present article aims to consider the possibilities and limitations on a mediator’s ability to provide particular types of legal assistance where the guarantee of non-discrimination between disputing parties’ interests is presupposed.


About the Authors

Larisa Zaitseva
Tyumen State University
Russian Federation
PhD in Law, Associate Professor, Head of the Department of Labor Law and Entrepreneurship of Tyumen State University (38 Lenin str., Tyumen, 625400, Russia)


Svetlana Racheva
Tyumen State University
Russian Federation

Associate Professor of Foreign Languages
and Intercultural Professional Communication Department for Law and Economics
of Tyumen State University, PhD in Education, LL.M. (38 Lenin str., Tyumen, 625400,
Russia)



References

1. American Bar Association & American Arbitration Association & Association for Conflict Resolution, Model Standards of Conduct for Mediators (2005), <http://www.mediate.com/articles/model_standards_of_conflict.cfm> (accessed June 18,2014).

2. Brown, Henry, & Marriott, Arthur. ADR Principles and Practice 143 (Sweet and Maxwell 1993).

3. Claire, Herve. Notaries and Mediation, <http://mosmediator.narod.ru/publikatsii/erve_kler_ notariat_i_mediatsiya> (accessed September 2013).

4. Cuomo Ulloa, Francesca. Chi vuol esser mediatore? Competenze e responsabilità del nuovo mediatore civile e commerciale, in La mediazione civile alla luce della direttiva 208/52/CE 69–77 (Firenze University Press 2011).

5. Love, Lela P. The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Florida State L. Rev. 937 (1997).

6. Menkel-Meadow, Carrie J. The NLRA’s Legacy: Collective or Individual Dispute Resolution or Not?, 26 ABA Journal of Labor & Employment Law 249–66 (2011).

7. Russell, Newton R. Mediation: The Need and a Plan for Voluntary Certification, 30 USF L. Rev. 613 (1995–1996).

8. Sher, Richard P. Mediation, 41(2) The St. Louis Bar J. 2 (1994); Carrie J. MenkelMeadov, Is Mediation the Practice of Law?, 14(5) Alternatives to the High Cost of Litigation 60 (1996).

9. Woods, Frederick E. Legal Issues in the New Methods of Dispute Resolution, in Attorneys General and New Methods of Dispute Resolution 32 (Michael G. Cochrane, ed.) (ABA 1990).


Supplementary files

For citation: Zaitseva L., Racheva S. Mediation and Legal Assistance. Russian Law Journal. 2014;2(2):145-156. https://doi.org/10.17589/2309-8678-2014-2-2-145-156

Views: 1135

Refbacks

  • There are currently no refbacks.


ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)