Ashimov Kuanysh
Қàçàқñòàí
Ðåñïóáëèêàñû Áàñ ïðîêóðàòóðàñûíûң æàíûíäàғû
Құқûқ
қîðғàó îðãàíäàðû àêàäåìèÿñûíûң 2 êóðñ ìàãèñòðàíòû
The
concept of Mediation
Annotation
In modern conditions, the process of
approximation of different legal systems is actively pursued, and in this
process, ensuring the rule of law and the rule of law, the rights and freedoms
of individuals and citizens, is put on the state and society as the main
objective. In this situation, mechanisms for the protection of the constitution
should be consistent with the criteria in the societies of common democracy and
justice.
The world experience of the judiciary
is rarely accepted as a two-way solution to the dispute between the process
participants in connection with the judicial process's solution. And this
situation creates a situation where participants in the trial are unsatisfied
with the resolution of the dispute. There are reasons for this, and they can be
classified as follows: Firstly, dispute resolution is a long and cost-consuming
method; Secondly, this procedure is carried out with the participation of the
majority, and participants of the process may want to keep the secret of the
dispute; Thirdly, there are those who are prosecuted by a fair court decision
and being exempted from the process. The above-mentioned circumstances
encourage finding alternative ways to resolve disputes.
Key words: Mediation, Alternative Dispute Resolution, legal,
dispute
Introduction
Mediation is a form of Alternative Dispute
Resolution (ADR) that is offered by the
U.S. Equal Employment Opportunity Commission (EEOC) as an alternative to the
traditional investigative or litigation process. Mediation is an informal
process in which a neutral third party assists the opposing parties to reach a
voluntary, negotiated resolution of a charge of discrimination. Mediation gives
the parties the opportunity to discuss the issues raised in the charge, clear
up misunderstandings, determine the underlying interests or concerns, find
areas of agreement and, ultimately, to incorporate those areas of agreements
into solutions. A mediator does not impose a decision on the parties. Instead,
the mediator helps the parties to agree on a mutually acceptable resolution. Mediation
is a form of dispute resolution, is an ancient, authoritative for all parties
involved in disinterested neutral party that is expected. Neighbours for many
centuries, professional groups, political parties active in diplomacy in
conflict resolution with the States, with great success. And, in our time,
plays an important role in mediation. The possibility
of resolving the dispute without the involvement of litigation in the modern
conditions of the agreement between the parties involved. Experience in the use
of mediation abroad and securities of the current in respect of all rights
interdisciplinary studies indicate the need for consideration of the topic of
novelty, are among the pressing issues, like the issue - you can say that.
Adopted in the Republic of Kazakhstan
of 28 January 2011 "on Mediation", proves the law. Earlier, with the
adoption of the law, the legal institution has a relatively new, but without
legislation at the state level [2]. Since the proclamation of state
independence of Kazakhstan, the requirements of formation of legal state in our
country according to the independence of the judiciary and the necessary
organizational, legal, economic and other conditions, the basic steps. The
President Of The Republic Of Kazakhstan should be noted that Nazarbayev pays
special attention to the development problems of the judiciary in the country.
In this regard, the head of state at the IV Congress of judges of Kazakhstan
"development of the Judicial system is one of the main priorities of the
state, - he stressed. If protected, that freedom, openness will not. What
achievements in this sphere in Kazakhstan is not enough. Further improvements,
including the judiciary, adopted measures to strengthen the social and legal
status of judges. The modern judicial system is an integral part of social,
economic and political modernization and democratic development in the way of
arrangements. Provision of the modern legal policy of Kazakhstan, its citizens,
the attitude, level of confidence in the government of the society.
The concept of Mediation theoretical and legal foundations
The world experience in solving the
dispute judicial procedure of dispute resolution between participants of
process, justice and decision-making that satisfies both sides, are rare. But,
this situation causes the dissatisfied participant in the legal process in
resolving the dispute. It can be attributed to him have their reasons: first,
the method requires high costs and prolonged dispute resolution court;
secondly, this discipline is carried out with the participation of the public,
stakeholders, and
circumstances can be a dispute, confidentiality;
thirdly, the presence of process and justice, according to the University's
decision came, procession losers. Mentioned conditions, stimulates the search
for alternative ways of resolving disputes of the parties.
As alternative ways of dispute
resolution – the words dispute resolution, negotiation, mediation, arbitration,
conciliation court, the Ombudsman, the defence admits mixed types or methods.
World experience and these methods are divided into contractual, depending on
the place in the judicial system pre-trial and court procedures. Alternative
ways of dispute resolution and that the methods of state regulation and a state
system conflicted will not.
Mediation as a method of resolving
disputes with neighbours for many centuries, communities of practice, in force
between the States was. Resolution of disputes in the history of three objects
and methods of dispute resolution (unlawful violence or judicial restoration of
rights through the courts, were forcibly limited, recent conciliation) with
each other, can be a good move.
And equitable basis for the use of
mediation, mediation in the criminal process should distinguish between a
theoretical and a legal court. Because justice is the basic, the mediation of
technology in technology. Here the research work identify features of mediation
in out-of-court alternative dispute resolution refers to one of actual legal.
The way pre-trial settlement of
disputes out of court or alternative dispute resolution legal the social. The
totality of these methods in the practice of foreign countries
"Alternative Dispute Resolution, or legal form of alternative dispute
resolution (ADR) that, in the practice of the CIS countries, and
"alternative dispute resolution (ADR)",-call. Application in practice
of foreign countries and law
· The workload of the judiciary is
markedly the cases of different seamen;
· On the one hand, based on court
evidence, the contested achieves in explicit terms.
Known methods of alternative justice
in the eyes of society, on the one hand, the desire to come to terms with the
court the offender a fair hand, on the other hand, the reason for increase of
legal culture and civil society development.
Abroad, including in Japan, the court,
if the defendant plead guilty in advance. Because, in this state of guilt the
recognition of accountability is the presumption of guilt in the reasoning and
forms the basis. In many civilized countries not much to go to court for
disputes, legal culture.
Mediation should be considered in
broad and narrow sense. In a broad sense, mediation is a state law, including,
applicable in all spheres of public life (formal or informal) solutions to
conflicts through mediation, neutral.
The lawyer (defender), Manager, diplomat,
statesman, some, or all levels and in all spheres of human life, existing in
informal activities psychologists methods of conflict resolution through
mediation, shall apply on a constant basis in full or some items.
In a narrow Mahindra mediation – negotiations
with the participation of the disputing parties in finding solutions allowing
third parties to come to an agreement, through expert advice and a talk on
effective mediation.
Mediation (dåuty the Latin word medius
– two approach, or two jaws in the centre, middle of the road performance, what
it means to be in neutral) – this dispute, the conflict parties together, the
process of solving a disagreement. A great opportunity to achieve certain
specified process, as special procedural conditions for entrepreneurship, as
well as the assistance of the mediator, parties to the agreement, one entry.
Mediation and conciliation procedures the provision of a wide recognition of
the "Mature" form can be compared with [10, p.25].
What is Mediation Law?
Mediation law refers to a form of alternative
dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral
third-party in an effort to settle the case. The third-party is called a
mediator. It is this person’s job to listen to the evidence, help the litigants
come to understand each other’s viewpoint regarding the controversy, and then
facilitate the negotiation of a voluntary resolution to the case. The purpose
of mediation is to avoid the time and expense of further litigation by settling
a lawsuit early on in the process.
Unlike other forms of ADR, mediation is not
binding on the parties. In fact, thinking about a mediation proceeding in terms
of whether the parties will be bound by the outcome suggests a misunderstanding
of the nature of mediation. The mediator’s role is not to reach a decision – it
is to help the parties reach their own decision. There is no guarantee that
mediation will produce a settlement agreement resolving the case. In fact, in
many cases mediation will leave the litigants no closer to reaching a
settlement afterwards than they were beforehand.
If mediation can turn out to be a waste of time
for both sides, then why do so many litigants freely agree to attend (and to
pay the associated fees)? The answer is that when mediation is successful, it
can save huge sums of money. Litigation is expensive. For instance, taking a
personal injury case all the way to trial can easily cost $100,000 or more. On
the other hand, the parties can pay a mediator a couple hundred dollars an
hour, with a very real chance that the case will be resolved by the end of the
day.
The best mediator for a particular case will be a
law-trained professional who is familiar with the subject matter of the case.
Most often, parties should seek out a current or retired attorney with
experience litigating similar disputes. It is important to realize, though,
that the best attorneys do not always make the best mediators. Successful trial
lawyers are known for being aggressive, while successful mediators are known
for their ability to help other lawyers calm down and reach a consensus. This
distinction is important. For help locating a qualified mediator, contact the
local state bar association for a referral.
In the row for mediation, peace for
many centuries, we know, services. To date, the world practice, with large business
mediation, family disputes conflicts will be applied in questions of how the
world and share arils proves. With regard to the census, applying to international
conflicts through mediation, only 30 to 40 percent will pass successfully the
result will be 85% [10.p.35]. Such success is not accidental, since the
conditions of mediation timbal dare to come to the decision to replace its
capabilities, a shrimp financial costs, time and free commandments left by
ancestors, good friendship, partnership, relationship is not prestigious,
allows while maintaining linen.
One of the main advantages of
mediation, procedure of the meeting is confidential. And also he is the
mediator of confidential information, written documents and materials, the
procedure, are removed.
So, the mediation – the parties to the
dispute, a neutral person-the procedure of conducting negotiations with
participation of a mediator, aimed at resolving disputes voluntarily.
A neutral third person – a mediator, a
judge, the judge does not take any and not a decision (arbitrator, mediator, is
a feature of this property. The disputing parties themselves who decide on the
resolution of the dispute, and the task of the mediator is to help find
effective solutions in both directions.
This method of dispute resolution in
the CIS countries, five or six years ago. And that the Anglo-Saxon system of
law prevailing in the countries (USA, UK, Australia) 60 mediation of the last
century-from the beginning, if the States of continental legal system (France,
Belgium, Germany and others) by the end of the last century began to apply.
This method of dispute resolution
mediation supporters are an essential element in the development of civil
society, believes. According to their views, the nature and result of relations
between people, forming two new informal amide to meet the delivery of non
standard and it provides social stability.
The globalization process in the modern
Kazakhstan society and the relations arising in year history of mediation in
resolving issues at various levels of demand in a fade decreases. Currently,
the relationships associated with mediation in all spheres of public life – in
the family, among labour relations of the state and Economics, in management
practice often occurs.
Conclusion
Undoubtedly, it is necessary to turn
to the experience of developed countries, Kazakhstan in improving its legal
system, legal institutions, and to take only after reading the forced
attention. In the world, including the institutions of mediation is one of the
most dynamically developing in CIS countries. Mediation is the Foundation of
civil society, the path to democracy and civilization, it is believed that.
The end of XIX century-beginning of
XXI in 2011 in the Republic of Kazakhstan the law "on Mediation" as a
method of alternative dispute resolution process. In the same period,
legislation regulating relations of mediation in Russia, Belarus, Georgia,
Moldova began receiving countries such as.
The enforcement of mediation
agreements, as well as analysis of the mechanisms of action that are in
accordance with the legislation of the Republic of Kazakhstan and the CIS
countries, the legislation requires a thorough study.
In the speeches of heads of the
Supreme bodies of state power of the Republic of Kazakhstan in recent years,
the importance of legal disputes what you say. The conciliation activity of the
Republic of Kazakhstan is one of the industry's problems, including mediation,
is an extension.
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