Contemporary Tendencies in Mediation

Mediation is not a trend in non-common law countries anymore: it is a reality.Almost seven years have already passed from the Directive 52/2008/ CE, which established a communitarian framework for mediation in civil and commercial matters in the European Union and required the member States to adapt their legal systems to contemplate this sort of Alternative Dispute Resolution (ADR).Many important economies followed the same path in different countries in Asia, Russia and Latin America.Mediation became an important tool in different fields and notably in conflicts concerning family, civil and commercial law as well as restorative justice.In countries like United States, England and Canada, where mediation flowered before, the past decade represented also an important growth with new rules and maturity in the literature and practice.In those systems, complex conflict have reached mediation as the Canadian case of ADR and Aboriginal-Crown Conciliation articulated in this book in the contribution of Roshan Danesh and Jessica Dickinson.Applying mediation to sophisticated conflicts and improving techniques help the field to become more solid and known in the hard mission to promote conflict resolution and peace based on interest-based models.On the other hand, in the international scenario, mediation progresses call the attention because of its new impact and interfaces in traditional dispute resolution means as arbitration and new technologies prospering also in online dispute resolution.Accordingly, the context was never so fruitful for exchanging experiences and theoretical points of view.The globalization accelerates reciprocal influences in different legal systems and facilitates the understanding between scholars and practioners from all over the world.Therefore, the purpose of this book was to create a channel to assemble some of these exchanges.From the conflict view, a Brazilian scholar Jos Paulo Marinho faces in his text the limitations of ADR methods.His approach can be elucidating in the legal moment for mediation in Brazil, since it has its first signs of mediation regulation approved in the New Procedural Code and runs to a specific new framework for civil and commercial mediation in a Bill of Law still pending of 'The [mediation agreement] is analogous to an agreement to arbitrate.As such, it represents a free-standing agreement ancillary to the main contract and capable of being enforced by a stay of the proceedings or by injunction absent any pending proceedings.The jurisdiction to stay, although introduced by statute in the field of arbitration agreements, is in origin an equitable remedy.It is further a procedural tool provided for under CPR, r. 26.4 to encourage and enable the parties to use ADR...However, the availability of the remedy whether of a stay or an adjournment or other case management order must be a matter for the discretion of the court.'So-called mediation orders, issued by the court, are merely robust recommendations to mediate.English courts are prepared, where appropriate, to register censure of a party's unreasonable refusal to engage in mediation.That refusal might be failure to accede to the opponent's call for mediation, or the court's own suggestion that mediation be contemplated.

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