The criteria of mediation procedure applicability in juridical practice

Abstract

The goal of the article is to discuss where, when and under which circumstances should the mediation process and procedure be applied. In Russia, this practice is still being developed and its’ reputation is crucial so that it might be well received by both judicial bodies and the general public. A positive image of mediation might help to develop trust in this progressive method of conflict resolution among Russian citizens. To do this, it is necessary to distinguish conflicts that can be solved via mediation from those where mediation is not applicable and, therefore, will fail. We propose criteria to determine, whether a conflict situation is negotiable, and mediation is applicable. Our proposition is based on an analysis of contemporary literature together with the practice of addressing mediation in different situations. Our conclusions find that the system of criteria for the applicability of mediation procedure should be based on the criteria of negotiableness. Also, the system of criteria should be consistently developed on “indications” and contraindications for mediation. In addition to acknowledging a case as negotiable, the indications should include the following: conflict parties do not possess negotiation procedure and interpersonal relations between the parties do not exceed the acceptable “threshold level.” Obstacles to mediation may include: an extremely high stage (exceeding the 6th stage in Glasl’s model) of conflict escalation, criteria related to the personal characteristics of the parties, and contextual criteria. The obstacles related to the personal characteristics of the parties include an attitude to interpret conflicts in terms of guilt level, the inability to rationally interpret the conflict while being inclined towards its’ successful resolution. The contextual criteria include circumstances that are related neither to the conflict situation itself nor to the personal characteristics of the parties. The said criteria are external and objective such as direct prohibitions, subcultural restrictions, etc.

Keywords:

mediation, mediation applicability, mediator, negotiations, negotiableness, conflict, intermediary