Mediation and the legal system : Extracting the legal principles of civil and commercial mediation
Abstract: It is common to perceive mediation as a social practice, a practice that takes place outside the law and is unrestricted by legal rules. The subject of my dissertation is the normative dimension of mediation. I seek to sketch the relationship between mediation and the legal system, to discern, interpret and systematize the legal rules and principles within the framework of the European Mediation Directive 2008/52/EC and to develop them further. I consider mediation to be a decision-making mechanism that is in many respects functionally equivalent to litigation, a view that is based on systems theory. As mediation is one pillar of access to justice within European dispute resolution, I place my research in the field of European civil procedural law – without disregarding its connection to other areas of law, such as contract law.In my research I adopted the view that mediation has a double existence, namely a social existence and a legal existence. Mediation is connected to the legal systems by a network of contracts which constitute an instrument of structural coupling between different operationally closed (but cognitively open) systems – a view that has its roots in systems theory. I used these contracts and contract theory as a research method to examine how mediation is reproduced within the legal system. My systemic approach allows for account to be taken of fundamental principles and concepts developed within mediation theory, hence conflict resolution in the social system, while examining how these principles have been reproduced within the legal system. In this respect, my approach is multi-disciplinary.I concluded that several legal principles have emerged in the legal practice of mediation that determine the aim of mediation, the role of the participants, the procedure and the decision-making. Impartiality as the guiding principle of mediation, together with the requirement that the parties are equally involved in the process are not only values that arise in procedural justice research, but they also depict a principle of fairness that constitutes the minimum requirement of due process in Civil and Commercial Mediation. On the basis of the principles that started to emerge in the legal practice of mediation, I propose a set of procedural principles that can be used to consolidate and restate the general principles of Civil and Commercial Mediation.
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