Антиномии (Dec 2020)
Formation of the Institution of Mediation in Russia and Abroad
Abstract
The resolution of legal conflicts with the participation of a mediator is a resource mechanism for saving time, money and effort of the disputing parties in the process of reaching a consensus. Conciliatory practices involving a third impartial party have been known for a long time in many countries. This article is devoted to a retrospective analysis of the process of the restorative justice development and the formation of the institution of mediation. The philosophical prerequisites of mediation in the ancient and medieval periods and in modernity are considered. The author focuses on the historical and legal development of meditative practices both in Russia and abroad. In more details, mediation is considered as an alternative way of resolving criminal conflicts, revealing its essential characteristics in the field of criminal justice. The author concludes that the existing rules of criminal procedure law contain the prerequisites and resources that are necessary for the implementation of mediation in the domestic criminal proceedings. There are three models of mediation depending on the stage of its application: prior the initiation of the criminal case; after the initiation of a criminal case; the penitentiary model of mediation. The retrospective analysis of the process of establishing the institution of mediation in Russian and foreign law draws attention to the fact that the origins of conciliatory practices with the participation of the mediator had existed in ancient society. At an early stage of development, restorative justice was reflected in the ideas of Mayevtics; during the Middle Ages, media practices were practically not applied. The period of modernity was more fruitful; it “revitalized” the restorative justice, finding its reflection in the humanistic ideas of writers and philosophers. Philosophical ideas of the modernity deeply influenced the historical and legal establishment of the institution of mediation in Russia and in foreign countries. At the present stage of development, mediation is used as an alternative procedure for resolving a dispute. The methodological basis of the work is formed by the universal (dialectical-materialistic) methodology in combination with other general scientific methods of cognition (analysis, synthesis, induction, deduction, systemic method, etc.); special legal methods: comparative legal, sociological, legal dogmatic, etc.
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