2017-03-25 00:33

在现有的关于调解的文献的背景下,它还没有明确确定是否存在任何形式的公平义务的调解员的一部分。正如肯德尔所说,公平必然隐含在调解员的作用,但是,这个概念必然与调解员的公平性的概念,而不是实质性的程序公平。调解作为一种非约束性的程序,不能在适当的程序(及其衍生程序保护)的基础上进行,这样的限制将使程序冗余。调解也是保密的,诉讼是“没有偏见”。如未能达成和解,调解中的任何信息在随后的法律诉讼中均不得作为证据,也不应将信息传递给其他第三方。在里德执行PLC V里德商业信息有限公司[ 2004 ] EWCA Civ 887,上诉法院强调了先前的决定成本制裁那些拒绝参加ADR [ 7 ]当事人没有削弱缓解诉讼是“没有偏见”的保密原则。在这方面,里德,法院不能强迫任何一方披露任何“无偏见”谈判的细节。此外,上诉法院明确拒绝律师提交的,应该有利于调解的假设。而调解的好处(尤其是商业纠纷)是显而易见的,有许多的障碍和不足,调解程序。首先,调解是取决于双方同意参与的过程。如果一方愿意将争议调解,则争议不能调解。此外,如果一方在纠纷中处于强势地位,则不太可能同意调解。当一方处于强势地位时,诉讼被视为解决争端的更好选择。在这种情况下,协商一致的一方通常被视为该方在谈判过程中处于不利地位。在法律结果方面,调解也不能提供先例的优势,在这种情况下,预计一系列类似的情况下,可能带来。调解,调解虽然比相当便宜,不一定便宜(特别是在大型的专业团队是必需的)–任何费用或款项花由于调解不能报销的任何一方,如果调解失败,双方将经验(有限公司)的财务损失。
In the context of the available literature on mediation, it has not been expressly determined whether any form of duty of fairness exists on the part of the mediator. As Kendall posits, fairness is necessarily implicit in the role of the mediator, however, this notion is necessarily linked to the concept of mediator impartiality as opposed to substantive procedural fairness. Mediation, as a non-binding process, cannot be made subject to due process (and its derivative procedural protections) on the basis that such restrictions would serve to make the process redundant. Mediation is also confidential and proceedings are ‘without prejudice’. In the event that no settlement is reached, no information exchanged in mediation is admissible as evidence in subsequent legal proceedings, nor should the information be passed on to any other third parties. In Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 887, the Court of Appeal underlined that its earlier decision on cost sanctions for litigants who have refused to take part in ADR[7] did not erode the general principle that mitigation proceedings are subject to ‘without prejudice’ confidentiality. In this respect, following Reed, the court cannot compel either party to disclose any details of the ‘without prejudice’ negotiations. Moreover, the Court of Appeal explicitly rejected the submission of the Law Society that there should be a presumption in favour of mediation.While the benefits of mediation (particularly for commercial disputes) are apparent, there are a number of obstacles and disadvantages to the mediation procedure. First, mediation is dependent upon the consent of both parties to participate in the process. If only one party is willing to take the dispute to mediation, then the dispute cannot be taken to mediation. Moreover, if a party is in a strong position within the dispute, they are less likely to agree to mediation. Litigation is viewed as a better option for the resolution of a dispute when a party is in a strong position. For a party to agree to negotiation in such circumstances would usually be seen as that party places themselves at a disadvantage in the negotiation process. In terms of legal outcomes, mediation also cannot offer the advantage of precedent in those circumstances where it is anticipated that a series of similar cases are likely to be brought. Mediation, although considerably less expensive than mediation, is not necessarily inexpensive (particularly where large professional teams are required) – any fees or monies spent as a result of mediation cannot be reimbursed to either party, so if mediation fails, parties will experience (limited) financial loss.