Mediation clauses, unlike arbitration clauses, are not “vexatious clauses” (clausole vessatorie) or what is called “unscrupulous” in the United States. If the parties do not reach a settlement agreement as a result of the mediation process, they may still proceed to arbitration or litigation; Mediation therefore does not deprive the parties of their right to due process. Binding arbitration clauses are classified as “vexatious”. As stated in I.C.C § 1341, paragraphs 2 and 1469, paragraphs 3, nn.18 and 19, a vexatious clause is a provision of a contract that disadvantages a party, usually the consumer, in relation to the contract. These types of clauses must be signed separately by the parties. Such a clause can be vexatious if it is not signed separately and knowingly by each party, as it can ultimately limit options and deprive parties of their due process rights under the traditional judicial system. I.C.P.C § 808 provides for a kind of exception to the constitutional principle of natural jurisdiction and must therefore be regarded as vexatious. Again, a contractual mediation clause is not vexatious, as the parties can conduct their dispute at any time through the usual legal channels or resort to arbitration for settlement without paying a penalty. Historical reconciliation is not an excavation of objective facts. The purpose of facilitating historical questions is not to uncover all the facts about who was right or wrong. Rather, it is about uncovering the complexity, ambiguity, and emotions that surround the dominant and non-dominant cultural and individual narratives of history.
Nor is it a rewriting of history. The goal is not to create a combined narrative that everyone agrees on. Instead, it`s about creating space for critical thinking and a more complete understanding of the past and the ideas of the “other.” Avv. Alessandra Sgubini LLMMs. Sgubini is a professional mediator and an Italian lawyer with experience in the field of law, international law and dispute resolution. She obtained her law degree from the University of Milan (Italy) and is admitted as an Italian lawyer and member of the Milan Bar. She completed postgraduate studies in International Business Transactions at the University of San Diego, California (USA). In addition, she received her L.L.M Master`s degree in International and Comparative Law from the California Western School of Law in San Diego, California.
She is a certified mediator in the United States and Italy. She is the founder and owner of Bridge Mediation LLC in San Diego, CA and B.M. SRL in Milan, Italy. She is a professional mediator specialising in a wide range of international and intercultural litigation and civil litigation. She is fluent in Italian and English. Wife. Sgubini is Professor of Business Law, ADR, Mediation and Conflict Resolution for universities such as UCSD (University of San Diego, California), ISED (Istitute Superiore de Derecho e Economia) and CWSL (California Western School of Law) and State Law School in Moscow, Russia. She is a lecturer in national and international organizations. Ms. Sgubini is the author of several articles on ADR and mediation. The conciliation procedure consists of four main stages: (1) meeting, (2) declaration, (3) proposal and (4) agreement. It is important to note that arbitration is not a linear process and that the parties can move from one phase to another and to the next if necessary.
It is also important to note that not all mediations will end in an agreement. However, if the parties and the arbitrator go through the dispute, it is often pursued until the parties can agree on the proposed solutions. In addition, we will add a new step at the beginning, which includes preparation and research around the dispute and possible solutions. An arbitrator assists each of the parties in independently drawing up a list of all their objectives (the results they wish to derive from the conciliation). The arbitrator then asks each of the parties to separately prioritize their own list, from the most important to the least important. He then goes back and forth between the parties and encourages them to “give” the goals one by one, starting with the least important and working towards the most important thing for each party. The parties rarely place the same priorities on all objectives and usually have objectives that are not listed by the other party. Thus, the referee can quickly build a series of successes and help the parties create an atmosphere of trust that the referee can further develop. As with any other dispute resolution mechanism, the parties must prepare for the conciliation hearing or conciliation proceedings in conciliation. This allows the parties to present their views on the case as clearly as possible and helps the parties understand what they need to reach an agreement. Strong preparation helps everyone involved feel that their needs have been met and that they can leave knowing that the settlement agreement is something that will help them overcome the dispute and establish a restored relationship. Some important things to keep in mind when preparing are: A common method of arbitration is for the arbitrator to meet with each party individually.
The arbitrator then instructs each party to establish a list of goals or objectives that it wishes to achieve through the negotiation process. Each party will then place each target in order of priority (the order is usually different for each game). Each of the skillful procedures (alternative dispute resolution) discussed here, arbitration, mediation and conciliation, offers significant benefits to the parties and can be seen as a complement to the legal proceedings. In the United States, mediation may have become the predominant alternative dispute resolution process because it gives parties the opportunity to reach practical, economic and permanent settlements. For commercial disputes, mediation also offers the opportunity to create innovative solutions to commercial disputes that promote the unique interests of the parties in an analytical framework that goes beyond traditional legal rights and remedies. In this sense, the mediation process can be used to obtain “business solutions to commercial disputes” because it encourages parties to consider all dimensions of a dispute, including legal issues and business interests. .