PROSPECTIVE SUBSUMPTION AND THE MODEL BASIC NORM IN MEDIATION IN CIVIL CASES – SOME REMARKS FROM THE PERSPECTIVE OF LEGAL THEORY AND PRACTICE
PROSPECTIVE SUBSUMPTION AND THE MODEL BASIC NORM IN MEDIATION IN CIVIL CASES – SOME REMARKS FROM THE PERSPECTIVE OF LEGAL THEORY AND PRACTICE

Summary/Abstract: The main objective of this paper is to discuss the existence and nature of subsumption as well as the model basic norm in the decision-making process in civil mediation, conducted primarily with a view to achieve amicable resolution of a legal dispute through settlement. The analysis compares the general model of judicial application of law and the decision-making process in mediation. Furthermore, the paper characterises prospective mediatory subsumption and retrospective judicial subsumption, as well as the features and components of the so-called model basic norm involved in mediatory subsumption. The author debates the position of Krzysztof Płeszka and Michał Araszkiewicz, who contend that the principle of subsumption is derogated in the model course of mediation stages. The observations made on the grounds of legal theory – particularly concerning the components of the mediation basic norm – are followed by an overview of selected relevant empirical findings, especially regarding the objectives and effectiveness of mediation. The findings in question were obtained by this author as a result of research entitled ‘The objectives of mediation and the selection and use of mediation strategies and techniques by mediators in civil disputes, including commercial disputes between entrepreneurs’.

• Details
• Contents