留学生替代性纠纷study case [5]
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论文字数:4204论文编号:org201409281313304328语种:英语 English地区:印度价格:免费论文
关键词:解决机制Law Essay替代性纠纷Dispute Resolution
摘要:本文是一篇关于印度市场的留学生替代性纠纷case study,这个19世纪简单而深刻的声明似乎影响了刑事司法系统的性质多年,因此,法律委员会在其142报告中自行决定检查引起刑事审判和上诉处理延迟的问题异常。委员会重申单向解决方法,通过其154报告允许那些没有任何讨价还价认罪的人优惠治疗,换句话说,就是允许便辩诉交易。
egotiation does not involve an active or a passive involvement of the court. [35] Only at the end of a concluded agreement the court has to affirm or reject such agreement and give an order accordingly. [36] There has been a case made out against such process whereby it is said that prosecutors regularly give unconscionable offers to persuade a person to forsake trial and often defendants are left at the mercy of the private attorneys whose integrity on some occasions are questionable. [37] The game of power dynamics played between the defendant’s lawyer and the prosecutor is heavily stacked against the defendant because of the lack of overview of the entire negotiation process.
In plea bargaining negotiations, a perfect win-win situation may be obtained, whereby the prosecutor gets a swift prosecution and the defendant who is not sure about the outcome of the trial – possibly ending in a harsher punishment, gets away with a lighter punishment. [38] This ideal negotiation may not always be true as the innocent may be more vulnerable to accept such offers. The solution reached out of such a negotiation is not only socially undesirable but also not what the parties had actually wanted; prosecutor got the conviction all right but not of the real culprit and the defendant who has accepted his fate in getting a sentence for a crime not committed by him, but fails to get around with the fact that social stigma attached with the conviction might haunt him more than he had traded for. [39] In such a situation prosecutor has been termed as the “proverbial judge, jury, and executioner, imposing his will and desired sentence on the defendant”. [40] This leads to the unfailing conclusion that with such absolute powers vested with the prosecutor, the terms are heavily stacked against the defendant so this would not be an ideal solution for negotiation.
Another problem arising in the US due to such negotiations is the opportunity for personal, and cumulatively, systematic racial bias. [41] Mediation would minimize this facet of current plea negotiations. While bargaining power cannot be fully equalized through mediation, prosecutorial dominance can be undercut by the focus of finding a mutually beneficial solution. A mediator removes the ability of one party to control communication by ensuring that both are given the opportunity to fairly and accurately portray their points of view and the justifications underlying them.
Mediation In Plea Bargaining
Mediation is all about collaboration; by mediation the interest of the parties are determined, it is an inexpensive process of alternate dispute resolution. Mediation is assisted “negotiation” whereby the parties are assisted by a third party to reach a solution in respect of their dispute. [42] The mediation process is one of productive communication, and thereby one more open to constructive dispute resolution.
Generally, mediation can be divided into three philosophies: 1) facilitative, 2) evaluative, and 3) transformative. Facilitative mediation will be most useful as it involves a neutral mediator who oversees the bargaining process without imposing his opinions on the parties. [43] However, the facilitative mediator does not generally create possible agreements on his own and present them to the parties; he merely shapes their bargaining dialogue in a constructive manner so that the parties can reach a consensual decision on
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