Ilmira Pulina
Yaroslaw The Wise National Law University of Ukraine
The
Future of Mediation in Ukraine
Today, the vast
majority of disputes in Ukraine is settled in court. However, imperfection of
laws, possibility of judicial errors, difficulties in implementing the
judgments, discouraging high litigation costs, lack of trust in
the judiciary etc. are those factors that influenced increasing
dissatisfaction in judicial forms of dispute resolution. In order to adapt to these new challenges, Ukrainian society resorts to the
alternative methods of dispute settlement, including mediation.
In its modern sense, mediation is
reflected in the Directive 2008/52/EC of the
European Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters.
This Directive is important for the development of mediation in the world and was
approved by 27 members of the EU, and this means that a very large part of
Western countries recognized it as a reference. However, it is important to
emphasize that being a mediator does not make you a lawyer, business
consultant, psychologist or judge. Mediators exist as a separate, self-sufficient
profession. [1, p. 58] A neutral mediator looks at the case differently during the mediation
process comparatively with the lawyers who are advocating. Lawyers, as
advocates, look at the facts, law and circumstances with a view to winning the
case, while the mediator looks at the same facts, law and circumstances with a
view to settling it. A mediator encourages participants to communicate directly
with each other to find different solutions of settling arisen disputes, as
well as relate to each other and their positions with mutual respect. The
function of a mediator is to search for peaceful ways of helping the disputants
to develop mutual understanding of the conflict and to work towards the
adoption of practical and long-term agreement on the subject of the dispute. That
is why it should be clear that the ultimate resolution of the dispute depends
entirely on the parties themselves. In this position, mediator’s job is to
facilitate and provide negotiations between the parties, leading them to
finding their own solutions that will satisfy both sides. In other words, there
is no winner and loser in the process of mediation. It is exactly the opposite
of what occurs when a case goes to trial. In a trial parties cause a judge to
make a decision, when in mediation they are in total control of everything what
is happening. Trial is not a gentle process, but still, it is the best we have
if parties cannot settle the case in any other peaceful way.
The mediation activity is a
form of alternative dispute resolution that is still in the process of
identifying a worldwide accepted definition. “What is the future of mediation?’
and “How can we create more impact on the developing of mediation culture?” these
are question widely discussed between lawyers and scientists of today. Dr. Brian Jarrett explains his own opinion in the article “The Future of
Mediation: A Sociological Perspective”, where he points out that “on its current
trajectory mediation is likely to continue to become more formalistic and legalistic
as a discipline. The mediation field is likely to experience greater
institutionalization of certain legal ethics including neutrality and
impartiality. Further on, in certain sub-fields, mediation will experience
increasing specialization in practice along cultural, sector, and disciplinary
boundaries. Social forces associated with culture, sector, and discipline will
continue to pull mediation in very different and distinct directions.” [2, p.
26] Moreover, most experts forecast that mediation appears
to be going global every day. Then, hopefully, the mediation concept will become
more generalized and lead to new ways of people’s collaborative thinking by positively affecting
cultures around the world.
But does mediation activity in
Ukraine have such positive perspectives as well? Many lawyers do not believe in
its prospects in our country. Widely believed that neither people nor Ukrainian
legal system are ready to use this mechanism in their practice. Here are statistics
contained in International Financial Corporation researches. A certain number
of interviewees (mostly the representatives of Ukrainian enterprises) were
asked, “How do you consider such method of dispute resolution as mediation?” Only
4 % of respondents said they were very familiar with this method, 29% -
somewhat familiar and 66 % - unfamiliar at all. Perhaps, education, raising of
public awareness and training lawyers of details in the mediation process would
change such skeptical attitude towards this dispute settlement alternative.
However, mediation is still
developing in our country, it has not yet been formally introduces into the
Ukrainian legal system by either passing a special law on mediation or amending
the existing legislation. Nevertheless, deputies of the Verkhovna Rada of
Ukraine are working on this sphere. Thus, the latest draft of the Law on
Mediation number 2425a -1 was registered in the Verkhovna Rada of Ukraine on
03.07.2013, which was initiated by S. Kivalov and V. Razvadovskiy. This project
is a modified version of the bill on mediation ¹ 10301-1, considered in 2012.
The document defines the legal framework of the implementation of extrajudicial
procedures for the settlement of conflicts by mutual consent of the parties in
conflict (mediation) and with the participation of an intermediary (mediator).
In addition, it defines the principles and procedures of mediation, as well as
the legal status of a mediator. Furthermore, to determine the specific
application of the mediation procedure in individual categories of cases, this
bill contained suggestions to amend existing laws such as the Labor Code, the
Criminal Code, the Criminal Procedure Code, the Civil Code, etc. Even though,
fifteen years ago the word ‘mediation’ did not exist in the Ukrainian language
and Ukrainian law did not recognize this dispute settlement alternative,
eventually Ukrainian lawyers will understand that it is more productive and
beneficial to become a part of the mediation movement than to fight it and
inevitably lose the battle, says Svitlana Kheda, Head of Mediation Centre in
Ukraine. [3, p. 19] And as for me, I could not agree more.
Notes:
1)
Svitlana Kheda. Mediation In
Ukraine: Gender Aspects. Corporate Disputes Magazine.
July-September 2013, p. 58
http://www.financierworldwide.com/corporatedisputes/CD_Jul13_cd5564r9261.pdf
2)
Brian Jarrett, Future of
Mediation: A Sociological Perspective, The,
2009 J. Disp. Resol., p. 26
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1565&context=jdr
3)
Svitlana Kheda, Mediation In
Ukraine: Lawyers vs Clients. Corporate Disputes Magazine.
January-March 2013, p. 19
http://www.financierworldwide.com/corporatedisputes/CD_Jan13_cd9375cc7851.pdf