Alternative Dispute Resolution in Ukraine: Mediation and its Benefits

It is well known that the most amounts of private conflicts are frequently resolved by judicial bodies of different jurisdictions. Mandatory companions of the trial, among other things, are publicity, openness, and expensive court fees in major disputes. However, sometimes opponents in a dispute have no need to disclose all the details of a dispute at the state level, there is no desire to clash, waste time and lose large percentages of the price of the claim as payment for the state court tax.

The definition of mediation has recently appeared in the Ukrainian legal space as an alternative way of settling disputes between subjects of any kind of legal relations, mainly in business, fulfilling work duties, and family conflicts. The essence of this process is to resolve disputes with the involvement of a mediator who helps the parties to establish communication and analyze the essence of their problem, with the result to reach a solution that satisfies both of them. The mediator himself, as a person, with the intention not to prosecute, but to peacefully settle the dispute, is guided more by the private interests of the parties than by the Rule of law. As a result of achieving full understanding with the counterparty, your relationship will be improved and in the future you will be able to continue mutually beneficial cooperation.

Despite the lack of a regulatory framework for mediation procedures in Ukraine, the recommendations of the Committee of Ministers of the Council of Europe Rec (2001) 9 and principles developed by the European Commission on the effectiveness of justice regarding the advantages of disputes alternative to litigation in Ukraine are actively used in practice. Thus, the following benefits are provided to the mediation procedure:

1. Time saving. Each legally informed specialist would definitely agree that all court examinations are in most cases delayed. The processes of gathering information, sending it to the parties of the case, vacations of judges, drafting of procedural documents and many other factors may take a long time. And in the case of unwillingness to bear responsibility or fulfill obligations, the parties may abuse procedural rights, delay the trial or consciously not appear at all. That is why, indeed, mediation has many advantages. That can be the lack of pressure by the court’s authority on the parties, full equity that leads to opportunity of a free choice of time, place of trial etc.

2. Funds saving. Payment for the mediator services in most cases is carried out on an hour rate, so that increases the interest in finding a quick solution of the dispute. In addition, the parties do not have the obligation to pay the court fee to the state treasury, which is often determined as a percentage of the price of the claim, spend money on legal assistance, assign mandatory examinations, expertise, reimburse other legal costs, which in most cases significantly exceed the mediator’s fee.

3. The priority of the interests of the parties and the search for non-standard solutions. As noted, the main purpose of the procedure is not to prosecute, not a pressure from the judiciary, not to assign the status of “winner” and “defeated” in the process, but only to find the most favorable and advantageous solution for both parties. That is why the mediator closes his eyes to the regulated legal procedures, the primary demands of the parties, but goes deeper into the essence of the conflict to achieve mutual understanding. Above all, the consent of the parties further motivates the parties to conscientiously implement the decision.

4. Confidentiality of the procedure. It is difficult to disagree that many relationships between business partners, in a family, or relationships between co-workers have a “privacy” stamp. That is why the mediation procedure, in contrast to a public trial, has a mandatory indication of confidentiality. The codes of ethics of the mediator have established that the parties or the mediator are not entitled to disclose information obtained during the procedure, to refer to it in relations with each other or third parties. The duty of confidentiality is fixed in the agreement at the very beginning of the procedure; however, the parties can make their points regarding these agreements.

5. The ability to maintain cooperation and prevent the occurrence of similar conflicts in the future. As a result of the peaceful settlement of the dispute and the implementation of the agreements by the parties, their relations, most often, improve. This is a favorable procedure from a psychological point of view – both parties remain satisfied, fulfill their obligations on the basis of justice and acquire a good business reputation.

The experience of leading EU member states, such as France, Germany, Belgium, shows that 80% of cases are examined using alternative dispute resolution methods, in particular, mediation. The practice of mediation in the United States began in the 70s of the twentieth century, and it`s actual consolidation at the legislative level occurred back in 1981, after which this dispute resolution procedure became widespread. The process of increasing the number of alternative dispute resolution methods made it possible to relieve the courts from an excessive influx of cases that can be settled by ordinary mediation agreements, without delays, waste of time and public resources, etc.

Thus, while looking for a solution to a dispute with your opponent in any kind of cases, you can always choose a more flexible and convenient way to solve a problem than initiating a completed trial. In Ukraine, mediation services are provided by qualified mediators operating as part of law firms, public organizations or on a private basis.

Author: Kydalov Igor