PRINCIPLE OF MEDIATOR’S NEUTRALITY
Journal Title: Юридичний бюлетень - Year 2018, Vol 7, Issue 1
Abstract
The purpose of this article is to study the essence and the scope of the principle of mediator’s neutrality within the mediation procedure of dispute settlement. Principle of mediator’s neutrality is prescribed by international (Council of Europe) and supranational (the EU) legislation, as well as national norms and Codes for mediators. Neutrality is deemed to be a cornerstone of mediation procedure, enabling the parties to a dispute to reach a just settlement. Neutrality and impartiality of a mediator should be analyzed in an objective and subjective essence, because while preserving neutrality a mediator should guarantee procedural justice and counterbalance the parties in reaching a settlement agreement. The mediation practice is new to the Ukrainian society, so there’s a need for theoretical research concerning basic issues of mediation, its principles. Neutrality, impartiality of the mediator in the mediation process is one of the five philosophies of mediation among voluntariness, confidentiality, self-determination and a unique solution, and all these principles are intrinsically linked. To maintain neutrality is the obligation of a mediator prescribed by laws, codes of conduct and main ideas and principles of mediation, though the scope and essence of mediator’s conduct remain unclear. The importance and need for neutrality of mediator has been substantiated as a prerequisite for effective mediation procedure and moreover, a just settlement. It has been emphasised that the mediator’s neutrality should not be absolute, moreover it is impossible. Nevertheless, the mediator neutrality should preserve procedural justice of mediation procedure. In the Article the analysis of Ukrainian draft law “On mediation” has been done concerning establishment mediator’s neutrality principle. Neutrality of the mediator guarantees the legitimacy and validity of the mediation agreement. At the same time, the content of the concept of neutrality of the mediator is not constant and depends on the actions of many factors, including the professionalism of the mediator, the chosen style of mediation, the peculiarities of each individual mediation procedure. The framework for observing the mediator’s neutrality should be written down in Codes of conduct for mediators, that would create needed guidelines both for parties to a dispute and mediators.
Authors and Affiliations
Наталія Анатоліївна Мазаракі
Keywords
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