PROSPECTS FOR JUDICIAL MEDIATION IN THE CONTEXT OF THE DEVELOPMENT OF ALTERNATIVE WAYS OF RESOLVING DISPUTES IN UKRAINE
Journal Title: «Приватне та публічне право» - Year 2017, Vol 3, Issue
Abstract
Ukraine proclaimed the European integration path of development, but it is trying to bring it closer to the standards of the European Union and the world at an accelerated pace. With mediation, there is no doubt that there are additional, alternative ways of resolving disputes, and the effectiveness of the latter is confirmed by international experience. Alternative ways to resolve disputes are part of the worldwide experience of resolving disputes. For example, in the United States 90 per cent of disputes are resolved precisely through mediation. The process of legislative consolidation of mediation in European countries has intensified with the entry into force of the EU Directive 2008/52 and continues to this day. Currently national mediation acts are adopted more than in 20 countries of the world, in particular in Germany, Italy, Sweden, Switzerland, Poland and many others. Mediation, this is a world practice procedure for settling disputes through negotiations of the parties to the dispute with the help of one or more neutral mediators (mediators). Now in Ukraine there is an active work on the legislative regulation of mediation. So, only in 2015 the Verkhovna Rada of Ukraine registered four draft laws on mediation. In parallel, Ukraine has developed three procedural codes providing for the introduction of the institution of judicial mediation. It is known that any model of mediation, let alone mediation in the judicial process, must be carefully prepared, otherwise there is a risk of leveling the image of mediation, loss of citizens’ expectations, and therefore irreparable damage to the entire process of mediation implementation in Ukraine. It should be noted that the High Council of Justice presented three draft codes of practice of Ukraine: the Civil Procedure Code, the Code of Criminal Procedure and the Code of Economic Procedure. In all three projects, chapter four is entitled “Settlement of a dispute involving a judge”. This means that instead of adopting a special law on the institution of mediation in the legal system of Ukraine, it was decided to go through the formation of judicial mediation. This approach involves the development of a mediation procedure within the civil process, which makes it part of the civil, criminal, economic processes (in the context of an alternative solution to private legal disputes), rather than a component of substantive law. This decision has its drawbacks, since it creates a deficit of exhaustive material norms of internal regulation, but instead contributes to the accumulation of legal practice and its generalization, and in the future – the standards of mediation law enforcement when resolving a dispute in court. In addition, this approach emphasizes the importance of the court in the context of avoiding abuses in this area. The author’s position is the need to conduct a comprehensive study of judicial mediation in the context of judicial reform in Ukraine and, taking into account world experience, developing conceptual positions for the “organic incorporation” of this institution into the national legal system.
Authors and Affiliations
С. І. Запара
Keywords
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