ЩОДО РОЗМЕЖУВАННЯ ПОНЯТЬ «МЕДІАЦІЯ», «ДОСУДОВЕ УРЕГУЛЮВАННЯ СПОРУ» ТА «УРЕГУЛЮВАННЯ СПОРУ ЗА УЧАСТЮ СУДДІ»
Journal Title: Південноукраїнський правничий часопис - Year 2018, Vol 4, Issue 1
Abstract
The article distinguishes between such alternative dispute resolution measures as mediation, pre-trial settlement of disputes and settlement of disputes involving a judge. It is proved that these terms are often regarded by researchers and practicing lawyers as identical. The concept and basic principles of the concepts “mediation”, “pre-trial settlement of a dispute” and “settlement of a dispute involving a judge” concepts are investigated. There are six characteristics used in order to differ above-mentioned concepts namely: by regulation sources; by subject (participants in the settlement of the dispute); by procedure; by arrangement; by the timing of; by consequences. It is revealed that mediation in Ukraine currently has practically no legal regulation. In particular, the draft Law of Ukraine “On Mediation” was submitted at the beginning of 2019 for adoption in the second reading to the Parliament. According to this draft Law, the mediator is an independent person that helps the parties to find a compromise facilitating agreement between the parties but not to resolve the dispute itself. The choice of a mediator is carried out by the parties jointly and arbitrary. The pre-trial settlement of economic disputes is carried out on the basis of the Economic Code of Ukraine through the lettering of the parties. One party (the applicant) sends another party (the recipient) the letter of claim, containing all the applicant’s claims and their legal grounds. Thus, in this kind of the out-ofcourt settlement, the search for a compromise is carried out by the parties themselves without the involvement of any other persons. The settlement of a dispute involving a judge is made by agreement of the parties prior to the commencement of the consideration of the case on the merits by the judge-rapporteur. This option is available regardless of the composition of the court. Such a settlement is carried out in the form of joint and (or) closed meetings. The person judge in this kind of the settlement is identified by the automatic case distribution system of the court. So the parties are not empowered to choose the judge arbitrary. However, if there is no amicable agreement as an outcome of the settlement of the dispute involving a judge, the case is to be transferred to another judge. Another one settlement of the dispute involving a judge is not allowed.
Authors and Affiliations
Т. В. Степанова
Keywords
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