Mediation is Tomorrow’s Alternative or a Utopian Dream
The article was prepared
by the Attorney’s Assistant
Prysiazhniuk Andrii
Hennadiiovych
JSC “Barristers”
“Mediation is an alternative method of resolving conflicts, according to which a neutral agent is a mediator helping the parties to reach voluntary agreement through negotiations”
Today, a great number of conflicts between individuals leads them to the courtroom.
Disadvantages of a court settlement of a dispute are: a) usually a long process, due to the considerable overload of courts; b) consideration of a dispute in court is not cheap; c) not always the parties in court obtain the desired result; d) rupture and deterioration of relations between the parties after the court, impossibility of further cooperation or co-habitation of individuals, etc.
Therefore, there is a need for another way of resolving a conflict – a pre-trial. The purpose of the pre-trial settlement of a dispute is to achieve the consent of the opposing parties, adoption of a mutually beneficial solution that will be in line with the interests of individuals, as well as avoidance of judicial delays.
Let us define the term “mediation”. The term “mediation” comes from the Greek term “medos” (neutral, independent from the party), as well as from the Latin terms such as “mediation” (mediation) and “mediare” (mediating in a dispute).
A well-known feature of any field of science and law is pluralism of thought, and mediation is not an exception. There are many concepts for defining the term “mediation”.
In particular, T.A. Saveliieva notes that mediation is a way of resolving a conflict between the parties on the basis of negotiations with the participation of a neutral agent (mediator) in order to build a binding agreement between the parties. In this case, the main task of a mediator is to bring the parties of the conflict to a mutually acceptable result for them. The “mediator’s” decisions are not binding on the parties. As to the content, mediation is seen as an instrument for eliminating criminal law conflicts.
Foreign scholars, who are investigating alternative dispute resolution, A. Row, I. Sherman, S. Peppit, define mediation as a process in which the parties, with the help of an independent third party, systematically make efforts to find out their common and different views, explore opportunities of alternative dispute resolution, and seek compromises to conclude an agreement on resolving their own dispute. According to K. Kovach, mediation is a process, in which a neutral third party (parties) serves as the basis for facilitating the resolution of a dispute between the parties to the conflict.
Other authors (L. Rayskin, J. Westbrook, C. Gutry, T.J. Haynes, R. Ruben, J.K. Robenolt) note that in the mediation procedure an independent third party assists the parties in negotiating with a view to resolving the dispute and concluding the relevant agreement.
Mediation has distinctive features. First, mediation is a voluntary process, during which a third person, who is to be impartial, helps the parties to resolve their dispute. Secondly, mediation can take various forms that are singled out as a part of individual mediation models. Thirdly, those involved in mediation can directly influence the course and outcome of mediation.
The efficiency of the mediation procedure is recognized by the European Community, which recommends its implementation as the main method of alternative dispute resolution at the pre-trial stage and during the trial.
In 2014, the Association Agreement between the European Union and Ukraine was signed. By this Agreement, Ukraine has pledged to gradually adapt its legislation to the European one.
Accordingly, the question of the introduction of mediation in our country is urgent.
Several drafts of the Law “On Mediation” were registered in the Verkhovna Rada of Ukraine, but the adoption of the law is still ongoing. Currently, two draft laws are presented in the Verkhovna Rada – No. 3665 and No. 3665-1. Both have a number of shortcomings, but law draft No. 3665 has already been adopted in the first reading.
Draft No. 3665 contains regulations on the procedure of providing mediation services on a professional basis and aims at unloading the judicial system through the spread of peaceful settlement of disputes by non-judicial means. The definition of concepts of “mediation” and “mediator” is defined, as well as of the basic principles of mediation, the legal basis for the mediation procedure, requirements for obtaining the status of a mediator, peculiarities of mediation during the trial and consideration of the case in the arbitral tribunal, mechanism for monitoring proper provision of services by mediators, and principles of state policy in this area.
However, the Verkhovna Rada did not manage to adopt this draft on February 28, 2019 (in the second reading) – it was rejected and dismissed.
Consequently, this issue is still not resolved.
Mediation occupies a special place in the criminal process, it is an instrument for reconciliation of victims and offenders. As a result of reconciliation of these individuals, the offender is subject to non-compulsory and punitive methods for responding to a crime, and additional or alternative methods are used to restore the status of individuals to commit a crime and to eliminate its consequences.
In offenses that do not constitute major public danger, these are minor crimes or committed by negligence, the most important is restoration of the state of a victim before the crime, compensation for damage.
The procedure for mediation during criminal proceedings is intended to replace the accused with his attitude to the offense committed to him, recognition of negative consequences of his actions and their conviction.
There is an opinion among the public that mediators will compete for lawyers, that is, they will take a job as lawyers, as if lawyers as notaries do in the notary process. However, these judgments are false. The successful advancement of the mediation procedure among the advocacy community will enable lawyers to acquire new professional skills in settling disputes out of court through the mediation procedure that will increase the demand for a lawyer in the legal services market.
In addition, it should be noted that the establishment of the Mediation Committee at the National Association of Advocates of Ukraine certifies about the interest of the Bar Association in the mediation procedure.
There is a problem of stereotyped thinking among the lawyers themselves in providing services to clients. The lawyer must protect the client’s interests, find more advantageous and alternative ways to solve his client’s problems, find a compromise and consensus in the relationship with the other party to the dispute.
During the mediation, a lawyer, as a client representative, should facilitate the implementation of the mediation agreement on conditions that will satisfy the interests of both parties to the dispute. The main task of a lawyer in this process is not to prove the validity of the client’s position to the other party to the dispute, non-conviction of the mediator in the client’s rightness implies representation of the client in the mediation procedure, and the coordination of the client’s interests with the other party, which is necessary for the mutually beneficial resolution of the dispute between the parties. At the same time, the lawyer is not deprived of the opportunity to verify possible options for settling disputes to find out the existence of legal barriers in their implementation.
By reviewing possible options for settling disputes, the lawyer has the right to enter into mediation negotiations, adhering to the requirements of the reconciliatory rather than the adversarial nature of mediation. If necessary, the lawyer can advise the client, clarify the legal issues, which is desirable to do openly during the mediation session.
Consequently, the lawyer’s practice of mediation will significantly increase the credibility of the lawyer and the role of the bar institution as a whole, as in the future, mediation can be one of the main ways of resolving disputes in society.
To sum up, we can conclude that mediation, as an alternative method of resolving a dispute, is an efficient method for resolving a conflict that needs to be implemented in the Ukrainian justice system, but how soon it will take place depends on us.
Sources:
- Introduction of mediation in the criminal process in Ukraine: problems of theory and practice/N.V. Nestor. – K.: Alerta, 2018. – 182 p.
- rada.gov.ua
- zib.com.ua
- unba.org.ua