Within recent years, the procedure of mediation (intermediation) has gained reasonable popularity throughout the world. In Ukraine, it is increasingly becoming an essential tool for pre-trial conflict resolution, demanded by members of negotiations in different spheres of society, in business, inside companies, and for labor and family relations, and it's not a surprise. Mediation as a procedure has a range of benefits, especially if compared with a judicial proceeding. I see the short time required for mediation as one of its best advantages. Today, time-saving is essential because every second is worth its weight in gold: nobody would like to waste any extra time. On the other hand, the mediation envisages a personal approach to solving a problem, doesn't burden the participants with processual formalities, remains a maximum possibly confidential procedure similar to negotiations and also can eliminate reputation-related risks associated with a public lawsuit. In a conflict situation, it's worth at least trying mediation first.
What is mediation? In simple terms, it is a procedure of a pre-judicial reconciliation, taking place on the grounds of negotiations between the parties of a conflict, brokered by an intermediary person (hereinafter – the mediator). The purpose of the procedure is to reach the parties' mutually advantageous agreement. Meanwhile, a mediator reduces the heat of passion and moderates the negotiations, making the parties communicate reasonably, without insults, threats, or rebukes, thus helping them to come to their best possible conflict solution.
Considering the fact of the public demand for and trust in mediation, more and more states realize its importance and try to implement it into national legislation, and Ukraine is not an exception to the rule.
To begin with, the signing of the UN Convention “On International Settlement Agreements Resulting from Mediation”, widely known as a Singapore Convention (hereinafter the Convention) took place on 07.08.2019 in Singapore. As of the beginning of February, Ukraine is among 55 states that joined the Convention, together with the USA, Australia, China, Saudi Arabia, South Korea, India, and Turkey. The Convention is so important because it was the first multilateral agreement to facilitate the acknowledgement and compliance with agreements resulting from mediation. Article 1 of the Convention applies to an international agreement concluded resulting from mediation and issued by its parties in written form to resolve a commercial dispute. The Convention applies neither to agreements, entered into to settle a conflict, nor to disputes related to family, inheritance, or labor legislation.
Today, Ukraine has not ratified the respective Convention yet; it is still working on implementing mediation in the state. The evidence is the adoption of the law "On Mediation" (hereinafter – the Law), which came into force on 15.12.2021. The Law determines the rights and liabilities of the parties of the mediation and formulates the basic notions of intermediation. According to the fourth paragraph of the first part of Article 1, mediation is an extrajudicial voluntary, confidential and structured procedure; the parties thereof, supported by a mediator (or several mediators), negotiate to try to prevent or settle a conflict. The mediation procedure could prevent conflicts or disputes, either in the future or any already existing ones, including civil, family, labor, economic, administrative, as well as for cases of administrative offences and criminal proceedings for reconciliation of a victim with the suspected or accused. The mediation could take place before an appeal to the court. In Ukraine, mediation takes place upon mutual agreement of its parties, considering the principles of a mediator's free will, confidentiality, neutrality, independence and unbiasedness and the intermediated parties' self-determination and equality of rights. According to Article 9, a mediator is a physical person who passed a mediator's basic training course in Ukraine or abroad. A mediator carries out intermediation, following the requirements of laws, a contract on mediation, mediation rules, and standards of a mediator's professional ethics. Having elaborated a mutually beneficial way to solve the conflict, the parties should enter into an agreement, prescribing a clear plan of exit from the conflict situation, establishing a schedule and distributing responsibilities of the parties of the conflict.
How does mediation work in the countries of the European Union (hereinafter – the EU)? To start with, Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (hereinafter – the Mediation Directive) is the basement EU documents defining and prescribing basic mediation principles and standards. France, Portugal, Italy, and Estonia were the first EU member states to declare the implementation of the Mediation Directive. Although the Mediation Directive envisages the use of mediation to settle international disputes, the majority of EU member states, having introduced the relevant mediation mechanism into their national laws, applied it also for internal mediation processes. Even though the European countries have different models of mediation and approach thereto, it was always essential to meet basic, generally accepted principles of intermediation: voluntary participation in the procedure, equality of parties, unbiasedness of the mediator, confidentiality, and availability of the process (the Law of Ukraine "On Mediation" describes the same principles).
Another important document is the European Code of Conduct for Mediators, approved in June 2004. In addition to the abovementioned principles, this Code distinguishes a mediator's competence and fairness in the mediation process.
As I have already mentioned, the voluntariness of mediation is a key principle in Ukraine. However, some EU states have a model of compulsory mediation. In other words, the mediation procedure is a prerequisite for applying to a court. Some states even have a system of rewards for extrajudicial solving disputes and stipulated sanctions for refusing a mediation procedure. Italy is such a country. There, the law prescribes a compulsory pre-court mediation in civil, land, economic, family disputes and provides tax stimulus and law enforcement measures to promote more active participation of a conflict's parties in the mediation process.
Another example is Slovenia, which in 2009 approved the Law on Alternative Solving Disputes. Under this law, the courts offer a mediation in all cases, where, in a judge's opinion, it is necessary and expedient (by the way, Italy also have a similar form – a court-prescribed mediation). A refusal from a mediation could lead to imposing sanctions, provided that the other party files a respective claim and if the court admits that the refusal from the mediation is poor-grounded.
While court-related mediation schemes for civil and economic disputes are inexpensive, and family mediation is free of charge, the conflicting parties rather actively participate in mediations, offered by the court.
Similar practices exist in the Federal Republic of Germany, where preliminary mediation is a must for specific types of cases. For instance, filing a claim to a court, a claimant must indicate, if there was preliminary mediation or another extrajudicial attempt to solve the problem, or indicate the reasons making such procedures unacceptable.
EU states also show a positive dynamic in the use of mediation for criminal cases. For instance, this matter is described in the Recommendations N R (99) 19 by the Committee of the Ministers of the European Council for the states-members of the Council interested to organize mediation for criminal cases. The Committee of the Ministers, according to the provisions of Article 15.b of the Bylaws of the European Council, mention mediation in criminal cases as flexible, comprehensive, directed towards problem-solving supplement either as an alternative to a traditional judicial proceeding. The EU pays special attention to the matters of juvenile delinquency and quickly develops these matters relating to the mediation procedure. Austria, Germany, France have programs of mediation stipulated in criminal legislation, where a prosecutor can direct criminal cases to special entities for intermediation between the victim and the offender, expecting that such a meeting could result in termination of the investigation and exemption from a criminal liability.
How does mediation functions in other countries of the world? In today's USA, the majority of disputes in the spheres of economics, politics, and business took place in the presence of mediators. In the United States of America, mediation is provided by private and public mediation services. This country has a National Center for Dispute Settlement developing new methods of mediation. In the United Kingdom, courts effectively stimulate conflict parties to mediation, imposing court expenses on a party that refused mediation, and it doesn't matter, whether the court's decision is in favor of or against such a party. Moreover, for some types of cases, for instance for family disputes involving children, the meeting with a mediator is appointed by the court and is compulsory.
In Ukraine, mediation is a relatively new trend. The society of professional mediators, jointly with the representatives of government, is working hard in this sphere to elaborate new draft laws relating to the subjects of the regulation, notions, spheres for the intermediation, terms, requirements, responsibilities, etc.
Thus, at the present stage, it would be incorrect to compare the experience of mediation in Ukraine and the EU because Europe started to use intermediation earlier, and nowadays it has a strong legislative background and demand thereto in many spheres of human life. From year to year, mediation is gradually improving. It has not reached its maximum capacity yet and the processes are running.
Conclusions. I am confident that amicable settlements of conflicts are the fastest and the cheapest way to the result. To develop economics, business, and society, we have to learn how to agree. The example of the EU shows us that mediation could function efficiently to satisfy people and businesses, and Ukraine should adopt this experience as fast as possible. The development and popularity of mediation in Europe and Ukraine shall have a positive effect on the investment climate in the region, unload the court system, and enable people to enjoy all benefits of intermediation. The most attractive feature of mediation is that there are no losers, but both parties win.