MEDIATION IN UKRAINE: PROBLEMS OF THEORY AND PRACTICE
Journal Title: Зовнішня торгівля: економіка, фінанси, право - Year 2016, Vol 1, Issue 84
Abstract
Background. Domestic and international experience shows that the introduction of alternative ways of dispute resolution along with the justice system is the most effective prerequisite for resolving legal conflicts and disputes. Moreover, today justice system in Ukraine has a number of significant drawbacks: large workload of courts, length and complexity of litigation, significant legal costs, lack of a developed mechanism of competition and equality of parties, publicity of the trial leading to the disclosure of confidential information, lack of generally accepted criteria of justice. The above together with the international obligations of Ukraine encourage the introduction of new methods of dispute resolution. The aim of the article. Determination of the main principles of introducing mediation procedure in the national legal system, clarification of Ukraine’s international obligations in this area, analysis of the principles and benefits of mediation as an alternative commercial dispute resolution. Materials and methods. The following general scientific and special methods were used while working on the topic: formal logical method to interpret the content of mediation as one of the types of dispute resolution; comparative one to carry out comparative characteristics of different ways out of difficult situations; sociological one to analyze social conditionality of mediation procedure; instrumental one for distinguishing components of the mediation procedure as instruments of mediator; axiological one to determine the rules and objectives of conduct of the parties to the conflict; historical one to review the historical experience of conflict resolution involving a mediator. Results. One of the promising development directions of alternative methods of dispute resolution is mediation – a procedure in which the mediator systematically promotes communication between parties to the conflict or dispute to reach a mutually acceptable solution to the conflict or dispute. In addition, the mediator operates on the principles of neutrality and confidentiality. The need for the introduction of mediation in the domestic legal system is based on the positive results of the practice of reconciliation method in many countries, which indicates its effectiveness. Adoption of the Law of Ukraine «On mediation», which would effectively regulate the mediation procedure, legal status of mediators, quality of mediation, execution of mediation agreements, promote the reform of the judicial system and increase the investment attractiveness of Ukraine. Conclusion. Mediation is a promising new way of resolving disputes both in the area of public and private law. In Ukraine, at the legislative initiatives level, foundation for the introduction of mediation and mediation procedures was formed, but these legislative innovations require formation of a clear theoretical framework to: interpretation of terms (mediation, mediator, mediation agreement, etc.); identifying the nature and limits of the concept of legal disputes that can be resolved through mediation procedure; responsibility of the participants of the mediation procedure for privacy violation.
Authors and Affiliations
Natalia MAZARAKI
Keywords
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