Mediation in Enforcement Proceedings: International Experience and Perspective for Ukraine – EU Project Pravo-Justice held the Strategic Session for APEOU

On September 30, the EU Project Pravo-Justice held a strategic session for the members of the Association of Private Enforcement Officers of Ukraine in Lviv, dedicated to the “Mediation in Enforcement Proceedings: International Experience and Perspectives for Ukraine.”

Oleksandr Oliinyk, Director of the Directorate of Justice and Criminal Justice of the Ministry of Justice of Ukraine addressed to the participants to the event with an opening speech.

“When we talk about the place of mediation in the enforcement process, one of the main reservations is what to do when the debtor and the creditor agreed to mediation: whether to suspend the enforcement proceedings or suspend the deadlines? What to do with the remuneration/court fee? If the parties could have gone for mediation during the court proceedings and failed to do so, is their intent real at the enforcement stage? Is it maybe a loophole (if such an opportunity is provided) to avoid paying additional fees or to protract the process? Therefore, today’s Strategic Session is a very important event, especially in terms of getting familiar with international experience in this field. Perhaps, the Western partners will state that we do not fully understand the core of the issue and that no problem occurs during the implementation,” said Oleksandr Oliinyk.

Oksana Tsymbrivska, Country Manager of the EU Project Pravo-Justice, addressed to the participants to the event with a welcome speech. She noted that the Project gives special attention to the promotion of mediation in Ukraine, and supports the development of the PEO profession.

“Today, these two topics have been brought together within a special communication. It is important for us to have your feedback, following the discussion, about the place of mediation in enforcement proceedings, possible forms of using it, and whether the PEO can be a mediator,” said Oksana Tsymbrivska.

Anatolii Teliavskyi, Deputy Head of APEOU, delivered, on behalf of the professional community, an introductory speech.

“The idea of introducing legislative amendments, which could allow PEOs to professionally practice mediation, has been repeatedly discussed within APEOU. They could be engaged by parties either in the framework of opened enforcement proceedings or in the framework of a separate dispute resolution process. To this end, Ukraine needs to implement appropriate legislative changes to expand our powers” said Anatolii Teliavskyi voicing the opinion of the PEO community.

Alina Sergeeva, IMI certified mediator, lawyer, Ukraine’s representative in the European Association of Judges for Mediation, Visiting Expert of Mykolas Romeris University (Lithuania), National Expert of the EU Project Pravo-Justice.

“Mediation is possible before and at any stage of court proceedings, as well as at the stage of execution of a judgment. Besides, mediation at the stage of enforcement proceedings is not about changing the judgment. Not at all! This is about possibly agreeing on the order of execution of the judgment,” said Alina Serhieieva. “Training of PEOs in mediation is necessary to minimize conflicts on the way of enforcement proceedings.”

When delivering her report, Alina Serhieieva listed six clear advantages of using mediation in enforcement proceedings, namely:

1. Reduction in the number of complaints submitted by parties to enforcement proceedings against actions of the PEO to the court, MoJ, APEOU, and law enforcement agencies.
2. Increase in the number of actually enforced writs of execution.
3. Increase in the amount of collected basic remuneration of a PEO/enforcement fee.
4. Finding out what the creditor and the debtor really/truly want (need).
5. Possibility of using mediation at the stage where a complaint about the PEO’s actions is being considered in court (for example, a complaint about the PEO’s actions was considered in an administrative court).
6. Possibility of using mediation at the stage before or during the meeting of the Disciplinary Commission of PEOs.

Andrii Ryshchenko, judge of Dnipropetrovsk District Administrative Court, underlined that it is indeed advisable to go for the mediation procedure before imposing disciplinary liability on a PEO.

“Any negotiations before applying sanctions or giving way to a mechanism of oppression are a positive thing. There are different types of violations. There are those for which it would not be reasonable to impose a sanction, but rather to achieve the elimination of shortcomings through negotiations,” said Andrii Ryshchenko.

Valerii Prytuliak, PhD in Law, Associate Professor, National Expert of the EU Project Pravo-Justice, member of the Qualification Commission of PEO presented in detail the advantages and tips on using mediation skills during enforcement proceedings.

“The mediator’s knowledge and the ability to apply it in practice is a tool that is always at hand and does not require any additional technical support. I think if, alongside the PEO profession, we will be empowered to establish facts and act as mediators, this will bring the profession closer to European standards and trends,” said Valerii Prytuliak.

Katilin Popov, International Expert of the EU Project Pravo-Justice, spoke about international experience of using mediation in enforcement proceedings. He noted that in European countries, the PEO profession and the mediator profession can be combined. For example, in Albania, North Macedonia, and Bulgaria, a PEO can even act as a mediator in the enforcement proceedings that he/she conducts.

“The legislation provides for such a possibility, but it is never used in practice,” said Katilin Popov; and then he added that it is more popular to have mediation as an additional activity of a PEO. “In France, the Netherlands, Belgium, and Portugal, enforcement officers can act as mediators in enforcement proceedings conducted by their colleagues.”

At the same time, Katilin Popov noted that the progressing European trend is to address the issue of indebtedness rather than that of enforcement.

"In the future, there will no enforcement, but debt resolution. More and more people will turn to mediation and other alternative dispute resolution methods. Therefore, PEOs need to look into the future now to understand how to change and adapt to new challenges and needs,” summarized Katilin Popov.

When discussing the reports of the speakers of the Strategic Session, Deputy Head of APEOU Oleksandr Sivokozov emphasized the need to clearly enshrine the right of PEOs to apply mediation in enforcement proceedings.

“The law neither directly prohibits nor allows mediation in enforcement proceedings. Therefore, it is necessary to develop appropriate mechanisms in a more detailed and careful manner”, said Oleksandr Sivokozov. He also noted that the issue of remuneration of the PEO’s work will need to be addressed, if parties to enforcement proceedings decide to go for the services of a mediator and reach an agreement.

Mariia Fesyk, PEO, presented a report on the social role of mediation, and Olha Verba, PhD in Law, Associate Professor, Associate Professor of the Department of Civil Law Disciplines of the Lviv State University of Internal Affairs, member of the Disciplinary Commission of PEOs, familiarized the audience with the scientific prospect of mediation in enforcement proceedings while also outlining the relevant Polish experience.

Summarizing the results of the discussions of the Strategic Session, Oksana Tsymbrivska said that she felt “absolutely positive” as to the place of mediation in enforcement proceedings and in the PEO profession.

"The motion vector is set. Next thing is practical implementation of this process. The Project is ready to support you on this path by providing expertise,” summed up the Country Manager of the EU Project Pravo-Justice.