Mediation in Ukraine: On the threshold of a whole new stage of development

As of May 2023, 587 courts are administering justice in Ukraine, while 87 are not functioning, in particular because of active hostilities or being located in the temporarily occupied territories. Moreover, another 84 courts have not been administering justice since 2014 because of the fact that Russian troops occupied the Autonomous Republic of Crimea and some parts of Donetsk and Luhansk regions. Moreover, more than 2,000 judicial positions remain vacant, and their number is increasing every day. The High Qualification Commission of Judges (HQCJ) responsible for the selection of judges only resumed its work in June 2023 after almost 4 years of “downtime”.

These systemic problems cannot but affect the length of proceedings. Obviously, they have now increased significantly for objective reasons. At the same time, the situation was not very positive even before the full-scale invasion. For example, the European Court of Human Rights (“ECtHR”) has repeatedly ruled against Ukraine in cases of violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, namely the right to a fair trial as a result of excessive duration of court proceedings.

Another systemic problem in this context is the fact that court decisions are not enforced. Thus, the ECHR case Burmych and Others v. Ukraine regarding the excessively lengthy enforcement of final court judgments has become a classic example that illustrates the inefficiency of enforcement. This situation nullifies the value of court decisions and is a significant obstacle to ensuring the right to a fair trial.

In such circumstances, the widespread use of alternative dispute resolution practices, including mediation, could improve the situation and ensure access to justice, while “ unburdening” the courts.

● Development of mediation in Ukraine and the legal framework for its functioning

Mediation has been developing in Ukraine since Ukraine became independent, i.e. for over 30 years. However, it was only in autumn 2021 that the definition of mediation, its basic principles and procedure, as well as the status of a mediator, were officially enshrined in the Law of Ukraine “On Mediation”.

Thus, the respective law defines mediation as an out-of-court voluntary, confidential and structured procedure in which the parties, with the help of one or more mediators, try to prevent or resolve a conflict (dispute) through negotiations.

In other words, mediation is a structured negotiating process between the parties facilitated by a mediator trained for this. The voluntary nature of the procedure means that the parties can engage in or terminate the mediation procedure of their own free will and cannot be forced to do so. Furthermore, mediation is a confidential procedure. Unlike the principle of publicity of the court proceedings, mediation does not involve the disclosure of information that became known while preparing for mediation and conducting it. There are also procedural safeguards to maintain confidentiality. For example, a mediator may not be questioned as a witness in a case regarding information that became known to him or her while preparing for mediation and conducting it, nor may he or she be a representative of any party, etc. Accordingly, mediator is neutral, independent and impartial.

In general, mediation procedure is entirely focused on the parties to the dispute. They can choose a convenient format, schedule of meetings, duration, topics to be discussed, location and a specific mediator to assist in resolving the dispute. However, perhaps the main advantage is that the parties are directly responsible for seeking a mutually acceptable solution, which, in turn, increases the chances that it will be enforced. Thus, after mediation, the parties enter into an agreement that establishes their arrangements. If they fail to reach an agreement or the agreement is not properly enforced, they may go to court.

It is worth noting that mediation is mentioned not only in the aforementioned law, but also in procedural legislation, in particular, in the Civil Procedure Code. Thus, at present, during the preparatory hearing, the court also finds out whether the parties wish to enter into a settlement agreement or to settle the dispute out of court through mediation. If the parties express such a desire, then the court is obliged to suspend the proceedings at the request of the parties. At the same time, the procedural law provides that the parties may reconcile, including through mediation, at any stage of the court proceedings.

Ukrainian legislation also provides for a so-called financial incentive for the parties to reconcile. In particular, if the parties reach an agreement to enter into a settlement agreement and the claimant withdraws the claim or the defendant accepts the claim following mediation, the court considers refunding 60 per cent of the court fee paid by the claimant when filing the claim.

● Conflicts (disputes) in which mediation is common: Ukraine and the EU

It is worth noting that the number of times it is used depends, among other things, on the type of relationship that the dispute arises from. For example, mediation in the area of family relations and disputes involving children is considered to be more effective owing to the fact that there is a strong emotional factor and the parties want to avoid excessive trauma. Mediation is also popular within the business community as the procedure allows the parties to preserve commercial relations, avoid reputational losses and reach mutually beneficial arrangements.

As a result of the full-scale invasion of Ukraine by the Russian Federation, the share of certain categories of disputes in our society has increased. These include, for example, cross-border family disputes in which both parties are citizens of Ukraine. First of all, mediation, including online mediation, seems to be an appropriate way to resolve such disputes. Also, disputes related to military service, mobilisation, etc. are becoming increasingly relevant. In all these areas, there is a high level of emotional tension. To avoid escalations, emotional and psychological stress on the parties to the conflict, mediation as an effective conflict resolution procedure should be considered.

Studies on how mediation is used in European countries are also interesting. According to a survey conducted in 2020-2021 in Belgium, Italy and France, 75-85% of cases in which mediation was used were successful. In addition to family disputes, consumer protection cases are a common category of disputes in Europe. Thus, to resolve such international disputes arising in the European market, the European Union adopted Directive 2013/11/EU. It provides for an alternative dispute resolution procedure for consumer disputes. In addition, during the COVID-19 pandemic, mediation in matters relating to the cancellation and reimbursement of holiday bookings as a result of travel restrictions was very popular. This example shows, so to speak, that mediation is adaptable, that the procedure can be adjusted to new categories of cases and that it is universal.

It should be noted that as part of Ukraine’s integration into the EU, the legislator will have to implement Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters into national law. Thus, Article 6 of the Directive provides that Member States must ensure that a written agreement resulting from mediation can be enforced at the request and with the consent of the parties.

● Prospects for development: effective communication

Thus, as we can see, mediation has many advantages over the “traditional” litigation in court. This service is confidential, saves time and money for the parties, preserves their relationship and does not impose restrictions on a possible mutually beneficial solution, etc.

Despite this, it still remains relatively little known in Ukrainian society. Therefore, a further impetus to develop it is required – it is necessary to popularise it in order to increase the level of public awareness of the procedure. To address this gap, EU Project Pravo-Justice has developed a communication strategy for mediation and intends to present it to the general public in early September. The next step is to implement it to further increase the demand for the service in Ukraine.

The text was first published in the regular blog by EU Project “Pravo-Justice” at LB.ua.