Mediation in Ukraine: A promising alternative to court litigation
Mediation in Ukraine may soon receive an important boost when the Draft law No. 3504 on Mediation enters into force. The law has been subject to a gap analysis of Pravo-Justice in which European best practices served as the starting point for reflection. The analysis was prepared by a group of Ukrainian and international experts. The author of the present contribution served as one of its international members.
Mediation: What is it?
Since not everyone has a good idea of what mediation really is, the draft law pays considerable attention to its definition. The law provides that mediation is a confidential form of dispute resolution outside the courtroom. It takes place before a neutral third party, the mediator, who helps the parties to settle their dispute amicably, speedily and without lengthy and sometimes expensive court proceedings.
The mediator helps the parties to define the issues that keep them divided, and explore the various avenues towards a solution of the dispute. The mediator helps parties to reach an agreement in private, but – and this is an extremely important part of the definition – the mediator does not decide the matter. In order to reach a settlement, the mediator may communicate with the parties privately, at times even without the other party being present (something a judge may never do when he or she tries to settle the case in court).
If mediation does not result in an amicable settlement, the mediator must terminate his or her activities. Another person, someone who has not acted as a mediator in the dispute, may then continue dealing with the case. It should be emphasized that under no circumstances may a person who has acted as a mediator continue with the case in another capacity.
An attractive alternative
The Draft Mediation Law aims at regulating mediation in civil, criminal and administrative matters. Civil matters include family and commercial cases, but also other types of dispute such as those concerning labour, damage to property or other interests, payment of utilities (electricity, water and gas) and many other consumer matters. From the law it appears that mediation is attractive for all those involved in the dispute, and for that reason one would expect it to be used very frequently. After all, for parties it leads to their self-empowerment. It allows them to agree on the way their dispute is settled without having to ‘outsource’ the decision to a judge.
Mediation avoids the bitter feelings that often remain when court proceedings are terminated since in mediation there are no losers but only winners. The settlement reached by the parties is mutually agreed upon; both parties have actively participated to reach this settlement and especially if the parties have a continuing relationship this is very beneficial, for example in business relationships or in relationships as parents after a divorce.
Mediation is also attractive for courts and for the legal profession. In many jurisdictions, courts favour mediation since it helps them reduce their workload and, as a consequence, to get rid of crippling backlogs. Mediation allows the courts to invest time in cases that cannot be terminated otherwise and that really need their attention. Furthermore, the legal profession benefits from mediation since it allows them to provide their clients with tailor-made legal services. It allows them to become active in an additional area of the law and it is therefore no surprise that in many countries attorneys advertise themselves as lawyers and, for example, also as family mediators. Since their clients cannot lose their case in mediation, mediation increases chances that clients are satisfied with the services provided.
In sum, mediation creates a win-win situation for all those involved.
Timing of mediation
Ideally, mediation replaces court litigation altogether. As a result, parties will not encounter court fees and unnecessary delays, whereas court staff and judges will save time and resources. This obviously requires that the parties are aware of the availability of mediation at an early stage, for example as a result of information campaigns through the public media, or due to the fact that they are informed by legal professionals such as attorneys and other legal aid providers. The parties and their lawyers should make sure that the claim will not become time-barred when a settlement proves to be impossible and the case has to be taken to court. Different from court proceedings, the initiation of mediation does not automatically bring prescription to a halt and action from the parties is required to stop the statute of limitations from running.
It also happens that parties are only made aware of mediation after their case has reached the court, in many European jurisdictions because judges inform the parties that mediation is a good alternative to court proceedings. The Draft Law provides a legal basis for the judge informing the parties about mediation.
Given all the benefits, it is striking that mediation is not used more frequently in Ukraine. The Draft Mediation Law aims at changing this situation. It helps to make the general public aware of mediation as an alternative to court proceedings. Awareness should also be raised by targeted information campaigns in the public media, and, in addition, judges, attorneys and other legal aid providers informing individual litigants about the possibility of mediation. This will only happen if legal professionals are convinced of the benefits of mediation. Therefore it is advisable that mediation becomes part of the legal curriculum of law schools and other forms of (permanent) legal education and training. This does not mean that all legal professionals should necessarily be trained as mediators. They should, however, at least acquire a basic knowledge of this type of dispute resolution in order to allow them to provide informed advice to clients and litigants.
Providing facilities for mediation may increase its popularity as well. In some regions in Ukraine, facilities for mediation are provided at court houses (mediation rooms). Providing a locality and some other facilities at court houses may work in certain regions, but such facilities could also be provided elsewhere, away from the court house in a neutral place. Especially in times of Covid19, one should remember that e-mediation is an alternative to mediation in a physical locality. E-mediation is also useful in areas where mediators are scarce. For e-mediation, facilities in form of safe digital infrastructure should be provided, whereas mediators may need additional training to make it function well.
Other incentives to use mediation should be explored. Parties who decide to use mediation after having taken their case to court may, for example, be returned part of their court fees. Obviously, this is a first step, but stronger costs incentives exist. A strong incentive is providing mediation free of charge in certain types of cases. The availability of state-funded legal aid for indigent parties who want to make use of mediation is also helpful. For commercial entities raising awareness of the fact that mediation provides them with a confidential type of dispute resolution may be a good incentive, especially when their dispute is about business secrets and other sensitive matter which they do not want to litigate in public before a court of law. Finally, speedy enforcement may be an incentive. This would work if a mediated agreement that has followed the rules of the draft law becomes enforceable within a short period of time (e.g. by the court rubber stamping these agreements without delay).
In Ukraine, the provision of mediation services is not organized centrally and an emphasis is put on the self-governance of mediators. This is beneficial as long as stringent quality control is put in place. Quality, in the end, is crucial for instilling trust in the public at large. The draft law sets minimum training requirements for mediators. Only mediators who meet these minimal training requirements should be listed in the official registers of mediators (public websites) so that the public knows it opts for a qualified mediator when selecting a mediator from those registers (transitory provisions are needed for mediators who currently function in a satisfactory manner and who should be given some time to meet the new training requirements). It may be an idea to link these registers to a central website in order to guarantee easy access to individual lists elsewhere on the world-wide-web. Another possibility is to reserve the designation ‘mediator’ for those who meet the necessary training requirements.
Prof. dr. Remco van Rhee serves as an international expert for the EU Project Pravo-Justice. He teaches comparative civil procedure at Maastricht University (Netherlands), and is involved in various law reform projects and in the drafting of European model rules of civil procedure within the context of UNIDROIT and the European Law Institute.