The benefits of mediation: Why going to court is often not in your best interest

Nov 10, 2020 | E-justice, Judiciary, Justice

Disputes may arise about all kinds of issues. Spouses file for a divorce and disagreement arises about parental access to the couple’s minor children, or about child support, or the division of property between the spouses. Neighbours quarrel about noise pollution as one of them cannot resist playing a drum-set from early morning till late at night. Building companies quarrel with their suppliers about the inferior quality of the building materials delivered at the building site. And major disagreement may also arise within the context of companies, for example between co-owners, shareholders, company management and employees.

In all of these cases, parties may obviously go to a court of law to have a judge decide the matter. For many people, however, litigation is a very distressing experience. It may be expensive and time consuming, and it often does not provide a real solution to the problems that exist between the parties. One of the parties usually loses the case, and this leaves him or her with bitter feelings about the opponent. Especially in situations where the relationship of the parties will continue even after the case is decided, bringing court action may not be the best option. For example, after divorce proceedings, former spouses with young children will have to come to some kind of agreement about the education and further upbringing of their children, neighbours will have to agree on the maintenance of the common garden wall or other shared property, whereas building companies and suppliers may be interested in continuing their relationship since except for this particular instance, suppliers provide high quality building materials for very reasonable prices. It is, furthermore, obvious that disputes within companies also benefit from amicable settlement, because those who disagree will often have to continue to cooperate within the company, both during the dispute and after its settlement.

Fortunately, therefore, alternatives to court proceedings are available. These alternatives are commonly grouped under the heading of ‘Alternative Dispute Resolution’ or ADR, and one of the most known alternatives is Mediation. In Ukraine, as elsewhere, parties to a dispute have the right to opt for mediation in the majority of cases, and they should certainly ask their attorney or the judge about it when their cases are still fresh. Parties will discover that there is a sufficient number of qualified mediators available in Ukraine, able to help them solve their dispute in a friendly and satisfactory manner. Since there is currently no central website of mediators, parties could use websites of individual mediators and of local associations of mediators.

For parties interested in mediation, Draft Law No. 3504, registered at the Verkhovna Rada of Ukraine on 19 May 2020, may be of considerable interest. The implementation of mediation in Ukraine is actively supported by the EU-funded project Pravo-Justice. The authors of the present contribution serve as members of an expert team of the Project tasked with developing solutions for an efficient and smooth implementation of mediation in Ukraine.

The draft law lays down that mediation is a confidential form of dispute resolution which takes place outside the courtroom, that is to say, away from the public and the press that usually have access to court rooms. The public and the press may not enter the place where mediation takes place. This is, for example, interesting to businesses that do not want to discuss their business secrets out in the open.

Mediation takes place before a neutral third party who is called ‘mediator’. This mediator helps the parties to settle their dispute amicably and speedily, without lengthy and expensive court proceedings. The mediator assists the parties in defining the issues that keep them divided, and exploring the various avenues towards a solution of the dispute. The mediator does not decide the matter like judges do, but only facilitates a discussion between the parties, a discussion which may go beyond the applicable law but which must comply with mandatory legal rules nevertheless. This approach leads to the ‘self-empowerment’ of the parties since it is in the end the parties who come to an agreement concerning their dispute; it is not the State in the person of a judge who takes control and decides. In this way, bitter feelings that often remain after court proceedings can be avoided. It is, therefore, often in the best interest of the parties to actively avoid court proceedings and to get involved in mediating their dispute.

Mediation is not only attractive for parties, but also for courts and attorneys. In many jurisdictions, courts favor mediation since it helps them to reduce their case overload and, as a consequence, crippling backlogs in handling cases. In many jurisdictions, judges provide the parties with information about mediation. In such a way, judges help reduce the number of cases in court, allowing them to reserve the necessary time for cases that cannot be mediated or solved otherwise.

Attorneys benefit from mediation since they are able to provide their clients with tailor-made services for the specific dispute at hand. As there is no losing party in mediation, attorneys can be sure that their clients remain satisfied. In many jurisdictions, attorneys even act as qualified mediators, a successful example being attorneys who specialize in family law in the Netherlands. Such attorneys advertise themselves usually not only as attorneys but also as family mediators, and this has been a huge success, reducing the number of adversarial divorce cases before the Dutch courts tremendously.

Ideally, mediation replaces court litigation altogether. This happens when the parties are made aware of the availability of mediation at an early stage, for example by legal professionals such as attorneys and other legal aid providers. It may happen, however, that parties are only made aware of mediation after their case has been brought to court, for example by judges indicating that mediation is a good alternative to court proceedings. Under such circumstances, mediation is only successful if court cases can be interrupted for a sufficient period of time when mediation is attempted.

In Ukraine, mediation has been introduced in larger cities. Some cities have set up pilot projects and have provided mediation rooms in court buildings. This is a positive development, and such facilities should also become available elsewhere. This may obviously happen at court houses, but other places that are easily accessible to the public may also be suitable. In times of COVID-19, facilities for electronic mediation, through the Internet, should be provided as well. This may solve problems in areas where mediators are scarce.

The Ukrainian Draft law may be a helpful tool to make mediation more popular. It helps to make the general public aware of mediation as an alternative to court proceedings, especially when combined with targeted information campaigns in the public media. Judges, attorneys and other legal aid providers informing individual litigants about the possibility of mediation, are also crucial, something that may be stimulated by paying attention to mediation at law schools and in other forms of (permanent) legal education and training. Obviously, this does not mean that all legal professionals should be trained as mediators, but it means that they should at least acquire some basic knowledge of this type of dispute resolution.

Official websites of the judiciary and the executive could also be used to disseminate information about mediation. Further to this, relevant websites could be linked to a central website – yet to be created – to ensure easy access and publicity. This approach will allow the public to have a better choice and, consequently, opt for qualified mediators.

Given all the benefits, it is striking that mediation is not as frequently used in Ukraine as one may expect. In order to address this issue, the Draft Law provides that parties who have started court proceedings will be returned 60% of their court fees if they opt for mediation. Further incentives should be explored, for example, free mediation in insolvency cases. The availability of state-funded legal aid for indigent parties who want to make use of mediation is also be helpful. For commercial entities, raising awareness of the fact that mediation provides them with a confidential type of dispute resolution may be crucial when litigation is about business secrets and other sensitive subject matter. Finally, speedy enforcement may make mediation attractive. That would mean that a mediated agreement that has followed the rules of the draft law should become enforceable within a short period of time (e.g. by the court approving (rubber stamping) the agreement).

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.

Alina Serhieieva serves as national expert for the EU Project Pravo-Justice. She is an attorney at law and mediator with extensive experience in the areas of administrative and commercial law as well as in alternative dispute resolution (ADR). She is a member of the Ministry of Justice of Ukraine working group on the preparation of proposals for the ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention on Mediation") and of the draft law on Mediation.diation“.