SPEED UP THE RESOLUTION OF BUSINESS DISPUTES AND PREVENT LENGTHY LITIGATION.
INCREASE THE CHANCES OF EMPLOYEES AND PARTNERS TO RECEIVE DEBTS OF BANKRUPT COMPANIES.
AVOID EXHAUSTING DIVORCES AND INHERITANCE DISPUTES.
AND FINALLY, TO RETURN THE RESPONSIBILITY FOR CONFLICT RESOLUTION TO THE CITIZENS THEMSELVES.
ALL OF THIS WILL BE FACILITATED BY PRE-TRIAL RECONCILIATION OR MEDIATION.
AS PART OF THE JUDICIAL REFORM IN UKRAINE, IT IS PLANNED TO POPULARIZE AND WIDELY USE THIS DISPUTE RESOLUTION TOOL.
EXPERTS SAY THAT MEDIATION WILL SAVE CITIZENS TIME AND MONEY, REDUCE THE LEVEL OF STRESS FROM CONFLICTS AND BRING THE UKRAINIAN JUDICIAL SYSTEM CLOSER TO THE EUROPEAN ONE. The Institute of Mediation has existed in Ukraine for 26 years.
Thousands of experienced mediators work in the country.
However, only narrow professional circles are aware of this alternative opportunity to resolve disputes.
Meanwhile, in Europe, the effectiveness of pre-trial conciliation is enormous, says Dovydas Vitkauskas, head of the EU Pravo-Justice Project. “In the Nordic countries, for example, the lion’s share of disputes is resolved through mediation or similar methods of alternative dispute resolution,” says Dovydas Vitkauskas.
– In Finland, for example, only 2.5% of cases in civil proceedings end up in a full trial and judgment.
More than 90% are resolved through alternative means, where mediation is not the only, but a key method “. “Mediation guarantees a result,” says the head of the EU Pravo-Justice Project. “The point of mediation is not to find out who is right, but to get a solution to the problem that both parties agree to. “First of all, through mediation, disputes are resolved voluntarily,” emphasizes Dovydas Vitkauskas.
– The parties themselves choose to follow this path.
It is a confidential approach, it respects the different legal issues of disputes, which is often important for ensuring the financial interests of the parties.
It is a reduced price, the consideration of a conflict through mediation is cheaper than litigation, and in the end, it is a resolution of the dispute “.
Ukraine has developed and adopted a draft law on mediation in the first reading.
It is intended to give a new impetus to the development of this alternative tool, emphasizes Dovydas Vitkauskas.
The draft law is a framework, says Oleksandr Banchuk, Deputy Minister of Justice of Ukraine. It defines who should be a mediator, in what cases this tool should be used, the principles of mediation, and the rights of the parties. The law will encourage citizens to use pre-trial reconciliation: if the parties reach an agreement through mediation, the relevant party will receive 60% of the court fee back, says the deputy minister. “An important innovation is the return of part of the court fee to the person who paid the court fee earlier,” says Oleksandr Banchuk.
– This is a certain incentive for people to negotiate even when there are already court proceedings.
In general, the law provides for the introduction of a decentralized model of mediation that does not involve excessive regulation of this industry, which will also stimulate its development “. Experts emphasize that mediation is both cheaper and much faster to resolve business disputes. After all, litigation often takes months or even years. Moreover, even if a party wins the case, the next problem is the enforcement of the court decision. In the case of mediation, for example, the repayment of debts or reimbursement of expenses will definitely take place, and within the agreed time frame. “Often people receive a court decision, but their needs remain unsatisfied,” says Andriy Ryshchenko, coordinator of the Dnipro Regional Council for Justice Reform (RRJ), judge of the District Administrative Court of Dnipro Oblast.
– Mediation is a compromise, so instead of litigation and the often ineffective procedure for enforcing a court decision, the parties will be able to find a joint solution to their problem through mediation.
The state will soon be faced with the question of whether to save an enterprise or close it for debts due to the pandemic.
And finding a compromise through mediation may be the way to save the company: to postpone debt repayment, to enter into a restructuring agreement “.
Mediation is not a panacea, but this procedure can be used in most disputes: from divorce and division of property to disputes between business and the state.
Political accountability of local governments for their decisions to voters encourages them to look for new ways of dialog with society, says Andriy Ryshchenko.
Mediation can become such a tool.
Taking into account the wishes of the residents of the area where the development is being carried out, organizing the improvement of the adjacent territory, providing social housing – this is just a small list of issues in which mediation can turn conflict into cooperation.
Mediation is also appropriate in criminal cases, experts say.
Especially when the crime is not serious and the perpetrator is a minor.
Mediation is also effective in cases where there is an emotional component, experts say.
These are all family conflicts, labor, medical, inheritance and other disputes.
First, mediation allows the parties to relieve the emotional burden of the conflict, to talk through all aspects of its occurrence, including all grievances and difficult and uncomfortable issues, emphasizes Svitlana Sergeyeva, vice president of the Ukrainian Academy of Mediation, lawyer, mediator, member of the Odesa Regional Council for Justice Reform. Secondly, the ability to maintain confidentiality during the procedure will allow the parties to avoid public disclosure of personal issues or ensure the preservation of commercial secrets. ” An important advantage of the mediation procedure as a way to resolve conflicts is the ability to preserve business (partnership), friendly, family, and personal relationships.
We must face the truth Svitlana Sergeyeva emphasizes. going to court only exacerbates the conflict.
Where there is a winner and a loser, it is impossible to talk about maintaining relations.
Today, not only citizens, but also businesses are not sufficiently aware of the mediation procedure, and therefore do not use the potential of this conciliation procedure.
However, I am sure that it is a matter of time “. Judges are waiting for the law on mediation and popularization of the tool, says Andriy Ryshchenko, coordinator of the Dnipro RRRP, judge of the District Administrative Court of Dnipro Oblast. “Right now, the workload of judges exceeds the standard by 40-120%. The use of mediation will reduce the number of cases and allow them to meet the proper deadlines. “Now the courts are simply overwhelmed with cases,” states Andriy Ryshchenko.
– Many judges have resigned or are without powers, so each judge is considering more than 1,000 cases a year instead of the standard 600.
The courts have tens of thousands of cases involving claims from pensioners and Chornobyl victims, which have already been decided by the Supreme Court in exemplary cases.
This is evidence of the state’s failure to fulfill its obligations to people.
Mediation should be conducted in such cases to restore trust in the relevant institutions.
In addition, there are fairly simple cases that would not require judicial intervention if the parties heard each other.
These are, for example, cases of obtaining public information.
In general, if at least 10% of cases were resolved through mediation, it would already be a significant relief for the courts and would help speed up the proceedings. “. “The unloading of the courts will contribute to a fairer resolution of disputes,” adds Dovydas Vitkauskas, Head of the EU Pravo-Justice Project.
– Today, due to the overload of judges, most cases are “sewn like a skirt, in one size”.
This is unacceptable.
With more time, judges will be able to pay more attention to each case “.
Not only a law is needed to spread the use of mediation, says Anna Lysko, director of the Lviv Mediation Center and member of the Lviv Regional Council for Justice Reform. A broad information campaign is needed to popularize this dispute resolution tool. Announcements with information about mediation should be posted in courts. The new tool can be offered in government agencies, social services, free legal aid centers, and courts. “It is very important that public authorities understand what mediation is and can offer it to people,” comments Anna Lysko.
– For example, we cooperate with Lviv social services and provide them with mediation services free of charge, so their representatives know that they can refer people to us for mediation.
If this were done in all localities, mediation would be more popular.
Also, if the prosecutor’s office or police knew what mediation was, they could offer people this tool at the preliminary stage as well.” .
Відповідно до проєкту закону «Про медіацію» медіатором може бути будь-яка особа, яка має вищу освіту та пройшла базову підготовку у сфері медіації.
Це — відкрита професія, зазначають експерти.
Та лідерами донесення цінності медіації до суспільства мають стати саме юристи.
Вони найбільше контактують з людьми з питань вирішення спорів та можуть донести до них цінність і необхідність введення нового альтернативного інструменту вирішення спору, говорить керівник Проєкту ЄС «Право-Justice» Довідас Віткаускас.
Популяризація медіації, як способу вирішення конфліктів, позитивно вплине на суспільство, зазначають фахівці.
Медіація є прозорим способом прийняття рішень, який сприятиме виведенню бізнесу з тіні, тож збільшить привабливість України для інвесторів.
А найголовніше — новий інструмент змінить саму філософію взаємодії між людьми.
Якщо раніше сторони у суді поділялись на переможеного і переможця, тепер стане можливою стратегія взаємного виграшу — win-win. Written by journalist Oksana Viter for the EU Project Pravo-Justice