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At
present, when the countries of the ex-USSR stay on the way of
democratization of public institutions, new mediation forms
of dispute resolution guaranteeing and widening social, economic,
political and personal rights and freedoms of citizens, become
very important.
There are obligations of mediation in the Agreement about Partnership
and Cooperation between Ukraine and the European Union |
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Diring the meeting of the representatives of the Ukrainian mediation
groups with the colleagues from the U. S. Ninth Circuit Court
of Appeals' Settlement Office (San Francisco, the USA). |
(Articles 89, 96 and 97) that declares the priority of mediation in
the settlement of all the disputes.To conduct mediation is to be between
the parties, promote the negotiation process and working out of the
mutual decisions with the help of the mediation procedure.
The final goal of mediation is peaceful settlement of the dispute
and conclusion of the agreement between the parties being in dispute.
It is necessary to mention that the relations arising from the process
of mediation are a form of realization of so-called administrative-resolving
law, i. e. the right of the subjects to resolve the dispute by any
legislative method, that they see as priority for themselves. These
relations can arise and last and do not depend on the other processes,
including the judicial ones, as they are kinds of social and legal
norms and primordialy they are dispositional by their nature. They
can be stopped at any stage of the negotiation ad liberum of one of
the sides and continued in case of the mutual assent of their subjects.
First of all, mediation is a non-binding procedure. At this procedure
a mediator holds joint and separate sessions with the parties or their
authoritative representatives, and if the parties are represented
with the advisers (e.g., attorneys), - with the participation of the
latter as well. The main advantage of the given process is that its
participants have a lot of opportunities to express their feelings,
interests and to offer their contribution. A mediator can have separate
sessions that are sometimes called caucuses with each party to discuss
facts, questions and risks that are possibly to arise in case the
dispute would not be settled.
A mediator can analyze the circumstances of each party's case at these
sessions. Then a mediator pushes the participants towards the dispute
resolution marking the joint interests and building "the zones" of
agreement.
Advantages
and possibilities of mediation:
-
minimal risk of the dispute publicity;
-
tolerance, compromise and consensus at the process;
- displacement of competition by cooperation;
- save of time and money by means of cutting the costs on the suit;
- comparatively low cost;
- needs no attorney or public defense;
- favorable psychological air;
- high level of the parties' contribution that gives them an opportunity
to find their own mutually acceptable decisions;
- possibility of settlement of both business and personal aspects;
- possibility of resolution that will preserve and strengthen the
relations between the parties;
- possibility of providing ultimacy in the aspect of the concrete
dispute ending.
The
realization of the parties' warrants is based exclusively on the
interests and needs of the subjects of mediation in the reaching
of the agreement. Their relations are fixed in this agreement while
the court decision fixes them in the procedural and legal form.
Conducting the mediation procedure, the mediator has contacts with
the persons taking part in the procedure and performs a lot of actions
prescribed by this procedure. The content of the process and its
stages are regulated by the rules that specify the rights and duties
of the participants and set a proper order of appearing and development
of the procedural relations.
It is necessary to mention that mediation rules should take into
account the social and cultural norms and the legislation of the
country where they are put into practice.
The international ADR system often uses the mediation rules adopted
both at the state level (e.g. Rules of Conducting Mediation adopted
by Federal Mediation and Conciliation Service of the USA) and at
the commercial or public one (e.g. Mediator's Manual, adopted by
American Arbitration Association, American Bar Association and Society
of Professionals in Dispute Resolution).
The prospects for mediation are open at considering the labor disputes
when the trade unions make mediation or arbitration a part of a
labor contract with an employer. Mediation or arbitration here is
binding in case of the dispute. Such a procedure favors the non-judicial
and compromise dispute resolution.
STAGES
OF MEDIATION
Any
mediation procedure has several stages. All the stages are united
by the common procedural goal, and they are a complex of relations
arising at the process of mediation.
First stage - initiating of mediation. The goal of this stage
is voluntary approval of the interested parties on conducting mediation
by the neutral party. It influences the whole mediation procedure,
as it is basic.
Mechanisms
of the goal implementation:
- petition of the interested parties of the dispute about mediation;
- mutual agreement of the parties about mediation;
Second stage of the process - admitting the case to the procedure.
The goal of this stage is the selection of the cases being up to
quality of the mediation process. This stage is necessary because
every case cannot be admitted to the procedure, as it is to be mediable
and meet the legal norms.
Mechanisms
of the goal implementation:
-
submission of the application for mediation from the parties by
the person coordinating the mediation procedure;
- explanation of Rules of conducting the mediation procedure to
the parties as well as their rights and duties;
- the choice of the mediator by the parties and his approval on
conducting the mediation procedure;
- conclusion of the agreement about mediation between the parties
and the mediator.
The
third stage of the process - preparation the case for mediation.
The goal of this stage is informational and coordination provision
of mediation for the successful dispute resolution.
Mechanisms
of the goal implementation:
- coordination of the case assumed for mediation according to the
Rules of conducting mediation;
- collection of the information necessary for the better understanding
of the problems;
- finding out the parties and the third parties making their personal
demands on the point at issue;
- expressing the opponents' demands;
- preliminary analysis of the prospects of the dispute resolution;
- fixing the time and date of conducting the mediation procedure;
- fixing the place of conducting the mediation procedure.
The fourth stage - conducting the mediation procedure. The
goals of this stage are considering the case, dispute resolution
between the parties and working out the mutual agreement based on
compromise.
Mediation is to take place according to the principles and rules
of the given procedure, and though they can vary, the average procedure
includes:
- opening speech of the mediator;
- speeches of the parties or their representatives done in turn
where they express their visions of the problem, formulate the opinions
on the points at issue and declare their goals that they want to
reach at the process of mediation;
- the work of the parties (with the help of the mediator) with division
of the problems according to their importance and the mediator's
questions to the parties about the opportunities and variants of
settlement;
- passing from the subjective criteria like 'what I want to reach'
to the objective ones like ' what unites everybody': interests,
non-violent resolution of the contradictions, the resources' saving
and other factors;
- the parties' putting forward ( with the active stimulation of
the process by rthe mediator) of their own propositions of the dispute
resolution;
- the process of solving the concrete problems;
- working out the variants of solving the points at issue ( with
possible holding of "brainstorming");
- evaluation of the variants according to the parties' interests;
- defining the best alternatives to the negotiated agreement and
the worst alternatives to the negotiated agreement;
- possible expert evaluation of the acceptable variants or points
at issue;
- discussion of the possible variants of the agreement and all its
components and points till the parties' full understanding and approval
of its content.
The
fifth stage - reaching of the agreement between the parties
on the subject matter of the dispute or its part and formalization
of the agreement.
The
goals of this stage:
- full or partial settlement of the dispute;
- reciprocal decision of the mutual problems;
- reaching of the mutual agreement based on the compromise and consensus
- formalization of the agreement;
- closure of the mediation procedure.
Mechanisms
of the goal implementation:
- working out and discussion of the mutually acceptable agreement
on the subject matter of the dispute or some of its parts;
- discussion of the agreement as to the substance of its implementation;
- reaching of the final version of the agreement on the subject
matter of the dispute or its part;
- discussion of the form of the agreement (oral or written) and,
if necessary, its legal authentication;
- closing speech of the mediator.
The
closure of the mediation is connected with the signing of the agreement,
though in practice some additional meetings with the parties are
possible, for example, when it is necessary for them to discuss
the mechanisms of the agreement implementation, or as a result of
their mutual review of the case connected with the facts unknown
before.
But here it is necessary to take into account the fact that a mediator
is not responsible for the agreement implementation, he or she is
responsible only for the conduction of the procedure according to
the rules. That is why the parties are to carry out obligations
on their authority.
MEDIATION
IN THE JUDICIAL SYSTEM OF UKRAINE
A
mediator is an independent person, keeping neutrality towards the
subjects of the dispute taken for consideration. He or she does
not bring in a verdict of guilt or make a binding decision. It is
a task of a judge or arbitrator. The mediator's alternative is to
search for common ground favoring the amicable settlement between
the parties. To express views, make decisions and propositions is
up to the parties. Here lies the main difference between the mediation
and suit where the participants come to the way of confrontation.
The persons in dispute often lose a part of their initiative and
power over the process. And a principle of the personal participation
in the negotiation, orientation at compromise, effort to come to
the agreement before starting the trial are important elements of
any democratic society.
If one imagines the total quantity of the civil suits, being heard
in courts at present, the conclusion would come in itself: the implementation
of the legal mediation through the court system of Ukraine is expedient.
In case of the legislative support of the mediation practice, one
question would arise: how a mediator's acts would meet the principle
of disposition, the main principle of the civil procedural law,
as it specifies the mechanism of start, development and end of the
civil suit? Citizens and artificial persons are free to dispose
their rights. The term "disposal" can be applied as a right to solicit
for the appointment of a mediator, to refuse a suit and to end the
case with the amicable settlement. Whether the right of a party
to solicit for the appointment of a mediator a subjective one and
whether the opposite party has to agree to participate in this procedure
- open to question. Nevertheless, there are real prospects of the
binding mediator's consideration of a case before the beginning
of a trial.
It can be put into practice right now, for example in the divorce
cases, when mediation procedure as an act of the parties' will is
a point in the marriage contract. In such a case the other party
has a right to ask for conducting mediation with observing the formal
conditions or to bring a suit on a moral damage connected with nonperformance
of the contract. The given practice has prospects in labor contracts,
economical agreements, etc. It will create precedents for the spreading
of the methods of alternative dispute resolution and their development
in Ukraine. The legal proceedings will have the advantages as well.
The example could be setting up the mediation departments in court.
The goals are clear here - to help the court system and to help
the parties at the stage of preleminary consideration of the case
to find a compromise decision acceptable for them and to sign a
valid agreement.
Of course in case of the failure of the negotiation process, there
is a judicial or arbitration procedure and others that will make
possible to compare and evaluate the circumstances of the conflict
regulation in different aspects of the case - legal, psychological,
social and philosophical.
It is perception of a new culture, new way of thinking; so the mediation
model for Ukraine will be connected with the meaning of a definite
form of organization in the political, economical and legislative
systems of the state.
The development of mediation in the modern Ukrainian society makes
it possible not only to study the legal mechanisms of the influence
on a social dispute, but to influence the social policy of Ukraine
as to the reducing social tension.
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