Scientific and expert conclusion on the Draft Law of Ukraine «On Mediation»

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Scientific and expert conclusion on the Draft Law of Ukraine On Mediation

Scientific and expert conclusion

of the working group on the implementation of the EU program «Erasmus + KA2» CBHE project No. 599010-EPP-1-2018-1-NL-EPPKA2-CBHE-JP “Mediation: Training and Society Transformation / MEDIATS” from Yuriy Fedkovych Chernivtsi National University on the Draft Law of Ukraine «On Mediation» provided at request of Department of Justice and National Security of the Ministry of Justice of Ukraine № 196/34743-33-19/11.1.1 on October 25, 2019.

General remarks

1.      The Law on Mediation is undoubtedly one of the most demanded reform laws in Ukrainian society. Therefore, the appearance of even his next project is already an event. Moreover, a number of disadvantages of previous drafts of the Law of Ukraine «On Mediation» in the Project just submitted for discussion have been taken into account. Overall, the Draft Law of Ukraine «On Mediation» submitted for scientific examination deserves a positive assessment. The biggest advantage of this Draft is that it is of a framework nature and regards mediation as very flexible and opened to use in many contexts and ways to resolve conflicts and disputes. This complies with the requirements of Directive 2008/52 / EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, as well as the UNCITRAL the Model Law on International Commercial Arbitration 2002, which was taken as the basis for national mediation legislation in twenty-six countries, as well as the «Principles for Mediation Organizations» established in 2002 by world leaders in the field of mediation, which embodied, in a recent doctrinal act, the world’s best practice in this area of public relations. Common to all of them is the approach according to which the legislative act on mediation should in fact set a minimum basis for regulation, in other words, the law on mediation should be a framework law.

However, the developers of this Draft Law of Ukraine «On Mediation» have deliberately or involuntarily gone far beyond the reasonable minimalism of mediation regulation in Ukraine, as a result, a number of important blocks of problems have fallen out of the scope of this potential Law of Ukraine.

2.       First of all, it concerns the central issue of the Draft Law of Ukraine «On Mediation» – the question of the social (or legal) nature of mediation. In other words, is mediation a public good or a commercial service? If it is a public good, then the government should provide it to everyone, regardless of their financial situation, philosophical beliefs or political affiliation and so on. In this case, the regulatory role of the state should be great. If mediation is a commercial service, then only the users (consumers) of this service should pay for it. In the Draft Law of Ukraine «On Mediation» submitted for scientific examination, it was actually suggested to the domestic legislator to choose the second approach, but it is not written in the appropriate level in this Draft, therefore, if this Draft is adopted as a law, the practical implementation of this approach will be predominantly given to the mediators. This will certainly result in the emergence of many additional problems in the development of mediation in Ukraine, will be one of the significant barriers to its progress in everyday life, not contribute to positive change in society regarding the perception of mediation as a progressive institution and specific mediators as bearers of good.

3.       Turning to the European and international experience as a whole, in most countries where mediation has taken root, there is a widespread combined approach to securing it, that is, public-private partnership as a whole: the state commits itself to providing everyone with real access to mediation (accessibility to it as an alternative to litigation of conflicts), guaranteeing its proper quality, but does not dictate what content is put into specific forms and types of mediation, in the ways of its implementation. The state resolves this with all the mediation stakeholders together, not forgetting that civil society as a whole is the customer of mediation as a way of resolving the dispute, and specific mediation procedures customers are individuals who are in conflict situations. Private partners are given the role of the driving force of public-private partnerships, filling them with real life. It should be noted that of the two types of public-private partnerships recommended by the European Commission in 2004 in «Green Paper on Public-Private Partnerships and Community Law on Public Contracts and Concessions», mediation is introduced into public life by the second type of public-private partnership – public-private partnership of institutional type, within which it is possible to form a new legal entity, co-founded by legal entities – public and private partners on an equal footing.

4.       As is known, in 2014, Ukraine signed an Association Agreement with the EU, under Article 1 of which cooperation between Ukraine and the EU in the area of justice, freedom and security should be stepped up to ensure the rule of law and respect for human rights and fundamental freedoms. EU countries have agreed that, in order to ensure the rule of law and better access to justice, all EU Member States and countries that have chosen European values as their own perspective should provide access to both judicial and extrajudicial dispute resolution methods. At its meeting in Tampere on 15 October 1999, the European Council called on Member States to introduce alternative judicial procedures for resolving conflicts and disputes, among which mediation is the main method. Valuably, this challenge also applies to Ukraine, especially since the Revolution of Dignity.

5.       Based on the foregoing, the main purpose of the under discussion draft Law of Ukraine «On Mediation», which should be clearly reflected in its preamble, could be the introduction of the legal institution of mediation in Ukraine at the legislative level as a way to implement the best European and international standards, principles and practices of mediation. According to the main task of the draft Law of Ukraine «On Mediation», it should be the definition of the legal framework for the provision of high-quality mediation services on a professional basis, the provision of high quality training for mediators, the regulation of the principles of self-administration of mediators, the promotion of mediation values ​​in society, the establishment of mediation culture in Ukraine, the introduction of a model of state-private partnership of an institutional type, which would unite on a purely voluntary basis the most diverse organizations – from representatives of public authorities, higher educational institutions of Ukraine in public organizations of mediators and commercial organizations providing mediation services.

6.       The introduction of mediation in Ukraine at the legislative level also attributively requires a clear definition of its place in the legal system of Ukraine. The draft Law of Ukraine «On Mediation» on this issue is silent, as in the previous case, puts the situation on its own – where the river of life will take it. Without proper implementation of the institution of mediation in the legal system of Ukraine, its potential and possibly positive impact on society will be unjustifiably diminished, emasculated, and will not give the expected results of mediation. To a large extent, this can be prevented by inclusion in the draft Law of an additional, worldview and methodologically important, root chapter, which would be able to become the core of the whole draft of this Law – the chapter «Mediation Federation of Ukraine».

7.       In addition to the foregoing, this is due to the fact that, by European standards, Ukraine is so far only «pregnant» with real, not imitative, mediation. Mediation only makes its way. It is at the initial stage of development in Ukraine. The main problem at present is a continuous public distrust of mediation as an institution as a result of skepticism about its abilities and distrust of potential mediation clients to the vast majority of potential mediators. These mediators are only acting on their own behalf. No socially reputable institution guarantees the quality of their professional training as mediators and the quality of their potential services does not guarantee the proper protection of the rights of consumers of their services and does not perform many other important functions. This distrust has both objective reasons and subjective factors. That is why at the start of the official introduction of the institution of mediation, it is so important not to aggravate this mistrust, but to overcome it. Similar stages in the approval of mediation as an institution went through many countries.

8.       For example, the situation with mediation in the Netherlands in 2001 was about the same as in Ukraine now. In this country, then there were more than 2000 mediators, who for the entire previous period of their activity were able to conduct only 1222 mediations. The main field of application of mediators’ efforts at that time in the Netherlands, as now in Ukraine, was the endless holding of paid trainings by some mediators for other mediators. The creation of the so-called the Netherlands Mediation Institute, which was transformed at the beginning of 2014 into the Netherlands Mediation Federation (hereinafter referred to as the NMF), helped radically change the situation for the better.

The NMF, as an institution of public-private partnership, represents to the state and society as a whole the interests of mediation as a separate sphere of professional activity, contributes to the systematic development of this activity, monitors and takes measures to improve the quality of professional practice of mediators. It constantly interacts with the Government of the country, political institutions and the public sector on the development of mediation has created and supports the successful functioning of the Register of the Netherlands Mediation Federation.

The NMF is the holder of the registry of mediators and is responsible for the mediation quality policy in the Netherlands. The NMF ensures the entry of mediators in the register, develops qualification requirements for mediators and their preparation for mediation, the structure of professional profiles of mediators, adopts regulations in the field of the profession of mediators, rules of conduct for members of the Register, develops and implements rules for appealing against the activities of mediators and disciplinary rules, rules for continuous training of mediators, approves and accredits educational and professional programs for the training of mediators, implements official communication with mediators of other countries.

9.       Most, if not all, of the above functions, can and should become the subject of regulation of the Law of Ukraine «On Mediation». It is advisable to state these issues in a separate – penultimate – chapter of the Draft of the aforementioned Law of Ukraine. We propose for consideration to the working group that developed the Draft Law of Ukraine «On Mediation», submitted for scientific examination, its chapter «Mediation Federation of Ukraine».

Chapter ІV

The Mediation Federation of Ukraine

Article… .. Legal Status of the Mediation Federation of Ukraine.

1. The Mediation Federation of Ukraine is an organization of a public-private partnership of a type institute.

2. The State as a whole in the Mediation Federation of Ukraine represents the Ministry of Justice of Ukraine.

3. Some segments of public interest may be represented in the Mediation Federation of Ukraine in accordance with their statutory powers and competences by other institutions of public authority.

4. Members of the Mediation Federation of Ukraine may be on a voluntary basis legal entities of public and private ownership which have their statutory activity at the level of mediation.

5. The basic principles of public-private partnership in the field of mediation are: equality before the law of public and private partners; prohibit any discrimination against state or private partners; support for owners and private partners for mutual benefit; provide higher performance than in the case of such an activity partner state without the involvement of the private partner recognition by the public and private partners of the rights and obligations stipulated by the legislation of Ukraine and envisaged by the Charter of the Mediation Federation of Ukraine; freedom to provide mediation services; transparency; equality of treatment; proportionality; mutual representation.

Article … .. Tasks and functions of the Mediation Federation of Ukraine:

1. The main tasks of Mediation Federation of Ukraine include:

creation and support of the functioning of an effective mediation system as an institution of the legal system of Ukraine, competitive with state courts;

the rooting and development of a culture of mediation in Ukraine;

ensuring the availability of mediation services to all citizens and stateless persons of Ukraine.

2. The basic functions of the Mediation Federation of Ukraine include:

permanent representation of the interests of mediation as a separate area of ​​professional activity before all stakeholders;

promoting the development of the mediator profession;

monitoring and taking measures to improve the quality of training and professional activities of mediators;

development and enforcement of qualification requirements for mediators and the structure of professional profiles of mediators;

adoption of regulatory acts in the field of mediation;

creation and maintenance of continuous functioning of the website of the Mediation Federation of Ukraine; holding the annual National Conference of Mediators.

Article … .. Register of mediators of the Mediation Federation of Ukraine.

Mediators Federation of Ukraine:

1. creates and maintains the current functioning of the Register of Mediators of the Mediation Federation of Ukraine as a tool for ensuring the availability of mediation to all segments of the country’s population and its appropriate quality;

2. is the holder of the Register of mediators;

3. ensures the entry in the Register of information on mediators and the results of their professional activities in the field of mediation;

4. develops mediation standards and ethical rules for the conduct of mediators;

5. adopts rules for appealing the activities of mediators and disciplinary rules;

6. makes continuous access to the Registry of mediators.

Article … .. The Charter of the Mediation Federation of Ukraine.

1. The charter is the main internal regulatory act of the Mediation Federation of Ukraine, which defines the objectives, structure, functions and procedures of this legal entity.

2. The Charter governs all relations of internal life of the Mediation Federation of Ukraine and issues of ensuring high-quality mediation in the country that is not regulated by this or other laws of Ukraine.

3. The Charter regulates property relations, sources of funds not prohibited by the legislation of Ukraine and the financial and economic activities of the Mediation Federation of Ukraine.

4. The Charter is approved by the constituent conference of the Mediation Federation of Ukraine no later than three months after the entry into force of this Law.

We propose to supplement Article 1 «Definitions» of the Draft Law of Ukraine  «On Mediation» in the case of inclusion of Chapter IV «Mediation Federation of Ukraine» in the Draft Law of Ukraine «On Mediation» with the following provisions: «Mediation Federation of Ukraine is  an organization established by legal entities of private and public law in the legal form of public-private partnerships of an institutional type that operates in the field of public relations on mediation».

Ruslana Havrylyuk – Head the Working Group of Erasmus KA2 CBHE Project No. 599010-EPP-1-2018-1-NL-EPPKA2-CBHE-JP “Mediation: Training and society transformation / MEDIATS” from Chernivtsi National University; LL.D, the head of the Department of Public Law.

Petro Patsurkivskyy – Member of the Project, LL.D, Dean of the Law Faculty Yuriy Fedkovych Chernivtsi National University;

Pavlo Bartusiak – Member of the Project, Assistant Professor at the Department of Public Law Yuriy Fedkovych Chernivtsi National University;

Maryna Fedorchuk – Member of the Project, Assistant Professor at the Department of Public Law Yuriy Fedkovych Chernivtsi National University;

Heorhii Moisei – Member of the Project, PhD student at the Department of Public Law Yuriy Fedkovych Chernivtsi National University;

Illia Yuriichuk – Member of the Project, PhD student at the Department of Public Law Yuriy Fedkovych Chernivtsi National University.

“The European Commission’s support for the production of this publication does not constitute an endorsement of the contents, which reflect the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.”