Under this name, on March 4, 2020, a scientific-practical online conference of Master’s Students of the Law Faculty, that are studying under the educational-professional program “Mediation” specialty 081 Law, was held. The conference took place within the study of the eponymous training module “Mediation as a value” and was devoted to discussing the draft Law on Mediation. The speaker of the conference was Vadym Gatezh, the recent Head of the Student Parliament of the Law Faculty. He also studies at EPP “Mediation” according to an individual schedule and at the same time works as an assistant to a deputy to the Verkhovna Rada of Ukraine.
During the conference, a set of extremely important issues related to mediation as a whole and the prospects for its official introduction in Ukraine were raised and discussed. Particularly, it was noted that since the strategic vector of Ukraine’s development is its integration into the European value space and public law order, thus our state needs more insistently implement those institutions for the regulation of public relations that have proven themselves in European and other civilized countries, including mediation as an alternative to lawsuit dispute resolution.
In particular, the most controversial during the conference was the question of what doctrinal model of mediation should be introduced in Ukraine – mediation as a social good, and then it should be provided by the state on a pro-bono basis for all who need it; mediation as a social service, and then it should be provided on a paid basis to the great majority of the population and voluntary only to the disadvantaged groups of people; or mediation as a commercial service that should be provided to all indiscriminately on a paid basis.
The conference participants noted that the state enshrined a second approach in the draft Law on Mediation: mediation as a social service. But this approach is not even outlined in the draft Law, it is most likely only dotted as a vector for the further development of mediation in Ukraine. Most speakers agreed with this general vector, but they noted about necessity for a clear and univocal position of the legislator on the understanding the nature of mediation as a social service. There were proffered to prescribe in the future Law that mediation is carried out in Ukraine on the basis of public-private partnership of institutional type, as well as in most European countries, where mediation has become the most widespread and effective institution for resolving disputes.
Another consolidated position of the conference participants concerned the type of law to which the Law on Mediation should belong: according to Part 2 of Article 92 of the Constitution of Ukraine, it should rigidly establish all public relations regarding mediation as a way of resolving disputes or according to Part 1 of the same article of the Constitution of Ukraine, to be a framework law and to determine only the legal basis of mediation as a way of resolving disputes. Even in the short preamble to the draft of this Law, an eclectic approach has been carried out: “The law determines the legal basis (yes! – Anastasiia Voloshyna, Anna Myroniuk) and the procedure for conducting (no! – Anastasiia Voloshyna, Anna Myronik) mediation in Ukraine.”
The right of individuals to mediation belongs to fundamental human rights, therefore the state can determine only the legal basis for the exercise of these rights. That is, the Law on Mediation should be a framework law. Only in this way of the legislative regulation of mediation it can become effective one in Ukraine, and it will not “asphyxiate” from strict legal regulation at the first set-out.
There are many types of mediation, as well as disputes that need to be resolved and the reasons that give rise to them. This stipulates the need for different procedures (orders, in tune with the terminology of the draft Law) to resolve these disputes. Forcing to resolve disputes of different nature by means of the same order is nonsense, a methodological mistake of the drafters of the Law, which must be corrected immediately.
Even greater nonsense of this draft Law, as was noted by the conference participants, is its Article 10 “Training in the area of mediation”: “basic training in mediation – it is mentioned in it – is at least 90 hours of mediator training (3 ECTS credits – Anastasiia Voloshyna, Anna Myroniuk), 45 hours of practical training inclusively, and includes theoretical knowledge of the principles, order and methods of mediation, legal regulation of mediation, ethics of mediator, negotiation, conflict (disputes) resolution, as well as practical skills of their application”.
Firstly, it is not defined about the training of whom in the area of mediation – graduated mediators, certified mediators or someone else. There is a fundamental difference between the levels of ability of graduated mediators and certified mediators to carry out professional mediation.
Secondly, such a vision of the scope and content of professional mediator training directly goes against European practices and approaches to professional mediator training and may in the issuance lead to the discrediting of mediation as an institution in its perception by society. The above vision of basic mediator training is nothing but an excursion in the training of professional mediators, therefore, according to most conference participants point of view, this article should be removed from the draft Law. For example, the educational and professional program “Mediation” specialty 081 Law of Yuriy Fedkovych Chernivtsi National University provides training for a professional mediator within the specialty of “Law” for a total of 90 ECTS credits, and the scope of internship under this program for a total of 30 ECTS credits. Before formal determining the minimum required scope of training for a professional mediator, especially at the Law of Ukraine level, it is necessary to conduct an extended and open discussion of the problem with the participation of specialists and experts, not just certain concerned parties.
On this occasion, we consider it is necessary to make a set of proposals to improve the EPP “Mediation” of Yuriy Fedkovych Chernivtsi National University. In particular, it would be reasonably to append this program with a Preamble, which should declare the aim of this EPP, as well as its main particular qualities and competitive advantages over other educational programs, including the training of mediators, if there are any. Among the particular qualities of the program it is worth to mention that this program reflects and is in advance the state of society as a whole, the demands of business and other spheres of society for highly qualified mediators.
Anastasiia Voloshyna and Anna Myroniuk,
Masters of the 5th year of EPP “Mediation”
specialty 081 Law of Yuriy Fedkovych
Chernivtsi National University
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