MEDIATION AS A FORM OF PROTECTION OF CIVIL RIGHTS

Abstract

The article is devoted to the analysis of regulations enshrined in the Law of Ukraine “On Mediation”, adopted on November 16, 2021. Mediation is considered as a procedure for reaching a compromise, optimal solution by the parties to a dispute (conflict) with involvement an independent mediator. It is emphasized on the fact that in legal cases mediation is a non-jurisdictional form of protection, and its legal possibilities can be used by legal entities and individuals as a form of protection of subjective civil rights. It is argued that the development of mediation as a form of protection of civil rights requires amendments to the Law of Ukraine “On Mediation”, in particular: (a) the terminological concepts concerning agreements concluded in the field of mediation need to be normatively defined, namely such agreements should be given clear sectoral affiliation, as the very fact of contractual nature of such agreements does not reveal the basic principles of legal regulation of concluding and reaching agreements, as well as their implementation. Taking into account the fact that the main purpose of mediation as a procedure for conciliation of the parties is to resolve a dispute (conflict) on mutually acceptable terms, it is necessary to pay more attention to the agreement of the parties, which is called in law “mediation agreement”; (b) when applying the mediation procedure in legal cases, in particular in civil relations, it is necessary to remember and, accordingly, to enshrine in law that the principles of mediation should include the principle of the rule of law. Also, in order to resolve legal cases through mediation, it is necessary to provide means to ensure that the parties comply with the agreements set out in the agreement based on the results of mediation. In this way, the domestic law on mediation will be closer to the basic conditions of mediation in civil and commercial cases enshrined in Directive 2008/52/EU; (c) the legislator’s own attention needs to determine the status of mediator, in particular, based on European approaches to mediation in civil and commercial cases, it is necessary to enshrine in law a competent approach to the training of mediators for such categories of cases. It should to determine what level of education a mediator should have – bachelor, master. It is proposed for legal cases to provide the right to act as mediators to citizens who have higher legal education. And already with the consolidation of the level of education of the mediator, we can talk about his basic training as a kind of specialization; (d) the law should not only enshrine the legal possibility of special regulation of certain types of mediation, but also clearly establish such types as: pre-trial and judicial mediation with appropriate procedural content.