MEDIATION: EXPERIENCE OF EUROPEAN COUNTRIES AND PROSPECTS FOR UKRAINE

Abstract

In the article, the author analyzed the experience of individual European countries in the field of introduction and practical application of mediation, in particular, Italy, Germany, Poland, Slovenia and others, and mainly paid her attention to the interpretation and observance of the principle of voluntariness in conducting the so-called mandatory mediation. It is noted that the principle of voluntariness, together with confidentiality, equality, impartiality and neutrality, is one of the main principles on which the classic model of mediation is based, which distinguishes it from other methods of dispute resolution, in particular, the court process. It should be noted that one of the basic documents of the European Union, which defines and establishes the basic principles and standards of mediation, is Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, which, according to conditions of compliance with the right of access to court, member states are not limited in introducing into national legislation mandatory mediation with a system of incentives or sanctions. It is also noted that from the point of view of European legislation, the voluntary nature of mediation is not in the freedom of the parties to decide whether to resort to it or not, but in the freedom to manage this process, organize it and leave the mediation process at any time. The author agrees with the opinion that the introduction of mandatory mediation in Ukraine in modern conditions before submitting a case to court may be premature and has the risk of a negative impact on the development of mediation due to the lack of acceptance of such a mechanism, the lack of traditions of dispute settlement, low public awareness of the benefits of mediation, insufficient number of professional and experienced mediators, identification of mandatory mediation with bureaucratic formality. Taking into account the experience of individual European countries and the comments of scientists, it is proposed to introduce a preliminary familiarization meeting with a mediator before the start of the trial for a certain category of civil cases in order to determine the mediability of the dispute and to clarify the readiness of the parties to participate in mediation. In addition, according to the author, the development of domestic mediation cannot be positively influenced by the indication in the law about the obligation of mediation, but by a set of incentives, information system work in the field of providing mediation services and positive practical examples of mediation agreements.