Mediation as professional mediation

More and more in public space we hear the word «MEDIATION». However, not all understand what this process is and when it can be applied. In this article we will try to deal with You.

Mediation is an alternative dispute resolution. But, first of all, you need to understand what are the alternative methods of dispute resolution.

Therefore, an alternative dispute resolution methods are traditionally divided into:

Main («pure») — negotiation; mediation; arbitration court (arbitration) and combined (which was formed on the basis of mixing or the development of individual components of the main types);

Jurisdictional and Neurodegen.

The basic ways of ARS are characterized by the following features:

Negotiation (negotiation) — a procedure in which two or more parties to make agreements on issues of interest to all parties;

Mediation — negotiation of the parties with the participation of a neutral person (the mediator), which encourages communication of the parties and the formulation of their agreement on the disputed issue, not having the authority to adopt decisions;

Court of arbitration (arbitration) — resolution of the dispute by the person (s) chosen by the parties and authorized by them to the adoption of legal forms on the results of the competitive process.

On the basis of the main ARS formed a number of combined (derivatives, hybrid, blended, synthetic) ways, including:

Claim trade — dispute resolution by the parties for the submission and consideration of the requirements in writing (claims).

Negotiations with the mediation procedure, which occupies an intermediate position between negotiation and mediation that is characterized by the presence of a neutral person in the negotiations between the parties, but is less formal than mediation, which occurs and proceeds spontaneously.

Negotiations on the basis of interest (interested-based negotiation) — integrative, cooperative negotiations, as opposed to traditional negotiations based on the same principles as mediation, but held by parties directly without the involvement of a neutral third person.

Indirect negotiations — negotiations that are made through representatives (e.g., lawyers) of the parties.

Facilitation (promotion) — a method in which a neutral person or one of the stakeholders provides procedural assistance in a team (in particular, when multilateral negotiations or talks with a large number of participants), activating the exchange of information, facilitating the decision-making, while remaining relatively impartial to the issues discussed at the meeting.

Mediation (professional mediation) is negotiating with the assistance of the mediator, which acts as the person having passed special training and has Madalina competencies (in accordance with the standards of basic training of mediators).

Mediation recommendations — the way in which in case of termination of the mediation without concluding an agreement, the mediator (mediator) shall be empowered to make recommendations to the parties on the strategy of further actions with the aim of resolving the conflict.

Consulate (conciliation) — reconciliation, conciliation) is a method of mediation in which the mediator is trying to reduce the tension in the relations of the parties to restore those relationships and, if necessary, to bring the parties to «amicable solution» (settlement agreement), using psychological techniques of persuasion, debt forgiveness, forgiveness, etc.

We see that there are many different ways of solving conflicts or disputes. However, mediation is one of the most popular in the world of alternative ways of resolving conflicts (disputes). The introduction of mediation in Ukraine today is one of the important directions of reforming the system of citizens ' access to justice and effective means of reducing the potential for conflicts of society as a whole. In this regard, everyone should have the knowledge of mediation, skills and skills of working with this tool alternative resolution of conflicts (disputes).

Mediation — structured voluntary and confidential procedure for amicable settlement of the dispute (conflict), in which the mediator (mediator) helps the parties to understand their interests and find effective ways of reaching a mutually acceptable solution.

The purpose of mediation is a discussion, awareness and study of complex conflict (problem) situation for optimum out of it. In the discussion should be a place of different views, thoughts, often incompatible, regarding the events themselves or ways out of a difficult situation. The result of a successful mediation is achieved during the discussion of the specific transaction. The decisions made in mediation can be fixed in the agreement only if each party to the conflict (dispute) recognizes them.

In order for mediation began, should be complied with the following requirements, namely: the desire of the parties for a peaceful settlement of the conflict (dispute), and voluntary participation in a mediation. By combining the efforts to resolve the problem, instead of the perception of the opponent as an enemy, the parties to the conflict can expect to achieve agreements, which provide for mutual agreement, consensus (cooperation). Reaching consensus, the parties to the conflict to take such a decision, which allows them to build constructive relationships and joint activities.

Mediation has the following advantages:

• time savings. Mediation can last from several hours to several weeks (or, in some complex cases, maybe a few months), while the trial may last several years.
• saving of resources. The costs of mediation are considerably less than going to court, pay court fees, counsel fees and the like. N
• the informality of the procedure allows the parties to be more involved than in the trial that contains a large number of rules and procedures. The date and duration of each session (sessions) the parties agree that adds to their confidence in further high-quality performance of this procedure. Topics that are discussed in mediation, are also elected by the parties to the conflict, and not imposed by the court;
• flexibility and control. During the mediation the parties to the conflict, unlike the trial, monitor the whole course of the negotiations. This means that they have much more of the voting rights in the negotiations, and stronger control on the result. Flexibility in mediation also stipulates that the negotiations are moving the way it will be convenient and comfortable for the parties;
• privacy and withberejena reputation. One of the leading principles of mediation is confidentiality. Mediation provides an opportunity for the participants not to disclose information beyond. In turn, the privacy participate in the mediation ensures the preservation of the reputation for both sides of the conflict;

• the consistency of the solution. Mediation allows you to find solutions that satisfy both sides of the conflict, which is almost impossible to obtain in court, in accordance with the law. All the agreements reached in mediation are real to fulfil, as both parties mutually agreed and took a joint decision to resolve the conflict.

So, July 15, 2020, the Verkhovna Rada of Ukraine adopted in the first reading (the basis for) the draft Law on mediation. «For» the government bill No. 3504 (and there were more alternative) voted 339 deputies, which is quite a serious figure and a significant application for the adoption of the law in General. However, while the law has not been adopted. At the same time, article 124 of the Constitution of Ukraine stipulates that citizens have the right to use legitimate alternative dispute resolution procedures.

Today, the Verkhovna Rada of Ukraine has still not adopted the draft Law «On mediation» in the second reading. The adoption of this bill will expand alternative dispute resolution, will enable the parties to settle the dispute out of court, which will contribute to improvement in Ukraine mechanisms for the protection of the rights of man and citizen.

For citizens of mediation is the ability to reduce significantly the level of a voltage, choose a mediator to resolve the dispute, the ability to understand the consequences of decisions, to reduce the costs of legal assistance, litigation as a whole.

Remembering the bill, it is important to note that excessive standardization of mediation is a danger of any regulatory mediation. In my opinion, the law on mediation, in particular the draft law «On mediation», which will be adopted by the Verkhovna Rada of Ukraine, should regulate only the basic principles of mediation, such as voluntary participation, neutrality, independence, privacy and other basic questions.

It is expected that the draft law will have a direct positive influence on the legal relations related to the resolution of conflict (dispute) arising from civil, family, labor, economic, administrative legal relations, as well as in criminal proceedings at the conclusion of agreements on reconciliation between the victim and the suspect, the accused and other spheres of social relations.

It should be noted that at present, despite the absence of special legislation of Ukraine can boast of its own experience of the mediation procedure, which confirms the high efficiency of this institution in the resolution of conflicts. Mediation in Ukraine have been around for over 25 years.

Article prepared by: Svetlana Petrova, international mediator, coach, head of the Centre for law and mediation
In preparing the articles were used from open sources