ПРОБЛЕМА ЗАКОНОДАВЧОЇ РЕГЛАМЕНТАЦІЇ ПРИНЦИПУ КОНФІДЕНЦІЙНОСТІ В МЕДІАЦІЇ

Abstract

The article deals with the analysis of the problem of normative regulation of the principle of confidentiality of mediation in Ukraine. The importance of confidentiality for the mediation process is recognized at the international level, in particular in the Directive №2008/52/ EU of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters in 2008. For a successful mediation procedure, it is important for the participants to be completely open and confident in the proper protection of information that becomes familiar during its implementation. Therefore, the legal regulation of the secrecy of mediation must be perfect, as it is a key factor in building public confidence in the new institution of peaceful dispute resolution. The author explores approaches to understanding of the concept of "confidentiality". The international regulation of the principle of confidentiality of mediation and foreign experience of its enshrinement in the regulations of countries such as Spain, Georgia, Kazakhstan, Russia and Belarus are analyzed. It is established that the current domestic legislation and the draft law on mediation do not contain sufficient guarantees for the implementation and maintenance of the principle of confidentiality. It is concluded that there is a high level of threat of abuse in the field of mediation confidentiality. The author identifies the need for a reasonable restriction on non-disclosure of the secrecy of mediation under certain conditions and proposes the main directions of improving the regulatory framework for the principle of confidentiality of mediation. Among them there are: the definition of a clear list of exceptions to the principle of confidentiality, detailed regulation of the liability of participants in the procedure for violating the secrecy of mediation, improving the legal status of the mediator in terms of confidentiality and more.