ПРАВОВЕ РЕГУЛЮВАННЯ МЕДІАЦІЇ: ДОСВІД УКРАЇНИ ТА ЄВРОПЕЙСЬКИХ ДЕРЖАВ

Abstract

Attempts to legally regulate the mediation procedure in Ukraine are analyzed. The shortcomings of some draft laws "On Mediation" are highlighted, including: the lack of a procedure for the transfer of disputes within the competence of state bodies; omission of provisions that would establish the content of the legal consequences of mediation for both the parties and for public authorities. Important progressive changes aimed at development of institute of mediation in Ukraine are: bringing the current legislation of Ukraine on alternative dispute resolution in line with European Union standards and implementing the provisions of Directive 2008/52/EC of the European Parliament and of the Council into national legislation of Ukraine, that will create conditions for the work of mediators in the single European legal space; improving legal mechanisms to ensure the right of a person to protect his rights and freedoms by allowing the parties by voluntary agreement, on the basis of common interests, to resolve disputes quickly and effectively through negotiations and mutual understanding. The definition of the term "mediation" under Recommendation Rec (2002)10 of the Committee of Ministers to member States on mediation in civil matters and Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters is investigated. In order to implement the provisions of these European acts, the Member States of the European Union have adopted special national laws on pre-trial and judicial mediation. The legal regulation of mediation in Germany demonstrates the promotion of a peaceful settlement of the dispute by including various incentives for the parties, establishing the obligation of the mediator to provide training and advanced training. As a result of the analysis of the legal consolidation of the mediation procedure in Poland, a characteristic feature - the creation of an institutional and legislative basis for ensuring a mechanism for monitoring the quality of mediation services - was identified. A review of the legal provision of mediation in France, where the conciliation service is provided by victims' associations and by private mediators accredited by the local prosecutor, who have entered into a contract with the Ministry of Justice, was conducted. It is proposed to amend the draft Law of Ukraine “On Mediation” № 3504, with provisions concerning citizens' awareness of the level of professionalism of mediators and control over the quality of their activities.