National Mechanisms of the Enforcement of Agreements Resulting from Mediation: EU Experience and Ukrainian Perspectives

Abstract

Topicality. The article addresses domestic mechanisms for the enforcement of agreements resulting from mediation, which is relevant from both theoretical and practical points of view, because the existence of such mechanisms is a relevant factor of the effectiveness of mediation in particular jurisdiction. The purpose of the article. The purpose of the article is to analyze the national mechanisms for the enforcement of agreements resulting from mediation in the EU Member States and to develop relevant proposals for Ukraine. Research methods. In the article the author uses general philosophical, general scientific and special research methods, in particular, dialectical, system-structural, logical and comparative legal methods, method of analysis and synthesis. Results. Based on the analysis of the provisions of Directive 2008/52/EC of the European Parliament and of the Council of 21.05.2008 on certain aspects of mediation in civil and commercial matters, the author concludes that Member States enjoy a wide discretion on the issue of implementing the provisions of the Directive and numerous different approaches may be embraced with a view to ensure enforceability of agreements resulting from mediation. Based on the analysis of the legislation of the EU Member States, the following mechanisms for the enforcement of agreements resulting from mediation are identified: a) recognizing the agreement as an enforceable civil law contract; b) making the agreement enforceable through the approval by the court; c) making the agreement enforceable through the approval by the arbitral tribunal; d) making the agreement enforceable through the approval by the notary (notarial deed); e) making the agreement enforceable through the approval by some other specially created bodies; f) automatic enforcement. For Ukrainian Law the author suggests, first, diversification of mechanisms for judicial approval of agreements resulting from mediation and, second, allowing notaries to approve agreements resulting from mediation. The significance of the results. The article is addressed to legal scholars and practitioners, mediators and students of higher law schools.