MEDIATION AS A TOOL FOR CONFLICT RESOLUTION: THEORY AND PRACTICE

Abstract

The scientific article pays attention to the issue of mediation in the legal system, focuses on imperfect aspects that are covered in the Law of Ukraine "On Mediation" and provides recommendations for improving legislation in this area. The practical side of mediation (court cases in which it is applied) is analyzed.

The Strategy for the Development of the Justice System and Constitutional Judiciary for 2021-2023 provides for the introduction and development of the mediation institute; improvement of the dispute settlement procedure with the participation of a judge; determination of categories of cases of mandatory pre-trial dispute settlement using mediation and other practices and others.

Gaps in legislation: qualifications of mediators; a selective category of cases in which mediation can be applied; there are no enforcement mechanisms for the implementation of agreements; limitations in choosing a mediator; lack of knowledge regarding mediation; insufficient state support; war; insufficient cooperation of the court with organizations of mediators; insufficient level of awareness of judges about the mediation procedure.

The main recommendations for improving the legislation in the field of mediation should include: clear requirements for persons who can act as mediators should be defined in order to avoid low quality of mediation services; remove restrictions on the use of mediation in relation to certain categories of disputes, which reduces its effectiveness as an alternative method of conflict resolution; mandatory implementation, since non-implementation of the agreements reached in the mediation process reduces the motivation of the parties to comply with the agreements; increase of trust - mistrust of the participants in the mediation procedure reduces the effectiveness of the process; not to limit the choice of a mediator; the quality of training can affect professional standards in this field; carrying out a set of activities aimed at popularizing and raising public awareness of cases in which mediation is being conducted and there is an opportunity to involve a mediator.

From a practical point of view, the use of mediation in court proceedings in such cases: regarding the division of marital property; recognition of the right of personal private ownership of property; determining the place of residence of minor children; establishment of the fact of living as one family without registration of marriage and division of property; deprivation of parental rights and establishment of guardianship.