Mediation: a fashion trend or an urgent need?


Mediation: a fashion trend or an urgent need?

At present, the full-fledged implementation of mediation in Ukraine is an urgent topic. This is related to the possibility of settling disputes out of court and the need to relieve the courts in conditions of excessive stay of cases in court proceedings. The existence of the mediation institute is one of Ukraine’s ways to the European integration space.

Mediation: development and concepts

The historical aspect makes it possible to understand that the occurrence of conflicts has always been a common phenomenon. Such conflicts arose in all types of relationships and were resolved in various ways.

The beginning of mediation goes back to the time of the great depression in the United States of America, which was in the 30s of the twentieth century. At that time, the purpose of mediation was to resolve conflicts in family and labor relations, and the use of mediation contributed to the cessation of mass unrest in society. Mediation has become widespread in European countries, such as Germany, France, Italy, and other countries. Turning to the etymological origin of the term “mediation”, one should come to the conclusion that it is identified with mediation between certain subjects. The effectiveness of mediation is recognized by the European community — most documents of the Council of Europe and EU Directives recommend the implementation of mediation as the main method of alternative dispute resolution. A characteristic feature of the modern stage of development of state administration in the judicial system is the transition from a confrontational to a discursive-competitive form of justice, the main concept of which is reconciliation. Conciliation in practice takes place in civil, economic and administrative disputes before or during court proceedings, as well as at the stage of executive proceedings; when resolving the issue of reconciliation between the victim and the suspect (accused) in criminal legal relations; during the resolution of collective labor disputes. 1

In Recommendation Rec (2002) 10 of the Committee of Ministers of the Council of Europe to member states on mediation in civil cases, adopted by the Committee of Ministers of the Council of Europe at the 808th meeting of the Deputy Ministers on September 18, 2002, the term “mediation” is identified with the process of dispute settlement, within which the parties with the help of one or more mediators conduct negotiations on disputed issues with the aim of reaching an agreement.

Mediation is reflected in the Directive 2008/52/EC of the European Parliament and the Council on certain aspects of mediation in civil and commercial matters dated 21.05. 2008 (hereinafter referred to as the Mediation Directive). In p. 6 of the said Act, it is determined that mediation can provide a quick resolution with the least costs of disputes in civil and commercial cases through processes specially adapted to the needs of the parties. There is a greater likelihood that the agreements reached as a result of mediation will be voluntarily followed and that the parties will maintain a friendly and lasting relationship. These advantages become even more evident in situations of an international nature. According to p. 13 of this document, mediation should be a voluntary process in the sense that the parties themselves are responsible for this process and have the right to organize it as they wish and to terminate it at any time. However, national legislation must provide that courts can set time limits for the mediation process. Moreover, courts should be able to draw the parties’ attention to the possibility of mediation whenever they deem it appropriate. Taking into account the provisions of the Directive on mediation , it can be concluded that the principle of equality and voluntariness is embodied in the process of mediation, but the influence of courts on mediation can also be traced in view of temporal restrictions (time limits).

Mediation is also spreading in Ukraine. It should be noted that on June 2, 2016, a provision was introduced into the Constitution of Ukraine, which establishes that the Law may determine a mandatory pre-trial dispute settlement procedure, one of which is mediation. In the “State Standard of Mediation (Mediation) Social Services”, approved by the Order of the Ministry of Social Policy of Ukraine dated 17.08.2016 No. 892, it is regulated that an agreement on the use of mediation (mediation) is a written agreement (statement) of the parties to conduct negotiations for the purpose of conflict resolution/ dispute with the participation of a mediator/mediator. The European Association of Judges for Mediation (GEMME) defines judicial mediation based on the understanding of mediation as a dispute resolution procedure: judicial mediation involves giving a qualified and neutral third person, who does not have the power to make a decision, the mission to listen to the parties to the conflict, to determine their views, regardless of whether they are disputed or not, in order to assist them in establishing communication and reaching an agreement between them.

In connection with the implementation of mediation, a special Law of Ukraine dated 16.11.2021 No. 1875 “On Mediation” was adopted, which defines the legal principles and procedure for conducting mediation as an out-of-court procedure for conflict (dispute) settlement, the principles of mediation, the status of a mediator, requirements for its preparation and other issues related to this procedure. In p. 4 hours 1 Art. 2 of the specified Law contains the definitive construction of mediation. The latter is understood as an out-of-court voluntary, confidential, structured procedure, during which the parties, with the help of a mediator(s), try to prevent the occurrence or settle a conflict (dispute) through negotiations.

Normative consolidation of mediation is also contained in the following codified acts, in particular:

(1) Civil Procedure Code of Ukraine . Thus, currently, during the preparatory session, the court also finds out whether the parties wish to conclude a peace agreement, to conduct an out-of-court settlement of the dispute through mediation (Article 197). If the parties express such a desire, then the court is obliged to stop the proceedings in the case at the request of the parties.

(2) Economic Procedural Code of Ukraine . During the preparatory proceedings, the court finds out whether the parties wish to settle the dispute out of court by means of mediation (Article 182);

(3) Codes of administrative proceedings of Ukraine . The parties can achieve reconciliation, including through mediation, at any stage of the court process, which is the basis for closing the proceedings in an administrative case (Article 47). The court finds out whether the parties wish to resolve the dispute through conciliation, to conduct an out-of-court settlement of the dispute through mediation (Articles 180, 181).

Some special laws may also regulate mediation issues. In Art. 7 of the Law of Ukraine dated 07.08.2011 No. 3674 “On Court Fees” regulates that if the parties reach an agreement on the conclusion of a settlement agreement, the plaintiff’s refusal of the claim or the recognition of the claim by the defendant as a result of mediation, the court considers the issue of returning 60 percent of the court fee to the plaintiff, paid when filing a claim. The specified norm provides for a “financial incentive” for the parties to reconcile through mediation.

Mediation is an alternative method of dispute resolution, in which conflicting parties voluntarily use the help of a neutral, impartial and independent third party – a mediator, who, having special knowledge and skills, guides the parties to a joint optimal resolution of the dispute, complying with the requirements of the law.

Mediation also means :

1) a method of conflict resolution with the involvement of a mediator (mediator), which helps the parties to the conflict to establish a communication process and analyze the conflict situation in such a way that they themselves can choose the best option for behavior;

2) a tool whose purpose is to eliminate the negative consequences of the conflict;

3) an out-of-court procedure for settling a conflict (dispute) through negotiations between its parties with the help of one or more neutral mediators (mediators);

4) a new form of settlement of legal disputes that came to us from Western countries;

5) the best method for resolving the conflict in the event of the need to restore relations between the parties.

The main principles of mediation are defined in part. 1 Art. 4 of the Law of Ukraine “On Mediation”. In particular, mediation is conducted by mutual consent of the mediation parties, taking into account the principles of voluntariness, confidentiality, neutrality, independence and impartiality of the mediator, self-determination and equality of rights of the mediation parties.

Voluntary participation of the parties consists in the informed consent of the parties to conduct mediation, participation in mediation at their own will.

Confidentiality is the restriction of access to information regarding the subject of mediation.

The neutrality of the mediator consists in the impartiality of the mediator regarding the resolution of the conflict. The independence and impartiality of the mediator is manifested in the same attitude towards all parties to the conflict, regardless of the issues that arise.

Self-determination and equality of mediation parties is the decision-making by the parties independently, but with the help of a mediator, on equal terms.

Mediation participants

A mediator is a specially trained neutral, independent, impartial natural person who conducts mediation (clause 2, part 1, article 1 of the Law “On Mediation”). According to Directive 2008/52/EU of the European Parliament and of the Council “On certain aspects of mediation in civil and commercial legal relations”, a mediator is any third person who has been asked to conduct mediation effectively, impartially and competently, regardless of the religion or profession of that person of the third party in the Member State concerned, and the manner in which that third party was appointed or requested to mediate.

The requirements for a mediator are defined in Art. 9 of the Law of Ukraine “On Mediation”. Yes, a mediator can be a natural person who has completed basic mediator training in Ukraine or abroad. At the same time, a restriction is established that a mediator cannot be a person with a criminal record, a person whose civil capacity is limited, or an incapacitated person. Mediation parties, state authorities and local self-government bodies, enterprises, institutions, organizations regardless of the forms of ownership and subordination, public associations may set additional requirements for the mediators they engage or whose services they use, in particular regarding the availability of special training, age, education, practical experience, etc. Associations of mediators and entities providing mediation may establish additional requirements for mediators they include in their registers, in particular, regarding the availability of special training, age, education, practical experience, etc.

The mediator must conduct the mediation impartially and fairly. The idea of ​​neutrality (impartiality) of the mediator is central to the mediation process. The mediator should mediate only those cases in which he can remain neutral — unbiased and fair. The mediator must not allow behavior that would give the parties a reason to feel that the mediator is abusing his position, is impartial in relation to one of the parties. These negative factors can affect the quality of the mediation process and, in general, the possibility of mediation. The mediator must be wary of bias or prejudice based on the personal characteristics of the parties, their social background or behavior at the mediation.

The mediator’s neutrality is also characterized by the absence of any interest in the conflict. The mediator must disclose all existing or potential self-interests in the conflict known to him to one degree or another. In cases where such interests of the mediator are found, he must refuse mediation, or obtain the consent of the parties to mediate even in the presence of such interests. The main approach to the issue of the mediator’s interest in the conflict and the results of its resolution is related to the issue of the mediator’s self-determination. The mediator is responsible for publicizing all existing or potential conflicts of interests of the parties with the interests of the mediator, which to one degree or another are familiar to him and which may raise questions about the violation of neutrality (impartiality) of the mediator. According to Art. 15 of the Law of Ukraine “On Mediation” establishes the mediator’s responsibility. In case of breach of obligations under the mediation agreement, the mediator bears civil liability in accordance with the law. In cases provided by law, the mediator bears administrative or criminal responsibility. In the case of non-compliance with the norms of professional ethics, the mediator bears the responsibility defined by the statute or regulation on the association of mediators, of which he is a member.

The mediator must avoid taking an interest in the conflict both during and after the mediation process. This means that without the consent of all parties, the mediator must not in the future establish a professional relationship with one of the parties, regardless of whether or not it relates to the issue of the case that was considered during the mediation, provided that this may interfere with the process of implementing the decisions reached under time of mediation.

The mediator must have a high level of training and be independent. In turn, the mediator’s independence from the parties is necessary to ensure his neutrality and impartiality in the mediation process. Mediator independence can take several forms, including emotional, financial, and organizational. Emotional independence means that the mediator is not in a relationship with any of the parties that creates personal emotional relationships – positive or negative. Financial independence means that the payment of the mediator for participation in the mediation process does not depend on the results of the process and on the agreements reached by the parties in the process. This means that the payment of the mediator cannot provide for the receipt of bonuses in the event of reaching agreements that are “desirable” to one or the other, or even two parties. The mediator’s fee is only related to the level of professionalism, the demand for similar services in the market, the complexity of the case and the amount of hours that will be required to conduct the process. Organizational independence means that the mediator is not a colleague, employee, subordinate or manager of one of the parties. Often, large companies have their own mediator, or these functions are assigned to an employee of the HR department. In this case, the mediator should be in the same organizational position towards both parties, and also be emotionally independent from each of the parties. A mediator can provide mediation services on a paid or free basis, for hire, through an entity providing mediation, through an association of mediators, or individually. The mediator conducts mediation individually as an individual conducting independent professional activity or as an individual entrepreneur. A mediator who conducts mediation individually can open bank accounts, have a seal, stamps, forms with his/her surname, first name and patronymic (if available).

Mediation parties are individuals, legal entities or groups of individuals who have contacted a mediator (mediators) or an entity providing mediation with the aim of preventing the occurrence or settlement of a conflict (dispute) between them through mediation and concluded a mediation agreement (Clause 7, Part 1, Article 1 of the Law of Ukraine “On Mediation”).

The rights of the mediation parties are defined in Art. 18 of this Law. Mediation parties have the right to:

— by mutual agreement, choose a mediator (mediators) and/or an entity that ensures mediation;

— determine the terms of the mediation agreement; — by mutual agreement, involve other participants in the mediation; — refuse the services of a mediator(s) and choose another mediator(s);

— refuse to participate in mediation at any time;

— in case of non-fulfillment or improper fulfillment of the agreement as a result of mediation, apply to the court, arbitration court, international commercial arbitration in accordance with the procedure established by law;

— involve an expert, a translator and other persons determined by agreement of the mediation parties. Other rights of the mediation parties may be determined by law, mediation agreement or mediation rules.

The obligations of the mediation parties are outlined in Art. 19 of the Law of Ukraine “On Mediation”. Mediation parties are obliged to: — comply with the requirements of this Law, the mediation agreement and the rules of mediation; — to implement the agreement based on the results of mediation in the order and terms established by such an agreement; — perform other duties defined by law.

Mediation, like any process, has a specific internal structure, consisting of stages that are characterized by such features as logic, sequence, procedural unity, orderliness, normalization, independence, purpose.

Stages of mediation

The first stage is preparation for mediation

At this stage, the mediator:

(1) investigates information about the parties to the conflict, their requirements;

(2) gathers the necessary information;

(3) exchanges information;

(4) exchanges documents;

(5) collects the entire set of documents that are necessary for making a decision;

(6) carries out measures agreed between the parties to the conflict (dispute) and the mediator or subject;

(7) organizes a place for mediation.

The mediator’s duties at the stage of preparation are to prepare for mediation and conduct it in accordance with the Law, the rules of mediation and the mediator’s code of professional ethics; during preparation for mediation, provide the parties to the conflict (dispute) with the code of professional ethics, which he adheres to in his activities, for perusal; not to disclose information that became known to him during the preparation and conduct of mediation (Article 12 of the Law of Ukraine “On Mediation”).

The second stage. Conducting (opening) mediation

The following actions are typical for this stage:

(1) opening speech of the mediator;

(2) signing a contract with a mediator;

(3) data collection and announcement of order and rules;

(4) clarifying the positions of the parties;

(5) identifying topics for discussion.

During mediation, the mediator: involves the other side of the conflict (dispute) in the mediation; carries out preparatory measures for conducting mediation; manages the negotiation process; ensures equality of parties in negotiations; maintains confidentiality; organizes constructive communication; creates conditions and space for the parties to find a solution; verifies that the parties’ agreements correspond to their interests, are realistic and enforceable; provides advice and recommendations on recording the results of mediation. None of the parties influence the behavior of the mediator during the mediation. The duties of the mediator during the mediation are as follows: to inform the mediation parties before the beginning and during the mediation about personal circumstances, the mediator’s relationship with one of the parties to the mediation in any field other than mediation, about conflicts of interest that may cause reasonable doubt in its neutrality, independence and impartiality. In such a case, the mediator may conduct mediation only with the written consent of all parties to the mediation and in accordance with his or her internal conviction regarding the observance of the principle of neutrality, independence and impartiality of the mediator; terminate the mediation in the event of a conflict between the personal interests and duties of the mediator, which may affect his neutrality, independence and impartiality during the mediation, as well as in the presence of other circumstances that make his participation impossible or require the termination of his participation in the mediation; to inform the parties and other mediation participants about their rights and obligations, the principles and rules of mediation, the structure of the mediation procedure, the possibility of obtaining consultations from relevant specialists (experts), the consequences of concluding a mediation agreement and/or an agreement based on the results of mediation in a written or orally, as well as about your professional experience and competence; manage the mediation procedure (Article 12 of the Law of Ukraine “On Mediation”). The mediator must adhere to the norms of the mediator’s professional ethics. Associations of mediators develop their own codes of professional ethics for mediators or recognize and join existing codes of professional ethics for mediators. Codes of professional ethics of mediators must comply with the provisions of this Law. The statute or regulation of the association of mediators determines the procedure for bringing to responsibility for non-compliance with the norms of professional ethics of a mediator who is a member of such an association.

The third stage. Research interests

Parties come to mediation with positions and interests. The mediator must find out the needs of the parties. For this, the mediator discusses positions for understanding. Among the interests of the parties, psychological, procedural, and substantive interests can be distinguished. When conflicting interests are identified, the mediator finds out the needs behind them for further understanding in the negotiation process of the parties. The needs of the parties are similar, therefore more understandable. As a result of the research of interests, the parties come closer to almost the same points of view on possible options for resolving the dispute. At this stage, the role of a mediator is extremely important, helping the parties to understand their needs and the needs of the other party. At the stage of interest research, the mediator asks questions, in particular, hypothetical questions to change views on the situation, open and closed questions to clarify and check information. In addition, the mediator uses the technique of active listening to collect the necessary information, highlight the main points, reduce tension and fix intermediate results. At the same time, the mediator helps the parties to better express their own opinion, understand the opponent, remove categoricalness, separate the essence from emotions, clearly formulate their thoughts.

The fourth stage. Talks

At this stage, ideas and possible conflict resolution options are worked out. The mediator helps the parties consider possible solutions, evaluate the effectiveness and risks of solutions, move from general to specific in the development of solutions, analyze alternative solutions, as well as evaluate possible options for solutions and reach a consensus.

The fifth stage. Conclusion and signing of the agreement

At this stage:

(1) the mediator checks the worked out solution options for realism and feasibility;

(2) the details are clarified, the clauses of the agreement are agreed upon, and a final decision is formed that satisfies all participants;

(3) participants familiarize themselves with the text of the agreement, which, as a general rule, is concluded in 2 copies, and sign it.

In contrast to the judicial resolution of the dispute, which is based on direct law enforcement, mediation is carried out using the law based on fairness and taking into account the interests of both parties. The involvement of a mediator makes it possible to eliminate the psychological barrier that exists during direct communication between the “adversary” parties. By involving a qualified mediator in the negotiation process, the parties acknowledge their readiness first for compromise, and then for consensus. Mediation participants make a decision (in contrast to a court proceeding, during which the judge makes the decision directly), which satisfies both of them, and the mediator only creates conditions that make it possible to properly discuss the merits of the case. The mediation process is strictly confidential (non-disclosure), while litigation is usually a public procedure. The court determines when the process will start, when it will end and how it will proceed. Based on the relevant norms of the current legislation, the court makes a decision and announces it to the parties. In the process of mediation, all participants have the opportunity to control the situation. Litigation always involves a winner and a loser, while mediation is focused on finding a mutually beneficial and mutually acceptable solution to the dispute.

Advantages of mediation among other methods of dispute resolution: 1) voluntariness; 2) the participation of a mediator — an independent third person who, with the help of special skills, organizes the negotiation process to help clarify and analyze the interests of the parties; 3) settlement of the conflict by the parties themselves from the position of interests by finding a mutually acceptable solution; 4) speed; 5) flexibility and informality of the procedure; 6) economy; 7) greater probability of implementation of the adopted decision; 8) confidentiality; 9) the possibility of attracting experts.

In general, it should be noted that the advantages of conflict resolution in mediation compared to court proceedings are:

(1) resolution of the conflict within an insignificant period of time;

(2) non-disclosure of information obtained in the mediation process to third parties, with some exceptions;

(3) saving personal time;

(4) significantly lower costs compared to litigation costs;

(5) establishing and maintaining relations between the parties;

(6) removal of emotional tension;

(7) prevention of emotional burnout;

(8) improving the quality of life.

Mediation in courts can be implemented in dozens of different formats: from the right of the parties to suspend court proceedings for mediation to a mandatory pre-trial procedure for resolving disputes through mediation, when all cases of a certain type must go through a mediation procedure before being considered in court. Voluntary models of judicial mediation include any models that require the consent of both parties. On the contrary, mandatory models provide for an attempt to use mediation by the parties regardless of their desire (but not the obligation to reach a final resolution of the dispute).

Mediation, as an effective method of alternative dispute resolution, is widely used in the business environment, in family disputes, in the social sphere, in the IP and IT spheres, and in working with communities. For example, the use of mediation in family conflicts leads to a decrease in the number of conflicts resolved in court by up to 60%. But when it comes not only to issues of divorce, property distribution, alimony collection, determining the child’s place of residence, establishing the procedure for the participation of each parent in raising the child, in which mediation is currently the most effective tool, then this procedure can help resolve conflicts and between representatives of different generations in the family (parents-children-grandmothers), issues of inheritance, procedures for establishing guardianship and adoption, raising children. There is a concept of “mediation in mediation schools” – and it is about how to teach children non-aggressively and without conflict, without the participation of adults, that is, to independently solve controversial situations that arise between them in the circle of peers and in society, how to establish this understanding and build a new model behavior of children to get to know the world of adults. Mediation teaches how to build relationships and find solutions based on a person’s interests, values, needs, feelings, and not based only on his emotional reactions, behavior, and principled positions.

On November 17, 2023, during the round table “Judicial Power and Mediation: Points of Intersection”, the head of the CCS of the Supreme Court, Borys Gulko, noted that according to statistical data for 2022, almost 3.5 million cases were pending in the courts of Ukraine. For various reasons, a large part of them was not resolved. At the same time, the excessive length of the trial leads to a violation of the fundamental right of individuals to access to justice. Therefore, the use of the mediation procedure will contribute to reducing the burden on the judicial system. Judge of the Supreme Court of Ukraine Olena Bilokon supported the opinion on the need to introduce mediation as a mandatory pre-trial procedure in some categories of disputes. In particular, this applies to disputes regarding the determination of the child’s place of residence and (or) establishing the method of participation in the child’s upbringing.

The speaker noted that the court does not always have enough flexibility, adaptability and an individual approach to effectively resolve this category of emotionally exhausting disputes. This necessitates a wider application of new approaches and means of out-of-court settlement of family disputes, one of which is the institution of mediation. Court intervention in a family conflict usually occurs at a late stage, when the situation is very complicated. In addition, court procedures do not always take into account the special characteristics of family disputes and are excessively long.

Olena Bilokon stressed that a family conflict in which children are involved should be resolved by the court taking into account the best interests of the children. At the same time, children feel uncomfortable within court proceedings, and the concept of child-friendly court proceedings is difficult to implement in practice. In addition, there is a problem with the implementation of court decisions in cases involving children — in the absence of the willingness of each of the parties to the conflict to conscientiously and fully comply with the court order, it is very difficult to implement such decisions.

Judge of the Supreme Court of Justice of Ukraine Yevhen Synelnikov noted that the holding of such an event in the premises of the Supreme Court with the participation of judges of all instances shows that judges are aware of the need to conduct mediation procedures, its importance in preventing conflicts, resolving them, reducing the burden on the judicial system, reducing conflict in general society

It should be summarized that the use of such a tool as mediation is a worthy alternative to the judicial settlement of disputes, which consists in finding an optimal solution, fully taking into account the interests of the parties by conducting a series of negotiations, expressing opinions and proposals with the participation of a mediator as an independent person who acts on on the principles of independence and impartiality, contributes to the support and development of the culture of their relations between the parties, the achievement of a positive result and mutual understanding in the conflict (dispute) that has arisen between them. Thanks to the advantages of mediation, such as saving time, a mutually acceptable solution, voluntariness, flexibility of the procedure, and others, a quick and effective resolution of conflicts that arise in society is possible.


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