In order to improve access to justice, USAID and other donors have promoted establishment of alternative means of dispute resolution in Ukraine, in particular, in the area of developing the regulatory framework for implementation of mediation since 2015. Since then, several draft laws have been introduced and registered in the Verkhovna Rada, yet they have been withdrawn due to rotation of the Parliament and composition of the Government.
During a regular online meeting of rule of law donors and implementers, its participants discussed the draft Law of Ukraine “On Mediation” (No. 3504) prepared by the working group of the Ministry of Justice (MOJ) and introduced by the new Government and registered in the Parliament on 19 May 2020.
Director of the MOJ’s Directorate for Justice and Criminal Justice Oleksandr Oliynyk provided an overview of key provisions of the draft Law developed with active engagement of representatives of the community of mediators.
Mr. Oliynyk noted: “It is optimal. We have used international experience to develop a framework draft law that is limited to those provisions that would provide a possibility to launch a legislative mechanism for regulation of the institution of mediation and promote its development.”
The draft Law determines key legal principles and the procedure of conducting mediation in Ukraine, including the status of the mediator, requirements to mediators and to their training, establishment of registers of mediators, rights and obligations of parties to mediation, content of the agreement on mediation and agreement pursuant to its results, as well as the procedure of conducting mediation during judicial and arbitration proceedings. The draft Law envisions introduction of a range of amendments into respective regulations.
Oleksandr Oliynyk emphasized that provision of the legislative framework for the procedure and mechanism of conducting mediation would finally become a start for the profession of the mediator and would allow it to demonstrate its full potential since authors of the draft law wanted to avoid excessive interference of the state with the mediation sphere. Everything falls on the professional community, and based on how effective this community will work and whether it will result in an increase in the percentage of cases with engagement of the mediation process to settle disputes it will become clear how justified and current this path has been.
Deputy Director of the Department for International Law of the Ministry of Justice Kateryna Shevchenko presented efforts of the Government aimed at building a platform for implementation of the UN Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) signed by the Minister of Justice of Ukraine on August 7, 2019. She pointed out that once the legislator adopted the updated Law on Mediation, the Parliament would receive accordingly revised draft laws on ratification and implementation of the Singapore Convention.
Kateryna Shevchenko emphasized: “We recognize that it is necessary to encourage the use of mediation by Ukrainian and foreign entities as an alternative means of dispute settlement, and we perceive this particular Convention as a tool that will really promote that.”
Professional mediator Luiza Romanadze, President of the Ukrainian Academy of Mediation, and Ella Kataeva, Judge of the Odesa Circuit Administrative Court, joined the discussion of provisions of the draft Law “On Mediation”.
Luiza Romanadze, as a co-author of draft laws on mediation who is a member of the working group of the Ministry of Justice tasked with preparing suggestions on ratification of the UN Singapore Convention, voiced opinion of the community of mediators that the updated draft Law would be the best out of 13 that had been officially registered in the Parliament. She pointed out:
“This is an inspiring example of collaboration between public authorities, namely, the Ministry of Justice in this particular case, and mediators. Mediators have been heard with respect to almost all discussion issues.”
Luiza Romanadze thinks that it is currently necessary to have a framework law on mediation that would introduce mediation in the legal field and determine its main principles.
With respect to next steps she mentioned awareness-raising activities in the Verkovna Rada before adoption of the law, informational and training activities for stakeholders, application of the law after its adoption and pilot at-court mediation programs, analysis of the practice of the law application and results of pilot programs, as well as introduction of respective amendments into the law.
In turn, Judge Ella Kataeva emphasized that in the circumstances of the staff deficit that currently exists in the court system adoption of the Law on Mediation would contribute to a decrease in the judges’ workload and promote a more effective judicial protection. She also pointed out the importance of informing about the essence of the mediation procedure, including corresponding training of judges, creation of open registers of mediators and mediation rooms in courts, as well as placement of information boards, printed and digital information materials on benefits of mediation and access to it.
The new draft Law evoked a lot of interest among participants of the meeting who expressed hopes during an active discussion that it would be adopted by the Parliament.