Business mediation

Out-of-court dispute resolution. A partner of the association is a Wirtschaftsmediator IHK (2018).

Mediation is a procedure governed by law in which the parties themselves make the decision. Its definition, principles, requirements for a mediator, procedure and documents are determined by the Law of Ukraine “On Mediation”.

This is the only practice area on this site that involves neither a criminal charge, nor a preventive measure, nor a judgment. What follows therefore sets out boundaries rather than stages: what the law governs and where the line runs between mediation and related institutions. The provisions are identified as orientation; an advocate applies them to a particular dispute.

The framework: law, court and arbitration

The right to judicial protection is guaranteed by Article 55 of the Constitution of Ukraine; recourse to mediation does not remove it. Domestic arbitration is governed by the Law of Ukraine “On Courts of Arbitration”, and international commercial arbitration by the Law of Ukraine “On International Commercial Arbitration”. The boundary is drawn not by how formal the procedure is, but by who makes the decision: a court or arbitral tribunal in court proceedings and arbitration; the parties themselves in mediation.

Scope The Law of Ukraine “On Mediation” determines the conflicts (disputes) in which mediation may be used. The parties themselves decide what to place before the mediation, within the limits set by the same Law.

Principles

The Law of Ukraine “On Mediation” identifies the principles of mediation: voluntary participation, confidentiality, neutrality, the mediator’s independence and impartiality, self-determination, and equal rights of the parties.

Confidentiality is not a single rule Confidentiality in mediation is established by the Law of Ukraine “On Mediation”; an advocate’s professional secrecy is governed by Article 22 of the Law of Ukraine “On the Bar and Legal Practice”. These are different rules in different instruments; whether their boundaries coincide is a question for an advocate.

Two roles that do not coincide

A mediator does not represent either party: neutrality, independence and impartiality are identified as principles in the Law. Article 19 of the Law of Ukraine “On the Bar and Legal Practice” lists the types of legal practice; the Law of Ukraine “On Mediation” sets the restrictions on acting as a mediator; an advocate’s conflict of interests is addressed by the Rules of Advocates’ Ethics.

A party with its own advocate Participating in mediation with one’s own advocate is a different role from that of the mediator, and the applicable rules differ: the principle of the mediator’s neutrality is set out in the Law of Ukraine “On Mediation”; the advocate’s duties to the client are set out in the Law of Ukraine “On the Bar and Legal Practice” and the Rules of Advocates’ Ethics.

Contract and agreement: two different documents

The Law of Ukraine “On Mediation” distinguishes an agreement to conduct mediation from an agreement resulting from mediation. The general rules on contracts are found in the Civil Code of Ukraine: freedom of contract in Article 627; the relationship between an act of civil legislation and a contract in Article 6; termination of an obligation by agreement of the parties in Article 604; and the grounds for amendment or termination of a contract in Article 651. Article 259 of the Civil Code governs alteration of the limitation period by agreement of the parties.

Enforcement Compulsory enforcement is governed by the Law of Ukraine “On Enforcement Proceedings”. Whether, under what conditions and in what form an agreement resulting from mediation opens a route to enforcement is a question for an advocate. That question determines what the parties’ arrangement amounts to outside the negotiation room.

When the dispute is already before a court

Settlement of a dispute with the participation of a judge is a separate institution under the Commercial Procedure Code and the Civil Procedure Code of Ukraine; it is conducted by a judge and is not mediation under the Law of Ukraine “On Mediation”. The same Codes govern the parties’ settlement agreement and the return of part of the court fee paid when such an agreement is concluded. A stay of proceedings in connection with mediation is likewise a matter of procedural law.

Mediation and criminal proceedings

A reconciliation agreement between the victim and the suspect or accused is a separate institution under the Criminal Procedure Code of Ukraine: Article 468 lists the types of agreements, while Article 469 governs their initiation and conclusion. The same Article identifies who may conduct negotiations for such an agreement and who may not participate in them.

The general course of criminal proceedings is outside the scope of this page. Criminal defence

Qualification

Yevhen Shkuridin, a partner of the association, holds the qualification Wirtschaftsmediator/-in IHK, awarded by the Chamber of Commerce and Industry for Munich and Upper Bavaria (Industrie- und Handelskammer für München und Oberbayern). The training ran from September 2017 to February 2018; the assessment comprised a theoretical and a practical examination; the programme partner was the Ukrainian Mediation Center, Kyiv.

Mediation does not guarantee an agreement. If the parties do not reach one, the dispute is resolved in accordance with the procedure established by law.