Mediation has existed in Ukraine for almost 30 years. During this time, a large number of practicing mediators have been trained, extensive experience has been gained in using mediation to resolve various conflicts, and a strong pool of expert professionals in the field of mediation has been created. The development of mediation was not significantly hindered by the long absence of a specialized law, which was eventually prepared with the participation of Ukrainian mediators and adopted on 16 November 2021 (Law of Ukraine “On Mediation”).
Law of Ukraine “On Mediation”
The Law of Ukraine “On Mediation” is a framework law, meaning that it contains the main definitions, outlines the scope of application, establishes the principles of mediation, defines the status of a mediator, the rules for conducting mediation, and its legal consequences.
Separate provisions regarding the possibility of reconciliation of the parties to a dispute through mediation have been included in the Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and some other sector-specific laws. The court informs the parties about the possibility of resolving a dispute through mediation and suspends the proceedings for the duration of mediation. If the parties reach reconciliation, up to 60% of the court fee paid may be refunded.
Mediation may be conducted to resolve any conflicts or disputes, including civil, family, labor, commercial, administrative disputes, as well as cases involving administrative offenses and criminal proceedings for the purpose of reconciling the victim with the suspect or accused.
Mediation may be conducted before applying to a court, arbitral tribunal, or international commercial arbitration, or during a pre-trial investigation, court, arbitral, or arbitration proceedings, or during the enforcement of a decision of a court, arbitral tribunal, or international commercial arbitration.
At present, mandatory pre-trial dispute resolution through mediation is not provided for, although work is already actively underway to identify categories of disputes for which it may be introduced.
Measures are being taken to introduce court-connected mediation, including the piloting of court-connected mediation in certain courts.
Mediation is also one of the basic social services which, in accordance with the Law of Ukraine “On Social Services”, may be provided free of charge to individuals or families in difficult life circumstances.
The Free Legal Aid system helps ensure access to mediation by providing information about it and also ensures mediation in proceedings involving minors suspected of committing criminal offenses.
The provision of mediation services by a mediator is formalized by an agreement to conduct mediation, which may be concluded orally or in writing.
If the parties reach an agreement, an agreement based on the results of mediation is concluded. It has the status and binding force of a civil law contract and may be concluded orally or in writing. If the terms of the agreement reached through mediation are not fulfilled, a party may apply to court with the relevant claim.
If court proceedings are pending, the agreements reached through mediation regarding the subject matter of the dispute may be set out in the form of a settlement agreement and submitted to the court for approval. If approved by the court, the court ruling containing the parties’ agreements may be subject to compulsory enforcement.
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Requirements for a mediator
A mediator may be an individual who has completed basic mediator training in Ukraine or abroad. A person with a criminal record, a person whose civil legal capacity is limited, or a legally incapacitated person cannot act as a mediator.
Basic mediator training is carried out under a program with a duration of at least 90 hours of training, including at least 45 hours of practical training. The basic mediator training program includes theoretical training and the development of practical skills. Upon completion of the training, a certificate is issued, accompanied by a list of the components of the training program and the competencies acquired.
A mediator may not act as a representative or defense counsel for any party to mediation in a pre-trial investigation, court, arbitral, or arbitration proceedings. A mediator cannot be questioned as a witness in court.
The law does not provide for the creation of self-governing bodies of mediators or for the maintenance of a nationwide register of mediators.
Associations of mediators and entities that provide mediation services maintain their own registers of mediators.
Ukrainian mediators form a professional community which, even in the absence of self-governing bodies, is capable of finding constructive common solutions for the development of mediation. In particular, the Ukrainian mediation community has contributed to the creation of standards for basic and specialized mediator training, the development of ethical foundations for mediator activity, participation in lawmaking, the creation of tools for the public to find mediators, advocacy campaigns promoting mediation, and more.
