Roundtable Discussion on Interaction between Judiciary and Mediation Held at the Supreme Court

On 16 November, a roundtable discussion “Judiciary and Mediation: Points of Interaction” dedicated to the second anniversary of adopting the Law of Ukraine “On Mediation” was held in Kyiv. The event organised by the Supreme Court with the support of EU Project Pravo-Justice was attended by Supreme Court justices, appellate and local court judges, and representatives of the legal community.

Opening the event, Borys Hulko, President of the Cassation Civil Court within the Supreme Court, congratulated the participants on the second anniversary of the Law of Ukraine “On Mediation”.

“Mediation is widely used in global and European practice of dispute resolution. The Law of Ukraine “On Mediation” opened a new page in developing alternative dispute resolution. According to statistics for 2022, almost 3.5 million cases were pending in Ukrainian courts. For various reasons, a significant number of these cases have not been resolved, and overly lengthy court proceedings lead to a violation of the fundamental right of individuals to access to justice,” he said.

Thus, according to Borys Hulko, using mediation will help reduce the workload on the judiciary in resolving any disputes.

“At the same time, there are still many issues that remain open for discussion. In particular, it is necessary to promote mediation in society and raise awareness in the judicial community on how it can facilitate this process,” said the President of the Cassation Civil Court within the Supreme Court.

In her turn, Oksana Tsymbrivska, Country Manager of EU Project Pravo-Justice, joined the congratulations. She noted that mediation in Ukraine has been in place for many years, yet, despite the obvious advantages of the service, unfortunately, one cannot say that mediation has become widespread and a regular part of the dispute resolution culture.

Oksana Tsymbrivska reminded that within the framework of the Strategy for the Development of Judiciary and Constitutional Justice for 2021-2023, Ukraine has recognised that it is necessary to develop mediation in the context of ensuring access to justice, making the country more attractive for investment and reducing social tension. During wartime, according to the Country Manager of EU Project Pravo-Justice, the emotional component is extremely relevant for Ukraine.

“Mediation is a unique tool for achieving the objectives set out in the Strategy because it is based on the parties’ interests. During mediation, the parties to a conflict try to reach a fair solution. Understandably, mediation does not always lead to a consensus, and this is also a normal thing, but after participating in mediation, the parties will have a better understanding of the causes behind their conflict, their requirements, and they will not experience negative emotions. Therefore, even after the parties come back to court, the emotional tone of the process becomes completely different,” she said.

Moreover, Oksana Tsymbrivska called for efforts to make the development of mediation systematic, comprehensive and sustainable: “This is a priority among priorities.” In this context, it is particularly important to widely inform the parties about what mediation is and what its benefits are. Therefore, EU Project Pravo-Justice has developed a comprehensive strategy on how to communicate about mediation.

“Mediation needs to be communicated coherently and consistently. These are two important elements to achieve progress and certain outcomes that we all so much expect after two years the Law has been in force,” she concluded.

Luiza Romanadze, EU CONSENT Project Team Leader, spoke about the key features of the Law of Ukraine “On Mediation” and outlined certain challenges that currently arise in Ukraine regarding mediation.

“Today we have more achievements than challenges. However, they do occur. For example, uneven state support for developing mediation in certain areas, and shifting priorities because of the full-scale invasion. Also, there is no example of the state of Ukraine using mediation,” emphasised Luiza Romanadze.

She noted that, unfortunately, the fact that there is no updated state standard for social mediation services still remains unresolved. Also, according to Luiza Romanadze, the lack of relevant statistics on mediation is still a problem.

At the same time, Svitlana Sierheieva, Vice President of the Ukrainian Academy of Mediation, EU Project Pravo-Justice II expert, noted that, despite some challenges, mediation in Ukraine is gradually developing, inter alia thanks to a strong mediation community.

“A lot has been done over all these years. In particular, legislative initiatives have been developed, informational and research materials and online resources have been prepared. It also includes training mediators and promoting mediation. For example, EU Project Pravo-Justice drafted a Communication Strategy for Mediation which aims to create a unified image of the service and is designed to further raise public awareness in this area,” Ms. Sierheieva said.

In his turn, Andrii Ryshchenko, Judge of the Dnipro District Administrative Court and President of NGO GEMME Ukraine, stressed that a lot of work has been done in the area of mediation in recent years. For example, he emphasised that mediators now have many training opportunities. However, he also believes that the service is still not popular in Ukraine compared to other countries. According to him, it is necessary to rectify this situation, in particular by involving judges in promoting mediation.

“We need to promote mediation and explain to the public how it works. I am convinced that people who come to courts should receive this information,” Mr. Ryshchenko added.

Maksym Khodakivskyi, Judge of the Zhovtnevyi District Court of Dnipro, Member of the Board of GEMME Ukraine, also emphasised the role of judges in promoting the service. He also noted that there are still many representatives of the judicial community who are unaware of how mediation works. Therefore, according to him, it is necessary to involve judges in the awareness-raising process, as well as share the experience of international colleagues and experts.

Vitalii Kalnyk, Chair of the Independence Committee of the Council of Judges of Ukraine, outlined the main problems associated with the effective functioning of mediation in Ukraine and proposed to revisit creating certain tools for registering and monitoring mediators and their performance.

Maksym Titov, a justice of the Cassation Civil Court within the Supreme Court, said that amicable conflict resolution is a feature of a successful, healthy, mature state and society. Therefore, the court should play a “negative” role in promoting mediation.

“The party that did not resort to mediation or peaceful settlement of the conflict must bear the negative consequences if it loses: this includes court fees, other litigation costs, and losing in court. I believe that this is the only way we can get people to turn their attention to peaceful dispute resolution,” he said.

It should be reminded that the Law of Ukraine “On Mediation” was adopted on 16 November 2021. It defines the legal grounds and procedure for conducting mediation as an out-of-court procedure for resolving a conflict (dispute), the principles of mediation, the status of a mediator, requirements for their training and other issues related to this procedure.

The video recording of the roundtable is available at link.