The International Forum “MEDIATION AND LAW” Explored the Issue of Synergy of the State and Mediation for the Post-war Rebuilding of Ukraine
The VII INTERNATIONAL FORUM “MEDIATION AND LAW” organized by the Ukrainian Academy of Mediation within the framework of the EU Project CONSENT with the support of the EU Project Pravo-Justice and the USAID Justice for All Activity took place on July 26-29.
Manager of the EU Project Pravo-Justice Clement Hut and Legal Advisor of the USAID Justice for All Activity Iryna Zaretska addressed to the participants to the forum – representatives of the Ukrainian central authorities and members of the national and international community of mediators – with welcome speeches.
Clement Hut noted that because of Russia’s full-scale military invasion, the scale of introduction and promotion of mediation following the implementation of the Law “On Mediation” turned out to be more modest than one could expect. “At the same time, we understand how topical the development of mediation in Ukraine is, that is why the EU Project Pravo-Justice continued its activities aimed at developing, promoting, and raising public awareness. In particular, the Project is working on the development of a communication strategy on mediation, which we will present already this September,” said the Manager of the EU Project Pravo-Justice. According to Clement Hut, mediation and alternative dispute resolution are the inevitable future of modern justice systems. “By developing mediation, not only we expand the boundaries of access to justice and relieve the judicial system, but also shape a culture of peaceful dispute settlement,” he said.
For her part, Iryna Zaretska called on the professional community to unite efforts for further development of mediation in Ukraine, for its better understanding by the wide public, and for the proper remuneration of those who represent and practice mediation.
“We knew how to be united when developing the Law “On Mediation” or when supporting our defenders. We can do it. The main thing is to feel the urgent need for such a union, and it is already there,” said the Legal Adviser of the USAID Justice for All Activity.
Within the framework of the forum, a number of events were held, dedicated to specific topical topics in the field of mediation. In particular, a discussion panel on the topic "State and mediation: synergy for post-war recovery".
A number of events, dedicated to some specific relevant topics in the field of mediation, took place within the framework of the Forum; including, the discussion panel on the topic “State and Mediation: Synergy for Post-war Recovery”.
Chairman of the Parliamentary Subcommittee on legal policy Roman Babii spoke about the role of mediation in wartime and for the post-war rebuilding of Ukraine and setting-up the system of fair dispute resolution “We live in a difficult time, but paradoxically as it sounds, it opens up a window of opportunity for mediation and for alternative dispute resolution in general. It is very important now not to miss this window of opportunity and get use of it. After all, the demand for justice, which is especially acute in wartime, is not gone; on the contrary, it has been growing drastically,” said the Member of Parliament.
According to Roman Babii, among all methods of out-of-court dispute resolution, mediation has some advantages: specific law and unsullied reputation, etc. “The benefits of mediation for the judicial system are obvious. By and large, it relieves the burden on the courts; facilitates the courts to issue better decisions; and allows more time to analyze certain cases to issue high-quality decisions,” he said.
Roman Babii also reported that currently the draft law on court mediation was supported by the Committee on Legal Policy and is being prepared for consideration at the session. “In the future, there may be more drastic changes, but let us move on step by step,” said the Member of Parliament.
For his part, Deputy Minister of Justice Oleksandr Banchuk informed that within the framework of the initial check of Ukrainian legislation against the respective EU legal acts, as part of the preparatory work for the start of negotiations on membership in the European Union, at least one document related to the field of mediation was discovered, namely EU Directive “On Certain Aspects of Mediation in Civil and Commercial Matters” (2008). According to the deputy minister, in the future, the implementation of its principles will require changes to Ukrainian legislation. “Before the moment of accession, we will have to review our legislation for compliance with these provisions and this directive,” emphasized Deputy Minister Banchuk.
Oleksandr Banchuk also informed that the Ministry of Justice created the Register of Mediators. At the moment, it lists 104 professionals. According to the Deputy Minister, they will be involved in the restorative justice program for minors.
“Even the preliminary implementation of restorative justice shows that with the mediators being involved, some 400 minors received help – they were released from criminal liability. This is also a very practical result that was achieved, in particular, with the help of mediation,” he said.
The Deputy Minister of Justice also announced that the government is considering involving mediators, alongside defense lawyers, through the free legal aid system at the budget expense.
Uliana Tokarieva, Deputy Minister of Social Policy, spoke about the development of mediation as a social service. According to her, the social sphere actively uses mediation tools.
“Actually, from the point of view of family policy, of supporting people in difficult life circumstances, mediation is very important. The Law “On Social Services”, namely Art. 16, says that mediation is a basic social service, i.e. one that shall be available in the community and shall be financed at the expense of local self-government,” said Uliana Tokarieva.
She reported that the Ministry of Social Policy had included mediation in the basic list of social services, which will be financed at the expense of international organizations during the war.
The Deputy Minister of Social Policy also said that the Ministry has started work actively on the digitization of the Register of Social Service Providers, where mediators will be able to register, among others. “It is important for us to make sure that all those who can provide this service have the opportunity to communicate with service users, that is, with various social organizations,” she explained.
Besides, Uliana Tokarieva informed that the Ministry of Social Policy was working to bring Ukrainian legislation in compliance with the Istanbul Convention.
“There are proposals to the Family Code, to the Law of Ukraine “On Mediation”, aimed at making it impossible to apply reconciliation measures in cases where one of the spouses commits domestic violence. Mediation shall not be deemed as an alternative in such cases”, emphasized Deputy Minister Tokarieva.
Member of the High Council of Justice Inna Plakhtii spoke about the interaction between mediation and the judicial system.
She said that, in wartime, resorting to mediation as an alternative dispute resolution is better, because mediation procedures are not as stressful as court proceedings.
“Besides, the legislator has already integrated mediation into most court processes. Even before the law on mediation was adopted, mediation was present in courts. I know, like no one else, that mediation has been working. There was no unsuccessful mediation for me, as a judge, because it resulted anyway in decreasing the degree of conflict; and it was much easier to make a decision”, noted Inna Plahtii.
Inna Plakhtii said she hoped that heads of judicial authorities and mediators will intensify their cooperation in order to make things easier and to reduce the emotional tense when solving a conflict in such a difficult time for Ukraine, by way of referring the parties to mediation.
"There is a lot of support for the initiative of both in-court mediation proceedings and restorative justice program. This is definitely an expansion of possibilities of dispute and conflict resolution, said the HCJ Member.
In the meantime, the judge of the Supreme Court, Nadiia Stefaniv, highlighted the fact that mediation allows not bringing to court a large number of cases of minor crimes and, thus, to reduce the burden on judges as well as the terms of consideration of such cases, which has a positive effect, including on trust to the judiciary in general.
She assured that the Supreme Court will continue actively participating in the development of draft laws on alternative dispute resolution. “I call on every representative of either public authorities or mediation community, or bar community to promote the use of such methods that allow reaching an understanding,” she said.
Deputy Prosecutor General Viktoriia Litvinova said that mediation is one of key priorities in the activities of the public prosecutor’s office. She developed, among others, on its perspectives based on some success stories which took place in the framework of piloting a rehabilitation program for minors who are suspected of committing criminal offenses, which was implemented in six regions.
“When working with minors who have problems with the law and when developing child-friendly justice, it is very important to promote further use of restorative approaches by those entitled to interrogate and interview: investigators, prosecutors, and judges. The adoption and entry into force of the Law “On Mediation” has significantly expanded such possibilities. The Office of the Prosecutor General, together with the Ministry of Justice, the Ministry of Internal Affairs, and representatives of the community of mediators, is currently working on expanding the project’s capacity to involve all mediators into the mediation within criminal proceedings against minors, rather than only those who cooperate with the free legal aid system,” said Viktoriia Litvinova.
According to her, the Office of the Prosecutor General considers it necessary to have the program covering all minors who have committed a criminal offense, regardless of its severity.