Mediation is a dispute resolution method in which an intermediary (mediator) helps the parties to a conflict establish a communication process and analyze the conflict situation in a way that allows them to make a decision on their own that will satisfy their interests and needs. In contrast to a formal judicial or arbitration procedure, the parties reach an agreement voluntarily during mediation – the mediator doesn’t make a decision for them.

Who is mediation for?

Consider the possibility of using mediation if:

Mediation procedure

Who takes part in mediation?

It is extraordinarily important that the parties personally take part in mediation. Preferably they do so with the assistance of lawyers, who will help draft the final agreement in the dispute that needs to be resolved. If all the parties agree, other persons can also be involved – for example, experts whose presence will shed light on the situation.

Why involve an intermediary who is not authorized to make a decision in the dispute?

The neutral third party in the mediation procedure has fundamental significance. He/she helps negotiations between the parties progress in such a way that the latter can independently find a resolution to the dispute. The mediator helps to bring to light and analyze the true interests of the parties, which sometimes matter far more than do their legal positions. Since parties are not always ready to speak with each other about their priorities, they often fail to arrive at an agreement in the absence of such assistance.

Is there any sense in using mediation when judicial proceedings in the case have already started?

Yes, definitely. The result of a court case can be hard to forecast, and a judicial trial remains beyond the parties' control. Also, enforcing a ruling, even if a party finds it positive, can be problematic. The direct participation of parties in developing a mutually acceptable decision makes it more likely that any agreement will be complied with and implemented. Statistics prove that agreements achieved as a result of mediation are implemented far more diligently than those that a court orders. Moreover, if a party is not content with the results of mediation, nothing prevents it from appealing to court or returning to judicial proceedings.  

What is the legal value of agreements achieved as a result of mediation?

In general, an agreement concluded as a result of mediation is valid as a civil law agreement provided it is properly notarized. If necessary, having concluded an agreement through mediation, the parties may:

Key benefits of mediation

Saving time and money. Compared with judicial proceedings, resolving disputes through mediation does not take much time and can substantially reduce costs for the parties. That is because less time is needed to consider the dispute and because there are no litigation costs. In addition, fewer company work hours are spent on the case, which also means that employees are less distracted from their immediate duties.

Privacy. The judicial trial process is open to the public and press. The result is that the details of your dispute, business relations, and private life are potentially open to the world. Confidentiality is a principle of mediation, which allows you to resolve disputes privately and with dignity.

A beneficial resolution for both parties. There is neither a winner nor a loser in the mediation process. The goal of mediation is to arrive at a resolution that satisfies both parties. Only then is mediation considered successful. The more sincere are both parties about their needs, the more likely it is that they will be able to develop a creative resolution that will satisfy their true interests, both for the situation in question and for the future. Such an approach to decision making is unlikely to be applied in court.

Greater probability that the decision will be implemented. Parties that arrive at an agreement jointly and based on their own needs are more motivated to implement it than they are decisions made by a third party (in court).

Preserving business relations. An agreement that results from mediation balances the interests and needs of its parties, making them more likely to independently assume certain mutual obligations. Such an agreement helps preserve business relations between the parties and enhance confidence in the future. This is not so after a litigation or arbitration procedure, in which one of the parties loses. Mediation is often compared with the healing process: It enables parties to frankly and directly discuss what is bothering them and to coordinate further cooperation.

Informal process. The traditional judicial trial is a competitive procedure. It can even be aggressive if its parties are hostile to each other. Attention is focused on facts, not on the true interests of the parties. The parties communicate with each other indirectly – through lawyers and the judge. In contrast, mediation helps the parties develop a direct dialogue and to collaborate in finding a resolution to the problem. Mediation reduces the emotional tension that a conflict creates. Participants can therefore "open up" and find the best way to resolve the dispute. Moreover, mediation makes it possible to discuss and coordinate a wide range of mutually related issues, not only those narrowly restricted to the dispute.

Key mediation principles

Voluntary participation. Parties take part in mediation on a voluntary basis – from the point when they decide to participate in mediation, to its realization, to the process of formulating agreements, to the implementation of these agreements. Self-determination is a fundamental principle of mediation. It requires that the process of mediation be grounded in the parties' ability to achieve a voluntary, mutually acceptable decision.

Confidentiality. Everything that takes place during mediation is confidential. Any information, records, reports, or other documents disclosed to the Ukrainian Mediation Center (UMC) and the mediator during preparation for mediation or developed during it remain confidential. The mediator has no right to disclose to the other party or other persons information that a party gives him during a private meeting without that party’s authorization. Confidentiality is mandatory and the agreement that participants in the mediation sign provides for it.

Independent intermediary. Each party has the right to independently select a mediator from the register of the UMC's independent mediators. The mediator that the parties select and the UMC appoints is obliged to inform the parties and the UMC whether he/she has any personal or financial interest in the mediation's outcome or about any other circumstances of which he/she knows that can cause a conflict of interests.

Impartial intermediary. The opinion of each of the parties is equally important to the mediator. The mediator has no right to express his/her own opinion about the essence of the conflict. An impartial mediator is central to mediation. Impartiality implies a lack of favoritism and an unbiased attitude. A mediator is barred from accepting gifts, services, or other benefits the receipt of which can cause doubts as to his or her impartiality.

Competence of the parties. Mediation can be interrupted or terminated at any moment at the initiative of any of the participants. Each party independently determines who will participate in the process (lawyers, relatives, authorized representatives, and so on). Finally, the parties independently decide on under what conditions they will enter into an agreement or terminate the mediation.

Flexible procedure. Since parties to a dispute are supposed to accede to all agreements the mediation achieves, they maintain control over the process. The parties make a decision on a voluntary basis, with no pressure from the mediator. Parties have the right to reject any solutions suggested and to apply other methods of resolving the dispute.

The mediation format and the scope of the mediator's authority

Mediation can take place in either joint or private (mediator-party) sessions. Each party must have an equal chance to participate in the discussion.

The mediator can conduct the sessions in the way that he/she considers appropriate, taking into account the circumstances of the case, the expectations of the parties, and the need for a quick and efficient resolution. The mediator is not authorized to make a decision for the parties. The mediator can terminate mediation if, in his/her opinion, the parties do not put sufficient effort into resolving the dispute.