Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 02/06/2021 Aceptado el 08/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 238-249
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Principles of mediation as an alternative
way to protect human and citizen rights
DOI: https://doi.org/10.46398/cuestpol.3970.15
Nadiya Bortnyk *
Olha Tylchyk **
Galina Lukyanova ***
Olha Skochylias-Pavliv ****
Olesіa Remenіak *****
Abstract
The purpose of the investigation is to analyze the principles
of mediation as an alternative way of protecting human and
civil rights specied in Ukraine’s draft law “On Mediation”,
to reveal their relationship and interdependence. During the
investigation, it was recognized that mediation should be
understood as negotiations organized in a special manner with
the participation of a neutral mediator who assists the parties in
developing a mutually benecial solution. This approach can be considered
one of the most eective ways to restore violated subjective human rights.
The methodology includes a comprehensive analysis and generalization of
the available scientic and theoretical material, as well as the formulation
of relevant conclusions. During the research, the methods of scientic
cognition were also used: terminological, logical-semantic, functional,
system-structural, logical-normative. During the research, it was concluded
that the formation of legislation on mediation should be based on the
principles of mediation determined on the basis of the theoretical and
* Nadiia Bortnyk, Professor, Doctor of Science in Law, Head of the Department of Administrative
and Information Law of the Educational-Scientic Institute of Law and Psychology, Lviv Polytechnic
National University, Ukraine. ORCID ID: https://orcid.org/0000-0003-1794-2793. Email:
bnp1969n@gmail.com
** Olha Tylchyk, Professor, Doctor of Science in Law, Department of Administrative Law and Process
and Customs Security, University of State Fiscal Service of Ukraine, Ukraine. ORCID: https://orcid.
org/0000-0002-7604-7660 Email: o.v.tilchik@ukr.net
*** Halyna Lukianova, Assistant Professor, Candidate of Science in Law, Associate Professor at the
Department of Administrative and Information Law of the Educational-Scientic Institute of Law,
Psychology and Innovative Education, Lviv Polytechnic National University, Ukraine. ORCID ID:
https://orcid.org/0000-0003-1109-9299. Email: lukianova@ukr.net
**** Olha Skochylias-Pavliv, Assistant Professor, Candidate of Science in Law, Associate Professor at
the Department of Administrative and Information Law of the Educational-Scientic Institute of
Law, Psychology and Innovative Education, Lviv Polytechnic National University, Ukraine. ORCID ID:
https://orcid.org/0000-0001-6737-7628. Email: olypav2019@gmail.com
***** Olesіa Remenіak. Candidate of Science in Law, Senior Lecturer at the Department of History
of Ukraine, Economic Theory and Law of the National Forestry University of Ukraine. ORCID
ID: https://orcid.org/0000-0002-5175-1280. Email: oremenyak@ukr.net
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methodological analysis of the principles contained in the legislation in
force in the developed world and the principles of law, as well as dened by
the Constitution of Ukraine.
Keywords: mediation process; dispute; negotiations; principles of
mediation; mediator.
Principios de la mediación como forma alternativa de
proteger los derechos humanos y ciudadanos
Resumen
El propósito de la investigación es analizar los principios de la mediación
como una forma alternativa de proteger los derechos humanos y civiles
especicados en el proyecto de ley de Ucrania «Sobre la mediación», para
revelar su relación e interdependencia. En el transcurso de la investigación,
se reconoció que la mediación debe entenderse como negociaciones
organizadas de manera especial con la participación de un mediador
neutral que asiste a las partes en el desarrollo de una solución de benecio
mutuo. Este enfoque puede considerarse una de las formas más efectivas
de restaurar los derechos humanos subjetivos violados. La metodología
incluye un análisis integral y generalización del material cientíco y
teórico disponible, así como la formulación de conclusiones relevantes.
Durante la investigación se utilizaron también los métodos de cognición
cientíca: terminológico, lógico-semántico, funcional, sistema-estructural,
lógico-normativo. En el transcurso de la investigación, se estableció como
conclusión que la formación de la legislación en materia de mediación debe
basarse en los principios de mediación determinados en base al análisis
teórico y metodológico de los principios contenidos en la legislación vigente
en el mundo desarrollado y los principios del derecho, así como lo denido
por la Constitución de Ucrania.
Palabras clave: proceso de mediación; disputa; negociaciones;
principios de mediación; mediador.
Introduction
The main ways to protect violated rights, freedoms and legitimate
interests are litigation and other jurisdictional mechanisms for resolving
legal disputes. Due to the rapid development and formation of civil
society, these methods are not always eective enough. Reconciliation, as
a way of resolving the conict, plays a signicant social role, which is to
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Principles of mediation as an alternative way to protect human and citizen rights
restore and preserve social harmony and to ensure a sense of stability and
condence of the participants in public relations in the existing legal order.
Reconciliation in law is seen as a complex legal institution that combines
dierent procedures provided by law, as a special way to inuence public
relations.
Mediation is a new promising way to resolve disputes in both the public
and private spheres. In Ukraine, at the level of legislative initiatives, the
foundations have been formed for the introduction of mediation and
mediation procedures, but these legislative novelties require the formation
of a clear theoretical basis.
The need to introduce the institution of mediation in the domestic
legal system is extremely high, which is based on the positive results of the
practice of applying the institution of reconciliation in many countries, and
this shows its eectiveness. In addition, this is in line with Ukraine’s general
position on the harmonization of national legislation with EU legislation.
Analysis of the content of international legal acts on mediation, in
particular in terms of their denitions of “mediation” and mechanisms to
stimulate the integration of mediation into national legislation, shows the
importance of mediation at the international level as a tool with signicant
potential to reduce conict and labor burdening the courts, reducing the
duration, reducing nancial costs and facilitating dispute resolution and
conict resolution procedures in various areas of public relations (civil,
commercial, criminal and administrative proceedings, international
relations, family and labor jurisdictional and non-jurisdictional disputes).
1. Literature review
I. Yasynovsky (2014) devoted his research to the historical aspect of
the development of the institution of mediation and modern trends in
its development. Problems of theory and practice are considered by N.
Mazaraki, who notes that in contrast to litigation, which is strictly regulated,
formalized, and focused on the essence of the claim, mediation allows a
exible approach to dispute resolution, taking into account all aspects of
the dispute, regardless of their legal or legal signicance. The main task
of judicial settlement of disputes for the parties is to resolve the dispute
in their favor, and for judges – to make such a decision. At the same time,
in the process of mediation the parties face the task of nding a mutually
acceptable (compromise) solution to the dispute between them, based on
the principles of voluntary participation and equality of the parties, and the
role of mediator – competently and professionally assist parties in nding
such a solution (Mazaraki, 2016).
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Considering the issue of mediation through the prism of European
experience and Ukrainian realities, N. Bezkhlibna notes that for Ukraine
the issue of the need to implement the law “On Mediation” has long been
controversial among the mediation community. On the one hand, this is
due to the fact that mediation is a way of resolving disputes, the application
of which in the private sphere does not require the mandatory existence
of a certain legal framework. This process is voluntary for the parties and
exible. As a rule, it is carried out on a contractual basis and may well “t”
into the plane of the existing regulation of civil and commercial relations
(Bezkhlibna, 2019).
2. Results and discussion
Instead, it should be noted that mediation mechanisms cannot replace
an eective, fair and accessible judicial system, and therefore mediation
is complementary to existing dispute resolution and conict resolution
mechanisms.
However, the general international trend is that the scope of guarantees
and the variety of mediation mechanisms are expanding and have the
preconditions for a signicant increase in the future, giving signicant
impetus to the development of national legislation on mediation.
Ukraine’s integration into the European social and legal space
necessitates rethinking a number of key concepts and principles underlying
the theoretical modeling and practical implementation of legal regulation
and necessitates improving the system for resolving disputes arising in
various spheres of human life (Yesimov, 2020). The urgency of peaceful
settlement of legal disputes is due to the consideration by the Verkhovna
Rada of Ukraine of the draft law “On Mediation”, which aims to promote
the development of business partnerships and harmonization of social
relations (Draft Law of Ukraine “On Mediation”, 2020).
The essence of mediation is manifested in a combination of two opposite
elements – the autonomy of the parties and guarantees to develop a common
position and achieve a mutually benecial result. Any legal system can be
viable if it is built and operates on the basis of certain consistent principles
(Tylchyk and Leschynsky, 2021).
Under the principles of law should be understood as the original, cross-
cutting ideas, general requirements that express the main and decisive in the
legal framework of society. The principle is an ideological category, because
the principles of mediation enshrine people’s attitude to this institution as a
social value. In the scientic literature to the deontological, legal principles
of mediation, construction and implementation of meditative mechanisms
for dispute resolution and conict resolution include:
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Principles of mediation as an alternative way to protect human and citizen rights
– legal principles: the principle of freedom and informed voluntariness
of the parties and mediators; equality of the parties in the mediation
process; independence of the parties in the mediation process; non-
competitiveness; simplicity and speed of the mediation procedure,
exibility and informality; limited powers of the mediator (the
mediator does not have the authority to impose a dispute resolution
on the parties); condentiality (condentiality and professional
secrecy of data obtained during the mediation procedure, unless
the parties have agreed otherwise than the information that must
be disclosed in accordance with applicable law or for the purpose
of enforcing a mediation agreement, the information the disclosure
of which required in the interests of public order); prohibition of
harm (this principle requires mediators to avoid the procedure so
that the conict is exacerbated or its participants will be harmed);
special attention to the interests of children, the disabled, the elderly,
dependents (this principle determines the duty of the mediator
to make sure that the proposed option for resolving the dispute
will not harm third parties who may be children); professional
multidisciplinary nature of the mediator (he must have a certain set
of professional competencies in law, psychology, conict, economics,
etc.); the presence of the expressed consent of the parties to the
presence of third parties, as a condition of such presence:
– communicative and psychological principles that have legal
signicance: the integrity of the parties to the conict and the
mediator; impartiality and neutrality of the mediator; personal
nature of the mediation procedure (personal presence of the parties
and the mediator) and direct interaction of the parties; ethics of
behavior and the desire for psychological comfort during mediation
procedures (the desire for mutual trust, the refusal of mutual
invectives, resentment).
The draft law “On Mediation” contains the principles of voluntariness,
equality of arms, neutrality and impartiality, condentiality. Experts in the
eld of mediation suggest the possibility of continuing the discussion on
the qualitative and quantitative composition of those principles that are not
reected in Art. 3 of the draft law “On Mediation” and are derived from
the general content of the legislation (dispositiveness, mutual respect of
the parties, neutrality of the mediator, transparency of the procedure and
others).
It is important to note that there is no legislative denition of the
principles of mediation. In order to study the problem of the principles of
conciliation with the mediator, it is important to reveal the essence of the
concept of “principles of mediation”.
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The principles of mediation are understood as the initial, fundamental
principles, ideas, moral and ethical norms, and procedural bases of optimal
interaction of the parties to the mediation process, general requirements of
the conciliation procedure, observance and application of which guarantees
conict resolution to build further legal relations. This optimality should be
determined in relation to the state between the ideal legal principle and the
prevailing reality (Kovalev et al., 2017).
The main ideas that underlie mediation activities and express its
essence are normatively dened in Art. 3 of the draft law “On Mediation”.
This norm includes an exhaustive list of guidelines, which are the basis for
the implementation of mediation activities in the national legal reality and
are considered as the starting point of legal regulation of the institution of
mediation. The legislator has dened seven normatively dened principles:
voluntariness, condentiality, independence and neutrality of the mediator,
impartiality of the mediator, self-determination, and equality of rights of
the parties to mediation.
The content of the principle of voluntariness is as follows: the freedom
to enter the mediation procedure is due to the fact that the parties
jointly decide to conduct a mediation procedure, the coercion of which is
unacceptable, even if there is a mediation clause in the contract.
According to the draft law on mediation, agreements on the application
and conduct of conciliation with the mediator and the direct conduct of
such proceedings do not preclude recourse to a court or arbitral tribunal,
unless otherwise provided by law. Freedom to withdraw from the
mediation procedure – either party may refuse to continue the procedure
without explaining the reasons for such refusal. It is inadmissible to force
a mediation procedure or to conduct it without one party. Freedom to
determine the terms of the mediation agreement – the parties determine
the terms of the agreement, make proposals, and reject the proposals of the
opposite party. The mediation agreement includes only those conditions
that were the result of mutual free agreement of the parties.
According to the draft law on “Mediation”, the mediation agreement is
subject to implementation on the basis of the principles of voluntariness and
good faith of the parties, ie the principle of voluntariness must be observed
at the stage of implementation of the mediation agreement. However,
there is a problem of non-performance of the agreement. The content of
the principle of condentiality is disclosed in Article 5 of the draft law “On
Mediation”. During the mediation procedure, it is necessary to maintain
the condentiality of information related to the specied procedure, except
as provided by law, unless otherwise agreed by the parties. The mediator
has no right to disclose information that became available to him during
the conciliation procedure. A mediator may be liable for the disclosure of
information, as dened by the statute or regulations on the association of
mediators of which he is a member (Tylchyk and Tylchyk, 2021).
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Principles of mediation as an alternative way to protect human and citizen rights
None of the participants in the procedure, regardless of whether
the court or arbitration proceedings are related to the subject matter
of the dispute, has the right to refer to information: about the readiness
of the parties to participate in such proceedings; the positions, opinions
or decisions expressed by one of the parties regarding the possibility of
settling the dispute; about confessions made in the process of mediation;
on the readiness of the parties to accept the mediator’s proposal and settle
the dispute (Tylchyk and Tylchyk, 2021).
It is inadmissible to demand from the mediator and from the organization
carrying out the mediation procedure information relevant to the case,
except as provided by law, and cases unless otherwise agreed by the parties.
The mediator may disclose to the other party information relating to the
mediation procedure only with the consent of the party who provided this
information.
Condentiality of mediation does not coincide with the concept of “trade
secret” dened in Article 505 of the Civil Code of Ukraine (Civil Code of
Ukraine, 2003). A trade secret is a mode of information that allows the
owner of the information, under existing or possible circumstances, to
increase revenue, avoid unjustied expenses, maintain market position, or
obtain other commercial benets.
The introduction of a trade secret regime requires organizational
conditions, in particular the issuance of an order determining the
composition of information relating to such a secret. To establish the
condentiality of mediation information, such actions are not required, it
must be carried out in accordance with the direct instructions contained in
the normative act on mediation. The principle of cooperation and equality
of the parties is that the very request for mediation procedures, further
steps and the overall result are due to the willingness of the parties to
cooperate. Neither mediation nor individual agreements within mediation
are possible without recognizing the parties as equal in their capabilities.
The principle of equality is one of the foundations of mediation and
includes two components: cooperation between the parties and equality.
The principle of cooperation reects the private components of the
institution of mediation. In essence, the principle has common features
with the principle of solidarity of interests and business cooperation.
According to T. Podkovenko and N. Figun, the principle of cooperation
between the parties follows from the essence of conciliation proceedings
(Podkovenko and Figun, 2017). The whole mediation procedure should
be based on mutual agreements, concessions, and an atmosphere of trust
and mutual respect should be maintained during the procedure. The
principle of cooperation provides a rule according to which the parties,
in seeking options for resolving the dispute, assist each other in order
to achieve the end result. In the mediation procedure, the participants
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jointly develop solutions to the existing problem, while in the course of an
adversarial trial they substantiate and prove the claims and objections. The
principle of equality of arms means a rule in which both parties have equal
opportunities to perform all procedural actions. This principle, similar to
the principle of procedural equality of the parties in civil proceedings, is a
private manifestation of the constitutional principle of equality before the
law and the court. However, in the conciliation procedure, the principle of
equality of arms is considered a prerequisite for cooperation, as it has no
signicant independent signicance (Ivanovich et al., 2019).
The eect of this principle is that during the mediation procedure
both parties equally choose a mediator and determine the terms of the
conciliation procedure, express positions, ask questions, determine topics
for negotiations, participate in the drafting of the agreement, have an equal
right to an individual interview mediator.
The consolidation of this principle is implemented in the draft law
“On Mediation”, according to which during the conciliation procedure the
mediator has no right to put one of the parties in a preferential position
and diminish the rights and legitimate interests of one of the parties. The
mediator guarantees equal opportunities to the parties involved in the
process. The principle of impartiality of the mediator is that during the
dispute settlement procedure, the mediator has no right to show personal
interest, cannot be associated with either party. The mediator is obliged to
immediately inform the parties about the existence of circumstances that
may aect independence and impartiality.
According to S. Yosypenko, the main thing in the mediation process
is the impartiality of the mediator, which allows the participants to work
in an atmosphere of cooperation and ensures equal rights to participate
in negotiations (Yosypenko, 2015). It should be noted that the guarantee
of impartiality of the mediator provided by Art. 7 of the draft Law “On
Mediation” stipulates that the mediator has no right to make proposals for
the settlement of the dispute unless the parties have agreed otherwise.
In the event that a mediator, using a variety of mediation techniques,
cannot communicate to the parties an acceptable way to resolve the conict,
the mediator’s activities have no value or meaning.
The purpose of this provision in the draft law is to consolidate the
essential feature of mediation that distinguishes this method of dispute
resolution from all others. Only the parties themselves can make a decision
that is in the best interests of the true interests and which they will then be
willing to implement voluntarily, without external coercion. In this case,
the actions of the mediator, his understanding of the conict within the
legal eld and the transfer of this to the parties should contribute to the
formation of the latter’s responsibility for the mediation decisions (Leheza
et al., 2018).
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Principles of mediation as an alternative way to protect human and citizen rights
The principle of mediator independence is closely related to the principle
of impartiality. This principle is similar to the principle of impartiality,
which until recently was associated mainly with the administration
of justice. This principle is enshrined in the Constitution, judges are
independent and subject only to the Constitution and the law (Constitution
of Ukraine, 1996). However, the draft law “On Mediation” denes the
principle of independence dierently: like judges, a mediator, conducting
the conciliation procedure, should not be under the inuence of citizens,
ocials, state, and other bodies that restrict or predetermine a particular
its action; must be independent materially, administratively or otherwise
from the parties to the dispute or other interested parties (Leheza et al.,
2020).
According to V. Skrypchenko, “independent” and “independent” have
interrelated meaning (Skrypchenko, 2020). Therefore, V. Skrypchenko
concludes that the legislator, noting in Article 126 of the Constitution of
Ukraine the independence of judges and subordination to the Constitution
and the law, means not only the fact that judges, administering justice, are
guided by the Constitution and law, but also their independence.
V. Skrypchenko notes that according to the Constitution of Ukraine, the
principle of independence has a downside: the subordination of judges only
to the Constitution of Ukraine and the law, declared by the Constitution
of Ukraine, actually results in their subordination (in the sense of duty) to
almost all types of legal acts. which they are obliged to follow during the
administration of justice (Skrypchenko, 2020).
Conclusion
The analysis of the normatively established principles of mediation
shows that the imperative principles of the draft law “On Mediation” have
formed the basis for the legal regulation of mediation activities. At the same
time, the term “mediation” refers to specially organized negotiations with
the participation of a neutral mediator, who assists the parties in developing
a mutually benecial solution. This approach is one of the eective ways to
restore violated subjective rights.
The mediator is free from emotional assessments of the parties to the
dispute, impartial and independent in their judgments. A mediator has the
right to undertake to organize the mediation process if he is able to maintain
neutrality and in a particular situation can maintain emotional alienation,
which implements the principle of equality in the mediation procedure.
The principles of mediation are divided into legal and communicative-
psychological, which have legal signicance. The legal principles include
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freedom and informed voluntariness of the parties and mediators; equality
of arms; independence of the parties in the mediation process; non-
competitiveness; the principle of simplicity and speed of the procedure, its
exibility and informality; limited powers of the mediator; the principle
of condentiality; prohibitions on harm; professional multidisciplinary
nature of the mediator; the presence of the expressed consent of the parties
to the presence of third parties during the procedure, as a condition of such
presence.
The communicative and psychological principles that have legal
signicance include the principles of good faith of the parties to the
conict; impartiality and neutrality of the mediator; personal nature of the
procedure and direct interaction of the parties; ethics of behavior and the
desire for psychological comfort during mediation procedures. At the same
time, the draft of the analyzed law denes the principles: voluntariness,
condentiality, independence and neutrality of the mediator, impartiality
of the mediator, self-determination, and equality of rights of the parties to
mediation.
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