Institute of mediation in the resolution of public legal disputes

Abstract

The article is devoted to the consideration of the state of legal regulation of the institution of mediation as a form of alternative settlement of a public law dispute. Two main concepts regarding the understanding of the content of mediation were highlighted: 1) consideration of mediation exclusively as a voluntary, out-of-court form of settlement of a public-law dispute (private external mediation), which is carried out on the basis of a concluded contract in accordance with the norms of the Law of Ukraine «On Mediation»; 2) definition of mediation in a broad meaning, including the procedure for consideration of an administrative dispute with the participation of a judge. A number of defining features of mediation (according to the legal regulations, terms of conduct, the participants, the role and legal status of the mediator, the grounds for conduct and termination) were distinguished from the procedure of settling a public dispute with the participation of a judge, as a means of resolving public disputes with the participation of a judge-rapporteur, aimed to a peaceful settlement conflict between the parties within the scope of the administrative activity of the court.
It was proved that the institution of mediation in the system of administrative justice is not established at the legislative level in Ukraine; and the model of judicial mediation was proposed as a pre-trial form of public dispute resolution, which is carried out within the limits of the administrative activity of the courts with the help of a judge-mediator, who is endowed with the exclusive procedural rights with the authority to help the parties to the dispute independently to reach its solution and a mutually beneficial result, taking into account the interests of the both parties, which is formalized by the mediation agreement.
A number of essential characteristics of the judicial mediation were justified: 1) the implementation by a judge – a mediator who has acquired special skills in the conducting of mediation, who has undergone professional training in this field and does not consider a relevant public dispute as a judge; 2) is a mandatory preliminary condition for a trial, that is, it is carried out before the start of the trial on the merits; 3) compliance with the principles of facilitation (facilitative mediation), which are based on the conviction of the parties to the dispute that with the help of a neutral mediator (judge-mediator), the parties, cooperating among themselves, can come to a resolution of the conflict themselves; 4) the main normative legal act, which should regulate the conceptual principles of judicial mediation, is exclusively the rules of the Code of administrative proceedings.