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19Jan/10Off

5 reasons why mediation is not developed in Ukraine

Although arbitration and mediation are both forms of alternative dispute resolution and the second one is popularized by several institutions in Ukraine it still may not be treated as a competitor to arbitration.

disputes2 5 reasons why mediation is not developed in Ukraine

There are certain reasons mostly psychological to explain that situation.

  1. “Two Ukrainian have three hetmans (leaders) among them”, this saying illustrates the historic ambition of Ukrainians to rule and reign. Ukrainians as many other nations are of the opinion about the validity of their way of thinking that they just can not allow the other to be mistaken. To persuade, to convince even with the third party’s help (arbitration), but not to settle. Mediation smells like weakness. Why one person shall accept something in exchange for giving up something? Let the judge or arbitrator decides who is right and who is wrong. It is worth saying that many nations have the above approach in their genes. Max Weber in his famous essay The Protestant Ethic and the Spirit of Capitalism gave the perfect description of the development of culture of West. From my pint of view the same reasons which help the “capitalistic” nations to develop the practical way of thinking, brought them also the ability to settle disputes. That is why the mediation practice is widespread there. As a part of this psychological ground we may name the “complex” of lawyers who are not able to propose their clients anything except for victory.
  2. There is nothing we cannot do ourselves. It is a widely accepted stereotype that the mediator is just a steady fellow who can put down the emotions of contending parties. What is the reason to involve somebody into the business dialogue of two businessmen? The businessmen are 100 % sure of their ability to settle the situation without unnecessary participants.
  3. There is nothing to pay for. Actually it is the development of the previous reason. Let us confess that the campaign aimed at explanation to the potential counterparties that the mediator is a especially trained experienced specialist who has expertise in law, psychology and mediation techniques has no significant results. The business environment is of the same opinion still.
  4. The result of mediation is an agreement. But the ground for calling for settlement is often a breach of an agreement. Thus, there is no need to go into a new agreement with the counterparty that already broke the agreement. Let the infringer be punished!
  5. Here we can write three dots and ask you to propose your comments or present your own vision of what impedes the progress of mediation.

(c) by International arbitration blog

Comments (5) Trackbacks (1)
  1. Pierre Tercier noted in his ‘Emerging trends in ICC arbitration and the institution’s vision for the future’: “If arbitration is to prosper and provide the services expected, it must be based on trust. This is the keyword”.

  2. Arbitration and mediation are similar in that they are alternatives to litigation, or are sometimes used in conjunction with litigation to attempt to avoid litigating a dispute to its conclusion. Both arbitration and mediation employ a neutral third party. Both can be binding; however, it is customary to employ mediation as a non-binding procedure and arbitration as a binding procedure. Arbitrators generally act similar to a judge and make decisions about evidence and give written opinions, which can be binding or non-binding. Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator and for those two arbitrators to select a third arbitrator. The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision.

    Mediation, on the other hand, is generally conducted before a single mediator who does not judge the case but helps facilitate a discussion and eventual resolution of the dispute. Mediation has most recently been re-discovered across the country, and in particular in Florida, a leader in the implementation of mediation, where almost all lawsuits are required to be mediated before a court will allow them to be put on the trial calendar. Mediation has been found to be effective in resolving approximately 75% of all cases and greatly reduces the trial docket of courts throughout Florida. Mediation enjoys such a great success rate partly because the parties are brought together in a neutral environment where they can freely and confidentially present their position in front of a neutral third party who then attempts to limit the issues and put them in perspective. Participants often feel much better after having an opportunity to get things “off their chest”, and also benefit from hearing the other party’s point of view, because as they say, “there are always two sides to a story.”

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