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.41 N° 79
Octubre
Diciembre
2023
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
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
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
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 723-733
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 22/07/23 Aceptado el 19/09/23
Compliance with the principle
of the rule of law in Ukraine
when applying mediation
DOI: https://doi.org/10.46398/cuestpol.4179.48
Ihor Bylytsia *
Oleksii Svyda **
Olha Yukhymiuk ***
Inna Kovalchuk ****
Tatiana Bylytsia *****
Abstract
The article is devoted to the study of mediation as one of
the ways of implementing the concept of restorative justice. It
is determined a change of view on justice and consideration of
the possibilities of the mediation method in the resolution of
legal conicts. In order to achieve this objective, a philosophical
and scientic methodology was implemented. It emphasizes the
importance of mediation, which consists in the eective resolution of the
legal conict of the parties, determines the need to study the prospects of
further improvement of the specied procedure in Ukraine, taking into
account the leading world practices. On the basis of the analysis of the
provisions of the current legislation, it has been shown the expediency of
making appropriate changes in the Law of Ukraine «On Mediation». It is
concluded that for the development of mediation as a form of protection
of the rights and legitimate interests of a person, it is necessary to make
certain changes in the wording of the Law of Ukraine «On Mediation», in
particular, to dene normatively the provisions concerning the conformity
of the mediation procedure with the principle of the rule of law.
* PhD., Associate professor, Associate professor of the Department of Theory and History of State and
Law, Faculty of Law, Lesya Ukrainka Volyn National University, Lutsk, Ukraine. ORСID ID: https://
orcid.org/0000-0001-6971-777X. Email: ihor.bylytsia@vnu.edu.ua
** PhD., Associate professor, Associate professor of the Department of Organization of Judicial, Law
Enforcement Agencies and the Bar, Faculty of Advocacy and Anti-Corruption Activity, National
University «Odesa Law Academy». Odesa, Ukraine, ORCID ID: https://orcid.org/0000-0002-5805-
3557. Email: svida-alexey@ukr.net
*** PhD., Associate professor, Associate professor of the Department of Theory and History of State and
Law, Faculty of Law, Lesya Ukrainka Volyn National University, Lutsk, Ukraine. ORСID ID: https://
orcid.org/0000-0002-3803-4746. Email: iukchymiuk.olga@vnu.edu.ua
**** PhD., Associate professor, Associate professor of the Department of Organization of Judicial, Law
Enforcement Agencies and the Bar, Faculty of Advocacy and Anti-Corruption Activity National
University «Odesa Law Academy», attorney. Odesa, Ukraine. ORСID ID: https://orcid.org/0000-
0002-4286-8110. Email: iskoval2512@gmail.com
***** Lawyer, Lutsk, Ukraine. ORСID ID: https://orcid.org/0009-0005-6146-6204. Email: tanya.
bylytsia@gmail.com
724
Ihor Bylytsia, Oleksii Svyda, Olha Yukhymiuk, Inna Kovalchuk y Tatiana Bylytsia
Compliance with the principle of the rule of law in Ukraine when applying mediation
Keywords: mediation; form of rights protection; restorative justice;
dispute resolution; agreement and mediator.
Cumplimiento del principio del estado de derecho en
Ucrania al aplicar la mediación
Resumen
El artículo está dedicado al estudio de la mediación como una de las
formas de implementar el concepto de justicia restaurativa. Se determina
un cambio de visión sobre la justicia y la consideración de las posibilidades
del método de mediación en la resolución de conictos jurídicos. Para el
logro de este objetivo se implementó una metodología losóca y cientíca.
Se enfatiza la importancia de la mediación, que consiste en la resolución
efectiva del conicto legal de las partes, se determina la necesidad de estudiar
las perspectivas de una mayor mejora del procedimiento especicado en
Ucrania, teniendo en cuenta las principales prácticas mundiales. Sobre
la base del análisis de las disposiciones de la legislación actual, se ha
demostrado la conveniencia de realizar los cambios apropiados en la Ley
de Ucrania «Sobre la mediación». Se concluye que, para el desarrollo de la
mediación como forma de protección de los derechos e intereses legítimos
de una persona, es necesario introducir ciertos cambios en la redacción de
la Ley de Ucrania «Sobre Mediación», en particular denir normativamente
las disposiciones relativas a la conformidad del procedimiento de mediación
con el principio del Estado de Derecho.
Palabras clave: mediación; forma de protección de derechos; justicia
restaurativa; solución de controversias; acuerdo y
mediador.
Introduction
Currently, in Ukraine, in addition to the judicial form of protection, an
alternative settlement of disputes in the mediation process is provided.
Thus, the Law of Ukraine «On Mediation» denes the legal principles
and procedure for conducting mediation as an out-of-court procedure
for conict (dispute) settlement, the principles of mediation, the status
of a mediator, requirements for his training and other issues related to
this procedure (ON MEDIATION: THE LAW OF UKRAINE, 2021). The
introduction of the mediation institute in Ukraine meaningfully connects
the modern development of the legal system of Ukraine with the European
725
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 723-733
legal systems, values and priorities of the development of the modern
civilized world.
However, it should be noted that the Constitution of Ukraine (Articles 55,
124) primarily provides for judicial protection of the rights and legitimate
interests of individuals and legal entities (CONSTITUTION OF UKRAINE,
1996), without paying enough attention to alternative methods of dispute
resolution, which by their nature are most appropriate archetype of the
Ukrainian nation and is one of the forms and methods of protecting the
rights and legitimate interests of an individual.
The principle of adversarial litigation at the stage of dispute settlement
with the participation of a judge is replaced by cooperation, which gives
the parties the opportunity to nd a mutually acceptable solution. Dispute
resolution through mediation is characterized as a «win-win situation»
when both parties benet (Volkovytska, 2018). Therefore, the importance of
resolving the parties’ disputes using the mediation procedure in protecting
the rights, freedoms and legitimate interests of a person is obvious.
This form makes it possible to ensure high-quality, timely resolution of
disputes with the lowest costs and condentiality. At the same time, the
experience of foreign countries with developed systems of alternative dispute
resolution shows that the eectiveness of the application of such practice is
eective only under the condition of adequate normative regulation and
high legal culture of society, readiness of citizens for dialogue both among
themselves and with the state.
Within the scope of our research, we consider it necessary to nd out the
following: whether such a method of resolving legal disputes as mediation,
dened at the legislative level in Ukraine, corresponds to the principle of
the rule of law; whether such disputes should be resolved solely on the basis
of the rules of law; whether parties can resolve disputes based on their own
understanding of what is right and fair, etc.
1. Methodology of the study
Methodology is a possible component of any scientic and cognitive
activity (Klymchuk & Trekke, 2018, p. 95). Research methods are chosen
based on the goals and tasks set in the article, taking into account its object
and subject. The methodological basis of research is a system of principles,
techniques and approaches, based on philosophical, general scientic and
special scientic methods, which are means of scientic research to obtain
objective and reliable results.
The principle of dialectical denial made it possible to critically take
into account the previous experience of the introduction and functioning
726
Ihor Bylytsia, Oleksii Svyda, Olha Yukhymiuk, Inna Kovalchuk y Tatiana Bylytsia
Compliance with the principle of the rule of law in Ukraine when applying mediation
of mediation in the national legal system. Comparative and comparative
legal methods were used in the analysis of domestic and foreign legislation,
scientic research on the implementation of mediation activities, as well
as certain aspects of the organization and functioning of the specied
interdisciplinary institute.
The combination of methods of analysis and synthesis led to a two-
faceted study of the problems of compliance with the principle of the rule
of law in Ukraine when using mediation. On the one hand, factual material
was used, the generalization and synthesis of which made it possible to
formulate new theoretical propositions and conclusions. On the other hand,
approaches to this problem developed by domestic and foreign science
were carefully analyzed. Methods of abstraction, generalization, functional,
legal-technical, specically legal, induction and deduction, systemic,
formal-logical and other methods were implemented during the analysis of
legislation and the practice of its application in mediation.
The methods of generalization, grouping, modeling, and forecasting are
used in the preparation of conclusions for a scientic article. The use of all
methods in a relationship ensured the complexity and comprehensiveness
of the study of problematic issues of the application of mediation in Ukraine.
2. Analysis of recent research
Although the study of the genesis of the concept of the rule of law is
not a direct task of this study, we note that our further conclusions and
statements will be based on conceptual works on this issue, and therefore
are important in the context of achieving the goal of scientic publication.
It should also be noted that the problems of legal regulation as well as the
peculiarities of the introduction of mediation procedures in Ukraine are
the subject of research by representatives of various scientic schools and
branches of law.
At the same time, we note a certain lack of scientic works regarding the
modern legislative regulation of mediation, as well as the compliance with
the principle of the supremacy of the law of application of this institution
in conditions of martial law. In addition, the accumulated theoretical and
practical experience of the formation of the institution of mediation in
the judiciary in Ukraine demonstrates certain contradictions in the legal
regulation of relations arising in the national legal system. We identied
separate theoretical and applied problems: from the lack of sucient
theoretical foundations for the legal support of mediation in the judicial
system of Ukraine to the lack of systematicity and insucient eciency of
the relevant practices.
727
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 723-733
3. Results and discussion
The main driving force behind the development of alternative methods
of resolving criminal disputes is the insucient eciency of the judicial
system during the consideration of certain categories of cases, which may
consist in the overloading of courts, the duration of court proceedings,
unqualied consideration of cases, as well as other shortcomings inherent
in the judicial system of a particular state (Volkotrub, 2015). Mediation is
one of the most common forms of restorative justice implementation, which
should be understood as any process that allows persons who have been
harmed by criminal oenses and persons who are responsible for this harm,
in the case of their voluntary consent, to actively participate in resolution of
issues arising in connection with the commission of a criminal oense with
the help of an impartial third party (mediator) (RECOMMENDATION CM/
REC (2018, 8).
One of the key issues regarding the introduction of the institution of
mediation remains the provision of a fair resolution of a legal dispute based
on the rule of law. Establishing the rule of law in society and ensuring
everyone’s right to a fair trial are the primary tasks of the modern state. The
essence of the rule of law is that human rights and fundamental freedoms
are the values that shape the content and direction of state activity. The state
must create conditions for the proper implementation of the rule of law in
all social relations. The Constitution of Ukraine declares the principle of
the rule of law to be one of the fundamental principles of the constitutional
system of the state. The principle of the rule of law is paramount and decisive
for a state governed by the rule of law, because law is a manifestation of
the highest justice and its dominance in society consists in the priority of
human rights and freedoms (Mazaraki, 2017).
The interpretation of the Constitutional Court of Ukraine appears to be a
balanced position that embodies a comprehensive approach to the denition
of the concept of “rule of law”: “rule of law is the rule of law in society.
The rule of law requires the state to implement it in law-making and law-
enforcement activities, in particular in laws, the content of which should be
imbued primarily with the ideas of social justice, freedom, equality, etc.”
(Decision of the Constitutional Court of Ukraine in No. 15- RP /2004).
It must be stated that the rule of law is not properly ensured in Ukraine,
which is manifested in the ineciency of state power, a signicant level
of corruption, the lack of access to justice, an impartial and fair trial,
violations of the basic rights and freedoms of a person and a citizen. Further
development of justice in Ukraine should be aimed at establishing the rule
of law by ensuring: access to justice; fair judicial procedure; independence,
impartiality and professionalism of judges; legal certainty, uniformity
of court practice and openness of court decisions; eectiveness of legal
protection.
728
Ihor Bylytsia, Oleksii Svyda, Olha Yukhymiuk, Inna Kovalchuk y Tatiana Bylytsia
Compliance with the principle of the rule of law in Ukraine when applying mediation
Adherence to and implementation of the above ideas allows us to
assert the existence of certain advantages of alternative dispute resolution
methods compared to court proceedings, namely: 1) improved access to
justice in a state that supports alternative dispute resolution; 2) the speed of
the resolution of the dispute, because the parties do not have to wait for the
time allotted for the consideration of the case, the probability of articially
delaying the resolution of the dispute by one of the parties is minimized; 3)
the selection by the parties of the procedure and the mediator (mediator,
expert, arbitrator, etc.), which is of particular importance in disputes, the
resolution of which requires special knowledge; 4) condentiality, which
is practically impossible at court hearings and when the court demands
documents, etc.; 5) the nality of the decision, because the parties are
unlikely to appeal the decision that they reached independently and
voluntarily; 6) an opportunity for both parties to emerge victorious from
the dispute in the absence of the defeated by adopting a mutually acceptable
decision; 7) preservation of commercial and personal relations, which is
complicated if the party is dissatised, but has to comply with the court
decision (Mazaraki, 2017, p. 12).
Mediation (from the Latin mediation – mediation): private and
condential use of mediators to resolve a conict situation. In law,
mediation is a method of dispute resolution with the involvement of a
mediator (mediator), who helps to analyze the conict situation so that the
interested parties can independently choose a solution that would satisfy
the interests and needs of all conict participants. Unlike a formal court
process, during mediation, the parties reach an agreement independently
(Kartashov, 2019, p. 12).
Regardless of the dierence in approaches to dening the concept of
mediation, all of them are permeated by its main characteristic features:
mediation is a special type of negotiation; mandatory participation of a
mediator; the mediator is not a representative of any of the parties; the
mediator assists the parties in conducting negotiations and reaching a
mutually acceptable solution; the mediator does not examine the evidence
and does not establish the facts; the mediator does not force the parties to
make a certain decision and does not provide advice on possible decision
options; the mediator does not make a binding decision for the parties;
the active role of the parties themselves in negotiations regarding the
independent search for possible solutions (Bilyk et al., 2019, p. 32-33;
Nestor, 2018).
Mediation parties have the right: by mutual agreement, to choose a
mediator (mediators) and/or an entity that ensures mediation; determine
the terms of the mediation agreement; by mutual agreement, involve other
participants in the mediation; refuse the services of a mediator(s) and choose
another mediator(s); refuse to participate in mediation at any time; in case
729
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 723-733
of non-performance or improper performance of the agreement based on
the results of mediation, apply to the court, arbitration court, international
commercial arbitration in accordance with the procedure established by law;
involve an expert, translator and other persons determined by agreement of
the mediation parties (ON MEDIATION: LAW OF UKRAINE, 2021).
The implementation of justice in Ukraine under martial law is
complicated by a number of systemic problems, some of which have
intensied, while others have arisen directly as a result of armed aggression.
Mediation, as a non-jurisdictional method of dispute resolution, is free
from these problems and allows the parties to choose the most eective and
acceptable option for resolving the dispute. As D. Piddubny rightly points
out, a broad interpretation of the right to access to justice and consolidation
of the legal institution of mediation allows, on the one hand, to relieve the
judicial system, and on the other hand, based on the interests of the parties,
within a reasonable period of time to resolve the dispute and implement an
agreement based on the results of the procedure, as a result of which a the
goal of justice (Piddubny, 2022).
So, as a legal phenomenon, mediation in Ukraine is just emerging, and
already at this stage it is necessary to clearly dene its types, which will
allow to achieve legal support for their eectiveness. It is about pre-trial
and post-trial mediation. The main characteristic of private mediation is
that this dispute resolution procedure is initiated by the parties themselves.
That is, the parties participate in mediation on the basis of an agreement
concluded by them. Judicial mediation, unlike the previous one, is
always connected with the trial of the case, as well as with the court as an
institution» (Polishchuk, 2016).
In our opinion, the procedural aspects of these types of mediation
should have normatively dened dierences. This is due, in particular,
to the fact that the parties can reconcile, including through mediation,
at any stage of the court process. If pre-trial mediation is implemented,
the parties conclude an agreement based on the results of the mediation,
the content of which is determined by Art. 21 of the Law of Ukraine «On
Mediation». The results of pre-trial mediation are drawn up in the form of
an «agreement based on the results of mediation», and the results of court
mediation can be drawn up at the choice of the parties in the form of either
an «agreement based on the results of mediation» of mediation (Article 1)
(ON MEDIATION: LAW OF UKRAINE, 2021), or a settlement agreement.
It is legally dened that a mediator «can provide mediation services on
a paid or free basis, for hire, through an entity that provides mediation,
through an association of mediators or individually» (Part 2 of Article
11) (ON MEDIATION: LAW OF UKRAINE, 2021). The legislation also
stipulates that each registered mediator must provide one free mediation
service per year. Such services are also provided to people with insucient
730
Ihor Bylytsia, Oleksii Svyda, Olha Yukhymiuk, Inna Kovalchuk y Tatiana Bylytsia
Compliance with the principle of the rule of law in Ukraine when applying mediation
nancial means, while mediators work as volunteers in social service centers
for families, children and youth. As an incentive, a reduction in court fees
for mediators has been introduced in this case. At the same time, in the case
of paid mediation, it is suggested to explain to potential clients the nancial
advantage of such a service, since it involves a shorter time for resolving
the case, control and certain inuence on the part of the participants of the
extrajudicial process, the absence of remuneration for lawyers, the ling of
appeals and cassation complaints, etc. (Maan et al., 2020).
The following measures are recommended to solve the identied
problems of mediation in Ukraine: 1) identication of tools to encourage the
parties to settle legal disputes through mediation; 2) mandatory informing
of the parties about the peaceful resolution of the dispute, in particular,
directly by judges at any stage of the court proceedings – from preliminary
to nal – with the establishment of a break for the parties to contact a
mediator; 3) denition of categories of civil disputes where mediation is a
priority method of resolution; 4) monitoring the eectiveness of mediation
in family, land, inheritance, labor, and intellectual property matters (Maan
et al., 2020, p. 18).
It is worth paying attention to the requirements for a mediator as a
mediator in the resolution of legal disputes (conicts). According to the
Law of Ukraine «On Mediation» «a mediator is a specially trained neutral,
independent, impartial natural person who conducts mediation and does
not have the right to combine his role with the functions of other mediation
participants, to provide recommendations to the parties regarding the
decision in this case, to make decisions, to be a representative or defender
of any party at the pre-trial stage, in court, arbitration or arbitration
proceedings in a case where he is a mediator; has the right to protection
against interference by public authorities, enterprises, organizations
regardless of the forms of ownership and subordination, public associations,
individuals; to provide the parties with consultations and recommendations
regarding the procedure for carrying out the mediation procedure (Article
7) (ON MEDIATION: LAW OF UKRAINE, 2021).
From the analysis of the relevant legislation, it can be seen that such
an important requirement as the competence of the mediator has been
overlooked. The law does not set requirements for the mediator’s level of
education. It is only mandatory that «the basic training of mediators is
carried out according to a program with a volume (duration) of at least
90 hours of training, including at least 45 hours of practical training»
(ON MEDIATION: LAW OF UKRAINE, 2021). According to the correct
remark of some scientists, this approach is wrong and needs to be revised.
First of all, it should be assumed that the mediator, who undertakes to
carry out the mediation procedure - reconciliation of the parties, must be
competent in solving similar cases. After all, one of the basic requirements
731
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 723-733
for a mediator is his ability to competently resolve a dispute (conict), and
an indication of the profession of a mediator indicates that such a person
has a certain educational level of training (for example, junior bachelor,
bachelor, master). Also, mentioning the profession gives reason to say that
the mediator must have professional competence in one or another eld of
economic activity in order to competently consider the case of the parties
(Kostyuchenko et al., 2022, p. 52).
To conrm that the mediator’s competence is a necessary requirement
for him, we cite the provisions of Art. 3 of Directive 2008/52/EC of the
European Parliament and of the Council of 21.05.2008 on certain aspects
of mediation in civil and commercial cases, which denes that «mediator»
means any third person who is asked to mediate eectively, impartially and
competently manner, regardless of the name or profession of that third
party in the Member State concerned and the manner in which that third
party was appointed or requested to mediate (DIRECTIVE 2008/52/EC).
The listed problems do not exhaust the list of debatable issues of
mediation. In particular, among the problems, scientists also mention
the issues of remuneration of the mediator, the enforcement of the
nal agreement, the low budget of the procedure, and the selection of
mediators (Kantor, 2019). In general, it is worth agreeing that the further
improvement of the mechanisms for the use of mediation in Ukraine, as an
institution of alternative ways of resolving legal disputes, will contribute to
improving citizens’ access to justice and reducing the burden on the courts,
and therefore, will help to reduce the terms of consideration of cases and
the percentage of contested decisions, reduce court costs, improve the
quality of court decisions and to achieve reconciliation between the parties
(Volkovytska, 2018).
Conclusions
Based on the results of the conducted research, we come to the following
conclusions.
Alternative methods of resolving disputes within the scope of judicial
proceedings expand the limits of the rule of law, because state coercion
cannot be comprehensive, and compliance with the ideals and principles
of the rule of law must be based on people’s everyday actions and the
procedure for resolving their disputes. Mediation, as one of the forms of
restorative justice, is a new and progressive approach to the state’s response
to criminal manifestations in society and conict resolution in legal
disputes. The specied method of resolving disputes, reducing the burden
on the state judicial system, is able, based on the fundamental principles of
law, to eectively perform the functions of justice in disputes that must be
732
Ihor Bylytsia, Oleksii Svyda, Olha Yukhymiuk, Inna Kovalchuk y Tatiana Bylytsia
Compliance with the principle of the rule of law in Ukraine when applying mediation
resolved exclusively in court, and is able to improve the state of ensuring
the right to a fair trial.
For the development of mediation as a form of protection of the rights
and legitimate interests of a person, it is necessary to make certain changes
to the wording of the Law of Ukraine «On Mediation», in particular:
normatively dene provisions regarding the compliance of the mediation
procedure with the principle of the rule of law; to detail the reconciliation
procedure of the parties, as the main goal of resolving the conict between
them on mutually acceptable terms; determine the possibility of carrying
out mediation purely by mediators who have a higher legal education and
establish a competency-based approach to the training of mediators in the
relevant categories of cases.
Bibliographic References
BORODIN, Yevgeny. 2019. Mediation mechanism in the public administration
system: dissertation. ... candidate of State Sciences example. Dnipro,
Ukraine.
CONSTITUTION OF UKRAINE. 1996. Available online. In: https://zakon.
rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text.
Consultation date: 24/06/2023.
DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE. 2004. In the
case on the Constitutional submission of the Supreme Court of Ukraine
on the conformity of the Constitution of Ukraine (constitution) of the
provisions of Article 69 of the Criminal Code of Ukraine (the case of the
court’s imposition of a softer punishment) of November 2, 2004 No. 15-
RP/2004. Ocial Gazette of Ukraine. 2004. No. 45. Ukraine.
DIRECTIVE. 2008. 2008/52/EC OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL OF 21 MAY 2008 ON CERTAIN ASPECTS OF
MEDIATION IN CIVIL AND COMMERCIAL MATTERS // Ocial
Journal of the European Union, L 136, 24.5.2008, p. 3–8. Available
online. In: https://eur-lex.europa.eu/eli/dir/2008/52/oj. Consultation
date: 24/06/2023.
KANTOR, Natalia. 2019. “Peculiarities of mediation in resolving administrative
and legal disputes” In: Actual problems of domestic jurisprudence. No.
2, pp. 90-93.
KARTASHOV, Nikita. 2019. “Mediation as a form of corporate dispute
resolution” In: Entrepreneurship, economy and law. No. 10, pp. 11-15.
733
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 723-733
KLYMCHUK, Mykhailo; TREKKE, Artem. 2018. “Methodology for researching
the problems of conducting criminal proceedings based on a plea
agreement” In: Philosophical and methodological problems of law. T.
1516. No. 1-2. pp. 95-104.
KOSTYUCHENKO, Olena; MONAIENKO, Anton; ATAMANCHUK, Nataliia.
2022. “Mediation as a form of protection of civil rights” In: New
Ukrainian Law. Vol. 1, pp. 49-56.
MAAN, Bert; VAN RI, Remko; SERGYEVA, Alina, etc. 2020. Gap-Analysis of
the implementation of the mediation institute in Ukraine. Kyiv, Ukraine.
MAZARAKI, Natalia. 2018. Mediation in Ukraine: theory and practice:
monograph. Institute of Legislation of the Verkhovna Rada of Ukraine.
Kyiv. national trade and economy University. Kyiv, Ukraine.
NESTOR, Natalia. 2018. Introduction of mediation in the criminal process of
Ukraine: problems of theory and practice: monograph. K.
ON ADVOCACY AND ADVOCACY ACTIVITIES. 2012. Law of Ukraine.
Available online. In: http://zakon.rada.gov.ua/laws/show/5076-17.
Consultation date: 24/06/2023.
ON MEDIATION. 2021. Law of Ukraine. Available online. In: https://zakon.
rada.gov.ua/laws/show/1875-20#Text. Consultation date: 24/06/2023.
RECOMMENDATION CM/REC. 2018. OF THE COMMITTEE OF MINISTERS
TO MEMBER STATES CONCERNING RESTORATIVE JUSTICE
IN CRIMINAL MATTERS (Adopted by the Committee of Ministers
on 3 October 2018 at the 1326th meeting of the Ministers’ Deputies).
Available online. In: https://www.coe.int/en/web/prison/home//
asset_publisher/ky2olXXXogcx/content/recommendation-cmrec2018-
8?inheritRedirect=false. Consultation date: 24/06/2023.
VOLKOTRUB, Serhiy; KRUSHYNSKY, Serhii; LUTSYK, Vasyl. 2015.
Alternative ways of resolving disputes in criminal proceedings. University
of Management and Law. Khmelnytskyi, Ukraine.
VOLKOVYTSKA, Natalia. 2018. Mediation: an alternative or eective method
of dispute resolution? Available online. In: https://yur-gazeta.com/
publications/practice/inshe/mediaciya-alternativniy-chi-efektivniy-
sposib-virishennya-sporiv.html. Consultation date: 24/07/2023.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
