Solomiia Iosypenko, PhD, Attorney at Law, Mediator, Associate of MORIS

 

The large-scale invasion of russia on the territory of Ukraine dramatically changed the perception of Ukrainian society towards all spheres of civil life, including conflict resolution. The main body that resolves disputes in Ukraine is the court. However, since the impose of martial law, judicial bodies have begun to work with certain peculiarities, some of them have stopped their work or changed their location, and the territorial jurisdiction of cases has also changed. Given the situation and the emotional component, decision-making regarding the dispute settlement is currently significantly complicated. Despite this, conflicts exist and need to be resolved, so today, the issue of resolving disputes out of court is becoming more relevant than ever.

Alternatives to traditional justice have been known to humanity since the early phases of human civilization, since wars began. One of these alternative dispute resolution methods is mediation, the origins of which date back to 4000 B.C. in China.

With the adoption of the Law of Ukraine «On Mediation» at the end of 2021, it opened up the opportunity to settle disputes without applying to a court and with the lowest risk and cost.

Today, mediation is an effective tool for finding understanding between conflicting parties, mainly due to its flexibility. Because the order, place (possibility of conducting remote conversations), duration and number of meetings depends on the parties.

In conflict situations, the parties almost always feel strong emotions that guide human decisions, and when the  occupational war is going on in the country, such emotions, in particular anger, fear, pain, and feeling of injustice, become especially exacerbated. Under such circumstances, resort to mediation is the best option for resolving the dispute.

Another advantage of calling to a mediator today is the significantly lower cost of the procedure compared to using other dispute resolution methods.

In what kind of disputes during wartime will mediation be useful?

- Corporate disputes. Disagreements between business partners and sometimes between top managers are common. Corporate conflicts have a negative impact on the work of the enterprise, and sometimes lead to the collapse of the business. In the situation of martial law, when entrepreneurs need to adapt to «new realities» and transform their business, settling the dispute in court is not the best option. Resort to a qualified mediator is the shortest way to a mutually beneficial conflict resolution. Furthermore, the mediation procedure reduces the risks of damaging the entrepreneur's reputation and preserves the confidentiality of such a dispute.

- Commercial disputes, in particular in the field of agriculture and real estate. According to the data of the Ministry of Agrarian Policy and Food of Ukraine, the total losses from the war only in the agriculture of Ukraine is $4.3 billion. Obviously, conflicts between business partners in these industries are predictable and inevitable, in particular, disputes regarding non-fulfillment of obligations under contracts of supply, storage, lease, etc. And in this aspect, mediation can be useful and effective.

- Family and civil disputes. The court decision of this category of cases, even in the pre-war period, was an emotionally exhausting process. Because, unlike mediation, the court is guided by the rules of law and does not work with the cause of the conflict. Today, disputes about the division of the property of the spouses in a situation where the property is destroyed or located in the temporarily occupied territory, crossing the border after February 24 by a child with one of the parents without the consent of the other, and in the case of divorce of the parents, establishing contact with such a child, alimony payment, determining place of residence of the child, disputes regarding non-fulfillment of obligations under the real estate lease agreement, etc. are relevant for resolution through mediation.

- A variety of conflicts without a judicial perspective.

In the end

Litigation and arbitration is, in fact, a "war" between the parties of the dispute, which creates a gap between them. Instead, the most valuable part of mediation is that the parties have the opportunity not only to resolve their dispute, but also to preserve and strengthen their relationship.

In the current realities of life, it is necessary to wage war against the aggressor, and resolve disputes with counterparties peacefully through the mediation.