The evolution of civil procedure and mediations: foreign experience

Abstract

Background. Ensuring the rule of law and access to justice remains a crucial goal of justice, while changing socio-economic conditions change the way in which such goals are achieved.
The peaceful settlement of disputes is inherent in the Ukrainian nation, so the promotion of mediation can be successful enough in the context of sound legislative regulation, which must certainly consider foreign experience.
The aim of the article is highlighting the decisive trends in civil litigation reform in the United States and EU Member States over the last decade and arguing that it is appropriate to use them in law-making in Ukraine.
Materials and methods. The normative basis of the study is legislative acts of the England and Wales, USA, Germany and France as well as EU legislation and CJEU decisions. The methodological basis of the research was the general scientific and special legal methods of cognition.
Results. The analysis indicates that there are two defining, at the same time, parallel processes: the reform of civil procedural law and the development of mediation legislation, which determines the theoretical and applied relevance of further studies of the interaction between alternative dispute resolution and civil justice. It can be assumed that such interaction can take the following forms: changing the paradigm of the exercise of the right to judicial protection and judicial recourse (in the context of introducing mandatory pre-trial dispute resolution methods); application of a dispute resolution institute with the participation of a judge; development of court mediation. The potential outcome of such engagement should be the further transformation of civil justice towards the prevailing conciliation character of justice.
Conclusion. Ukrainian law-making should be directed to the legislative regulationof the mediation procedure and the introduction of incentives for the parties to the dispute to resort to extrajudicial methods. Building public trust in mediation as one of the most recognized and effective ways of resolving disputes should be a task not only of the mediator community but also of the state. We believe that the introduction of court mediation can be one of the factors of the above processes, but at the same time requires a theoretical justification for observance of the principles of the rule of law and the right to judicial protection.