Mediation as an Alternative Form of Dispute Resolution: Comparative-Legal Analysis


  • Oksana MELENKO Yuriy Fedkovych Chernivtsi National University, Ukraine



Negotiations, judicial conciliation, mediation, arbitration, alternative dispute resolution (ADR)


The article under studies surveys the system of methods of alternative dispute resolution (ADR). It presents the definition of such structural concepts of ADR as negotiations, mediation, judicial conciliation, and arbitration. Particular emphasis is laid on the peculiarities of applying the ADR institutions in Ukraine and European countries, as well as on their advantages and disadvantages.

To carry out a comparative-legal analysis of the alternative forms of dispute resolution, there has been developed a special system of indicators. The latter aims to assess the effectiveness of the ADR institutions.These indicators are: availability of the procedure; possibility to enter and leave the ADR process; public or private nature of the procedure; conciliatory and competitive nature of the procedure; conducting the procedure out of court or in court; presence of an intermediary in the ADR procedure; taking final decision on the dispute directly by the parties or a third party; freedom to choose a mediator in the dispute; substantiating the decision on the dispute on formal or informal norms, rules, standards; opportunity to go to court in case the decision is impossible to enforce; recognition of the dispute as the one being resolved; intermediary’s fee; cost and time saving.

Relying on the comparative-legal analysis of the alternative forms of dispute resolution, it has been determined that most of the comparative advantages belong to the institution of mediation. However, there are a number of shortcomings that hinder the effective functioning of the institution of mediation. Among them are insufficient requirements for the mediator's competencies and lack of mechanisms for fulfilling the terms of the mediation agreement.

Taking into account the existing drawbacks that hinder the effective development of the institution of mediation, the article offers a number of institutional innovations.They include: legislative establishment of the norm on the procedure of executing the mediation contract; enhancing the qualification requirements for the mediator (mandatory higher legal education); adoption of the law on mediation; consequently, introduction of amendments to material and procedural legislation regarding mediation procedure by means of remote (distance) regulation of legal disputes and actions that accompany this process with the use of special technical facilities (videoconferencing, electronic digital signature, electronic document management, electronic payments, etc.).

In addition, the article singles out the main peculiarity of the institution of mediation, which favorably distinguishes it from other ADR institutions - humanism (human-centrism). Unlike mediation, other ADR institutions (negotiations, judicial conciliation, arbitration) are marked with a factual and mostly competitive procedure. Mediation, due to its being rather human than factual oriented, as well as because of its being focused rather on conciliation than on competition, has a wider range of opportunities to better meet the requirements of the parties to the dispute. The main asset of mediation is its high potential to unite the parties, to continue their business and social communication after the resolution of the dispute. The latter integration potential favorably distinguishes mediation from all other forms of alternative dispute resolution and, at the same time, indicates positive external effect (externalia), which lies in uniting society.

Author Biography

Oksana MELENKO, Yuriy Fedkovych Chernivtsi National University, Ukraine

Candidate of Law Sciences, Associate Professor of the Department of Legal Psychology of Chernivtsi National University of Yuriy Fedkovych, Chernivtsi, Ukraine


Bieri, I. (2006). La Justice est-elle une médiation alternative. Justice et Médiation, quelle alternative.

Bitsai, A. (2018). Participation of a lawyer in mediation in criminal proceedings in the context of exercising the right to a fair trial. Bulletin of Criminal Proceedings, 2, 8-15.

Bondarenko-Zelinska, N. (2020). Introduction of the alternative forms of dispute resolution. International Private Law, 1, 165-168.

Cherniak, Y. (2016). The institution of conciliation agreement over family disputes in the International Civil Procedure: the state of doctrinal development and regulatory resolution. Scientific Bulletin of Uzhhorod National University, Series Law, 38, 100-103.

Dang, J., & Huhns, M. (2006). Concurrent Multiple Issue Negotiation for Internet-Based Services. IEEE Internet Computing, 10, 42-49.

European Parliament. (2008). Directive 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. Access to European Union Law.

Garby, Т. (2004). La gestion des conflits. Economica. 189 p.

Hanik-Pospolitak, R., & Pospolitak, W. (2019). “Pre-trial”, “alternative”, “extrajudicial” regulation. Resolution of private law disputes: the relationship between the concepts. Civil Law and Proceedings, 1, 38-44.

Holovachov, Y. (2020). Dispute resolution with the participation of the judge. Electronic online newspaper.

International Mediation Institute. (n.d.). EU-EEA Legislation on mediation.

Karmaza, O. (2020). Mediation and negotiatons as alternative forms of dispute resolution. Civil Law and Proceedings, 5, 13-18.

Kayser, P. (1996). La recherche en France de la diminution des contentieux judiciaire et administratif par le développement des règlements amiables, Justices. Revue générale de droit processuel, 3, 203-222.

Krysiuk, Y. (2016). Mediation as an out-of-court dispute resolution: the history of implementation in foreign countries and prospects for Ukraine, Scientific Bulletin of Uzhhorod National University. Series Law, 38, 154-157.

Kutcher-Gershenfeld, J. (2020). Negotiated Sharing of Pandemic Data, Models, and Resources. Negotiation Journal, 36, 497-534.

Legifrance. (2020). Décret No. 78-381 du 20 mars 1978 relatif aux conciliateurs de justice.

Legifrance. (2021). Code de procédure civile.

Magendie, J. -C. (2020). Célérité et qualité de la justice: les conciliateurs de Justice. Rapport ISSU du groupe de travail sur les consiliateurs de justice.

Mirimanoff, J. A. (n.d.). Conciliation et médiation: pour en finir avec un psychodrame familial. Actes de la deuxième conférence suisse des autorités de conciliation en matière de baux à loyer. GEMME.

Nosyreva, E., & Filchenko, D. (2015). The main provisions of the concept of the institution of the parties’ conciliation in civil proceedings. Bulletin of Civil Proceedings, 1, 113-124.

The publication platform for federal law. (2008). Swiss Civil Procedure Code.

The Verkhovna Rada of Ukraine. (1994). On International Commercial Arbitration: The Law of Ukraine (No. 4002-ХІІ of 24.02.1994).

The Verkhovna Rada of Ukraine. (2004). On Arbitration Courts: The Law of Ukraine (No. 1701-IV of 11.05.2004).

The Verkhovna Rada of Ukraine. (2020). The Civil Procedural Code of Ukraine.

The Verkhovna Rada of Ukraine. (2020). The Draft Law on “Mediation”.

Zayika, M. (2016). The institution of conciliation of the parties in administrative proceedings: problematic aspects. South Ukrainian Law Journal, 2, 133-136.




How to Cite

MELENKO, O. (2020). Mediation as an Alternative Form of Dispute Resolution: Comparative-Legal Analysis. European Journal of Law and Public Administration, 7(2), 46-63.



International Law. European Law. Comparative Law.

Publish your work at the Scientific Publishing House LUMEN

It easy with us: publish now your work, novel, research, proceeding at Lumen Scientific Publishing House

Send your manuscript right now