Alternative ways of resolving legal disputes and their application in Ukraine

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ALTERNATIVE WAYS OF RESOLVING LEGAL DISPUTES AND THEIR APPLICATION IN UKRAINE

Volodymyr O. Zarosylo, Department of Law Enforcement and Anti-Corruption Activities Interregional Academy of Personnel Management Kyiv, Ukraine

Oleksandr M. Kaplya, Department of Law Enforcement and Anti-Corruption Activities Interregional Academy of Personnel Management Kyiv, Ukraine

Kyrylo V. Muraviov, Department of Administrative, Financial and Banking Law Interregional Academy of Personnel Management Kyiv, Ukraine

Dmytro I. Myniuk, Department of Civil Law Disciplines and International Law Interregional Academy of Personnel Management Kyiv, Ukraine

Olena Yu. Myniuk, Department of Economic Law and Process University of the State Fiscal Service of Ukraine Irpin, Ukraine 

Abstract

Resolving legal conflicts is one of the main tasks of any state. This function is in most cases entrusted to the judiciary, but as experience shows, the court alone cannot ensure the effective functioning of the legal dispute resolution system. For every democratic state, the availability of an alternative is important, and the subject of law must be able to choose the ways of resolving legal disputes. Today in the world there are such alternative ways of resolving disputes as: arbitration, mediation, consultation, negotiations, intersession, conciliation procedure and others. The purpose of the article is to identify the advantages and disadvantages of alternative dispute resolution methods. The article analyzes the literature on this topic, and also presents the features of alternative ways of dispute resolution, which allows us to identify their advantages and disadvantages as a legal procedure. The existence in most countries of the world of alternative dispute resolution is to some extent positive for the parties to the conflict, because dispute resolution through arbitration, mediation, negotiation, consultation and other alternative dispute resolution allows to resolve it without state intervention and they can be solved much faster. Alternative dispute resolution can to some extent be a source of savings money for the state, as they exist independently and do not require funds to provide them from the state, while in Ukraine the system of commercial courts annually requires a fairly large cost of maintaining such courts. Resolving disputes through alternative methods also speeds up their resolution, but in some cases the process itself can be more expensive

Keywords: judiciary, civil law, arbitration, conflict resolution, state legislation

Анотація

Альтернативні шляхи вирішення юридичних спорів та їх застосування в Україні. Володимир Олексійович Заросило, Кафедра правоохоронної та антикорупційної діяльності Міжрегіональна академія управління персоналом Київ, Україна. Олександр Миколайович Капля, Кафедра правоохоронної та антикорупційної діяльності Міжрегіональна академія управління персоналом Київ, Україна. Кирило Володимирович Муравйов, Кафедра адміністративного, фінансового та банківського права Міжрегіональна академія управління персоналом Київ, Україна. Дмитро Іванович Минюк, Кафедра цивільно-правових дисциплін та міжнародного права Міжрегіональна академія управління персоналом Київ, Україна. Олена Юріївна Минюк, Кафедра цивільного права та процесу Університет державної фіскальної служби України Ірпінь, Україна

Вирішення юридичних конфліктів - одне з головних завдань будь-якої держави. Ця функція в більшості випадків покладається на судову владу, але, як показує досвід, сам суд не може забезпечити ефективне функціонування системи вирішення правових спорів. Для кожної демократичної держави важлива наявність альтернативи, а суб'єкт права повинен мати можливість вибирати шляхи вирішення правових спорів. Сьогодні у світі існують такі альтернативні способи вирішення спорів, як: арбітраж, медіація, консультації, переговори, інтерсесія, примирна процедура та інші. Метою статті є виявлення переваг та недоліків альтернативних методів вирішення спорів. У статті проаналізовано літературу з даної тематики, а також представлені особливості альтернативних способів вирішення спорів, що дозволяє визначити їх переваги та недоліки як правової процедури. Існування в більшості країн світу альтернативного вирішення спорів є певною мірою позитивним для сторін конфлікту, оскільки вирішення спорів шляхом арбітражу, посередництва, переговорів, консультацій та інших альтернативних способів вирішення спорів дозволяє вирішити їх без втручання держави і вони можуть вирішуватись набагато швидше. Альтернативне вирішення спорів певною мірою може бути джерелом економії коштів для держави, оскільки вони існують самостійно і не вимагають коштів для їх надання від держави, тоді як в Україні система господарських судів щорічно вимагає досить великих витрат на утримання таких судів. суди. Вирішення суперечок альтернативними методами також прискорює їх вирішення, але в деяких випадках сам процес може бути дорожчим.

Ключові слова: судова влада, цивільне право, арбітраж, вирішення конфліктів, державне законодавство

alternative dispute legal saving

Introduction

In the world today there is a large number of conflicts, the emergence and cessation of conflicts, most of which are transformed into conflicts of a legal nature. At the same time, the basis for all conflicts in most cases is the following reasons: restrictions in the field of rights, deprivation of certain rights or non-compliance with relevant legal norms. Resolving legal conflicts is one of the main tasks of any state. This function is in most cases entrusted to the judiciary, but as experience shows, the court alone cannot ensure the effective functioning of the legal dispute resolution system. For every democratic state, the availability of an alternative is important, and the subject of law must be able to choose the ways of resolving legal disputes. Today in the world there are such alternative ways of resolving disputes as: arbitration, mediation, consultation, negotiations, intersession, conciliation procedure and others [1; 2].

However, in the scientific literature in Ukraine there is also another approach, according to which the state judiciary and alternative dispute resolution are the only dispute resolution system used in the complex of the parties of the dispute. Following this approach, it is impossible to talk about alternatives, because together the court and alternative dispute resolution are of a single entity [3; 4]. Thus, the definition of the method of resolving legal disputes not as an alternative, but as a state is debatable, because the system of alternative dispute resolution does not exclude the judicial order, but may precede it and supplement it [5]. State proceedings and alternative ways of resolving disputes differ significantly in their essence, features and principles of operation. An alternative way of resolving disputes cannot replace the judicial procedure for resolving legal disputes. Judiciary is the main institutional element of the system of state dispute resolution, so each state in its legislation determines which disputes can be resolved exclusively by courts, and which - using alternative dispute resolution.

In Ukraine there was an attempt to determine the ways of solving the disputes and a law on arbitration courts was adopted [6], but soon the situation changed and now we have only state economic courts to solve the disputes. The subjects of legal relations can use the methods of alternative dispute resolution as an additional option to protect their rights, to defend their interests. This possibility is particularly relevant due to the inefficiency of the judiciary, the growing number of cases in the courts, or the presence of other factors of an objective or subjective nature, which is to some extent observed in Ukraine. However, in Ukraine the issue of introduction of alternative dispute resolution methods, their proper legal regulation, expansion of the range of disputes that can be resolved using alternative dispute resolution methods is not on the agenda. As elements of the legal dispute resolution system, alternative dispute resolution and public justice are interdependent and competitive. Interdependence is that alternative dispute resolution may precede or supplement litigation (for example, negotiations between the parties) (for example, concluding a mediation agreement at the enforcement stage). At the same time, the practice of resolving legal disputes by the judiciary and the use of alternative dispute resolution methods indicates the existence of such competition. Legal dispute resolution is a kind of service, the customers of which are the parties to the dispute. Usually, those who provide a better service are approached. The purpose of the article is to identify the advantages and disadvantages of alternative dispute resolution methods.

Materials and metods

The methodological approach to this research work is based on a combination of methods of system analysis of the currently existing methods for resolving legal conflicts with an analytical research of the possibilities of finding alternative methods for resolving them, with a consistent identification of their main advantages and disadvantages. This research presents an analysis of alternative methods for resolving legal issues, which gives grounds to assess their practical effectiveness in terms of shaping the perception of these methods exclusively as a legal procedure. This research work involves the creation of a high-quality theoretical base, which is an analysis of available scientific research devoted to examining various aspects of finding alternative ways to resolve legal issues and their application in the legal practice of a particular state. At the same time, specific alternative methods are indicated and an analysis of their effectiveness in resolving specific legal situations is carried out. This scientific research was carried out in three main stages.

At the first stage of this scientific research, a qualitative theoretical base is formed, which is the results of a study of literary sources available within the stated subject matter, with the identification and presentation of the main features of alternative options for resolving legal disputes, which makes it possible to determine their specific advantages and disadvantages as a legal procedure. In addition, at this stage of scientific research, a systematic analysis of the currently existing methods of resolving legal conflicts is carried out, taking into account the traditional methods of resolving them, as well as a number of alternative options.

At the second stage of this research work, an analytical study of the possibilities of finding alternative methods for their resolution is carried out, with a consistent identification of their main advantages and disadvantages. At this stage of the scientific research, a qualitative assessment is given to various aspects of the existence of alternative methods for resolving legal disputes in different countries, with an assessment of the degree of usefulness of such methods for the parties to the conflict, since such methods allow one to come to its resolution without the involvement of state authorities, which significantly speeds up the entire process and save its participants from significant additional waste of time and effort. Also, at this stage of scientific research, an assessment is made of the main features of legal dispute resolution and existing approaches to understanding the essence of alternative methods for resolving legal issues.

At the final stage of this scientific research, on the basis of the results obtained in the course of it, the final conclusions are formed, which are the final display of the sequence of scientific research performed and reflect the main advantages of alternative methods of resolving legal disputes in comparison with traditional methods. Also, the conclusions of this scientific study reflect the basic principles on which alternative methods of resolving legal disputes are based, as well as the conditions for the successful completion of alternative options for resolving legal conflicts and disputes, which, in general, determines the possibility of subsequent practical application of the results and conclusions of this study as a reliable methodological basis for further scientific research on alternative ways of resolving legal disputes and their practical application as a procedure of a purely legal nature.

Results and discussion

Alternative dispute resolution can be used in different areas of law, depending on the purpose of the parties. Disputes that are resolved through alternative dispute resolution are impressive both in terms of subject composition and amount. Institutions that provide alternative dispute resolution services, interested in their own development, are concerned about their authority, and therefore are constantly improving the rules of procedure, recommendations on conflicts of interest, gathering evidence, reservations in the contract, precautionary measures. They care about their own reputation, as evidenced, for example, by the fact that during the entire period of the International Chamber of Commerce's arbitration, there have been no cases of arbitrators being accused of corruption scandals. Therefore, alternative dispute resolution and public litigation in a kind of competition must be constantly improved, which will benefit the subjects of law. In general, the use of alternative dispute resolution should help to improve the legal dispute resolution system in Ukraine [7; 8].

In the scientific literature there are various definitions of alternative dispute resolution [9]. Black's Law Dictionary [9] defines alternative dispute resolution as a procedure for resolving disputes in ways other than judicial, such as mediation and arbitration. The Swiss Arbitration Association's Dictionary defines alternative dispute resolution as:

1) optional amicable settlement of the dispute by a third party, not including arbitration (in Europe);

2) any settlement of a dispute involving a third party, with the exception of litigation, including arbitration (in the United States) [10; 11].

Another legal dictionary defines alternative dispute resolution as a unifying term that describes methods that parties can use other than litigation, including negotiation, mediation, and many types of arbitration. Some researchers identify alternative dispute resolution as a way to resolve a dispute without going to court. One of the reasons for the large number of approaches to understanding alternative dispute resolution is that scholars and practitioners include different dispute resolution methods. For example, some researchers do not consider arbitration as an alternative way of resolving disputes. After all, arbitration has certain responsibilities for the parties involved. Other researchers point out that negotiations are not an alternative way to resolve disputes because only the parties' lawyers are present during the negotiations and there is no third party. Lord Wolfe, the founder of the reform of the English civil process, identified arbitration, administrative tribunals, pseudojudicial proceedings, ombudsman proceedings and mediation as the main forms of alternative dispute resolution. At the same time, many researchers do not refer to administrative tribunals and the ombudsman as a variety of alternative dispute resolution [12; 13].

Some scholars mistakenly call alternative dispute resolution pre-trial dispute resolution [14-15]. This approach is incorrect, as it provides for litigation as a mandatory part of resolving a dispute. However, in different countries, many disputes are not resolved at all in national courts due to the fact that the agreement concluded on the implementation of certain actions provides for the settlement of the dispute through negotiation, mediation or arbitration. Of particular importance are the issues of alternative dispute resolution in civil law [16-18]. It should be noted that alternative dispute resolution is not always less costly than litigation. In addition, they are used not only to resolve commercial disputes. Other types of disputes can be resolved through arbitration, mediation, and negotiations. Due to their universality, alternative dispute resolution allows for a wider range of disputes than national courts.

There is a point of view on the definition of alternative dispute resolution as “non-state procedures for the settlement of civil disputes”, the main feature of alternative dispute resolution is that they are not carried out by public authorities [19; 20]. In general, an alternative dispute resolution is the application (for example, by an arbitral tribunal) of legal norms and the adoption of a binding decision for the parties, based on legislation and other possible sources of law. The “dispute resolution” method is used when resorting to alternative dispute resolution methods such as arbitration and international commercial arbitration. When using the “dispute resolution” method, the problem is resolved in relation to the existing rights and obligations of the parties (legal relations of the parties), and in the case of “settlement of the conflict” the parties seek to reconcile their interests and achieve mutually acceptable termination of the conflict [21]. Thus, dispute resolution and conflict resolution are fundamentally different methods used in alternative dispute resolution.

According to research, there are the following signs of non-governmental procedures for settling civil disputes:

- no state intervention;

- recognition by public authorities;

- contractual nature of application;

- voluntary application of procedures;

- cooperation of the parties;

- confidentiality;

- relative formality;

- variability of procedures, their variety;

- participation of a third neutral participant, elected or appointed by mutual consent of the parties (this approach is generally correct, but some of these features are debatable).

In general, alternative dispute resolution in most cases has the following features:

- non-state character;

- contractual nature of application, based on mutually agreed definition of procedures and implementation of decisions;

- universality, the disputes can be resolved both between individuals and legal entities, as well as between international organizations, states, or unions of states;

- legal nature, the dispute resolution is based on certain legal norms;

- flexibility in resolving disputes, various methods, means, procedures are used, which are independently determined by the parties, as well as they determine the conditions and procedure for their implementation;

- confidentiality, only the parties to the proceedings and the invited persons take part in the alternative dispute resolution.

Comparing alternative dispute resolution and litigation, we can identify their commonalities and differences. The common ones include:

a) systematization - disputes are considered by the system of judicial authorities in accordance with the established jurisdiction, however, there is a system of alternative dispute resolution, as well as various institutions operating in this field and international organizations;

b) independence, the dispute is considered by an authorized person who is independent of the conflicting parties and acts impartially;

c) the plurality of parties;

d) the possibility of involving experts and specialists [22; 23].

However, there are differences between the resolution of disputes by public authorities and alternative dispute resolution methods mentioned earlier. Thus, we can say that alternative ways of resolving disputes exist in most countries abroad. In Ukraine, from the very beginning of independence, an attempt was made to introduce an arbitration system to resolve legal disputes [24]. In 1991, the Arbitration Court Act was passed, [6] which to some extent introduced one of the main types of alternative dispute resolution that exists around the world. However, 10 years later, in 2001, a new law was passed that abolished the existence of arbitration courts in Ukraine and introduced the so-called commercial courts, which are state-owned and resolve all disputes arising on behalf of the state [25].

In order to implement the issue of arbitration courts to some extent, the Law of Ukraine “On Arbitration Courts” [26] was adopted in 2004, which is in force, but it is practically ineffective, as the vast majority of legal disputes are resolved by commercial courts. These courts are determined as the most corrupt branch of the judiciary in Ukraine. Thus, the state deprived the business entities of the opportunity to resolve disputes to use alternative ways of its resolution. As for other alternative ways of resolving economic disputes, such as mediation, negotiations, and consultation, they are also used to a rather limited extent in Ukraine. Commercial courts have thus established a kind of memorandum that only they have the right to resolve commercial and other property disputes.

The new Code of Criminal Procedure in Ukraine has significantly expanded the scope of alternative dispute resolution, combining elements contained in continental systems (exemption from criminal liability) and Anglo-American systems (institution of agreements), which has led to the humanization of criminal law in Ukraine and protection of rights participants in criminal proceedings. In world practice are used a sufficient number of alternative methods of dispute resolution, including such procedures as: appointment of an expert, negotiations, negotiations with a mediator (facilitated negotiations or assistance), conciliation, mediation, litigation, mini-litigation, establishment facts, dispute commissions, private litigation, timely neutral assessment, multi-door court, pre-trial settlement conference, comprehensive jury trial, etc.

Alternative dispute resolution, which in its diversity represents a whole system of methods, means, methods of private settlement of relations between the parties. It should serve the purposes of justice, provide procedural guarantees for the protection of the rights and interests of the parties and improve the resolution of disputes. The urgent task of the modern judiciary of Ukraine is the effective and rapid resolution of conflicts. The development and application of various methods of alternative dispute resolution will help solve this problem.

Conclusions

The existence in most countries of the world of alternative dispute resolution is to some extent positive for the parties to the conflict, because dispute resolution through arbitration, mediation, negotiation, consultation and other alternative dispute resolution allows to resolve it without state intervention and they can be solved much faster. Alternative dispute resolution can to some extent be a source of savings money for the state, as they exist independently and do not require funds to provide them from the state, while in Ukraine the system of commercial courts annually requires a fairly large cost of maintaining such courts. Resolving disputes through alternative methods also speeds up their resolution, but in some cases the process itself can be more expensive.

Alternative forms of dispute settlement should be based on the following international principles: the principle of cooperation, which is to identify the common interests of the parties and which is based on mutual concessions and the search for understanding; the principle of differentiation, in which the parties to a legal conflict may use alternative means individually, in combination or in a certain order; and the principle of confidentiality, which establishes the secrecy of each alternative procedure. Alternative resolution of legal disputes and conflicts can be successful only if there is constant and close cooperation with civil society institutions. Such interaction will create an active civil position, increase public confidence in alternative dispute resolution, conflict resolution and contribute to the normalization of relations in various spheres of public life.

References

1. Lyubchenko, Ya.P. (2018). Alternative ways of resolving legal disputes: Theoretical and legal aspect. Kharkiv: Yaroslav Mudryi National Law University.

2. Benedikt, A., Suslo, R., Paplicki, M., & Drobnik, J. (2020). Mediation as an alternative method of conflict resolution: A practical approach. Family Medicine and Primary Care Review, 22(3), 235-239.

3. Krestovskaya, N., & Romanadaze, L. (Eds.). (2019). Mediation in the professional activity of a lawyer. Odesa: Ekolohiya.

4. Gaiduk, N., Senyuta, I., Bik, O., & Tereshko, H. (Eds.) (2007). Alternative approaches to conflict resolution: theory and practice of application. Lviv: PAIS.

5. Kislyi, A., Stetsiuk, B., & Kovalenko, I. (2018). A comparative analysis of foreign and national experience of Ukraine in administration of value added tax. Baltic Journal of Economic Studies, 4(2), 301-308.

6. Resolution of the Verkhovna Rada of the Ukrainian SSR On the Procedure for Enacting the Law of the Ukrainian SSR “On the Arbitration Court”. (1991, June). Retrieved from https://zakon.rada.gov.ua/laws/show/1143 - 12#Text.

7. Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. (2002, June). Retrieved from http://zakon0.rada.gov.ua/laws/show/995_l17.

8. Alternative Dispute Resolution in England and Wales. (2017). Retrieved from https://cutt.ly/xUWKkM5.

9. Garner, B.A. (Ed.). (2019). Black's law dictionary. Eagan: Thomson West.

10. Blake, S., Browne, J., & Sime, S. (2014). A practical approach to alternative dispute resolution. Oxford: Oxford University Press.

11. Karrer, P.A. (Ed.). (2009). Glossary of arbitration and ADR terms and abbreviations. Geneve: Swiss Arbitration Association.

12. Alternative conflict management. (2021). Retrieved from https://goo.su/9nUP.

13. Yaroshenko, O.M., Sliusar, A.M., Sereda, O.H., & Zakrynytska, V.O. (2019). Legal relation: The issues of delineation (on the basis of the civil law of Ukraine). Asia Life Sciences, 2, 719-734.

14. Borysova, V.I., Ivanova, K.Y., lurevych, I.V., & Ovcharenko, O.M. (2019). Judicial protection of civil rights in Ukraine: National experience through the prism of European standards. Journal of Advanced Research in Law and Economics, 10(1), 66-84.

15. Kostruba, A.V., & Lukianov, D. (2019). Multivariability of rights in the structure of corporate legal relations. Journal of Advanced Research in Law and Economics, 10(7), 2035-2039.

16. Lukianov, D.V., Hoffmann, T., & Shumilo, I.A. (2021). Prospects for recodification of private international law in Ukraine: Do conflict-of-laws rules require a new haven? Journal of the National Academy of Legal Sciences of Ukraine, 28(2), 198-210.

17. Lapkin, A., Maryniv, V., Yevtieieva, D., Stolitnii, A., & Borovyk, A. (2019). Compensation for damage caused by offences as the way of protection of victims' rights (On the example of Ukraine): The economic and legal aspects. Journal of Legal, Ethical and Regulatory Issues, 22(3), 1-10.

18. Tatsiy, V. (2021). Re-codification of the civil law of Ukraine: On the way to European integration. Global Journal of Comparative Law, 10(1-2), 1-4.

19. Karnaukh, B. (2021). Standards of proof: A comparative overview from the Ukrainian perspective. Access to Justice in Eastern Europe, 4(2), 25-43.

20. Yulia, R., & Sergiy, R. (2021). Justice in the digital age: Technological solutions, hidden threats and enticing opportunities. Access to Justice in Eastern Europe, 4(2), 104-117.

21. Oleksandr, D., Oleh, R., & Valeriy, M. (2021). Mediation and court in Ukraine: Perspectives on interaction and mutual understanding. Access to Justice in Eastern Europe, 4(3), 181-190.

22. Rozhnov, O. (2020). Towards timely justice in civil matters amid the COVID-19 pandemic. Access to Justice in Eastern Europe, 3(2-3), 100-114.

23. Pchelina, O., Sezonov, V., Myrhorod-Karpova, V., & Zherobkina, Y. (2019). Administrative and legal mechanism of execution of decisions of the European court of human rights as the basis of case law application in the judicial system of Ukraine. Asia Life Sciences, 2, 117-134.

24. Holovatyi, M. (2015). The state and society: The conceptual foundations and social interaction in the context of formation and functioning of states. Economic Annals-XXI, 9-10, 4-8.

25. Law Of Ukraine “On commercial courts”. (1991, June). Retrieved from https://zakon.rada.gov.ua/laws/show/1142-12tfText.

26. Law Of Ukraine “On arbitration courts”. (2004, May). Retrieved from https://zakon.rada.gov.ua/laws/show/1701 - 15#T ext.

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