Mediation and conсiliation as separate intercorporate conciliatory procedures

Keywords: protection of corporate rights, conciliatory procedures, mediation, conciliation, alternative dispute resolution, mediation procedure, mediation agreement, mediation clause

Abstract

The article focuses on the important role of mediation and conciliation as separate intercorporate conciliation procedures. Mediation
has been found to be a form of voluntary conciliatory procedures of an internal corporate nature, aimed at reconciling the parties
to the conflict and regulating relations between them, with the obligatory involvement of a neutral third party, whose main task is to
facilitate the settlement of the conflict. At the same time, it seems that the sphere of interpersonal relations, which is not regulated by
law, plays a priority role in resolving corporate disputes. In addition, the mediation process is able to cover almost all aspects of the
conflict situation in the field of corporate relations, in contrast to litigation, which focuses exclusively on the legal side of the dispute.
Accordingly, the decision made as a result of mediation is more likely to be perceived by the parties as fair and most compromising.
The foreign experience of legal regulation of relations concerning mediation is analyzed, which testifies to the variability of legislative
approaches to the procedural features of its conduct. Thus, Directive 2008/52/ EU of the European Parliament and of the EU
Council on certain aspects of mediation in civil and commercial matters, which establishes the basic principles of conducting and implementing
a mediation mechanism in the national legislation of EU member states, has played a key role in the European practice of mediation.
The draft Law of Ukraine «On Mediation» № 3504 from 19th of May, 2020, which establishes the approach to resolving corporate
disputes in terms of mediation procedures, according to which mediation can be used as a conciliation procedure in corporate disputes
to protect corporate rights - both those that arise from contracts and non-contractual. In addition, mediation may take place before
recourse to a court, arbitral tribunal, international commercial arbitration, as well as during court, arbitration or arbitration proceedings
or during the execution of a court decision, arbitration tribunal or international commercial arbitration.
Separately within the limits of article such intercorporate conciliatory procedure, as conciliation is considered under which it is
suggested to understand the conciliatory procedure, which is organizationally and procedurally similar to mediation and aimed at mutually
beneficial and compromise settlement of the dispute between the participants of the company and / or the legal entity, with the
obligatory involvement of a neutral third party (conciliator) who offers the parties their own solutions. At the same time, in order to
avoid discussions about the essence of conciliation and its differences from mediation, it is quite obvious that it is necessary to legislate
its concept.

Published
2020-11-10
How to Cite
Haliian, I. (2020). Mediation and conсiliation as separate intercorporate conciliatory procedures. Law Review of Kyiv University of Law, 1(3), 201-205. Retrieved from https://chasprava.com.ua/index.php/journal/article/view/499
Section
The issues of civil law, commercial law, labour law and social security law of U