In many countries of the world, the person who owns intellectual property rights has the opportunity to protect them in court or to implement the so-called alternative (out-of-court) settlement of disputes on these issues using the mediation procedure. Mediation in the field of intellectual property law is considered to be very effective. It is the results of intellectual creative activity that require a quick response to rights violations. Therefore, you can turn to mediators, which will significantly speed up the resolution of the conflict. Initially, the idea of alternative justice was developed in Western political and legal teachings. As noted by D. Brathwaite, "we wanted all cultures of the twenty-first century to realize that their conciliatory traditions will bring much more benefit than punitive procedures. In the countries where the Anglo-Saxon legal system operates (USA, Great Britain, Australia), mediation has been practiced since the beginning of the 60s of the XXI century, in the countries of continental law (France, Belgium, Germany, etc.) it came in the last century [2, 460-472].
As for the methods of introducing mediation into different legal systems, they followed two different paths. The first approach, which was based on a voluntary basis, where the judge suggested that the parties seek the services of a mediator, failed wherever attempts were made to implement it. And the reason was simple - the resistance of lawyers. The first projects were tested in the British Central Land Court of London, in 1996-1998 in the British Court of Appeal, as well as in the courts of Australia, New Zealand, Canada and in a number of courts in various states of the USA [3, p. 57]. Another approach is based on a mandatory basis. And it did not bring significant results. In fact, a judge was not appointed to hear the case unless the parties tried to negotiate first. But lawyers and parties approached this issue as just one more formal hurdle that must be overcome.
The question was not only whether litigation mediation should initially be voluntary or mandatory, but whether it could be effective if applied automatically by the court. The European Union interprets mediation as an effective way of settling disputes in societies dominated by the European law-making culture. International institutions have been interested in the issue of mediation for many years. They encourage EU member states to take into account the ideas of reconciliation and mediation in their legislation, to pay more attention to the institution of reconciliation in the justice system.
In Germany, mediation is harmoniously integrated into the justice system. For example, mediators work directly with the courts, significantly reducing the number of potential lawsuits. In most German law schools, a permanent mediation course has been introduced. Dr. Artur Trossen created and successfully operates the International Association of Integrated Mediation, which unites mediators from more than 10 countries of the world [1, 460-472].
There are no nationwide standards for mediation in Germany. Each federal state can develop its own practical guidelines. They may concern such standard issues as the substance of the agreement between the parties or the list of disputes referred to mediation. Mediation standards can also be accepted by public organizations. Thus, the Office for Mediation and Conflict Resolution Services in the federal state of Cologne has developed training standards for mediators. All mediators are divided into professionals and volunteers, but special qualifications are not a necessary condition for further work. It is enough to complete the basic training. In Germany, there are two main sources of information about mediation. The first combines the efforts of the forensic science departments of four universities. The second source is a national survey based on data from mediation organizations. The study records 9,000 mediations. Currently, the number of conducted mediations can reach 25,000 per year [7, 282-293].
Austria is one of the few countries in the world where the profession of mediator is included in the nomenclature of professions. Austrian law provides that an agreement resulting from mediation conducted in connection with existing proceedings may be recognized by the court, while the result of pre-trial mediation does not receive judicial protection.
Forms of alternative conflict resolution have been present in Canada for 200 years, since the first settlers who arrived in Canada from Great Britain and Europe brought with them dispute resolution methods used in these countries. However, traditionally the majority of disputes were heard by the state court. In connection with the growth in the number of cases, the increase in the burden on the courts, and the increase in court costs of the parties, the search for better ways to resolve these disputes began [5, 25-27].
A very interesting example is the USA, where the entire legal system is aimed at the fact that most disputes are resolved voluntarily before the court, and the judge can make a break in the consideration of the court case and advise the parties to work with a mediator. It is worth noting that in the USA it was the legal profession that took the initiative to introduce the institution of mediation into the process of pre-trial dispute settlement. The main reason for the emergence of mediation in the USA was a feature of the precedent legal system, such as the absence of a "ready-made decision" in the form of a formulated rule of conduct in a specific act of legislation, which could be chosen as a model when resolving a dispute. The judge's opinion in resolving the dispute is decisive, and it is difficult to predict the future resolution of the conflict. Some circumstances contributed to the formation of mediation, namely: when turning to the court, the parties transferred to it all the powers to resolve the dispute; the high cost of the party's participation in the court process with the involvement of a lawyer; the duration of the litigation of the dispute, which prolongs the existence of the conflict and has a negative impact on business, and the complexity of many disputes, the impossibility of considering them within the framework of one judicial process, when applying to the administrative or judicial procedure for the protection of violated rights, it becomes necessary to submit a number of lawsuits or petitions to the competent authorities [4, 1265-1270].
Initially, mediation was an institution of an exclusively private (voluntary) order, when the parties are free to choose a mediator and determine the rules of the process itself. Subsequently, a type of mediation as an institution of public procedural law appeared in the USA: in order to reduce the workload of the courts of common law countries, mediation in certain cases is now a mandatory prerequisite for court proceedings, and the procedure for its conduct is formalized. Thus, out-of-court and pre-court mediation began to be distinguished. This practice has spread also in some countries of the continental legal family. Today, mediation is widely used in resolving labor, family, corporate, and public conflicts, restoring the status of a crime victim, clarifying disputes as a result of road accidents, causing damage to life and health due to improper treatment.
The institution of mediation has recently become an increasingly popular method of dispute resolution in many countries, which facilitates dispute resolution without court proceedings.
The mediation mechanism involves the presence of a mediator, whose function is to eliminate problems in the communication of the parties in such a way that a single solution to the disputed issue is jointly chosen, which would suit both parties and take into account their interests.
It should be noted that the effectiveness of the mediation procedure is recognized by the European Community, which in turn recommends it as a method of alternative dispute resolution both at the pre-trial stage of the case and during the trial [3,530-549].
Given the fact that Ukraine has chosen a course for European integration, which is confirmed by Ukraine's signing of the Agreement on the Association of Ukraine with the European Union and the European Atomic Energy Community and their member states, an important component of European integration processes is the implementation of European values, standards and principles in Ukrainian legislation .
Thus, according to Article 1 of this Agreement, Ukraine and the EU must strengthen cooperation in the sphere of justice, freedom and security, with the aim of ensuring the rule of law and respect for human rights and freedoms [6].
In Ukraine today, mediation is gaining more and more popularity, including among lawyers. Thus, the establishment of the Mediation Committee at the National Bar Association of Ukraine is proof that the bar community is interested in the promotion and development of the institution of mediation.
Active use of the mediation procedure by lawyers in their practice will contribute to an increase in the percentage of resolved disputes without litigation, which in turn will contribute to a reduction in the number of cases in courts.
In this regard, there is a need to consolidate this institution at the legislative level through the adoption of the Law of Ukraine "On Mediation", which should regulate all the features of this procedure and be based primarily on such principles as independence, confidentiality, and neutrality.
Thus, it should be noted that pre-trial, peaceful resolution of disputes is important in terms of protecting the rights and freedoms of citizens without court proceedings, which in turn will contribute to reducing the burden on judicial bodies, as well as much faster resolution of conflicts between the parties, minimizing costs for resolving disputes in court by citizens. As we can see, with this method of conflict resolution, the parties come to a compromise with the help of a mediator, relying on his experience, knowledge and skills [8, 115-117].
The introduction of the institution of mediation in Ukraine is of great practical importance, as it contributes to the relief of the judicial system, and also, allows to effectively resolve almost any dispute. The existence of a private initiative in this area, although it is a calling aspect, nevertheless does not increase the attractiveness of the institution of mediation for the subjects of the dispute, as it does not provide a guarantee of the implementation of jointly adopted decisions [7, 282–293].
It was found that mediation and settlement of a dispute with the participation of a judge are completely different concepts. The main difference between the procedures of mediation and settlement of a dispute with the participation of a judge is the purpose of the following measures: mediation - maximum protection of the interests of both parties, settlement of a dispute with the participation of a judge - an attempt to resolve the dispute with minimal expenditure of time and money. In addition, "mediation in civil proceedings" as a separate method of dispute resolution does not exist due to the spread of mediation to many areas of law with the same legal effect, while the second method of conciliation with all its subspecies belongs purely to civil procedural law and is regulated by the norms of the Civil Procedure Code of Ukraine . In order to improve the efficiency of the use of the institution of mediation, a legislative act was approved, which defines clear provisions related to this method of reconciliation. The parties must determine the way to resolve the dispute independently.
References:
1. Arthur Trossen. Mediation visionär. Zusammenstellung des Wissens der integrierten Mediation und Abgrenzung zur konventionellen Mediation. Win-Management Verlag. Altenkirchen 2021. 960 Seiten.
2. Katrin Deckert. Mediation in France: Legal Framework and Practical Experiences. Get access Arrow. Publisher: Oxford University Press 2012. Pages 455–520. URL: https://doi.org/10.1093/acprof:oso/9780199653485.003.0007
3. Klaus J. Hopt, Felix Steffek. Mediation: Principles and Regulation in Comparative Perspective. Publisher: Oxford University Press 2012. Pages 520–575. URL: https://academic.oup.com/book/34838?searchresult=1
4. Rainer Kulms. Mediation in the USA: Alternative Dispute Resolution between Legalism and Self-Determination. Publisher: Oxford University Press 2012. Pages 1245–1328. URL: https://doi.org/10.1093/acprof:oso/9780199653485.003.0025
5. Михальський Ю. Інститут медіації в Україні та за кордоном; Юридична газета. № 5 (С. 270); 2011; (25 – 27 с.).
6. Романадзе Л. Про медіацію та українське законодавство. URL: http://law.ucu.edu.ua/malymy-krokamy-doyevropy-luyiza-romanadze-pro-te-yak-mediatsiya-spryyayenablyzhennyu-ukrayinskogo-ta-yevropejskogo-zakonodavstva/
7. Цибуляк-Кустевич А. Роль судді в процедурах примирення та медіації (порівняльно-правове дослідження). Evropsky politicky a pravni diskurz. 2015. Vol. 2, Iss. 2. (282–293 с.); URL: http://nbuv.gov.ua/UJRN/evrpol_2015_2_2_45
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