Mediation And Negotiation In Ukraine

It is difficult to argue with the fact that existence of this phenomenon like law and effective governance are the most fundamental elements for the progressive community development and the necessary functioning mechanism. Without the last one the world would turn into the complete anarchy and chaos. Both effective governance and the community are the dynamic structure which is to suit to the nowadays conditions. So, it is not strange that some legal phenomena which were relevant about few years ago today lose their positions.

The World Bank defines good governance as – “..the one epitomized by predictable, open, and enlightened policy-making, a bureaucracy imbued with a professional ethos acting in furtherance of the public good, the rule of law, transparent processes, and a strong civil society participating in public affairs. Poor governance (on the other hand) is characterized by arbitrary policy making, unaccountable bureaucracies, un-enforced or unjust legal systems, the abuse of executive power, a civil society unengaged in public life and widespread corruption.”

Most important principles of Effective Governance according to WB’s view are: Free and Fair Elections, Independent Judiciary & The Rule of Law, Freedom of Speech & Press, Elimination of Corruption, Accountability, Fairness.

I read a point of view that “concept of good governance as developed by the World Bank is essentially a touchstone upon which the prevailing administrative structure of a given country can be measured. Consequently, it provides ample evidence of the robustness of the structural suitability of donors as efficient vehicles of multilateral aid investment to developing countries. Good governance is therefore chiefly envisaged as a set of procedural tools to guarantee the efficacious improvement of the donor identified subject. Politically, however, the principle of good governance has not been very well received. For instance, governments may be reluctant to be held accountable to donor agencies, and they may sometimes display widespread hostility against such agencies (or other bodies) that is construed to be interfering in their (sovereign) domestic affairs.” I agree that

Just Governance for Human Security has been described by former United Nations Secretary General Kofi Annan as “Freedom from want, freedom from fear, and the freedom of future generations to inherit a healthy natural environment”. It depends on decisions made by those in power, diplomats, the media, academics and educators, industrialists and civil and social actors, but it also depends on each one of us. The global rise of extremes of all kinds puts this human security at risk.

For instance, it is not a secret that judicial method of resolving disputes in the conditions of the modern market relations cannot boast of rapidity and efficacy of resolving disputes in different spheres of our everyday life. This is inevitably due to competition and opposition of the parties which cause even more escalation of the conflict. In this turn, due to alternative dispute resolution the priority is to find out and satisfy the interests and needs of the conflicting participants on basis of consensus achievement. This ability is necessary, in my opinion, for every civil servant and modern just governance for and human security.

One of such methods is mediation which has been using in the many states of the world, but it is just finding among the population its legal consolidation and recognition in my native country, Ukraine. The reasons are the little number of professional mediators who could provide quality services for their clients. Another problem is the absence of appropriate legal provisions in Ukrainian procedural legislation that would facilitate the development of such alternative mediation.

Mediation is negotiating for resolving the conflict with the help of the third neutral part (mediator) who is not a judge or arbitrator. He does not make any decisions: he is neutral of the conflict in relation to the parties; however, the result of understanding, taking the most profitable variant of disputes settlement which satisfy both sides, depends on his ability to facilitate and coordinate the process of mediation.

The value of this method in effective governance is due to the solution of contradictions by focusing directly on the interests of the parties and the achievement of mutual consent or contractual rights. So, mediation exceeds the bounds of law, considers the conflicting parties` feelings, gives the opportunity to reestablish the constructive communication and sets long-term friendly relations.

Implementation of mediation process into domestic and international acts is the key to successful governance and public administration reform (for example, Ukraine has such strict requirement from the EU in Association Agreement, which was signed in 2014).

The contemporary efforts towards administrative reforms are not directed against an autonomous State, but instead a bureaucracy that is coming to grips with the changing role of the State. The bureaucracy is itself under an attack; on account of its inefficiency and also because of its association with a political system which has failed to perform, a system which deprived the citizens of their legitimate rights in decision making for far too long.

This context must therefore be kept in mind while debating over the reform initiatives in recent times. The change in the context is primarily seen as an induced effect of the demand generated by the people’s struggle to make the government accountable. It is a change spearheaded by the efforts of the people. It is not a deliberate attempt by a benevolent government to come clean.

Every civil servant and public official must be able to conduct a dialog between the parties, to ask accurate questions which help the parties to find the way of conflict resolution by themselves characterize a good mediator, bring him to the new professional level, help him to meet the requirements and be one of the best in his situation.

In conclusion, the year 2018 has been marked, in my opinion, by the effective reforms in Ukraine’s legislative system, especially regarding provisions of procedure Codes. While many of the resulting changes are expected to bring further stability and predictability, some will pose additional challenges. Ukraine renew efforts to amend its national legislation and strengthen its judicial system are expected to have positive effects on the business environment within my native country.