Mandatory Mediation in Ukraine: Barrier to Justice or Filter Against Frivolous Litigation?

The Ukrainian judicial system is experiencing difficult times. Cases are heard for months, hearings are scheduled with significant delays, and enforcement of court decisions remains problematic. Against this backdrop, mediation is increasingly mentioned as a possible tool for relieving courts. In November 2021, Ukraine adopted the Law “On Mediation” No. 1875-IX, which defined mediation as a voluntary procedure. But the debate continues: should mediation be made mandatory at least in some categories of cases? Who advocates for mandatory mediation and why? How much does mediation actually cost for an ordinary person? And how to find a balance between the need to relieve courts and everyone’s right to judicial protection?

Bills on Mandatory Mediation: Who’s Lobbying and Why

From Voluntariness to Obligation: The Essence of the Debate

Ukraine’s Law “On Mediation,” which entered into force on December 15, 2021, established mediation as a voluntary, confidential procedure. No one can be compelled to participate in mediation—this is a fundamental principle. The parties themselves decide whether to approach a mediator, whether to continue the process, whether to reach an agreement. The court may recommend mediation but cannot order it.

However, already during the discussion of the draft law, and especially after its adoption, calls to introduce mandatory mediation at least in certain categories of cases are becoming louder. This is not about compelling people to agree, but about the obligation to try mediation before going to court or about a mandatory information session with a mediator where parties are explained the essence of the process.

The idea is simple: if people don’t know about mediation or are skeptical about it, they will never try it. But if they are required to at least listen to a mediator, many will understand the benefits and decide to continue. This way, a culture of peaceful conflict resolution is formed, and courts are relieved.

Who Advocates for Mandatory Mediation

The idea of mandatory mediation is supported by several groups of stakeholders, each with their own motives.

Judges see mediation as an opportunity to reduce workload. Ukrainian judges are overloaded, often handling hundreds of cases simultaneously. If some disputes are resolved through mediation, judges will have time for complex cases that truly require court proceedings. The Commercial Court of Kyiv held a roundtable on mediation back in 2019, showing that judges are ready to support this institution.

The mediator community is naturally interested in expanding mediation practice. The National Association of Mediators of Ukraine, the Ukrainian Mediation Center, and professional associations actively promote the idea that mediation should become an integral part of the legal system. They believe that without elements of mandatory participation, mediation will remain a marginal practice known only to a narrow circle of initiates.

Some lawyers and legal professionals also support mandatory mediation. They understand that mediation can become a new direction of their professional activity. Accompanying a client in mediation is a paid service. In addition, there are lawyers who combine legal practice with mediation, and for them the expansion of mediation means expansion of opportunities.

The state considers mediation as a way to save money. Expanding the judicial system requires huge investments: new courts, judges’ salaries, staff, infrastructure. Mediation does not require such costs—mediators work as private professionals, their services are paid by clients. The paradox is that the state simultaneously depends on court fees as a source of income. Therefore, state support for mediation often remains at the level of declarations.

The European Integration Impulse

Ukraine has committed to bringing its legislation closer to EU standards, and mediation is part of this process. Directive 2008/52/EC established a general framework for mediation in civil and commercial matters in member states. Many European countries have introduced elements of mandatory participation: somewhere it’s an information session, somewhere it’s full mandatory mediation in certain categories of cases.

Ukraine’s accession to the Singapore Convention on International Settlement Agreements Resulting from Mediation also creates momentum. The Convention makes mediation agreements enforceable in international disputes, increasing the attractiveness of mediation for business.

The international context creates pressure on Ukrainian legislators: if all developed countries are moving towards mediation, why should Ukraine stay aside? The European integration course is not only economy and security, it is also justice, and mediation becomes part of this package.

After the War: Mediation as a Post-Conflict Settlement Tool

One of the most significant arguments in favor of developing mediation is the anticipated situation after the end of the war. Ukraine will face a huge number of disputes: compensation for war damage, labor rights of demobilized personnel, business obligations impossible to fulfill due to the war.

The traditional court system simply will not cope with such a flow of cases. Even now courts are overloaded, and after the war the load will increase many times over. Mediation can become a key tool for peaceful resolution of these conflicts. But this requires infrastructure, trained mediators, trust in the process. And that is why the debate about mandatory mediation is becoming especially relevant: perhaps it is necessary to accelerate the implementation of mediation so that by the end of the war it becomes a common practice.

How Much “Free” Mediation Costs for the Average Ukrainian

Myths and Reality About the Cost of Mediation

When talking about mediation, the argument often sounds: it’s cheaper than court. This is true, but with caveats. Mediation can indeed save money, but it is not free. And for many Ukrainians, the cost issue becomes critical.

Today in Ukraine there are no established pricing standards for mediation services. Each mediator sets their own rates depending on experience, reputation, complexity of the case, and region. Beginners may charge a symbolic fee or even work for free, gaining experience. Experienced mediators with a good reputation set rates on par with qualified lawyers.

Different payment models are possible: hourly (from several hundred to several thousand hryvnias per hour), per session (one meeting can cost from a thousand to tens of thousands of hryvnias), package payment for the entire process, percentage of the dispute amount in commercial cases. Usually parties share the cost equally, but other arrangements are possible.

Business Mediation: A Profitable Investment

In commercial disputes, mediation is indeed cost-effective. For companies disputing over contract non-performance, corporate conflicts, or partnership disagreements, the cost of mediation remains significantly lower than the cost of a lengthy court process.

Court proceedings in commercial cases include not only court fees (which can reach millions of hryvnias depending on the claim amount), but also lawyer services handling the case for months or years, expert examinations, evidence collection, possible appeals and cassations. Add indirect costs: lost time of managers attending court hearings instead of running the business, reputational risks due to publicity of the process, deterioration of relationships with partners.

Mediation costs several times less. Several meetings during a month, payment for the mediator, possibly minimal lawyer support—and the case is resolved. At the same time, confidentiality protects reputation, and agreements often allow preserving business relationships. For business, mediation is a profitable investment, not an expense.

Comparison with Court Costs: Mediation is Cheaper but Not Free

An objective comparison of the cost of court proceedings and mediation shows the advantages of mediation, but with an important caveat about initial accessibility.

Court proceedings include: court fee (from several hundred to millions of hryvnias depending on the claim), lawyer services (the largest expense item—from tens of thousands to millions), expert examinations if needed, transport costs for attending hearings, costs for appeal and cassation if the case is lost. Add indirect costs: lost working time (hearings during working hours), emotional stress, reputational risks due to publicity, deterioration of relationships. Court proceedings can last for years, and all this time a person lives with the conflict.

Mediation costs less: cost of mediator services (usually several times less than a lawyer for the entire process), possible lawyer support at meetings (smaller scope of work), several meetings instead of a multi-month process, confidentiality instead of publicity.

Where is the State: The Question of Free Mediation

The key question is whether the state should finance mediation for those who cannot afford to pay for it. International experience clearly shows: yes, it should.

In Austria, mandatory mediation in family cases involving children is partially subsidized by the state. Parents who cannot afford to pay for a mediator receive state support. This ensures that mandatory participation does not become an economic barrier.

In the USA, the Federal Mediation and Conciliation Service (FMCS) has provided free mediation services in labor disputes since 1947. Funding comes from the federal budget. Thousands of mediations are conducted annually, and most end successfully. The state invests in mediation, understanding that it is cheaper than strikes, court proceedings, and social conflicts.

Ukraine does not yet have a free mediation system. The Law “On Mediation” does not provide for state funding. The free legal aid system does not include mediation. This means that mediation may be inaccessible to low-income citizens.

If Ukraine introduces mandatory mediation without state support mechanisms, it will create an economic barrier for the most vulnerable segments of the population. A mother disputing custody of a child with her ex-husband and having no income simply will not be able to pay for a mediator. A dismissed employee who wants to challenge unlawful dismissal will face a choice: either pay the mediator (with no funds available) or wait months for a court hearing.

The Economics of Mediation from Mediators’ Perspective

It is worth considering the situation from the mediators’ side to understand why such prices are set and why mediation cannot be cheap.

Training a mediator requires investment: basic training (minimum 90 hours according to the law), additional trainings, supervision, continuous professional development. This costs money and time. The first 6-12 months of practice usually do not bring stable income—this is a period of gaining experience, building reputation, often working for free or for a symbolic fee.

Unlike salaried employment, a mediator’s income is unpredictable. There may be months with several cases and months without a single case. A financial safety net is needed. Many mediators combine mediation with their main job—law practice, consulting, teaching.

For mediation to become a profitable main occupation, years are needed (3-5 years of active practice), stable reputation, specialization in certain types of disputes, investment in marketing. Only then can a mediator set high rates and have enough clients.

If the state wants mediation to be accessible to everyone, it must either subsidize mediator services in socially important cases or create state mediation centers where mediators work on salary. Otherwise, mediation will become a privilege of the wealthy.

Relieving Courts vs. Blocking Access to Justice

Courts on the Edge: Why Relief is Critically Necessary

The Ukrainian judicial system is in a difficult state. The workload on judges is enormous, case review times stretch out for a long time, enforcement of court decisions remains problematic. People wait years for protection of their rights, and sometimes by the time the case is resolved the situation has already lost relevance.

The problem has objective causes: underfunding of courts, difficulties in attracting qualified personnel (judges’ salaries, although not bad by Ukrainian standards, do not compete with the private sector for top lawyers), imperfect enforcement system, lack of public trust in the judicial system.

Expanding the judicial system requires huge investments. Building new courts, hiring new judges, providing them with salaries, hiring staff, providing infrastructure—all this requires billions of hryvnias. The state does not have such funds, especially during wartime.

Mediation is seen as a possible way out: if some disputes are resolved through mediation, the burden on courts will decrease. Judges will be able to focus on complex cases that truly require court proceedings. Waiting time will be reduced. The quality of court decisions will increase, as judges will have more time for each case.

Mandatory Mediation: A Filter Against Frivolous Litigation

Proponents of mandatory mediation present strong arguments for why it can be beneficial both for the judicial system and for citizens.

Overcoming the barrier of distrust. Many people do not turn to mediation simply because they do not know about it or do not trust it. They believe that only a judge can “fairly” resolve a dispute. A mandatory information session with a mediator will allow people to learn about mediation, understand its advantages, make an informed decision. Many will decide to continue mediation after such a meeting, understanding that it can be more effective than court.

Filter against unpromising cases. Not all lawsuits are justified. Some people go to court out of emotion, not understanding the prospects of the case. Mediation can become a kind of filter: the mediator will help the parties realistically assess the situation, see the strengths and weaknesses of their positions. Some people will then refuse the unpromising court process.

Protection of vulnerable groups. In certain categories of cases, mediation objectively better protects the interests of vulnerable groups than court proceedings. In family disputes involving children, when parents argue about custody or visitation, children are less traumatized if parents agree independently. A court decision that one party perceives as unfair often leads to further conflicts, violation of conditions, new court proceedings. Mediation allows finding a solution that suits both parties, and therefore has a better chance of being implemented.

Formation of a culture of dialogue. Mandatory mediation can stimulate a change in legal culture. Instead of the confrontational approach “win at any cost,” a culture of dialogue is formed, search for mutually acceptable solutions, responsibility for one’s agreements. This is a long-term effect that goes far beyond specific cases.

Savings of state resources. The state saves on the judicial system without creating an additional financial burden on the budget (provided that mediator services are paid by the parties). Freed resources can be directed to other needs: medicine, education, security.

Risks of Mandatory Mediation: Barrier to Justice

However, mandatory mediation carries significant risks that cannot be ignored. The Italian experience serves as a warning about what can go wrong.

Additional costs of time and money. Mediation takes time. Even if it ends without result, the parties spent weeks organizing meetings, the meetings themselves, negotiations. If mediation is paid, they also lost money. And then they still go to court. For a person who is convinced from the very beginning that they need a court decision, mandatory mediation is wasted time and money.

Economic barrier for the poor. This is the most critical risk. If mediation is mandatory and paid, and there are no state support mechanisms, it becomes an economic barrier for low-income people. A person who cannot afford to pay for a mediator is effectively denied access to court, as they cannot pass the mandatory stage. This is a direct violation of the principle of equality and access to justice.

Risk of formalization: lessons from Italy. In 2010, Italy introduced mandatory mediation in a wide range of cases. The introduction was hasty, without proper preparation. There were not enough mediators, the population did not understand the essence of the process, lawyers actively protested. The result: mediation turned into a formality. Parties came to one meeting, stated the impossibility of reaching an agreement, received a certificate for court—and that’s it. Real work on the conflict did not happen.

In 2012, the Constitutional Court of Italy declared mandatory mediation unconstitutional (although due to procedural violations in adopting the law, not the essence of mandatory participation itself). The number of mediations dropped sharply. In 2013, mandatory participation was introduced again, but taking into account mistakes: a narrower range of cases, the first meeting free, tax incentives, a large-scale information campaign.

The Italian experience shows: mandatory mediation can work, but careful preparation is needed, sufficient number of mediators, mechanisms of financial accessibility, support of professional communities.

Violation of the principle of voluntariness. Mediation is effective precisely because parties participate voluntarily. They are set up to search for a solution, ready for compromise. Forced participation undermines this foundation. A person who came to mediation “for show” is not set up for constructive dialogue. The mediator can spend time and effort, but there will be no result.

How to Find Balance: Models from Different Countries

World experience demonstrates different approaches to the ratio of voluntariness and mandatory participation in mediation.

Fully voluntary model (currently in effect in Ukraine, also in some US states, in Great Britain in most cases): parties themselves decide whether to turn to mediation. The court may recommend, provide information, but cannot compel. Advantages: respect for autonomy, absence of coercion, higher motivation of participants. Disadvantages: lower level of mediation use, preservation of high burden on courts.

Mandatory information session (some jurisdictions in Canada, Australia): parties are required to attend the first meeting with a mediator, where they are explained the essence of the process, questions are answered, mediation prospects are assessed. Further participation remains voluntary. Advantages: introduction to mediation, informed decision, reduction of distrust barrier. Disadvantages: additional time, possibility of formal approach.

Mandatory mediation in certain categories of cases (Austria in family cases, some US states in labor or consumer disputes): in certain types of disputes, mediation is a mandatory stage before court. Advantages: significant relief of courts in these categories, protection of vulnerable groups. Disadvantages: risk of creating a barrier, need for state funding, need for a large number of mediators.

Incentives instead of coercion (some EU countries): the state creates positive incentives for mediation: refund of part of the court fee in case of successful mediation, tax benefits, reduction of court review time if parties first tried mediation. Advantages: encouragement without coercion, preservation of voluntariness. Disadvantages: less effectiveness in relieving courts than mandatory participation.

Finding the Optimal Path for Ukraine

For Ukraine, the question of balance between relieving courts and preserving access to justice is critical. Hasty decisions can lead to the Italian scenario, when mandatory mediation becomes a formality and discredits the institution itself.

State support for mediation in socially important cases is critically important: family disputes involving children, labor disputes, disputes of low-income citizens. Without funding, mandatory participation will become an economic barrier for the most vulnerable. Examples from Austria and the USA show: when the state invests in mediation, it pays off through reduction of social costs, conflict prevention, relief of courts.

Integration of mediation into the judicial system should occur naturally: judges inform parties about mediation, provide mediator contacts, suspend proceedings during mediation. Incentives, such as refunding part of the court fee in case of successful mediation, create positive motivation without coercion.

Conclusions: Mediation is Not a Panacea but a Useful Tool

Mandatory mediation in Ukraine is a complex issue without a simple answer. On the one hand, the judicial system indeed needs relief, and mediation can help. On the other hand, mandatory participation carries risks of creating barriers to justice, especially for the most vulnerable segments of the population.

Economic analysis shows that mediation is indeed cheaper than court proceedings for many categories of cases, especially commercial ones. But it is not free, and without state support it may be inaccessible to low-income people. International experience clearly shows: if the state wants mediation to work for everyone, it must invest in it.

The risks of mandatory participation are not an argument against mediation, but an argument for caution. The Italian experience warns against haste. Austrian and American experience shows that mandatory participation can work provided there is state funding, high standards of mediator training, and support from professional communities.

For Ukraine, the optimal path is gradualness, caution, investment in mediator training and information campaigns. First, it is necessary to form a mediation culture, accumulate experience, create infrastructure. Only then, if empirical data shows the need, can elements of mandatory participation be carefully introduced in selected categories of cases with mandatory state funding.

Mediation is not a barrier to justice and not a filter against frivolous litigation. It is an alternative way of resolving disputes that has its advantages and limitations, its sphere of application. The success of mediation depends not on mandatory participation, but on the quality of mediators, trust in the process, understanding of its advantages, accessibility for all segments of the population.

After the end of the war, Ukraine will face a huge number of disputes, and mediation can become a key tool for their peaceful resolution. But for this, it is necessary to invest in the development of mediation now, train mediators, build trust. The law has been adopted—now is the time for careful, consistent implementation, without haste, taking into account international experience and Ukrainian realities.