Mediation and Its Alternatives: When You Need a Court, and When You Need Public Pressure

Mediation in Ukraine is at a difficult moment in its development. On the one hand, following the adoption of the Law of Ukraine on Mediation in 2021, the institution received a formal legal foundation. On the other hand, the public — and even the professional legal community — often perceives mediation as a “soft” alternative suited at most to family quarrels and minor commercial misunderstandings. Between these two extremes lies a vast grey zone: it is unclear where mediation is genuinely effective, where it merely prolongs the resolution of a conflict, and where its use is plainly inappropriate or even harmful.

This article is an attempt to map that grey zone — to examine which conflicts call for mediation, which for judicial protection, and which for public exposure as an instrument of pressure. The analysis draws on experience from various legal systems and on the specifics of present-day Ukrainian realities.

1. A Map of Conflicts: Where Mediation Works, Where It Harms, Where It Is Impermissible

Conflicts where mediation produces the best results

Mediation is not a panacea, nor is it a second-rate alternative to litigation. It is a specific instrument that performs best in well-defined conditions. The decisive prerequisite is that both parties have an interest in preserving or restructuring the relationship after the conflict is resolved. Where legal relations extend over time and their termination is undesirable or excessively costly, mediation opens possibilities that are simply beyond the reach of any court.

Commercial disputes between business partners are the classic example. Imagine two founders of a company who have fallen out over profit distribution or strategic direction. A court can resolve the property question — but it will destroy the business and the reputations of both. A mediator, by contrast, can help find a formula under which the partnership either transforms on new terms or parts ways in a civilized manner, without mutual annihilation. The key advantage here is not speed or cost but the fact that the solution is produced by the parties themselves and therefore complied with voluntarily, without compulsion.

Labor conflicts are another category where mediation is the natural choice. Dismissals “for cause,” conflicts between colleagues, discrimination in the workplace — all of these are often more about hurt feelings and a failure to be heard than about actual legal claims. Litigation locks positions into place and makes them irreconcilable, turning a living human conflict into a series of procedural acts. Mediation restores the human dimension and allows the parties to resolve not only the legal dispute but the psychological tension behind it.

Family conflicts, especially those involving children, are perhaps the most instructive domain for mediation. Ukrainian courts hear tens of thousands of cases each year concerning the determination of a child’s place of residence and the arrangements for contact. Most of these cases generate new conflicts: parents continue fighting, using the child as a lever, and the court’s ruling formally closes one episode while leaving the underlying dynamic untouched. Mediation focused on the child’s interests allows parents to develop a shared parenting strategy — something a court is simply incapable of delivering through an externally imposed judgment.

Where mediation causes harm

This is perhaps the most important and least discussed part of the conversation about mediation. An unwillingness to acknowledge the limitations of this instrument ultimately discredits the very idea of alternative dispute resolution.

The first critical situation is a substantial inequality of the parties. If one side is significantly more powerful — financially, institutionally, psychologically — mediation becomes a field where the stronger party dictates terms under the guise of “voluntary” settlement. A corporate giant and a sole trader sitting at the mediation table are not equal partners in dialogue. The powerful party can use the procedure purely to delay and exhaust its opponent while demonstrating a performative “willingness to engage” with no genuine intention of making real concessions. In such situations, a court — with its procedural safeguards and the possibility of free legal aid — offers a significantly more balanced arena.

Conflicts involving systematic violations constitute the second key exception. If an employer systematically fails to pay wages or violates the labor rights not of one person but of dozens of workers, mediation between a single victim and the wrongdoer does not merely fail to solve the problem — it conceals it. The person who has agreed to a “settlement” receives partial compensation and signs a confidentiality agreement, while the violations continue against everyone else. In such cases, mediation objectively serves the interests of the wrongdoer, not the victim.

Situations involving active denial of the facts are the third type of conflict where mediation is doomed to fail or to become a performance. Mediation is effective when the facts are acknowledged by both sides and the dispute concerns consequences and compensation. If the respondent denies that any violation occurred — a construction company refuses to acknowledge defects, a bank insists its contract contains no hidden fees — mediation becomes a cover operation. A court with independent expert examination is the only adequate instrument for establishing the facts.

For a deeper look at how mediators navigate these boundaries in practice — including the tools available for managing power imbalances and recognizing when a process is being misused — see Mediation: Ukrainian Experience and European Choice, available on Apple Books.

Where mediation is impermissible

The Law of Ukraine on Mediation explicitly excludes certain categories of cases, and these exclusions are logically grounded. Criminal proceedings, administrative offense cases, and public law disputes concerning the protection of the public interest — in these categories the state is not merely an arbitrator but an interested party vested with special powers delegated to it by society.

Corruption offenses are the most obvious example of mediation’s absolute impermissibility. To propose “quietly settling” a conflict between a bribe-giver and a bribe-taker is not to resolve the conflict — it is to legalize it. Any “agreement” in such a context undermines the very nature of the public order that mediation, by its design, is meant to complement rather than replace.

Domestic violence cases must equally be excluded from mediation, notwithstanding pressure from those who appeal to the value of “preserving the family.” The power imbalance and the psychological mechanisms of abuse make any “voluntary” dialogue between abuser and victim potentially dangerous. A victim of violence in a negotiation process with the abuser reproduces precisely the dynamic of submission that lies at the heart of abusive relationships. This is why the Istanbul Convention, ratified by Ukraine in 2022, explicitly prohibits mandatory mediation in domestic violence cases.

2. Publicity vs. Confidentiality: When Exposure Is More Effective Than Mediation

Confidentiality as value and as trap

Confidentiality is one of the defining characteristics and, simultaneously, the chief advantages of mediation. Parties can speak frankly without fear that their words will become evidence in court. A business can settle a dispute without airing its internal affairs. It is precisely this feature that makes mediation attractive to the corporate sector and to anyone who places a premium on reputation.

But that same confidentiality becomes a serious problem when what is at stake is not merely the private interests of two parties but a broader public interest — when the violation affects not one victim but an entire group, and when silencing the problem means extending it. In such situations, confidential mediation can objectively harm third parties who have no seat at the table and no possibility of obtaining one.

Publicity as a strategic instrument

In Ukrainian realities, public exposure as an instrument of pressure acquired particular significance after the Revolution of Dignity. Investigative journalism, social media, and active civic engagement have fundamentally altered the landscape of available remedies. What could once be concealed behind closed doors now frequently becomes the subject of public discussion — and that change is irreversible.

Public exposure is appropriate and strategically justified in several specific situations: when the opposing party is a public figure or a government body and reputational risk becomes a real negotiating lever, often more effective than years of litigation; when the violation is systemic and affects a broad group of people, and publicity serves a preventive function by warning potential victims; and when a private resolution has already been attempted and has failed, making public exposure a legitimate response to the exhaustion of peaceful means.

One characteristic example from Ukrainian experience is the struggle of condominium associations against developers who build illegally on common land. Court proceedings run for years while the concrete is already being poured into the foundations. Community mobilization, enlisting journalists, and applying pressure on local authorities have often produced results far more quickly — not because the law was bypassed but because it was forced to function.

When publicity damages the case

Public exposure is not a silver bullet. Premature publicity can destroy a negotiating process that has barely begun: a party that feels publicly attacked assumes a rigid defensive stance and refuses all dialogue. Mediators know this effect well — a public scandal on the eve of a scheduled session almost guarantees that the session will collapse and the conflict will escalate.

Publicity can also inflict disproportionate reputational damage when the facts turn out to be ambiguous or incomplete. In an era when information spreads within minutes and retractions are read by a fraction of those who saw the original accusation, the cost of premature disclosure can be wildly disproportionate. Particular caution is warranted in labor and family conflicts, where public pressure easily tips into harassment.

The practical formula for choosing between publicity and confidentiality comes down to a few questions: Is the violation systemic? Is there more than one victim? Have private means of resolution been exhausted? Is there a public figure or government body on the respondent’s side? The more affirmative answers, the stronger the case for a public strategy.

Mediation and publicity: can they be combined?

Contemporary practice has produced hybrid approaches. So-called mediation with public oversight is applied in some countries to conflicts involving government bodies: the negotiating process itself remains confidential, but the terms of the final agreement are subject to mandatory publication. Such a mechanism could prove useful in Ukraine as well — for example, in disputes between citizens and local authorities over land or utility services.

Another promising option is mediation with the involvement of an independent public interest observer, who confirms that the agreement does not violate the rights of third parties. This institution is actively discussed in the context of mediation law reform across EU member states and could become an important addition to Ukraine’s Law on Mediation in future revisions.

3. Class Actions as an Alternative to Individual Mediation

Why individual mediation does not solve systemic problems

Return to the scenario already raised in this article: an employer systematically delays wages for dozens of workers. Each of them, acting alone, has limited leverage. Mediation between one worker and the employer may result in that individual receiving back pay — while violations against everyone else continue. An individual lawsuit has the same deficiency. Only collective action can change the systemic behavior of the wrongdoer, because only collective action creates sufficient legal and reputational pressure.

It is here that an instrument enters the picture which in Ukraine remains at an early stage of development and is undervalued by the legal community and victims alike: the class action.

Class actions: what they are and how they work

A class action is a mechanism that allows a large group of people with similar claims to consolidate them in a single court proceeding. Rather than hundreds of people individually filing identical claims and expending their own resources, one or several representatives conduct the litigation on behalf of the entire group. The court’s ruling applies to the whole group, and the costs and risks are shared.

The key advantage of a class action is its economic rationality in situations where the individual harm is relatively small but the aggregate damage is substantial. If a bank has unlawfully charged each of a million customers one hundred hryvnias, none of them will go to court individually — the costs would exceed any possible compensation. But in aggregate the sum is one hundred million hryvnias, and the systemic violation demands a response.

The state of class actions in Ukraine

Ukrainian procedural law formally provides for the possibility of bringing claims in defense of an indeterminate class of persons. The Commercial and Civil Procedure Codes contain relevant provisions, and the Law on Consumer Protection allows civil society organizations to represent consumers in court. In practice, however, these mechanisms remain the exception rather than the rule.

The main structural problems are as follows. First, there is no clear mechanism for constituting the group of claimants — the procedures of “opt-in” (voluntary joinder) and “opt-out” (automatic inclusion with the right to withdraw) are not regulated by law. Second, identifying and notifying all potential group members is difficult. Third, the allocation of litigation costs and awarded compensation among participants has no clear legal framework. Fourth, there is a shortage of specialized law firms with genuine experience in this area — and that experience is critical, because class action work requires practitioners who think in terms of groups, statistics, and systemic change rather than individual clients.

There are, nonetheless, grounds for cautious optimism. The Antimonopoly Committee of Ukraine is increasingly handling cases with a collective dimension. A body of case law on consumer protection is gradually accumulating. And the spread of digital financial services and mass consumer contracts is objectively increasing the number of situations in which collective action is the only rational choice.

Collective mediation: a hybrid format for the future

Considering class actions as an alternative to individual mediation, it is worth mentioning a hybrid format — collective mediation. This is a process in which the mediator works not with two parties but with a group of participants who have different but interconnected interests. Such a format is considerably more complex to organize and demands from the mediator particular qualifications: skills in facilitating large groups, managing the dynamics of multiple interests, and the ability to keep the systemic outcome in view rather than simply satisfying each individual participant.

In practice, this format is promising in conflicts between residents of several condominium associations and a management company, between a group of entrepreneurs and a local authority, and between a workforce and an employer in restructuring situations. In all of these cases the judicial route is too costly and protracted, while one-on-one mediation does not encompass all the interested parties. Collective mediation could fill this gap — if Ukraine develops mediators with the requisite training and methodological foundation.

Strategic Matrix: What to Choose and When

Summarizing the logic of this article, a practical orientation for choosing between instruments can be offered.

Mediation is the optimal choice when there are two or several parties with concrete, clearly defined interests; when there is a mutual interest in preserving the relationship; when the facts are not in dispute; when the parties are approximately equal in power; and when confidentiality is a value for both sides.

Litigation is necessary when the facts are disputed and independent assessment is required; when a compulsory enforcement instrument is needed; when the inequality of the parties makes honest dialogue impossible; when the case has precedent-setting significance; or when mediation has already been attempted without success.

Public pressure and media exposure are justified when the violation is systemic; when the respondent is a public figure or government body; when other instruments have been exhausted or are being deliberately blocked; and when disclosure can stop a continuing violation that a court will only resolve years from now.

A class action is the logical choice when there are many victims, the violation is uniform in character, an individual claim is economically impractical, and the goal is a systemic change in the respondent’s behavior rather than compensation for one person alone.

Conclusion

For Ukraine, simultaneously building the rule of law and forming a civil society, this skill of strategic selection is especially important. Mediation will develop not because it is “prescribed” as a mandatory procedure — but because lawyers, business people, and citizens will discover through their own experience that in certain situations it delivers results unreachable by any other means. Knowing where those situations lie, and where they end — where the need for litigation, public pressure, or collective action begins — is the true competence of the modern legal adviser.