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When the companies conflict, they are usually interested to keep information on disputes and conflicts hidden from public access. This is due to the fact that such information may inflict significant damage to the business image and reputation. Thus, it is important to choose the proper dispute settlement technique that will help to handle the information carefully.
◊ Legal proceedings are open
If the company intends to defend its interests in court, information about the proceedings will be opened due to the fact that statutory provisions of procedural legislation of Ukraine establish principles of publicity and transparence of legal proceedings. This means that any person may be present during the court session. Moreover, court sessions are open for the media participation to prepare materials and provide up-to-date information to the general public. Judgments and other documents in the case are available for examination by any persons.
Such conditions for disputes consideration are not always appropriate for the category of cases, where sensitive business aspects are affected.
◊ Confidentiality of the mediation process
Mediation process is confidential, and the parties sign the corresponding agreement to that effect. Mediators also assume the obligation of non-disclosure of information obtained during the mediation process. Therefore, everything that happens during the mediation process is treated as sensitive information and is not disclosed to other persons except as upon consent of the parties.
◊ Mediators may not be involved in legal proceedings as witnesses
In January 2018, in Ukraine, new procedural codes came into force, according to which mediators who participated in the mediation process may not be interviewed as witnesses during legal proceedings.
In this regard, participants to the mediation process received additional guarantees of confidential information non-disclosure.
◊ The Law of Ukraine on Mediation
Due to growing interest in mediation in Ukraine, especially in the business area, currently the Law of Ukraine on Mediation has been adopted in the first reading in Ukraine, and in the near future it is expected to be adopted by the Verkhovna Rada of Ukraine.
The draft law explicitly establishes:
– confidentiality of information obtained during the mediation process
– confidentiality of the very fact of referring to mediation, and
– prohibition to the parties to the process and the mediator to disclose information that has become
known to them in the course of the dispute consideration.
Conclusions:
1. Court proceedings publicity does not always meet interests of business.
2. Mediation is a confidential process, and it serves as an alternative to court proceedings.
3. Confidentiality of the mediation process means that all the information used during the mediation, as well as the very fact of referring to mediation, is treated as sensitive information.