If parties fail to resolve a dispute through negotiations, they usually apply to court for the protection of their legal rights. Judicial protection is an important and sometimes irreplaceable way of dispute resolution. Nevertheless, it has its drawbacks, which are not common for such method of alternative dispute resolution as mediation.
◊ Legal rights as the basis for a court decision
When applying to a court, a party to the dispute must clearly indicate in a statement of claim which resolution of a dispute it wants to receive. That is, a party formulates the way it sees the resolution of a dispute based on understanding of its rights. When considering a case, the court has the right to consider only the type of resolution requested by a party and satisfy only those requirements of a party, which correspond to the party’s legal rights.
Therefore, when considering a case by a court, the party’s position and legal rights are important. However, they do not always correspond to the party's real interests. Thus, when choosing a judicial method for resolving a dispute, parties have to seek satisfaction only in a way possible taking into account the legal relations between parties.
As a result, a court decision may not fully correspond to the needs and interests of parties.
◊ Issues of court decisions enforceability
Following the results of consideration, a court must determine a prevailing or a losing party. Thus, a court decision taken in favour of one of the parties does not correspond to other party’s interests.
As a result, the losing party is not interested in performing the decision and may sabotag it in every possible way. It often happens because a party has no resources required to perform the decision. Therefore, the decision taken by court, although being binding, may not be realistic at the same time. For that reason, the rate of enforceability of court decisions in Ukraine remains very low – only 18-25%.
◊ Mediation is a way of finding mutually beneficial solutions
Mediation is a process of finding mutually beneficial solutions. In this process parties are led by a mediator – neutral third party who applies professional skills dedicated to investigating interests and needs of the parties. Decisions in a mediation are not always based on legal rights and may include a wider range of options than those possible based on legal rights.
Decisions in mediation are balanced – i.e., in the course of mediation, alternatives are being worked out – what a party can do if the other party fails to fulfill what has been agreed upon. Thus, mediation allows for building a system of decisions in a dispute, which enables the parties to monitor implementation of decisions and respond effectively should they be not implemented by the other party.
Therefore, both parties are interested in complying with the decisions taken by the parties through mediation, and for this reason they do it voluntarily.
1. When applying to court, a party must clearly state its position on the basis of existing legal rights.
2. The court decision determines a prevailing and losing party. Mediation is a process in which both parties win.
3. The losing party is not interested in complying with the decision and may sabotage it in every possible way.
4. Decisions taken in mediation are based on interests and needs of the parties, are balanced and enable the parties to monitor their