Mediation as an alternative way of resolving disputes in public-law relations
Authors: Astreyko Viktoriya Viktorivna 
Published: January 2025

The article is devoted to establishing the possibilities and features of using mediation in public-law relations as one of the alternative ways of resolving disputes in this area. Taking into account Recommendation (2001) 9 of the Committee of Ministers of the Council of Europe on alternatives to judicial review of disputes between administrative bodies and parties-persons, the Code of Administrative Procedure, the Laws of Ukraine «On Mediation», «On Administrative Procedur», it has been proven that mediation can be applied not only in the sphere of administrative proceedings, but also in proceedings for a complaint against an adopted administrative act.

At the same time, one should take into account the commonalities and differences between mediation and conciliation. Although mediation and conciliation have many common features (out-of-court application, with the involvement of an impartial and neutral third party, the disputing parties achieving a mutually beneficial dispute resolution process etc.), there are other defining features of these dispute resolution tools that make it possible to assert about the impracticality of using the terms «reconciliation» and «mediation» as synonyms. Also, from a theoretical point of view, mediation and conciliation differ in approaches to dispute resolution based on the rights of the parties or on the interests of the parties. The approach based on the interests of the parties — mediation — assumes that the parties not only discuss their legal rights, but also take into account their important interests, emotions, and motivational factors in order to find ways to resolve the dispute. Conciliation involves the greatest attention to legal rights, and not to the interests of the parties, which is why the mediator offers the parties to a dispute a solution based on the exercise of rights and the fulfillment of obligations, although the mediator may take into account the subjective interests of the parties when formulating his recommendations for resolution dispute.

Among the scientific community, the issue of the use of mediation in the resolution of public legal disputes remains debatable, although to some extent researched. First of all, it is caused by a specific circle of subjects of public-legal relations. At the same time, some administrative scientists (A. Bortnikova, N. Gryshina, K. Rostovska, O. Sydelnikov etc.) believe that public and legal disputes are mediatable, since reaching a compromise between public administration bodies and citizens is a priority area of state activity and local self-government bodies.

As for the application of the right to conciliation in administrative proceedings on a complaint, despite the existence of a legislative basis that creates favorable conditions for conciliation, this issue has practically not been investigated in the science of administrative law. In practice, cases of conciliation in disputes with the participation of an administrative body are still rare. It is substantiated that there are various factors that affect the readiness of the administrative body for reconciliation — the lack of authority in the status legislation, the appropriate amount of discretion to determine the terms of reconciliation, which requires changes and additions to the relevant legislation.

Attention is focused on the advantages of using mediation to resolve disputes, including administrative disputes, in particular, it reduces the burden on administrative courts; reduction of dispute resolution costs; usually faster resolution of the dispute and saving the time of the parties to the dispute; confidentiality; mediation allows you to preserve business relations between the parties to the dispute and strengthen trust between them in the future.

Key words: mediation, public-legal relations, administrative proceedings, public-legal dispute, administrative procedure, administrative body, administrative proceedings based on a complaint, private person.