MEDIATION AND EMPLOYMENT: UKRAINE’S SPECIFICS
In Ukraine, mediation has been slowly but steadily spreading in the employment relations area. In fact, along with family mediation, development of employment mediation in this country has been relatively successful. However, Ukrainian lawyers and mediators face various obstacles when offering mediation to the parties of employment relations, one of which is conflicts of interest.
Conflicts of interest occur when the employment lawyers are also certified to sit as mediators. In this case, if they are counsel to the employer or the employee they cannot be appointed as mediator in the related dispute. Moreover, their colleagues from the same law firm also cannot serve as mediators in such instances because the opposite party may view such mediators as prejudiced. In such situations neither the legislation, industry standards or legal documents matter as the opposite party may simply feel uncomfortable and, as a result, will not only reject the candidacy of such mediator, but, more importantly, may refuse to settle a dispute through mediation in general. Thus, lawyers should be very careful when offering employment mediation to their clients and have to put the client’s interests above the interests of their own or their respective law firms.
There are a few solutions to this obstacle for developing mediation in the employment sphere. First of all, law firms may offer mediation as a separate product (i.e., as part of their dispute resolution practice) to the client that has already been engaged in the labour dispute. In addition, employment lawyers who are also certified mediators can use their knowledge of the specifics of the mediation method, techniques and procedure to represent their clients during the employment mediation.
Apr-Jun 2013 issue