Is there an alternative to the court?

On February 24, 2022, the Verkhovna Rada of Ukraine declared martial law in connection with Russia's invasion of the country, which has a significant impact on the entire legal system. Martial law is one of the manifestations of the introduction of a special legal regime, which involves the use of special legal means regulating human rights and providing citizens with permits, prohibitions or restrictions. However, the Constitution of Ukraine does not allow limiting the powers of courts, bodies and institutions of the justice system even under martial law.

Even before the introduction of martial law, the Ukrainian judicial system had a number of systemic problems, and the full-scale invasion has caused even greater difficulties that impede access to justice and the right to judicial protection for many Ukrainian citizens. The lack of trust in the judicial system, the workload of judges and, as a result, the long time it takes to consider cases, the failure to enforce or delay the enforcement of court decisions, the inability of courts to function in certain areas and the inability to transfer cases from one court to another, and the displacement of people both within Ukraine and abroad - these factors often make it difficult or impossible for a person to access justice.

In such circumstances, it is advisable to use out-of-court dispute resolution methods. They are an alternative to litigation and can help the parties reach a resolution without having to go to court. The advantages of out-of-court dispute resolution are that it can be more efficient, cost-effective and less formal than litigation. In addition, they can help parties maintain relationships. Out-of-court dispute resolution is developing in many countries around the world. Some countries have established legislation that promotes the development of alternative dispute resolution and support initiatives in this area. The challenges and the state of Ukraine's judicial system necessitate the development of out-of-court dispute resolution.

So what is the alternative to the court?

Mediation. Mediation is a conflict resolution process in which the parties facing a problem turn to a neutral intermediary (mediator) to reach a mutually acceptable solution that satisfies the interests of both parties.

The mediator does not take sides, but helps them find a common language and cultural basis, and facilitates the discussion of additional aspects that the parties may not have considered. The mediator helps the parties to identify each other's needs and interests and to jointly find a solution that would be beneficial to both.

Consiliation: A process similar to mediation, but where an intermediary (a consilator) can express opinions and make recommendations to the parties. Although both procedures are based on the principles of voluntariness and confidentiality and are quite flexible, conciliation allows a third party to advise on legal and substantive issues by providing formal recommendations and proposals for the settlement of the dispute.

Arbitration. Arbitration is a dispute resolution process in which the parties agree to resolve their disputes out of court, but turn to a third party (arbitrator) to make a decision that will be binding on them. In arbitration, the parties agree to choose a third party arbitrator who is neutral and independent of both parties and has the appropriate qualifications and experience to resolve a particular dispute. The arbitrator listens to the arguments of both parties and makes a binding decision.

Negotiation. Direct communication between the parties to resolve their differences without the involvement of a third party. Negotiation is one of the out-of-court methods of conflict resolution in which the parties try to reach a compromise by discussing their positions, needs and interests.

In the process of negotiation, the parties come together to discuss their positions and try to reach a mutually acceptable solution. During the negotiation process, the parties can propose different options for compromise and ways to resolve the conflict, as well as discuss potential compromises.

All of these methods can be used as separate processes or in combination to resolve disputes. These are not the only out-of-court methods of conflict resolution common in the world, but they already exist and are actively developing in Ukraine.

Not all conflicts and disputes can be resolved outside the judicial system, but we should not forget about the advantages of alternative methods: preservation of relationships, confidentiality, saving time and resources of the parties.