Common and distinctive features of judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power

Abstract

The article examines the place of disputes over appeals against decisions, actions or omissions of the subjects of power in modern conditions. Some scientific views on the classification of types and kinds of mediation as a legal institution are analyzed. Existing models of mediation are identified. It is stated that in the Ukrainian legal system there are two possible models of mediation: judicial and extrajudicial. The own concept of «judicial mediation» is formulated. It is argued that judicial mediation is provided by administrative procedural law in the form of dispute resolution with the participation of a judge. The content of out-of-court mediation and its significance in administrative disputes are revealed. Features and signs of judicial and extrajudicial mediation are described. It is stated that judicial mediation is rarely used in administrative proceedings, and there are no mechanisms for the use of out-of-court mediation. The essence of judicial and extrajudicial within the framework of resolving disputes concerning appeals against decisions, actions or omissions of subjects of power has been studied. Modern scientific approaches to the ratio of components of judicial, extrajudicial mediation and litigation are generalized. It is proved that in science there is no single approach to the characteristics of extrajudicial and judicial mediation. For the first time, the author provides a comparative description of the main elements of judicial and extrajudicial mediation in disputes concerning the appeal of decisions, actions or omissions of the subjects of power. The role of judicial and extrajudicial mediation as legal institutions is defined. The possibility of using judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power has been established. The basic principles of judicial and extrajudicial mediation are formulated. The status of a mediator in judicial and extrajudicial mediation is revealed. The functions of the mediator are highlighted. The duration of judicial and out-of-court mediation procedures is stipulated. The cost of judicial and extrajudicial mediation procedures is substantiated. The essence and content of the result of judicial and extrajudicial mediation procedures are determined. It is proved that judicial and extrajudicial mediation in disputes with public authorities and their officials have their advantages and disadvantages. In particular, it was found that, compared to judicial, out-of-court mediation in disputes over appeals against decisions, actions or omissions of subjects of power is a more effective conciliation procedure, but there are questions about the level of professionalism and education of the mediator. Ways are provided to improve the implementation of judicial and extrajudicial mediation in resolving disputes concerning appeals against decisions, actions or omissions of the subjects of power.