Problematical issues of mediation conducted by a barrister during reconciliation within criminal proceedings

Abstract

It is well known that one of the hallmarks of restorative justice is the use of mediation as an effective way of resolving the dispute. The above mentioned process proved to be quite popular in the practice of domestic lawyers, which in its turn became the basis for ambiguous practice and the need for the legislator's attention. That is why motive changes are taking place in Ukraine with the purpose of legislative consolidation of the institute. However, due to the lack of detailed legislative regulation of the basic provisions of regulation of mediation, namely - the status of mediator, regulatory secrecy of non-disclosure of client secrets, bodies of quality control of the provided services, etc., there is a possibility of abuse of the mentioned institute in the territory of Ukraine. The purpose of the article is to identify the issues that may arise in the case of the combination of lawyer and mediator roles within a single proceeding. Based on the analysis of the legal framework of domestic and international legislation, it is necessary to outline the following problems. It is argued that, to date, a major reason for the lack of active use of mediator services is the list of reasons which include both low level of public awareness and lack of legislative basis. That is why there is no proper attention to the problem of abuse of mediator status. It is concluded that the conduct of mediation by a barrister within one proceeding gives grounds for the risk of violation of the basic principles of mediation, namely – confidentiality and independence. These statements are based on the definition of difference of the professions in their nature and purposes. It is noted that a problematic issue is the fact that the lawyer-client relationship is governed by a contract for the provision of lawyer services, unlike the other party to the negotiations. This fact leads to a number of opportunities for abuse of the status of mediator and the exercise of fraudulent advocacy. It is stated the existence of a legal conflict in case of completion of the mediation procedure without result in the form of reconciliation between the suspect and the victim. It is also outlined the possibility of manipulation of the information provided by the parties in the case of a change in the role of the barrister. It has been determined that due to the retreat of the regulatory regulation of the mediation activity by the lawyer, there are no control bodies that could point out the quality of the lawyer's rendering of the above services.