Current issues of labour dispute resolution through mediation

Abstract

The article presents a comprehensive theoretical and legal study of mediation as an alternative procedure for resolving labor disputes. The author proves that the urgent issue of labor law science is to make specific proposals for the development of a systematic and consistent legislative framework for the use of labor mediation in resolving labor disputes. The author draws attention to the fact that current legislation makes situational references to this concept in certain articles without disclosing its content, which leads to law enforcement problems. Thus, the Law of Ukraine "On Mediation” supplemented the current Labor Code of Ukraine with a new Article 221-1 "Settlement of Labor Disputes through Mediation”. It is emphasized that the inclusion of the new provision in Chapter XV "Individual Labor Disputes” of the Labor Code of Ukraine indicates that the legislator has limited the mediation procedure to the settlement of individual labor disputes. The author emphasizes that failure to comply with the principle of legal certainty as a component of the rule of law principle enshrined in Article 8 of the Constitution of Ukraine impedes the proper protection of labor rights. The author argues that the national legislator incorrectly applies the concept of "labor dispute” by defining mediation as an alternative way of its resolution, since in fact a "labor dispute” arises at the time of applying to the bodies which consider them. Mediation does not resolve a labor dispute, but rather disagreements between the parties to labor relations at the stage of voluntary settlement of such disagreements, which is more appropriately called a "labor conflict”. The author denies the legislator's position that the mediation procedure is applicable only to individual labor disputes. Attention is drawn to the need to extend such an institution to collective labor disputes. The author argues that it is necessary to eliminate regulatory uncertainty regarding the terminology of the concept of "mediation" and to harmonize the provisions of the Law of Ukraine "On Mediation" and current labor legislation. The existence of stable and clear legislation on mediation is an embodiment of the rule of law and will contribute to the formation of public confidence in alternative out-of-court dispute resolution procedures.