A family lawyer often serves not only as a legal advisor but also as an architect of psychological comfort during negotiations, assisting in the drafting of prenuptial agreements and facilitating agreements concerning child custody and support. It is common for a family lawyer to become the key figure in the peaceful resolution of family conflicts, thereby creating a safe environment for both spouses and children.
In Ukraine, the role of a family lawyer frequently includes managing negotiation processes, which requires not only legal expertise but also strong negotiation skills, a psychological understanding of family dynamics, and flexible approaches to atypical situations.
Peaceful dispute resolution in Ukraine can generally be divided into three main approaches: mediation, negotiation advocacy by lawyers, and judicial settlement involving a judge. Currently, there is no procedure for resolving family disputes through arbitration in Ukraine.
1.Mediation - The mediation procedure in Ukraine is regulated by the Law “On Mediation,” which came into force in December 2021. This law defines mediation as an out-of-court, voluntary, confidential, and structured process during which parties, with the help of one or more mediators, attempt to prevent or resolve a conflict (dispute) through negotiation. The law sets out the general procedure for mediation and the qualifications required of a mediator, who must undergo at least 90 hours of training, including a minimum of 45 hours of practical instruction. The basic training program for mediators includes both theoretical education and the development of practical skills. Various private organisations including associations of family mediators, or mediations in general, which offer online training. Once trained and certified, the activities of mediators in Ukraine are not subject to compulsory insurance.
Whilst the training enables mediators to work in all fields of law, in practice, family disputes are typically handled by mediators who are already specialised in family law this area and familiar with the unique nature of family negotiations and the need to protect children’s rights. The mediation process may involve joint and individual meetings with each spouse and sometimes even directly with children. If mediation is completed successfully, the parties enter into a mediation agreement. However, such agreements often serve more as preliminary agreements, may be oral, and are often not always formalized as legally binding written documents.
Mediation is a voluntary procedure and is not mandatory before the start of judicial or out-of-court procedures for resolving family disputes. At the same time, in Ukraine, when resolving family disputes involving children, children's services explain to parents that there is such a procedure as mediation and offer to use it to resolve a family conflict.
If the parties who are within the framework of the current litigation start negotiations, including with the participation of a mediator, the court does not automatically suspend the trial of the case. However, either of the parties can propose postponing a court hearing to enable negotiations between the parties. The court may, postpone the court hearing date only after taking into account the opinion of all other participants in the process.
Mediation is provided either privately for which the parties pay for the service or be provided by the state for free. For example, if the parties of the conflict turn to a mediator on their own, the issue of payment is usually resolved between them. In some cases, for example, when families are accompanied by guardianship and guardianship authorities in disputes involving children, the services of a mediator can be provided free of charge. This is possible if state social centres have appropriate specialists on their staff.
Ukrainian family law clearly defines the types and required forms (including notarization) of agreements that regulate property matters, child residence, upbringing, and support. Thus, a mediation agreement and the mediation process often serves as a foundation for the subsequent drafting of formal legal agreements, usually prepared and facilitated by independent family lawyers. These can be approved by the court too.
- Lawyer negotiation advocacy - Another legal avenue for resolving family conflicts is through the involvement of a family lawyer. Typically, a family lawyer performs functions similar to those of a mediator, although unlike mediators, lawyers generally represent the interests of one party. In some instances, lawyers may represent both spouses, in which case a degree of neutrality in negotiations is observed. Notably, Ukrainian law does not prohibit lawyers from acting as mediators. Nonetheless, the core function of a family lawyer as a conflict-resolution intermediary lies in conducting negotiations aimed at concluding legally binding agreements or settling disputes through court-approved settlements.
Couples frequently engage family lawyers with the intent of preparing formal agreements or court settlements, using mediation or lawyer-assisted negotiations as preparatory stages. Frequent requests include the negotiation and drafting of prenuptial agreements, agreements on child residence, participation in upbringing and maintenance, alimony agreements, property division contracts, and agreements concerning inheritance matters. These services are also relevant in ongoing court proceedings related to property, inheritance and child custody.
A major advantage of involving a lawyer in negotiations or mediation is formalizing the parties’ arrangements into binding contracts or court-approved settlements. This enables a legal conclusion to the existing conflict and helps prevent future disputes.
3.Judicial settlement procedure - A noteworthy development in Ukrainian civil procedural law was the introduction in 2017 of a judicial settlement procedure involving a judge. This mechanism can be initiated during an ongoing court case, with the judge effectively acting as a mediator.
Judicial settlement is conducted with the consent of both parties and may take the form of joint or separate meetings. Joint meetings are attended by both parties, their lawyers, and the judge. The judge facilitates the dispute resolution process by clarifying the basis of the claims and defences, explaining the scope of evidence required, encouraging the parties to propose ways to settle the dispute amicably, and taking other steps to support a peaceful resolution. The judge may suggest possible terms of settlement but is prohibited from providing legal advice or evaluating the evidence. This process ends when a settlement agreement is reached or when the parties fail to reach an agreement. The information received by either party, as well as by the judge during the settlement of the dispute, is confidential. During the settlement of the dispute with the participation of the judge, it is prohibited to use portable audio devices, as well as to carry out photo and film shooting, video, and sound recording. It may also be terminated if one party uses it to delay proceedings or abuses the process.
If the procedure is terminated at the initiative of one of the parties, the expiration of the procedure, or at the initiative of the judge due to the delay in the settlement of the dispute by any of the parties, the case shall be transferred to another judge in the future.
The National School of Judges of Ukraine, for example, trains judges for such a procedure.
As mentioned earlier, arbitration is not currently permitted in the Ukrainian local legal system as a method for resolving family disputes. However, arbitration shows considerable promise in this area of law and practitioners are aware that it could provide families with an additional out-of-court resolution tool, facilitating faster conflict resolution and earlier dispute closure.
Overall, mutual agreements in family disputes should be prioritized whenever conflict arises and should always first consider mediation, negotiation advocacy, and judicial settlements when facing family conflicts rather than assuming courts will adjudicate.
Author of the article:
Olena Sibirtseva, Attorney at Law, Counsel, AGA Partners