Професійні стандарти діяльності юриста в міжнародній комерційній медіації: від змагального процесу до посередництва

The article is dedicated to the problem of adhering to the principles of international commercial mediation by professional lawyers, who are often involved in the mediation process of resolving international commercial disputes either as mediators or legal advisors. A significant proportion of mediators offered by permanent arbitration institutions are professional lawyers (for example, in Ukraine, this figure is 99%), which is due to the nature of commercial disputes that require knowledge of international law. However, the transfer of judicial principles into the mediation process by lawyers often contradicts its consensual nature, as mediation aims to peacefully resolve conflicts rather than to have the parties compete. The main role of the mediator is to assist the parties in finding a mutually acceptable solution, not to assign guilt and innocence in the dispute, since unlike courts or arbitration, which end with a mandatory decision, mediation only concludes with the recording of a consensual outcome. Theeffective participation of lawyers as advisors to the parties in international commercial mediation is ensured by rejecting advocacy methods of representation and striving for openness and discussion of the issues needed to reach a compromise. To ensure the consensual nature of international commercial mediation, the actions of the parties’ representatives should include client consultations, discussions of legal aspects of the conflict with the mediator, and assistance in formulating the agreement. To address such issues, law faculties should expand their mediation training programs for students, focusing on communication and negotiation skills, so that future lawyers understand the importance of human relationships in conflicts. In addition to theoretical training, understanding the consensual nature of the mediation process will be aided by practical experience in areas where adversarial processes are not dominant, such as legal consulting in the process of concluding international commercial contracts.