Opportunities and challenges of hiring a mediator: legal and practical aspects

The article is devoted to the study of organizational and legal forms of mediator activity in the context of their application by business entities for hiring mediators. The author considered two main approaches to conducting mediator activities: 1) for hire, through an entity, that ensures the conduct of mediation, or through an association of mediators; 2) individually, as an individual, that conducts independent professional activities, or as an individual entrepreneur. Taking into account the mentioned approaches, the legal and practical aspects of choosing one or another approach for hiring mediators by business entities were analyzed. It is noted that according to the first approach, the business entity must obtain the status of the entity, that ensures the conduct of mediation. At the same time, this approach, due to the presence of gaps in the legislation, causes discussions about its practical applicability and is also limited by the possibilities of resolving conflicts (disputes) in which the relevant business entity is not a party to the conflict (dispute). Making an analogy with the experience of business entities interacting with «in-house attorneys-at-law», the possibilities of applying the second approach to hiring mediators were considered. In particular, the author analyzes positions from the tax authorities, the Bar Council of Ukraine and the Supreme Court regarding the possibility of an employee who holds a position that does not involve the activity of an attorney- at-law, but at the same time has a certificate of the right to practice the activity of an attorney- at-law, to represent his employer in court as an attorney-at-law. Special attention is given to the accounting of an attorney-at-law as a self­employed individual, who is also an employee in a position that does not involve the activity of an attorney-at-law. Additionally, problematic issues related to the calculation and payment of a unified social contribution in these legal relationships are highlighted. Based on the analyzed experience, the author draws conclusions about the possibilities of hiring a mediator by a business entity to settle internal conflicts (disputes) in the context of the second approach and also emphasizes the shortcomings of the legal regulation of mediators’ performance of their activities for hire, which causes the need for making legislative amendments.