Features of the Legal Status of the Notary as a Mediator

Abstract

The article reveals the peculiarities of the legal status of a notary public as a mediator. It was concluded that a person performs the mediator's powers outside the notarial activity, which is directly emphasized by the legislator. In particular, the wording of Art. 3 of the Law of Ukraine "On Notaries" and the legislator's indication of the possibility of combining the activity of a notary with the performance of the function of a mediator, indicates that the powers of a mediator are exercised outside the boundaries of notarial activity and represent a separate type of activity of a person that is not related to the performance of the powers of a notary . Therefore, the performance of the mediator's duty is essentially the performance of new functions for the notary, unrelated to his powers stipulated by the Law of Ukraine "On Notaries". If a notary becomes a mediator, he/she performs additional functions for himself/herself, compatible with the notarial activity (which remains his/her main type of professional activity), and in the performance of which he/she does not act as a notary. At the same time, a notary who performs the functions of a mediator has the same scope of rights and obligations as a mediator who does not additionally possess the legal status of a notary. Therefore, a notary performs the functions of a mediator beyond the concept of "notarial activity".

Taking this into account, the direct instruction of the law regarding the need for notaries to undergo training at the Notary Chamber of Ukraine appears to limit the rights of notaries and does not allow them to fully and freely exercise their right to choose an institution for training and acquiring new professional skills.

In the article, the author considered the main approaches to the further development of the institution of mediation in Ukraine, in particular, the introduction of a mandatory mediation procedure before going to court in certain categories of cases, as well as the continuation of mediation on a voluntary basis. It has been established that even the introduction of a mandatory mediation procedure before going to court in certain categories of cases in Ukraine does not "include" the mediator in the justice system, does not give him authority and does not change his legal status. In this case, the mediator performs his functions as an independent, impartial and neutral person who helps to reach an agreement between the parties and out-of-court settlement of the conflict (dispute) within the limits provided by law.

It was concluded that such features and components of the mediation procedure as the independence, neutrality and impartiality of the mediator, as well as the special place of mediation in public life as an out-of-court dispute settlement procedure, do not substantively contradict the public-legal status of a notary acting on behalf of the state, but does not exercise authority and is not included in the system of state authorities. The above is a necessary element of compliance with the principles of independence and impartiality, characteristic both for notarial activity and for the activity of a mediator.