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On January 1, 2011 the Russia Duma implemented a Federal law that established a mediation program for settling civil disputes including those dealing with economic activities, labor relations and family relations. Following extensive negotiations the preceding winter, the legislation, though titled “Alternative Procedures for Dispute Settlement”, focuses exclusively on Mediation and the role of the Mediator. The legislation also establishes procedures to regulate the relations that arise between the parties during Mediation.
Mediation is not new to Russia. It has been used broadly in the country in the restorative justice area. Following the Canadian model of the process, those serving as Restorative Mediators strive to engage the offender to make reparations to the victim. Other efforts to establish mediation programs over the years have met with mixed results. Except for the restorative area, Mediation training programs conducted earlier in Moscow and St. Petersburg have yielded limited numbers of practicing Mediators.
The 2011 legislation was designed to establish and promote the use of mediation in an array of commercial and business activities around the country. The goal of the legislation is set forth in the opening paragraph when it speaks of "promoting harmonization of social relations". Provisions in the legislation emphasize the obligation of the Mediator to abide by ethical guidelines established by the profession. The legislation places responsibility to develop the ethical guidelines and a code of conduct on organizations that provide the Mediation service. Those organizations also will be responsible for maintaining a Registry of Mediators.
The legislation contains explicit prohibitions on where the Mediation procedures may not be used to resolve disputes including collective labor disputes and where the interests or rights of third parties, who are not parties to the dispute, are affected. The Mediation process also may not be used if it will impact on the public interest. The legislatively-established Mediation procedure also may not be used to resolve matters that arise during the course of a judicial procedure, an arbitration hearing or provide conciliation services to third parties unless provided by in Federal law.
The legislation contains a number of definitions that are crucial to the Mediation process including one that defines Mediation as “a voluntary process dependent on the consent of the parties”. It defines a Mediator as someone who is independent and brought in to assist the parties with their disputes. The legislation also defines the parties’ “Agreement to Mediate”, the “Settlement Agreement” and describes in detail the role of the organization/s that will be responsible for organizing and conducting the Mediation.
In an effort to further define Mediation, the legislation contains a section titled “Principles of Mediation” which addresses confidentiality, cooperation, rights of the parties, impartiality and independence of the Mediator.
The legislation contains a prohibition on the parties going to court or arbitration once they have concluded an agreement to Mediate. However, if a dispute has been submitted to the courts or an arbitration tribunal, the parties may use Mediation at any time prior to the matter being resolved by a court.
The legislation requires that information related to the Mediation
process will remain confidential unless the parties agree otherwise. Likewise, the
Mediator is prohibited from disclosing such information unless agreed to by the
parties. The Mediator is further prohibited from disclosing information
obtained by one party to another without the consent of the party that
disclosed the information. The legislation also prohibits the parties, the Mediator
and the organization involved in implementation of the Mediation from referring to
any information, proposals or offers made during the course of the Mediation.
The parties have thirty days to respond to a written request from the other side to use Mediation. Failing a response from the other side, the proposal to Mediate will be considered rejected.
The legislation specifies that the agreement to use Mediation should identify the subject of the Mediation, the name of the organization that will provide the Mediation services or the name or names of the Mediators. The agreement to Mediate also should specify the procedures to be used during the course of the Mediation and the terms for handling expenditures.
By mutual agreement, the parties may select the Mediator/s, request the organization that will provide the Mediation services to recommend an individual or request that organization to appoint a Mediator. Once appointed, the Mediator is required to advise the parties or the appointing organization if his or her independence or impartiality will be an issue during the course of conducting the Mediation.
The legislation provides that the Mediator will determine whether to charge a fee for his or her services. However, it is implicit in the legislation that some Mediations will be conducted without charge – but at the discretion of the Mediator. The services of the organization that provides the Mediation and the costs incurred by the Mediator in implementing the procedure, however, shall be compensated and shared equally by the parties unless agreed to otherwise.
The Rules of Procedure for the conduct of the Mediation are to be included in the Agreement to Mediate. They may be established by the parties or the parties may adopt by reference the Rules of the organization that provides the Mediation service. Rules adopted by such an organization shall include:
Notwithstanding the above requirements, the Mediator/s, at the discretion of the parties, may determine the procedures for implementing the Mediation.
The Mediator, unless mutually requested by the parties, shall not offer proposals for settling the dispute.
The legislation specifically provides for joint or separate meetings by the parties with the Mediator.
The legislation requires that an agreement that concludes a dispute shall be in writing, identify the parties, the Mediator, the subject of the dispute, the terms of settlement and the timelines agreed to by the parties.
If the Mediation agreement, after being concluded, is transferred to a court or arbitration tribunal it may be approved by the court or arbitration tribunal in accordance with their rules of procedures, governing legislation or international commercial arbitration procedures.
If the Mediation agreement concluded by the parties relates to a civil dispute and did not arise from the courts or an arbitration tribunal, it will represent a civil transaction and may be subject to the provisions of civil law.
The legislation stipulates that the agreement to Mediate should be completed within a maximum of sixty days unless agreed to otherwise by the parties. However, the time to implement the Mediation procedures should not exceed a hundred and eighty days. If the dispute arose as a result of a court’s or arbitration tribunal’s action then the time for implementation should not exceed sixty days.
The legislation specifies the conditions under which the Mediation should be terminated and identifies:
The legislation contains a number of prohibitions and stipulations governing the activities provided by Mediators including a restriction that the services of a Mediator shall not be income generating. However, Mediators may be involved or participate in other legal activities recognized by Russian law. Neither employees of the Russian Federation nor members of the civil service or municipal service may serve as Mediators.
A Mediator may not be a representative of either party, provide legal or other assistance to either party and will not engage in activities during the Mediation in which Mediator directly or indirectly has interest.
Mediators may not deal with the press or make public announcements about the dispute without prior consent of the parties.
The legislation stipulates that both the Mediator and the organization/s providing Mediation services may be held liable for harm inflicted on the parties resulting from the Mediation.
The legislation lists the requirements for a person to serve as a Mediator and specifies:
The legislation anticipates the formation of an association to represent organizations that provide Mediation services. That association would coordinate the activities of Mediation providers, develop standard of rules of procedures and guidelines for Mediators.
The last section of the legislation is devoted to the formation, role and responsibilities of self-regulating organizations that represent Mediators and provide Mediation service. Such organizations would be responsible for developing rules to govern the professional activities of Mediators and establish compliance procedures to ensure that services are delivered on a professional basis.
The legislation anticipates that such self-regulating organizations of Mediators would establish:
Observations: There is considerable uncertainty among those who currently serve as Mediators about the impact of the legislation, particularly for those who live and work outside of Moscow. That uncertainty was voiced by those who had recently been trained in the Mediation process and questioned if they would need to attend another course before being able to be serve as a Mediator.
Some saw the legislation as being designed to restrict access to the field and limit competition. A discussion among observers and current practitioners noted that there was no accommodation in the legislation for those who have already been trained and are currently serving as Mediators for the courts. A similar sense of exclusion was voiced by those who work as Restorative Mediators.
However, since the legislation was passed, some matters have been clarified including that state research universities will have the responsibility for providing training in Mediation and Conflict Resolution. That training will separate those designated as professional Mediators from others who serve as Mediators. Another recent clarification notes that law firms will be able to organize and provide Mediation services to their clients and provide offices and facilities to employees who serve as Mediators.
There are still others areas that need clarification, including how Mediators will be selected, how cases will be assigned and whether there will be a “certification” of Mediators. The legislation does, however, assign considerable responsibility and authority to the self-regulatory organization of Mediators –which appear to have the responsibility for “filling-in” the blanks.
The legislation, according to some observers, represents an effort to standardize the delivery of Mediation services in Russia. The frequent reference to the courts in the legislation may represent an acknowledgment that Mediation is being used widely in many parts of the world to alleviate over-crowded and congested courts. That would certainly be a reason for the support and interest in the Mediation process in Russia. The reference to arbitration tribunals in the legislation also may reflect recognition that Mediation is being used in commercial transactions sometimes as an alternative to arbitration.
What is certain, however, is that the legislation and the resulting publication of the law have generated discussion of the Mediation process and interest in its application in Russia. A conference at a law school addressed by the author revealed considerable interest in how the process works, how disputes are submitted, how settlements are enforced and how one becomes a Mediator. The practicality of the discussion was demonstrated by a question about who pays the Mediator, the amount paid and what happens if one of the parties refuses to pay their share.The discussion at the law school and questions to the author during discussions with lawyers, academics, trade union leaders, civil administrators, and the commitment by some local officials to Mediation, underscored the interest and support for the process and its potential for use in the country.
Allan Silberman is mediator, trainer and consultant in the field of alternative dispute resolution. He served as a mediator for the District of Columbia Human Resource Department and is on the panel of the British Academy of Experts. He recently served as the US expert on a World Bank funded project to train civil administrators in the Perm region of Russia in the mediation process.
He is the former Director of the Alternative Dispute Resolution (ADR) Office of the Federal Election Commission (FEC), the agency responsible for enforcing federal election finance regulations governing Congressional election campaigns. Allan developed the ADR program at the FEC and directed the staff from 2000 to 2006. He negotiated more than 100 settlements of federal election campaign violations with both Republican and Democratic candidates competing for election to Congress.
Before joining the FEC, Allan was a partner in an ADR consulting firm (in Washington D.C.) that provided mediation, dispute prevention and dispute resolution services and training to federal agencies.
Prior to joining the consulting group, he was Vice President of the American Arbitration Association (AAA) and director of its Education and Training Department (in New York City). He directed a staff that provided more than 125 education and training seminars and workshops annually around the country and abroad on the techniques of arbitration, mediation and negotiations. He trained mediators in the techniques used to assist parties in resolving their disputes and to subsequently serve on AAA’s and various state-annexed mediation panels. He later moved to Washington D.C. to serve as Executive Director of an AAA affiliate established to promote the use of alternative dispute prevention procedures in the construction industry.
Before joining the AAA, Mr. Silberman was a member of the US Foreign Service and severed in our embassies in Sao Paulo, Brazil and Quito, Ecuador, respectively as Labor Attache’ and Political Officer. In Washington, he served as Director of Political Training at the State Department’s Foreign Service Institute and earlier in the Department’s Intelligences and Research Bureau.
He is a graduate of Miami University in Oxford, OH (in political science) and the University of IL where he obtained a Master Degree in labor economics. He also is a recipient of a Fulbright Scholarship to the London School of Economics.
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