Reform of court settlement : how to breathe new life into mediation


In the State Duma of the Federal Assembly of the Russian Federation a draft amendment will come soon in the Federal Law of 27.07.2010 number 193-FZ "On alternative dispute resolution process involving a mediator (mediation procedure)" authored by MP Rafael Mardanshin.

The law was adopted in 2010 and entered into force in early 2011. The purpose of its creation is to develop an alternative dispute resolution procedure involving a mediator in an independent person - the mediator, promote the development of business partnerships and the development of ethical business practices, the harmonization of social relations.

Despite the positive experience of mediation in foreign countries and its objective advantages over litigation, the practice shows that mediation in Russia is widely not received. For the state objectives of mediation are obvious: first, the ability to withdraw from the budget system to resolve social conflicts (usually minor, if not frivolous); secondly, reducing the level of corruption in the judiciary; thirdly, the "harmonization of social relations, the promotion of partnerships and the formation of ethical business practices."

The bill is aimed at solving the most problematic issues related to the implementation of the Law. So, the first thing you should pay attention to - the execution of mediation agreements. According to Art. 12, the current version of the Act mediativnoe agreement is a civil transaction and is subject to execution on the basis of the principles of voluntary and good faith of the parties. In other words, enforcement is not possible if we are not talking about the approval of the court as a mediation agreement in the settlement agreement, in accordance with the procedural legislation.

Thus, if mediativnoe agreement was concluded without the participation of the court, it is impossible to enforce. To get protection guarantee in case of default of a mediation agreement, the parties must first apply to the court.

In this regard, the bill proposes to give the agreement reached on the basis of mediation by the parties, the power of an executive document, the last pre-qualified legal expertise. The proposed changes, in our opinion, can positively influence the development of this institution.

In accordance with Articles 15 and 16 of the Federal Law, a mediator activity can be carried out both on a professional and non-professional basis. The persons carrying out activities of a mediator on a non-professional basis, must meet the following requirements: at least 18 years, a person must have full legal capacity and not have a criminal record. Professional career mediator Only persons who have reached the age of twenty-five years, with higher education and to receive additional professional education on the use of mediation.

In our view, these requirements do not meet the interests of business in a competent and professional resolution of disputes. This problem also finds its solution in the bill states. The developers propose to establish qualified characteristics, duties and requirements for knowledge and skills of a professional mediator. The relevant Resolution of the Government proposed to include the position of "professional mediator" in the Unified Qualification schedule of managers, professionals and employees.

This provision of the bill, in our view, is more than justified. If the mediator will receive vocational training, and federal educational standard of mediation is created, it is a positive impact on confidence in the mediators from the business as well as significantly increase the level of the agreements reached by the parties.

 Author: Taras Fisun, lawyer

25 May 2016