Russia Needs a Comprehensive Approach to Mediation

Svetlana K. Zagainova, Doctor of Law, Professor, Director of Mediation Centre, Ural State Law Academy, President of Inter-regional Chamber of Intermediaries (Mediators), Yekaterinburg, Russia

The article focuses on the fact that Russia needs a comprehensive approach in mediation, including the necessity to form both a private model of mediation and an integrated one, as well as to include mediation techniques in the professional competencies of lawyers.

Key words: mediation; private mediation; integrated mediation; training of mediators; judicial mediation; mediation in the notary activities; mediation practice; legal experiment in mediation; mediation techniques.

Mediation as an alternative means of dispute resolution is being actively developed in the contemporary world. Such problems are handled at the level of the United Nations Organization[1], the European Union[2], the International Bank for Reconstruction and Development[3], the International Chamber of Commerce[4] and others. Having adopted the Federal Law “On the Alternative  Dispute Resolution Procedure with the Participation of an Intermediary (the Procedure of Mediation) No.193-FL dated January 27, 2010[5] and the Federal Law “On Introducing Changes to Some Legislative Acts of the Russian Federation due to the Adoption of the Federal Law “On the Alternative  Dispute Resolution Procedure with the Participation of an Intermediary (the Procedure of Mediation)” No.194-FL dated July 27, 2010[6], Russia has joined the worldwide mediation process integrated into the legal culture[7].

         We believe that the existing world trends are significantly accounted for by the following factors:

1. The expanding and increasingly complicated sphere of legal civil turnover and natural development of integrated processes lead to the increased tension and disputes. Due to the fact that many social spheres overlap, legal forms are intensively developed and, consequently, life becomes “more juridical”, such trends are formed in the sphere of civil, labour, family, corporate and even administrative relationships. In other words, the existing procedural and structural sophistication of the contemporary society as well as increased interests and needs of a person make legal disputes and legal conflicts a natural component in the dynamics of social processes and a necessary tool in regulating relationships.

2. The main institute for dispute consideration and resolution is the court, which seems obviously overloaded, and this fact not only affects the quality of its work but  also contributes  to the reduced efficiency of legal regulation and dispute resolution in different spheres of society. Accessibility and quality of justice are directly related to the level of the court caseload. Besides, the maintenance of the court system requires significant financial support on the part of the state, which becomes especially urgent in the conditions of the world financial crisis. Therefore, each state is looking for alternative ways to solve such problems. Among such alternative measures are, for example, the redirection  of cases which do not require highly professional expertise  to out-of-court institutes, namely mediation.

3. Developing contemporary market relations and ensuring  stability  of civil turnover is impossible without maintaining more reliable economic relations between different subjects of entrepreneurial activities. Therefore, the key problem is to make participants of economic activities switch over from confrontation to cooperation and collaboration with the other contracting parties. Due to a  specific nature of negotiations, mediation is aimed at cooperation between the parties and, consequently, it can become an effective means for reducing confrontation in the business community.

The contemporary practices distinguish two major legal models where mediation, both private and integrated, is applied. Private mediation is regarded and regulated as an independent type of professional activities in dispute  resolution. This model presupposes the introduction of separate organizational and legal forms of activities in conciliatory procedures which make mediation an alternative means in legal dispute resolution. As a rule, this is implemented by adopting separate legal acts which regulate general provisions of mediation as an out-of-jurisdiction procedure, reveal its principles, provide for legal guarantees of mediation as an institute, and stipulate requirements to mediators and organizations which contribute to the dispute resolution by means of mediation.

It is important to underline that the private model of mediation cannot be applied in the activities of jurisdictional organs. To make such organs actively participate in promoting conciliation of the parties as a priority method of dispute resolution, it is common to form an integrated model of mediation which takes into account  peculiarities of jurisdictional activities and of the procedures for such activities. Integrated mediation is considered and regulated as a special procedure and a type of activities of jurisdictional organs (courts, notary’s offices, bailiffs, and others) aimed at the conciliation of the parties involved within the framework of the legal process.

The world experience shows that mediation brings good results in the sphere of legal dispute  resolution. To make mediation an efficient legal institute in Russia, we need a comprehensive approach which includes both private and integrated models of mediation as well as different techniques of mediation in professional legal activities.

 Adopting  special legislation, has created necessary conditions for the integration of mediation into the Russian legal culture and has laid foundation for the development of the private model. However, it is well known that adopting a law is not enough to speak about  corresponding practices. In this respect, to make practical mediation a real alternative to the dispute resolution  in court, it is necessary to solve a few rather difficult tasks, and the two major ones  are: creating a pool  of mediators and elaborating  optimal mechanisms of coordinating mediation with jurisdictional procedures.

Now it is quite obvious that the main impediment on the way to accomplishing one of the major goals of  adopting  of the Law – to  reduce the courts’ caseload–-  is almost a complete lack of professional intermediaries (mediators). Pursuant to Article 16 part 3 of the Law on Mediation, if a case is tried by a court or by an arbitration court, and the parties have agreed to resolve the dispute by mediation, it can be held only by professional intermediaries. Therefore, the participants should have at least an opportunity to address such an intermediary (mediator). However, it should be noted that the 5-year experience of mediation provided by the Centre of Mediation at the Ural State Law Academy shows that most applications for dispute resolution by mediation are filed by the parties when their case is already being considered  by a court. Thus, after the law on mediation came into force, parties to a dispute are virtually deprived of the opportunity to have their dispute peacefully resolved due to the lack of professional intermediaries.

The process of forming  a pool  of professional mediators, which would be big enough to implement the mechanisms of legal dispute resolution provided for by the Law requires a lot of effort and time. From the  viewpoint of organization, this task presupposes that the issue of  the subjects of mediation and  mediators training has to be solved.

Nowadays, as far as we know, the training of quite a significant number of mediators is provided by just a few special centres situated in Moscow, Saint-Petersburg, and Yekaterinburg. At the same time, it is obvious that even if these centres work most efficiently, their  training resources are not sufficient to prepare the  number of professional mediators necessary to make the Law work. It is important to establish a network of educational centres which, at least in the near future, would be able to train the necessary number of professional mediators for the whole country.

Such centres in Russia may be established on the basis of higher schools of law. Such an approach is justified by, first of all, the Law on Mediation itself, which has restricted application of a mediation procedure to disputes arising from civil, labour and family relation, i.e. to legal disputes! Consequently, the legal training of mediators is the main requirement to make their work efficient. Without such training, a mediator will not be able to understand the subject matter and the very essence of the dispute. Following the provisions of the Law, a professional mediator must be able to legally cooperate with courts of original jurisdiction, commercial courts, and notaries , i.e. to work within the framework of procedural legislation.

The choice and training of mediators from among legally qualified experts seems to be one of the simplest and probably one of the most “economical” ways. Legal training of mediators alone is certainly not  enough. It is necessary to acquire a series of other competencies, techniques of effective communication, conflict management, organization of negotiations and many others. However, there are significant grounds to believe that it is simpler to form the necessary competencies, teach corresponding techniques and the procedure rather than to give profound legal knowledge. It is not a pure coincidence that mediators in many countries come from professional lawyers.

Such an approach is further confirmed by the experience of the Centre of Mediation at the Ural State Law Academy in Yekaterinburg. For more than 5 years, the Centre has been providing mediation, teaching mediators a comprehensive set of subjects and conducting scientific research on the issue of integration of mediation into the legal culture of the Russian society. In 2011, the Centre began implementing  a programme of training mediators approved by the RF Ministry of Education and Science[8]. The Centre is staffed with  professional lawyers, mostly Doctors and Candidates of Law, who have learnt the corresponding techniques and procedures of mediation. The experience of the Centre evidently demonstrates that without deep and proper understanding of the legal essence of the dispute it is difficult to effectively organize the negotiations of the parties, create optimal conditions for the reconciliation of their interests and for concluding a reliable mediation agreement. Besides, sometimes there are situations when even after the dispute resolution by mediation, the parties may still have some disagreements concerning conditions of the mediation agreement. Very often it is the legal training of mediators that can help them overcome such difficulties. Therefore, there are grounds to believe that most mediation procedures conducted recently have been successful due to the high legal qualification of the Centre’s mediators. Not only  have most of such procedures been chosen as an alternative to court proceedings but they were also used on different stages of civil and commercial proceedings as well as within execution proceedings.

The efficiency of training our lawyers in mediation is confirmed by the work of our graduates who are involved in different spheres of activities as notaries, judges, advocates, jurisconsults and in other capacities, including the faculty of law departments of universities and higher schools of law.

The abovementioned facts give us grounds to say that if we wish to train professional mediators, it would be reasonable, first of all, to rely on law schools (and departments) which are staffed with highly qualified teachers and have all necessary facilities, methods and experience, and, therefore, are able to provide the required level of special competencies of mediators. Besides, law schools (departments) in most regions of the country may become the first centres to provide mediation to people because, as the experience of the Mediation Centre at the USLA shows, people trust higher schools, which is very important for the development of practical mediation. Nowadays. mediation centres have been established by the law faculty of the Siberian Federal University, the law faculty of the Voronezh State University and some other law schools. Undoubtedly, the training of mediators can be conducted in  other professional  areas. In this respect, such an inter-professional approach is quite positive because it enables us to enrich our knowledge, analyze different methods and approaches, and compare the results.

The problem of professional training of mediators is closely connected with the introduction of mediation as an obligatory pre-trial stage in the dispute resolution. The necessity to elaborate such an issue has also been focused on by the orders of the RF President on December 26, 2011 and of the Chairman of the RF Government No.VZ-P13-9278 on December 29, 2011 “On Measures to Implement Main Provisions of the Address of the RF President D.A.Medvedev to the RF Federal Assembly on December 22, 2011”. Taking into account foreign experience, it would be reasonable to introduce mediation as an obligatory pre-trial stage in  dispute resolution in contemporary Russia on the following stages:

The first stage: the judge should be given the right to decide  which cases have to be resolved by mediation and to appoint mediation while the case is being prepared for court consideration. If this stage should become effective, it is necessary to train  judges as to opportunities and restrictions of the process of mediation and to form such competencies which are necessary to determine the mediability of the case. The result of this stage must be the analysis of the practice and of categories of cases the resolution of which by mediation will be most effective and will significantly reduce the caseload for courts.

The second stage: the law must stipulate for which cases resolution by mediation is a must. Thus, it will be possible, first of all, to make the procedure of mediation a necessary pre-trial procedure of  dispute resolution and, second, at the same time to preserve an opportunity for judges to take a decision on compulsory mediation after a civil suit has been filed in those categories of cases where mediation is not an obligatory procedure of dispute resolution. Such issues are to be regulated by procedural codes.

Apart from the fact that the introduction of such a significant innovation in the existing legislation is analytically grounded and  technically and legally correct, the advantages of mediation as an obligatory procedure are the following: during the first stage we can train such a number of mediators that is necessary to make the provisions of the law work. Without that, normative introduction of mediation as an obligatory pre-trial procedure may become a mere declaration and, instead of reducing the caseload for courts, an additional burden. 

In this respect, it should be said, however, that nowadays there are no conditions that would make the introduction of mediation as an obligatory pre-trial procedure possible. This concerns  insufficient legal research of the question  in Russia as well as by the lack of the necessary number of mediators.

The necessary conditions may be provided only if we solve the tasks in the following order:

a)     setting  up Mediation Centres at law schools (departments) that would train mediators,  conduct practical mediation proceedings and scientific and legal mediation research, analysis of court practice (with the analysis of experience of other mediation centres at higher schools);

b)    training  specialists at such higher schools and train intermediaries (the number of judges may serve as an ideal number of the required intermediaries) ready to deal with legal disputes of any level of complexity;

c)     providing intensive propaganda of mediation and increase public awareness of mediation as an effective means of dispute resolution.

No  less important is to elaborate optimal mechanisms of coordinating mediation with jurisdictional procedures. After the Law on Mediation and amendments introduced in the RF Civil Procedure Code, the RF Commercial Procedure Code and some others came into force, the practice revealed some gaps and discrepancies in the procedural practice as compared to the mediation practice. Nowadays, there are no prescribed methods for judges to use in clarifying the right to have a dispute resolved by mediation; there are no necessary mechanisms and documents to transfer a dispute from court of law to mediation; there are no agreed time limits within which a civil case is to be considered by the court of original jurisdiction and by mediation; the legislation concerning the mechanism of  regulating mediation (a mediation agreement) and court proceedings has not been elaborated thoroughly enough. All these issues are among the most topical issues to be solved in the near future. Some of these issues have to be regulated by legislators, while others are to be solved by experimenting in practice.

Thus, realizing the necessity to look for optimal mechanisms of co-existence between the state judicial proceedings and mediation as a means of out-of court  resolution, in 2011 the Sverdlovsk region held a legal experiment on elaboration and approval of integration mechanisms in civil proceedings[9]. It was the first experiment of this kind ever held in Russia. For this experiment to be effectively held, the region worked out and approved its conception, prepared the programme, determined  objectives and created  a working group. The legal experiment was started on the basis of  court No.6 of the Oktyabrsky district of Yekaterinburg,which according to the results of  2010 became “the court with the largest caseload ” in the Sverdlovsk region. By 2014, more than 30 district courts of the Sverdlovsk region joined this experiment. This pilot project became a model for the development of mediation in other regions of Russia (the Lipetsk region, the Krasnoyarsky krai, the Perm krai, the Chelyabinsk region and others). Participants in civil and commercial proceedings are increasingly interested in mediation year by year. To a great extent, this  is because of the contribution made by the USLA Mediation Centre which provides scientific and methodical research of the experiment, conducts practical mediation and elaborates various forms of collaboration between the court and professional mediators. The matters of organizational and technical nature are solved with  the participation of the Judicial Department of the Sverdlovsk region. The experiment was conducted with the grant support of the American and Russian Fund on Economic and Legal Development (USRF).

The model of the legal experiment was developed on the basis of experience of interaction between the institute of mediation and judicial bodies of Germany, Netherlands, Finland, Australia, England and Wales, the USA and Canada. The model was adapted for the Russian system of justice.

The experiment elaborated and approved methods  that judges should use to explain the right to have a dispute resolved by mediation, determined optimal mechanisms of interaction between mediators and the court, agreed upon  procedural forms of referring a dispute to mediation, which enabled to sum up the practice of  civil dispute parties’ applying for mediation. The experiment showed that as a result of a mediation agreement, civil cases are dismissed; the final judicial act terminates the proceedings is not appealed in higher courts; other claims and counterclaims are not filed; and execution proceedings are not initiated since the parties voluntarily perform their obligations.

The survey of the mediation participants’ opinions demonstrated that they preferred this way of dispute resolution to court proceedings because the decision made as a  result of mediation corresponds to their interests more than a court  decision. Among the factors which make  parties resort to mediation we can mention the following:

-         highly professional clarification made by the judges to the parties that they have the right to have their dispute resolved by mediation;

-         meetings of the mediator and the parties to provide the necessary information held inside the court house;

-         high professional qualification of mediators;

-         free mediation for the participants of civil proceedings.

Alongside with the private model, it is necessary to introduce integrated mediation in the activities of jurisdictional bodies. Since the integrated model considers reconciliation as one of the additional competencies of subjects involved in jurisdictional activities, integrated mediation is legally regulated not by a separate legal act but by special legislation which regulates activities of  a particular  jurisdictional body. As to the Russian practice, the integrated model may be applied in  judicial and notary activities and in execution proceedings. The first steps have already been made.

Thus, the Supreme Commercial Court of the Russian Federation has elaborated a draft of the Federal Law “On Introducing Changes in Separate Judicial Acts of the Russian Federation in Connection with Improved Reconciliatory Procedures”, which presupposes the introduction of the institute of judicial intermediation. To make this idea work in practice, it is necessary to find an optimal model of judicial mediation, elaborate mechanisms of interaction between private and judicial mediation, work out legal constructions of integrating mediation in the judicial process, determine the competence of a judicial mediator and his procedural status. The draft was widely discussed and it is still being improved.

Quite promising is the introduction of the integrated model of mediation in notary activities. Notariat as a body of preventive justice performs most important public functions to provide legal safety, stability and incontestability of the civil turnover. Therefore, one of the reforms of the Russian notariat is to switch over to providing a complex of legal services by notariat, with legal counseling, collection of data necessary to perform notary activities, calculations, and other actions including reconciliatory measures among them. A notary public can reconcile parties by different methods, including the one which is more spread in the foreign notary activities and is called a conciliatory procedure. The state programme of the Russian Federation “Justice”, in the draft of the Federal Law “On Notariat and Notary Activities in the Russian Federation”, stipulates that a notary public may use conciliatory procedures and negotiations to bring together the positions of the parties concerned. These trends reflect the worldwide notary practice of the Latin type designed to perform the role of a preventive justice body.

The experience of mediation in foreign countries shows that the integrated model is rather effective in execution proceedings, and it may be applied in the activities of various bodies competent to resolve legal disputes. The main task of the state is to choose an optimal model of such mediation and to organically include it in the existing jurisdictional procedure.

Mediation as a means of  legal dispute resolution can be effective not only in the private and integrated models. The practice shows that such mediation techniques are also successful in different spheres of legal activities. For example, during the experiment conducted in Yekaterinburg, the USLA Mediation Centre developed a special programme for teaching judges various mediation techniques. This programme has successfully been applied in practice. It has shown that it significantly reduces the labour intensity  in civil proceedings. For example, judges who had such training have a higher percentage of amicable agreements - other forms of resolving a dispute due to the reconciliation of the parties - and a lower percentage of appeals.

Thus, the main trends in implementing a comprehensive approach in the development of mediation in Russia have been determined, and now the legal community has to take gradual steps in this direction.