Alternative Dispute Resolution Methods: Mediation.
Legal Update No. 165.
Goltsblat BLP advises that Federal Law 193-FZ of 27 July 2010 “On Alternative Dispute Resolution Involving a Mediator (Mediation)” and Federal Law 194-FZ of 27 July 2010 “On Amendments to Certain Legislative Acts of the Russian Federation Owing to Adoption of the Federal Law ‘On Alternative Dispute Resolution Involving a Mediator (Mediation)’” have been adopted and will come into effect on 1 January 2011.
The new federal laws do not make mediation mandatory, though this was part of the initial plan at the bill drafting stage. The mediation procedure is an optional instrument for use by agreement between the parties (a mediation clause) reached either before or after the dispute arises.
Consideration of a case in state arbitration courts, general jurisdiction courts or international commercial courts of arbitration is not precluded even if the relevant statement of claim was filed in breach of the mediation procedure agreed by the parties. The only exceptions are, for some reason, arbitration tribunals: a dispute cannot be referred for consideration by an arbitration tribunal if the underlying agreement between the parties contains a mediation clause.
The mediation process may be applied in disputes arising from civil-law, labour and family relations.
Any legally competent person who is at least 18 years of age and has a clean record may act as a non-professional mediator.
Only persons at least 25 years of age, with a higher education and mediation training record qualify to act as professional mediators. Disputes referred to a court of law before a mediation procedure is initiated may only be settled by professional mediators.
Representatives of the parties, advisers to the parties (including legal counsel) and some other persons are not allowed to act as mediator in a dispute.
The given federal laws also discuss confidentiality matters inherent in the mediation process.
The situation remains largely unchanged compared to the current state of affairs, so we expect no rapid development of the mediation institution in Russia. Even so, since mediation is used quite efficiently for settling disputes in the West, we recommend keeping it in mind as a pre-trial dispute resolution method when drafting contracts and as an alternative to court action when a dispute arises.
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