What is mediation?
Mediation is the process of resolving disputes with the assistance of a neutral person - a mediator - based on the free consent of the parties. General rules for the mediation procedure, the rights and obligations of mediation participants are stipulated by the Federal Law of 27.07.2010 N 193-FZ "On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)". Mediation at the stage of judicial resolution of the dispute is provided for by Articles 153.1., 153.2., 153.5 of the Code of Civil Procedure of the Russian Federation, Articles 138.2., 138.4, 225, 225.5 of the Arbitrazh Procedure Code of the Russian Federation, Article 137 of the CAS RF.
Who is a mediator?
Mediator is an independent negotiator appointed by the parties to assist in reaching a solution and resolving a dispute. A professional mediator shall have a higher education and additional professional education on the application of the mediation procedure.
What disputes does the mediation procedure apply to?
The mediation procedure is applied to disputes arising from civil, administrative and other public legal relations (unless public interest is affected), including in connection with the parties' entrepreneurial and other economic activities, as well as disputes arising from labor (except collective disputes) and family legal relations. The use of mediation techniques is also advisable when resolving internal conflicts in companies.
When is mediation possible?
Mediation is possible at any stage of the dispute - both before the parties go to court in civil, administrative or arbitrazh proceedings, as well as after the parties go to court (including arbitrazh), as well as at the stage of enforcement proceedings.
How long is the mediation procedure?
According to the law, the mediation procedure should not exceed 180 days, and in a dispute pending before the court - 60 days. In practice, mediation rarely takes more than 20 days.
How is the mediation procedure going?
The way of carrying out the mediation procedure is determined by the agreement of the parties. Mediation can take place in the form of joint meetings or, at the request of the parties, in a "shuttle" mode, when the mediator meets in turn with each of the parties to discuss the situation and develop proposals. By agreement, the meetings can be held in person or by video link. At any stage, the parties have the right to change the way the procedure is carried out.
How are the results of the mediation procedure formalized?
The agreements reached by the parties are confirmed by a mediation agreement. If a pre-trial dispute is resolved, the parties may limit themselves to signing a mediation agreement with a detailed statement of the obligations of the parties, the conditions and terms of their fulfilment, and, if necessary, notarize such an agreement. If, as a result of mediation, an agreement is reached on a dispute that was previously referred to the court, such a mediation agreement is approved by the court as an amicable agreement (according to the Arbitrazh Procedure Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation) or an agreement on the reconciliation of the parties (Article 137 of the CAS RF).
How is the mediation procedure paid?
The procedure is paid by the parties in equal shares, unless the parties provide for a different payment procedure by the agreement on mediation. The cost of mediation services is determined by the Rules of the Solis Mediation Center on Fees and Expenses.
How to start the mediation procedure?
A proposal to conduct a mediation procedure can be put forward by any party independently at any stage of the dispute. If, due to the conflict, the party cannot take the initiative in inviting to mediation, then the party initiating the mediation settlement can contact the mediator, and he will send a proposal to conduct mediation to the other party.
The dispute is considered in court. How to start the mediation procedure?
To settle the current litigation by way of mediation, the parties shall submit an appropriate request (Article 138.4 of the Arbitrazh Procedural Code of the Russian Federation, Article 153.5 of the Code of Civil Procedure of the Russian Federation, Article 137 of the CAS RF), in this case the court postpones the trial and provides the parties with the opportunity to conduct a mediation procedure. We recommend that the parties discuss the possibility of mediation or, at a minimum, send a proposal for mediation to the other party before filing a petition, since in practice the court specifies whether the petition will be supported by both parties.
How is the mediation agreement executed?
Since the entire mediation procedure is a process of reaching a mutually beneficial solution for the parties, the mediation agreement in the overwhelming majority of cases is executed by the parties voluntarily and in good faith. For greater confidence, the law gives the parties the opportunity to certify the mediation agreement with a notary - in this case, the agreement acquires the force of an executive document.
Is it possible to refuse mediation?
Yes, mediation is a purely voluntary procedure. The party can refuse to conduct mediation both at the initial stage and during the discussion of the dispute and even when the terms of the agreement are being developed. In addition, the mediator also has the right to declare the termination of mediation or the impossibility of carrying it out in the event that mediation is inexpedient or the requirements of the law are violated.
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