These innovations helped the development of mediation in Russia. Today, the tool for certifying mediation agreements is becoming more and more popular.
In this article, we will talk about what to look for if the parties decide to certify the agreement with a notary.
1. What kind of mediation agreement can be certified?
The Law on Mediation does not provide other restrictions on the notarization of mediation agreements, except for the condition on out-of-court mediation. The notary will certify only the agreement concluded before the dispute is submitted to the court.
However, both among theorists and practitioners, including notaries, there are opinions that not every agreement concluded via out-of-court mediation can be notarized. Many of them believe that a notary has the right to certify only such a mediation agreement, which is a civil law transaction, for example, the alienation of property. A notary is not entitled to certify a mediation agreement if it contains conditions that are not a civil law transaction, for example, on the procedure for communicating with a child, dismissing an employee, or issuing an administrative act by an authority.
Members of the legal community attribute this position to the fact that notaries are required to verify certain information and documents when certifying transactions. When certifying a mediation agreement, a notary must be guided by the requirements for certifying a specific civil law transaction contained in the agreement. For example, if the agreement contains conditions on the participant's withdrawal from the LLC, then a notary shall examine the same documents that he/she examines when certifying the application for the participant's withdrawal from the LLC.
For the terms of the agreement, which are not a civil deal, there is no list of documents and information that a notary must check. Since a notary cannot certify the agreement without checking the documents, accordingly, he/she is not entitled to certify a mediation agreement, which includes conditions other than transactions.
What if one agreement contains both a deal and other conditions? Some authors propose in this case to conclude two agreements - one notarized, and the other not.
There are opponents of such a solution to the problem. They argue that separating the parties' agreements in different documents can negate the result of mediation and create a new conflict.
In the absence of clear legislative guidance, the question of the possibility of including terms that are not a civil transaction in an agreement will be decided by a particular notary. Therefore, it is advisable to discuss with the notary in advance the possibility of certifying such a mediation agreement.
2. Do I need a professional mediator?
Until 2021, the law allowed notarization of mediation agreements, including those involving a non-professional mediator, that is, any capable citizen over 18 years of age and without a criminal record. This allowed anyone to act as a mediator and sign an agreement, and a notary was required to certify such an agreement.
The legal community has been actively discussing possible abuses of this tool and has proposed requiring a notary to certify only agreements entered into with the participation of a professional mediator who is trained in mediation.
Such abuses really began to occur, and the legislator promptly stopped them: from mid-2021, a mediation agreement is certified by a notary only with the participation of a professional mediator - the norm is contained in the Fundamentals of Legislation on Notaries (Russia).
Therefore, if you plan to have the agreement notarized, your mediation must be carried out by a professional mediator who has the appropriate diploma.
3. What documents will the notary require?
When applying for notarization of the agreement, the notary will definitely ask to present:
- an agreement on the conduct of the mediation procedure,
- a certificate of education of a mediator,
- mediation agreement,
- documents that a notary is obliged to check when certifying a specific type of transaction contained in a mediation agreement - title documents for property, statutory documents of an organization, etc.,
- passports.
An agreement on the conduct of the mediation procedure is necessary for the notary to check whether mediation was carried out - in order to exclude the use of the certification tool for illegal purposes. For the same purpose, the notary may ask the mediation participants questions about the progress of the mediation, find out the details of the process.
In addition to the main documents, the notary will ask for documents confirming the authority of the representative if the agreement is signed by power of attorney. Despite the fact that the law does not provide special requirements for the content of such a power of attorney, some notaries believe that the power of attorney should separately enshrine the authority to sign a mediation agreement.
How detailed the powers of the representative in the power of attorney and information about the object of the order should be spelled out - this depends on the essence of the transaction being made and is provided in legislation on notaries. For example, if a donation is made under a mediation agreement, the powers should be described in as much detail as possible - the subject of the donation, the donee, etc. are described.
The notary will also probably ask for documents on obligations, the failure to fulfill which led to a dispute - a contract, documents on its execution, payment, and so on. This requirement appeared in the legislation in response to abuses when the parties required notarization of mediation agreements concluded in the absence of a real dispute with an illegal purpose. To exclude such abuses, the notary will check that the dispute really exists.
When notarizing a mediation agreement, one of the basic principles of mediation, the principle of confidentiality, may be violated, as it may require the involvement of third parties. For example, if by agreement one of the spouses disposes of joint property, the notary will require the notarized consent of the other spouse to such disposal. As a result, the other spouse not participating in mediation will become aware of the mediation.
A typical example can also be a transaction related to the need to obtain corporate approval, which the notary will require. In this case, the fact of the mediation will become known to the members of the governing body who give such approval.
Disclosure of information about mediation in these cases cannot be avoided, and the parties will have to accept this if they want to certify the mediation agreement with a notary.
The list of documents that should be presented to the notary is extensive and depends on the terms of the specific agreement. Specify in advance what documents the notary will need, this will allow you not to delay the certification process.
Veronika Demidova
Mediator of the Mediation Center Solis
Sources:
D. Davydenko, Giving Executive Power to Mediation Agreements: What Does the New Legislation Bring to Civil Circulation // www.zakon.ru, 07/18/2019
V. Kulikov, Russians Began to Put up with the Help of Notaries // Rossiyskaya Gazeta, 01/05/2020
Ye. Maletina, Prospects for the Development of Mediation in the Framework of Notarial Activities // Notarial Bulletin, No. 03, 2021
S.K. Zagainova, Actual Issues of Application of Legislation by a Notary When Certifying Mediation Agreements // Notarial Bulletin, No. 09, 2020
Webinar on the Topic: “Mediation Agreement Certified by a Notary: Myths and Reality”, held by the notary of Moscow Vasily Ralko on 08/03/2021 (https://www.youtube.com/watch?v=GaqU34xU6OY)