Mediation: In Search of New Regulatory Solutions, Discussion in the Ministry of Justice of the Russian Federation. Press Release

On 15 December 2022, the panel discussion Mediation: in Search of New Regulatory Solutions was held at the Ministry of Justice of Russia.

Discussion organizers and moderators: M.M. Beskhmelnitsyn, Deputy Minister of Justice of Russia, and I.A. Melikyan, acting Deputy Director of the Department for the Development and Regulation of Legal Assistance and Legal Services of the Ministry of Justice of Russia.

The event was attended by employees of the Ministry of Justice of the Russian Federation, the Moscow Arbitrazh Court, the Russian Union of Industrialists and Entrepreneurs, the Federal Notary Chamber, the Commissioner for the Protection of the Rights of Entrepreneurs in the City of Moscow, the Central Bank of the Russian Federation, the Chamber of Commerce and Industry of the Russian Federation, as well as the trade union of mediators, the Mediator Journal, mediators, university professors and lawyers . On behalf of the Solis Mediation Center, the discussion was attended by Daria Zhdan-Pushkina, mediator and head of the Solis Mediation Center, the Reporter at the IAC at the Chamber of Commerce and Industry of the Russian Federation, a member of international arbitration and transport associations.

Tatyana Mineeva, Ombudsman for the Protection of the Rights of Entrepreneurs in Moscow, made a presentation on the prospects for the introduction of mediation procedures in disputes between business and government. Ms Mineeva reported that 84 mediators successfully work under the Ombudsman for the Protection of the Rights of Entrepreneurs through the Center for Conciliation Procedures. Fifty sectors of the business community interact with the Business Protection Ombudsman. Over the past year, 50 consultations on mediation, 55 negotiations, more than 70 telephone consultations were held, six mediation agreements were concluded in 2021-2022, three of them were notarized. One of the settled disputes concerned a dispute from a lease agreement for a land plot, a dispute arose between the Department of City Property of the City of Moscow and an entrepreneur. The parties were able to find a mutually beneficial solution. The Ombudsman for the Protection of the Rights of Entrepreneurs in Moscow is open to cooperation with mediators and considers this area of activity to be very important.

Daria Zhdan-Pushkina asked whether it is possible for the mediators of the Solis Mediation Center to cooperate with the Ombudsman for the Protection of Entrepreneurs' Rights, whether work is being done with the Moscow City Property Department regarding disputes over unauthorized construction in the city. Ms Mineeva supported the possibility of cooperation with mediators and agreed that work in this direction is necessary.

Vadim Chubarov, Vice-President of the Chamber of Commerce and Industry of the Russian Federation spoke on the topic Possible Growth Points for Mediation as a Way to Resolve Economic Disputes. Mr Chubarov spoke about the successful practice of dispute resolution in the Chamber of Commerce and Industry of the Russian Federation, about the established practices and methods, and proposed to put things in order in the regulation of the profession of a mediator by analogy, as was done during the reform of arbitration courts. In particular, it was proposed to streamline the activities of organizations administering mediation, as well as educational organizations providing education in the field of mediation, to create a standard for training mediators. Mr Chubarov considers it necessary to create registers of organizations providing mediation and a register of professional mediators. It was also proposed either to completely abandon the institution of non-professional mediators, or to define a range of cases that only professional mediators can deal with.

Daria Zhdan-Pushkina commented on the speech of Mr Chubarov, agreeing with the need to regulate the profession of a mediator, however, explained that it would be wise to do this at the same time as creating incentives for the development of a market for the work of mediators. In particular, it would be wise for the state to take advantage of the experience of other countries that went through similar difficulties 20 years ago. One of the areas of work for the development and promotion of mediation in Russia could be the creation of an interdepartmental, intergovernmental commission, where each ministry would have one representative responsible in their department for the development, implementation and promotion of mediation in their area of government. Daria Zhdan-Pushkina asked Mr Chubarov whether he agrees with the expediency of creating such a commission. Mr Chubarov supported this idea and considered it extremely interesting for the development of mediation in Russia in disputes with public authorities. According to Mr Chubarov, this could help overcome the concerns of representatives of state bodies regarding their powers, he stressed that work standards and clarification of the terms of reference for concluding mediation agreements are needed.

Mr Beskhmelnitsyn, Deputy Minister of Justice of Russia, also supported this idea, but explained that a mediator’s standard of work, understandable for contractors, similar to the standards of work of notaries, lawyers, was also needed, and also explained that Russia has a unique experience in the implementation of electronic public services, which, perhaps, will contribute to the development of mediation, if we use this instrument.

Konstantin Korsik, President of the Federal Notarial Chamber, spoke on the issue of the peculiarities of the procedure for notarization of mediation agreements. Mr Korsik reported that since 2019, the Institute of Notaries has certified 1318 mediation agreements. Mr Korsik supported the need to regulate the qualifications of a mediator, control the quality of their activities, explained that it is necessary to limit the activities of non-professional mediators in legal disputes, it is necessary to introduce requirements for the education of mediators. Mr Korsik suggested that notaries could also be allowed to mediate, which sparked a heated discussion among the participants.

Aleksey Chirkov, Head of the Regulatory Department of the Service for Consumer Rights Protection and Ensuring Access to Financial Services of the Bank of Russia, spoke about the experience of introducing mediation in Russian banks, shared what disputes should be referred to mediation. In particular, such disputes could be disputes of a socially significant nature, where the case concerns mortgages, the only housing, the fate of socially unprotected citizens, as well as disputes with many contracts and participants, major disputes. Mr Chirkov suggested that joint steps are needed to reduce the cost of the mediation procedure in order to make it cost-effective and accessible for financial disputes. Mr Chirkov said that the Central Bank of the Russian Federation has a working group for the development of mediation, which is currently working on a standard mediation procedure for the financial sector.

Alexander Varvarin, Vice-President of the RSPP for Legal Regulation and Law Enforcement, made proposals to create a new law on mediation, to completely abandon the institution of non-professional mediators (this institution does not need regulation), to transfer the regulation of professional mediation under the control of a special created state body; suggested that retired judges also need to be trained as a mediator if they plan to engage in mediation; suggested that the development and regulation of mediation under the Ministry of Justice of the Russian Federation could be handled by a specially created council (by analogy, as it is now regulated in the field of arbitration courts); provide for a procedure for recognizing the status of a mediator, create a register of mediators, which will be maintained by the Ministry of Justice of Russia; approve the requirements for organizations providing the mediation procedure; approve the requirements for the list of mediators, the rules of mediation, the rules of internal control, provide for a procedure for including such organizations in the federal register; to discuss the accreditation of mediation training centers under the Ministry of Justice of Russia, to discuss the coordination of educational programs. In order to get away from the discussion about the introduction of mandatory mediation, it may be necessary to introduce the institution of the first mediation informative meeting and make it mandatory; it is necessary to remove restrictions on the total period of mediation; one should consider whether all mediators can certify mediated agreements with notaries and give them the status of an executive document, or whether this right should be reserved only for those mediators who have mediation experience.

At the end of the discussion, Mr Beskhmelnitsyn proposed to return to the discussion of these issues next year, to join the working groups that will be created by the Russian Ministry of Justice to work out these proposals.