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Mediation, more particularly, cross-border
Prof., Dr. Farkhad Karagussov, (Institute of Private Law of the Kaspiiskii Social University, Almaty, Republic of Kazakhstan)
I. THE BASIS FOR MEDIATION
I.1. The concept of Mediation under the laws of Kazakhstan A. As the legal term the notion of mediation has been introduced into the legal system of the Republic of Kazakhstan in 2011 when the Law «On Mediation» was adopted.[1] This Law in Article 2 includes the legal definition of mediation (sub-clause 5)). According to this definition, mediation represents «a procedure of resolution of a dispute’s (conflict’s) between [its] parties with assistance of a mediator (mediators) with the purpose [for the parties] to achieve a mutually acceptable solution [which procedures] is implemented by voluntary agreement of the parties.» The Law dated January 28, 2011 «On Mediation» (as amended) (the «Mediation Law») serves as the legal basis for organization of mediation in Kazakhstan, defines principles of mediation and regulates mediation procedures. It also determines a mediator’s status. B. The Mediation Law in its Article 3 declares the following as purposes of mediation: (i) achievement of a possible scenario/solution to resolve a dispute (conflict) acceptable for both parties of the mediation procedure; and (ii) decrease of level of the parties’ proneness to conflict. These purposes are proposed to achieve in each case when mediation takes place to resolve a particular dispute (conflict). C. The Mediation Law does not specifically identify mediation as an alternative way for dispute resolution (ADR) and, in general, the laws of Kazakhstan still restrictedly operate the term «alternative dispute resolution». However those documents representing conceptions or programs for further social and legislative development refer to ADR and to mediation as ADR device as well as they call for their further introduction into Kazakhstan’s legal system. Particularly, The Conception of the Legal Policy of the Republic of Kazakhstan adopted by the Decree of the President of the RK dated September 20, 2002 #449 (now expired) proposed that in addition to all efforts in developing Kazakhstani judicial system «alternative methods for settlement of civil-law disputes must be provided for, in particular, [with the aim] to regulate functioning of arbitration tribunals and to converge to international standards». Later on, in Chapter 4 of The Conception for Development of Civil Society in the Republic of Kazakhstan for the period of 2006-2011 approved by the Decree of the President of the RK dated July 25, 2006 #154 there is now stated that «in addition to the judicial practice there are alternative ways to settle social, interpersonal conflicts and disputes apply, and there the system to conform (harmonize) interests exists…». Currently, in The Conception of the Legal Policy of the Republic of Kazakhstan for the Period from 2010 till 2020 adopted by the Decree of the President of the RK dated August 24, 2009 #858 in Section 2.7 there is also stated that «establishing of different ways and means for achieving compromises between parties of private-law conflicts (such as mediation, intermediation and others) in both judicial and out-of-court procedures, including, among others, mandatory discussions of a possibility to use some means and conciliation procedures when preparing a case for a court’s settlement, as well as development of out-of-court forms of protection of civil rights» are defined as a guideline for development of Kazakhstani civil procedural legislation. In addition, in Section 3.2 of this Conception there is also declared that the system of arbitration courts and tribunals shall be further developed. D. In their turn, Kazakhstani scholars have considered the notion of ADR and different types of ADR in their publications. Particularly, professors Yu.Basin and M.Suleimenov stipulated that there, basically, the following three types of ADR can be distinguished: (i) negotiations, (ii) mediation and (iii) arbitration.[2] In his later article professor M.Suleimenov mentions that there two different positions exist concerning the content of the concept of ADR: some scholars believe that ADR creates an alternative to courts of general jurisdiction, but others consider judicial system and arbitration as two separate phenomena and they treat all other procedures as the alternative (i.e. as ADR) to dispute settlement in both state courts and arbitration. Him personally considers alternative procedures for dispute resolution as «an aggregate of means and methods used by parties to achieve an agreement and when necessary – with involvement of an independent third party whose final judgment with respect to the merits of the dispute case is either advisable or obligatory».[3] And in the same article, in addition to the aforementioned arbitration, mediation and negotiations, he also mentions such types of ADR as med-arb (mediation and arbitration), mini trial, reconciliation of the parties, non-obligatory arbitration or expert assessment opinion. E. In line with those conceptual documents approved by the President of Kazakhstan as mentioned above, there two laws were adopted on December 28, 2004. The first one is the Law «On International Arbitration» (initial title was the Law «On International Commercial Arbitration» and it was replaced with the current title in July 2013) regulates those relations arising in the process of functioning of international arbitration on the territory of Kazakhstan, as well as the procedures and conditions for acknowledgement and enforcement of international arbitral awards in Kazakhstan. The second one is the Law «On Arbitration»; it regulates terms and conditions of creation and functioning of arbitration tribunals in the RK, as well as procedures for enforcement of their decisions. Neither these two Laws no the Mediation Law expressly define (in legal terms) arbitration, international arbitration and mediation as types of ADR. However, having an access to dossiers of drafts of all these Laws, including the RK Government’s explanatory notes, conclusions and scientific expert opinions which were made to accompany the drafts of the Laws when they were submitted to the RK Parliament, one will find that these acts were initially meant to regulate respective types of alternative dispute resolution of civil-law disputes and (as mediation) some other types of conflicts.[4] In addition, in the most of scientific and mass media publications of Kazakhstani scholars, judges and attorneys all three of these procedures are clearly regarded as types of ADR. F. In all of available publications in Kazakhstan, mediation is acknowledged as a type of ADR and it is generally understood similar way as it is defined in the Mediation Law. For example, professor M.Suleimenov defines mediation as «settlement of a dispute with assistance of an independent neutral intermediary who promotes to achieve an agreement between the parties».[5] A.Duisenova (the Executive director of the Kazakhstani International Arbitrage) also emphasizes: «mediator is not an arbitrator, he does not determine who is right and who is wrong, he does not make a decision on a dispute. Mediator helps the parties to settle the conflict with benefits to all the parties».[6] A.Sholimova proposes that as a type of ADR «mediation represents a specific form of intermediation which does not propose that a third party makes a judgment on a dispute, but correspondingly a mediator’s main purpose is to assist parties [of the dispute] to bring the dispute, as soon as possible, to a mutually beneficial and viable solution».[7] Such common understanding of mediation is also expressed in the publication of all reports made by its participants at the international conference organized by the Institute of Legislation of the RK Ministry of Justice held on October 19, 2012 in Astana.[8] G. Above arbitration is considered to represent one of ADR available under the laws of Kazakhstan. By such reference to availability of ADR we mean enforceability of the results of respective type of ADR according to provisions of local legislation and not just a fact that applicable law does not prohibit a procedure. Particularly, according to Article 1 of the Law «On Arbitration», the Law applies with respect to disputes arising out of civil-law relationship with participation of individuals and/or legal entities. Under Article 6 of this Law, arbitration tribunals shall settle such disputes in accordance with legislation of Kazakhstan. Article 32 of this Law regulates the terms under which competent courts provide assistance to arbitration tribunals to secure enforcement of future arbitral awards on separate disputes.[9] Article 33 of this Law also sets forth that arbitral awards are acknowledged to be mandatory for the parties of a respective dispute. Finally, Article 46 of the Law «On Arbitration» establishes that when the parties fail to implement an arbitral award such award becomes subject to its enforcement pursuant to execution procedures as provided for by the RK laws on execution of judicial decisions. In its turn, pursuant to Article 1 of the RK Law «On International Arbitration», it applies with respect to disputes arising out of civil-law relationship with participation of individuals and legal entities which disputes are resolvable by international arbitration. Article 6(4) specifically provides for that a dispute can be brought to and settled in the international arbitration if at least one party of the dispute is a non-resident of the Republic of Kazakhstan. According to Article 32 of this Law arbitral awards are acknowledged to be mandatory and, when a respective petition is submitted to a competent court, it shall be carried into effect in accordance with the RK civil procedural legislation. Article 25-1 of this Law also regulates the terms under which competent courts provide assistance to arbitral tribunals to secure enforcement of future arbitral awards on separate disputes, as well as in collecting evidences. Both of these Laws concerning arbitration establish certain restrictions with respect to those categories of disputes which cannot be settled in arbitration, including international arbitration. However this is a topic of separate consideration as it goes beyond scope of consideration in this report. Neither the Mediation Law nor both of the Law «On Arbitration» and the Law «On International Arbitration» contain any provisions allowing to reveal any relationships between mediation and arbitration. Professor M.Suleimenov also mentions the absence of a special regulation in existing legislation of Kazakhstan for mediation under the auspice of an institutionalized arbitration.[10] For example, these Laws do not regulate whether arbitration should be suspended if the parties of the dispute reach an agreement to solve it in mediation. On the contrary, these Laws on arbitration propose that the parties may reach an amicable agreement and the tribunal will have to formally confirm it. It should be noted that in one of his publications professor Suleimenov M.K. proposed to draft, on the basis of the 2002 - UNCITRAL Model Law on International Commercial Conciliation, a law on conciliation procedures with participation of mediator in civil-law judicial proceedings and in arbitration. However this proposal with respect to regulation of mediation in arbitration has not been implemented.[11] No other ADR devices exist in Kazakhstan under its national law. It appears that no arrangement can be identified as an ADR device if an applicable law fails to provide support in implementation of results of such arrangement proposing judicial support to enforce it. Though, in accordance with general principles declared in the RK Civil Code, participants of civil-law relationship are entitled to establish forms, terms and conditions of their relations and to choose forms and means for settlement of their disputes and conflicts. H. Under the Mediation Law mediation can be used to settled disputes and conflicts arising out of civil, labor, family and other types of relationships with participation of individuals and/or legal entities. The Mediation Law also allows using mediation to settle disputes and conflicts within criminal legal proceedings on cases concerning crimes of a little and middle heaviness (i.e. those which are not serious or major crimes) unless otherwise is established by laws of Kazakhstan. However, mediation cannot apply if: (i) a dispute (conflict) infringes or can infringe on interests of third parties not participating in mediation; or (ii) a dispute (conflict) infringes or can infringe on interests of an individual(s) who are legally incapable or restrictedly capable due to a court’s decision(s); and (iii) when a state authority (state body) is a party to a dispute (conflict). It is also prohibited to apply mediation on criminal cases concerning corruption offences and other crimes against interests of state service and state governance. All the respective provisions as mentioned above are included in Article 1 of the Mediation Law. I. According to the Mediation Law, there both out-of-court and court-annexed mediation are accepted in Kazakhstan. Article 20(2) of the Mediation Law specifically states that mediation to settle disputes can be applied both before the parties bring their dispute to court and after a trial proceeding starts. J. After the Mediation Law was passed in 2011 a lot of different types of activities concerning creation of organizational, methodological and cadre elements of successful functioning of mediation device have been undertaken in Kazakhstan. A number of organizations involved in activities associated with organization of mediations and mediators’ training were established in different cities of Kazakhstan, as well as registers of certified mediators have been formed. For example, as one of the most notable, the Integrated Center of Mediation and Peacemaking «Mediation» (headed by Mrs. S.Romanovskaya) has been set up in Almaty with branches in other regions of Kazakhstan. As it is mentioned in the Center’s website (www.mediation.kz), during the last two-year period after adoption of the Mediation Law the Center has provided training and certified 183 mediators under three specially designed training programs such as «General Course of Mediation», «Specialized Course of Mediation» and «Training for Mediation Trainers». In the register of this Center there 98 certified mediators included. The Kazakhstani Center of Mediation (www.kazmediation.kz) in Almaty (director Mrs. I.Vigovskaya) has also created its own register of mediators. This register divides mediators based on where mediators reside and where they can effectively offer their services. Such division includes 9 major cities of Kazakhstan and even Munich (Germany). The Kazakhstani International Arbitrage (KIA) chaired by professor M.Sulemenov also offer mediation as alternative way for disputes resolution (www.arbitrage.kz). Mediation is carried out in accordance with the KIA Rules of Reconciliation (Mediation). There other mediators’ organizations can be also found in Kazakhstan. The overall trend is an increase in the number of mediations in different areas of private and public (administrative and criminal) law. In addition, an increase in the number of certified mediators can be also noted, as well as in the number of people interested in taking special training to become certified mediators. K. There no centralized official statistic and analytical information exist in Kazakhstan concerning number of mediations. Each organization of mediators, however, can offer their own data. For example, from the website of the aforementioned Integrated Center of Mediation and Peacemaking «Mediation» one can know that «starting from August 5, 2011, when the RK Law «O Mediation» came into effect, professional mediators of the Center prepared (invited to mediation) and completed mediation on 1 dispute considered within a criminal proceedings on criminal case (related to a traffic accident), on 18 civil-law disputes (arisen from family, labor and other legal relations), as well as more than 200 disputes concerning consumer rights protection».[12] From the official website of the Specialized Inter-District Juvenile Court of Karagandy oblast of Kazakhstan (www.juvencourt.kz) more detailed information can be found regarding results of activity of the Center of Mediation and Law «Dostasu» located in the city of Karagandy. As it is announced «there are more than 65 of successfully conducted mediations on the credit of the Center «Dostasu». Those are disputes where we helped to parties in out-of-court procedure to cross the difficult way from conflict to agreement. The amount of only monetary claims settled in such mediations exceeded 10 million tenge. These results of mediation are categorized as follows: - reconciliation of the parties on instituted criminal cases – 2 mediations (3,6%); - family conflicts, including partition of property and determining children’s place of residence – 14 mediations (21,8%); - consumer disputes – 18 (32,7%); - credit relationships (disputes between banks and their clients regarding loans repayment) – 4 mediations (7,2%); - commercial disputes, including those with participation of several legal entities – 8 mediations (14,4%); - refusal from mediation – 1 case; - disputes with providers of public services – 4 mediations (7,2%); - interpersonal conflicts, including those on instituted administrative proceedings (light harm to someone’s health, slander, insult) – 4 mediations (7,2%); - disputes with mass media – 3 mediations (5,5%); - disputes between individuals regarding money claims – 8 mediations.»[13] On the website of the Media Center of the RK Internal Affaires authorities there the following has been announced: «for the half-year period [of 2013] 475 cases were closed (completed) with the use of mediation. It is undoubtedly progress! Taking to the consideration that during the last year [2012] peacemakers [mediators] managed to settle and prevent judicial proceedings in only 122 conflicts».[14] M. The same website of the Media Center includes a kind of forecast stating that «if such increase would take place in future, there is a good perspective that this Law [the Mediation Law] will finally start work in full». Karagandy Center of Mediation and Law «Dostacu» has also noted positive trends. They particularly mention, as positive examples, successful mediation on such disputes as partition of property and business, reconciliation and repayment of debts when periods of limitation of action expired, amicable resolution of about 20 consumer rights related disputes. For the last category of disputes they see it significant that successful dispute resolution became possible due to use of principles and methods of mediation and not with any references to legal norms and sanctions of the consumer law. They also believe that first outcome of application of the Mediation Law shows wide opportunities for spread of mediation in Kazakhstan. «Taking into consideration politically correct mentality of Kazakhstani people we believe that mediation will have important future. However, introduction of mediation into life moved a significant layer of legal and humanitarian problems».[15] Some specific problems are mentioned in this publication, but we can identify them, in addition to other, from another sources. For example, representatives of Kazakhstani mediators’ organizations who participated in the conference held on September 26, 2012 in Almaty blamed judges, prosecutors and investigators that they do not explain people the meaning of mediation and possibilities offered by the Mediation Law.[16] Even a year after adoption of the Mediation Law there was an opinion that a little change appeared to happen. The head of the Bostandyk District Court in Almaty A.Sarsembayev identified two reasons to this: (i) there are no authoritative mediators yet and (ii) people do not know how to treat [use, apply] mediation.[17] Similarly, the Chairman of the RK Supreme Court Mr. B.Beknazarov also mentioned the following: «mediation procedures have not begin to work to the fullest extent… There the Law [On Mediation] exists, many public association of mediators have been created, [such of] private mediators as the matter of fact, but it is not everywhere people take mediation as real opportunity to resolve a dispute… May be it is because here in Kazakhstan it’s been more convenient and easier to file a suit to courts. We have insignificant amount of dues for application to courts established. Nevertheless, we require from chairmen of courts to create necessary conditions for mediators.»[18] However practicing mediators see that «the judiciary of Kazakhstan shows a positive perception of mediation as a method of reconciliation of parties [of a conflict/dispute]… However, while judges positively take for the new law [the Mediation Law], internal affairs authorities in the meantime do not demonstrate such understanding. At the same time, for the present, there is no mutual understanding achieved with the most of practicing lawyers, attorneys and notaries, who believe that mediators act as their competitors, and they forget that mediators and lawyers are representatives of allied professions having the same historical roots».[19] In their turn, its is fair to mention that representatives of the General Prosecutor’s Office also support introduction of mediation into the practice allowing its application during different stages of judicial proceedings and on pre-trial examination/investigation of criminal cases. Certain proposals on content of the legislation concerning mediation are also voiced.[20] There is also an opinion that a model for regulation of mediation chosen by Kazakhstani law looks not viable and «adoption of the Law On Mediation will bring more harm than advantages».[21] The critic is expressed concerning (i) legal determination of those fields where mediation can be used, (ii) the sphere of application of the Mediation Law which is also improperly defined (as M.Suleimenov says, without clear separation of mediation on civil-law disputes and in criminal proceedings), (iii) unnecessary strict rule with respect to mediators performing on the non-professional basis,(iv) provisions regarding content of the mediation agreement, etc. In his later article professor M.Suleimenov, however, expressed his hope that mediation in Kazakhstan will develop as it is an international trend, and he proposed certain priority directions for such development.[22] We tend to share this opinion and to support these proposals.
I.2. Existing legal base for mediation in Kazakhstan. A. The Mediation Law serves as a primary source of the existing legal framework for mediation in Kazakhstan. However, respective provisions of the Civil Procedural Code and the Criminal Procedural Code also regulate certain aspects concerning conduct of mediation. Such regulation mostly relates to time period for conduct of mediation and acknowledgement of settlement agreements reached in result of mediation by courts and prosecuting authorities (as it is provided for in Articles 24(4) and 27(7) of the Mediation Law). In turn, when referring to mediation within the judicial proceeding on a civil-law disputes, Article 27(5) of the Mediation Law provides for mandatory approval of the settlement agreement by the court to be made according to the procedures established in the RK Civil Procedural Code: such approval is required by Article 49 of the Civil Procedural Code dated July 13, 1999 (as amended). It should be noted that the Mediation Law does not prevent mediation to settle conflicts arising out of administrative-law relationships or concerning administrative violations, though it also does not include any specific provision concerning this aspect. One can also see from the statistic data above that respective categories of conflicts were already settled in mediation in Kazakhstan. However, nether the RK Code on Administrative Violations dated January 30, 2001 (as amended) establishing rules for judicial proceedings on administrative violations, not the RK Law dated November 27, 2000 «On Administrative Procedures» (as amended) which sets forth procedures for administrative protection of rights and legitimate interests of citizens, operate the notion of mediation and provide for any regulation of mediation within respective judicial proceedings and implementation of administrative procedures. B. The Mediation Law has been amended twice after it was adopted in 2011. First time amendments to the Mediation Law were introduced by the RK Law dated February 17, 2012 «On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Matters of Improvement of Appeal, Appellate (Cassational) and Supervisory Proceedings, Increase of Level of Trust and Provision of Accessibility to Justice». One of the amendments replaced conditions and procedure for extension of period for mediation. Particularly, if under the earlier version of Article 23(2) initial 30-day period for mediation in the court-annex procedure could be extended for another 30 days by the court and only «if necessary», the amendment now sets forth that the parties themselves (not the court) can make such extension in the respective mediation agreement followed by their subsequent joint notice to be given to the court. In addition, no «necessity» rule to justify such extension remained. This amendment made legal framework for the mediation agreement to correspond to general rules of the RK Civil Code regarding any agreement, providing that only the parties to the agreement may amend it, and not any third party is entitled to do it. Another amendment introduced by the aforementioned amending Law dated February 17, 2012 has a rather technical nature. In particular, initial version of Article 27(5) proposed that an amount of the state due which was paid before submission of a dispute to court shall, after a settlement agreement is concluded, be returned to its payer in the procedure set forth in the Civil Procedural Code. However such procedure is established in the RK Tax Code, and the amendment to the Mediation Law corrected this reference. C. Second time amendments to the Mediation Law were introduced by the RK Law dated July 3, 2013 «On Amendments and Additions to the Constitutional Law of the Republic of Kazakhstan and Certain Legislative Acts of the Republic of Kazakhstan on the Matter of Exclusion of Contradictions, Omissions, Collisions Between Norms of Law in Different Legislative Acts and Provisions Favoring Commitment of Corruption Violation». One of the amendments relates to the provision of Article 1(2) of the Mediation Law according to which mediation cannot apply, in addition to other established cases, if a dispute (conflict) infringes or can infringe on interests of an individual(s) who are restrictedly capable due to a court’s decision(s). Significant amendment was made to Article 24(3) which now sets forth that if in mediation one of the parties of its is a minor, then participation of its teacher or psychologist or the minor’s legal representative shall be obligatory. Before such amendment reference to minors’ legal representatives (parents, guardians, etc.) was missing. The rest of amendments entitled akims (mayors) of towns subordinated to oblast (Kazakhstani regional) centers, in addition of other categories of local akims, to maintain registers of non-professional mediator. D. In the Annex to this Report there is the text of the Mediation Law translated into English can be found. The text was extracted from the official website of the Union of Judges of the RK (http://www.ujk.kz/union/?sid=133), corrected and updated by the author of this Report to make it correspondent to amendments introduced into the Law up to the date of this Report. E. Issues concerning the concept and significance of mediation as ADR were brought to public consideration in Kazakhstan quite recently and there is no specific monographs issued by Kazakhstani scholars related to the topic. The most of related publications are made in mass media, mostly for the purpose of publicity of the Mediation Law and first results of its application. However, professor M.Suleimenov as one of the most prominent scholars in Kazakhstan in the field of private law and dispute resolutions and as the Chairman of the Kazakhstani International Arbitrage dedicated a number of his publications to the notion of mediation, analysis of the Mediation Law and its perspectives. In this Report there are references made to the following articles of professor M.Suleimenov which, no doubt, can be considered as the most authoritative scholarly contributions (single or jointly) to the topic until today: (i) Suleimenov M.K. Development of Mediation as Alternative Way of Disputes Resolution. Can be found on the website of the Kazakhstani International Arbitrage: www.arbitrage.kz/461; (ii) Suleimenov M.K. Mediation in Kazakhstan: Current Status and Perspectives for Development. Published in: The Law Monthly Bulletin «Yurist» (the Lawyer). – Almaty, 2009 (#12); (iii) Suleimenov M.K. The Private Procedural Law (the Law of an Alternative Dispute Resolution). Published in: The Law Monthly Bulletin «Yurist» (the Lawyer). – Almaty, 2011 (#2); (iv) Basin Yu.G., Suleimenov M.K. Arbitration Tribunals in Kazakhstan: Problems of Legal Regulations. Published in: Arbitration Tribunals in Kazakhstan: Problems of Legal Regulations (materials of the international scientific and practical conference held in Astana on February 3, 2003). Responsible editor – M.K. Suleimenov. / Almaty: KazGYuU, 2003 (306 pages); (i) Suleimenov M.K., Duisenova A.E. Whether an Independent Mediation will Exist in Kazakhstan. Can be found on the website of the Kazakhstani International Arbitrage: www.arbitrage.kz/461. A number of publications concerning practical issues of mediation and training for mediators in Kazakhstan were made by S. Romanovskaya, I.Vigovskaya and some other practicing lawyers. But they cannot be considered as scholarly contributions. Nevertheless, attention should be also paid to published results of the conference organized by the Ministry of Justice of the RK in 2012 and dedicated to mediation: «The Status and Perspectives for Development of the Institute of Mediation under Conditions of Social Modernization of Kazakhstan: materials of the international scientific and practical conference October 19, 2012». – Astana: «Institute of Legislation of the Republic of Kazakhstan», 2012 (172 pages) (can be also found in its electronic format on the Institute’s website www.izrk.kz/images/stories/mediacia86.pdf).
I.3. The mediation agreement / agreement to submit the dispute to mediation: A. As the general rule set forth in Article 20(1) mediation can take place if there is a mutual agreement of the parties to settle a dispute (conflict) between them in mediation. Conclusion of a mediation agreement is the mandatory pre-requisite for conduct of mediation in any out-of-court mediation, court-annexed mediation or criminal proceedings. The Mediation Law includes legal definition of the mediation agreement (‘dogovor o mediatsii’). According to sub-clause 7) of Article 2 of this Law such agreement means «a written agreement of parties [to it] which is concluded [by them] with a mediator before mediation starts with the purpose to settle a dispute (conflict)». Those individuals and/or legal entities who/which are in conflict or disputes between them, if such disputes (conflicts) can be settled in mediation according to Article 1 of the Mediation Law, are defined as the parties of mediation, and together with a mediator they are defined as participants of mediation (sub-clauses 6) and 8) of Article 2 of the Mediation Law respectively). The Mediation Law does not specifically regulate whether mediation agreement can be entered into to settle a specific dispute (conflict) only, or whether the parties to any contractual arrangement can agree in principle and with binding effect that once a dispute arises it would be solved in mediation. Professor M.Suleimenov proposes that «if the parties to a contract wish to apply mediation as part of the procedure for settlement a dispute on the contract, they can include into the contract the following clause on mediation: ….». He also believes that they can include even more procedural and organizational provisions into the contract.[23] However, it appears that the Mediation Law proposes that a mediation agreement can be entered into only when a specific dispute (conflict) has already taken a place. This understanding follows from the definition of the mediation agreement (as mentioned above) and from the requirement of Article 21(2 (1)) stating identification of a matter of the dispute as one of essential terms of any mediation agreement, as well as from the content of Article 23 requiring settlement of the dispute within 30 days after conclusion of the mediation agreement. Some other provisions of the Mediation Law also consider a mediation agreement to be entered into in connection with a particular dispute. B. As mentioned above, any mediation agreement must be entered into in the written form. No oral agreement on mediation can be valid. At the same time, no registration or notarial verification of mediation agreement is required. Article 21(2) of the Mediation Law establishes what terms and conditions of the mediation agreement shall be considered as essential to it. The list of such essential terms includes 11 items. Having such regulation analyzed, one should remember that indication of essential terms of a contract in respective laws allows to identify the type or nature of each particular contract and to decide whether the respective contractual arrangement can be viewed as enforceable contract under related legal provisions. The legal effect of this requirement is that if any of these terms and conditions is not included into a mediation agreement, than under Article 393 of the RK Civil Code such mediation agreement will not be considered as concluded (entered into) by the parties to it, and the parties may not have a perspective to seek protection of their rights and interests under the agreement. M.Suleimenov and A.Duisenova have reasonably criticized such solution claiming that this list is unnecessary extensive and a greater part of such terms and conditions, in principle, could not be defined as essential terms of mediation agreement.[24] One of such called essential term of a mediation agreement sounds especially unreasonable. Particular, sub-clause 8) of Article 21(2) of the Mediation Law requires that mediation agreement includes «grounds and volume of liability of the mediator who participates in the dispute settlement for his/her actions (inaction) which entailed damage to the parties of mediation». Such provision contradicts to the nature of mediation and regulated status of mediators. As the term «mediation» is defined in Article 2 of the Mediation Law, mediator only assists the parties to achieve a mutually acceptable solution. In addition, as per Article 27, any settlement agreement shall regulate a settlement between the parties and it becomes a contractual arrangement between the parties subject to performance by the parties voluntary without involvement of the mediator. Thus, no mediator can be liable for any damage of any party since no mediator can force the parties to enter into a settlement agreement, as well as to enter into it on any specific terms. Nor the mediator can control the parties in their performance under the settlement agreement.
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