Special regulation of time limits are establishes in the Mediation Law for mediation conducted within the course of criminal proceedings. These specifics have been already mentioned in Section E. of Part I.3 of this Report above. There is no provision in the Mediation Law which would expressly prohibit to have a number of mediations within the same judicial of criminal prosecuting procedures, provided that all that takes place and should be completed or otherwise terminated within established time period for completion of the respective proceedings. E. There certain specifics are established in Article 25 of the Mediation Law with respect to settlement disputes in the sphere of family relationship allowing mediation to resolve controversies between spouses concerning continuation of their marriage, implementation of parental rights, determination of place of residence for children, parents’ contributions to support children and any other disputes which may occur in family relations. Some special rules to protect interests of children have been also introduced to this Article 25. F. The Mediation Law contains very few provisions concerning, to a limited extent, relationships existing between the mediation and the mediator with public authorities, both judicial and non-judicial (notaries, land registrars, commercial registrars, etc.) during the mediation procedure. If to consider mediator’s relationships with aforementioned third parties, possibilities for such relationships are limited by application of the following principles: (i) from one hand, all activities of mediator in the course of mediation, by definition, shall be focused to his/her communications with the parties of mediation only, and therefore it does not propose mediator’s contacts with any third party. And this principle is also reflected in specific formulation of mediator’s rights as set forth in Article 10 of the Mediation Law proposing his/her meetings exactly with respective parties and not anyone else. Moreover, by application of the principle of independence (as it’s been already described above) mediators carrying on mediations are independent from state authorities, other legal entities, public officers and individuals; and (ii) from the other perspective, the Law does not prohibit mediators from having any contact with any third parties for purpose of mediation, but in any of his/her actions mediator can act only with the consent of the parties of respective mediation (Article 20(2) of the Mediation Law. At the same time, in a law it can be required that mediator directly communicates to an authority or official. For example, under Article 25(3) of the Mediation Law mediator must apply to an authority entitled to protect children’s rights if in the course of mediation any facts which threaten or can threaten normal growth and development of a child on seriously affect the child’s legitimate interests. Yet, this is the only provision of this kind included into the Mediation Law. G. More specifically the Mediation Law regulates when the parties of mediation should communicate with third parties. In essence, it relates to mediation agreed upon within civil-law judicial proceedings and criminal proceeding. In this case the Law specifically requires that the parties of mediation (not mediator, nor all participants of mediation) communicate to the court or prosecuting authority, as the case may be. Such communications shall be made by the parties of mediation when, during the course of respective proceedings, they are required to jointly notify the court or prosecuting authority about their agreement to settle their dispute (conflict) in mediation or to extent initial term of mediation, as well as about results of mediation both when a settlement agreement is entered into and when mediation terminates for another permitted reason (Articles 23 (2, 3 and 4) and 24(6) of the Mediation Law). It is important to note that in their relationships with the parties of disputes and conflicts permissible for settlement in mediation, judicial and prosecuting authorities are prohibited from forcing the parties to agree to mediation but they can offer settlement in mediation at request of one of the parties of the dispute or conflict (Article 20 (3 and 4) of the Mediation Law). In addition, if in the course of mediation and for the purpose of the dispute resolution participants mediation or parties of it would need or would be required to communicate with any public authority, notary or other third parties, nothing prevents them from such communication subject to observance of the confidentiality principle and the other party’s rights and legitimate interests.
I.6. Termination of mediation: A. Article 26 of the Mediation Law includes exhaustive (closed) lists of circumstances upon which mediation terminates. One of these five cases shall be qualified as successful completion of mediation: it happens when the parties of the respective dispute or conflict manage to reach a settlement agreement. In this case the purpose of mediation as formulated in Article 3 of the Mediation Law (please see below) shall be deemed achieved. The other four grounds for termination of mediation can be qualified as failure of mediation, since its purpose is not reached. Particularly, in addition to conclusion of a settlement agreement, mediation shall terminate in either case when: (i) mediator discovered circumstances which do not allow any possibility for settlement of a dispute or conflict in mediation (these may relate to any of the circumstances indicated in Article 1 of the Mediation Law which prevent settlement of dispute by way of mediation); (ii) the parties made written refusal from mediation in connection with impossibility to settle the dispute (conflict) be way of mediation; (iii) one of the parties refused its further participation in mediation having such refusal made in writing, or (iv) when the time period allowed for conduct of mediation as established by Mediation Law in Articles 23 and 24 (as described above) expired. There is also another ground for termination of mediation not included into Article 26 but provided for in Article 22(5) of the Mediation Law. This ground proposes that a mediator refuses to conduct mediation by virtue of circumstances hindering his/her impartiality in a particular situation. B. In all these cases mediation terminates when respective ground for termination is properly fixed. For example, as it is set forth in Article 26 of the Mediation Law, mediation terminates: (i) from the day respective time period for mediation expired; (ii) from the day when a party of mediation sent its written refusal to continue a mediation to another participants of particular mediation, or (iii) from the day when both parties signed their written agreement to refuse mediation in connection with impossibility for the dispute’s settlement by way of mediation. With respect to termination of mediation when mediator discovered circumstances preventing mediation for settlement of a particular dispute or conflict the Mediation Law does not specifically indicate either the moment of termination of mediation or how the mediator’s respective findings should be expressed. It sounds reasonable that in such a case mediation terminates from the moment when mediator announced to the parties of mediation that he/she revealed circumstances under which mediation cannot be used for settlement of the dispute of a conflict. Similarly, when a mediator refuses to conduct mediation due to impossibility for him/her to be impartial in a particular situation, such mediation terminates from the moment when the mediator announced to the parties of mediation that he/she couldn’t be impartial. C. The Mediation Law does not specifically address the issue of consequences of the failure of mediation for the parties involved and for the mediator. However, it looks obvious that with occurrence of any of this circumstances respective mediation agreement automatically terminates and, correspondingly, relationships between participants of mediation arisen out of this mediation agreement shall also be cancelled. When there is a termination of mediation taking place within civil-law proceedings or criminal proceedings, such termination (failure of mediation) shall cause either renewal of civil-law proceedings or completion of criminal proceeding in due course. If it is an out-of-court mediation set for a dispute resolution, then failure of such mediation shall cause renewal of the course of respective limitation period. D. Apparently, effect of failure of mediation differs depending on which circumstances caused the failure. In particular, when mediation terminates due to identification of circumstances preventing settlement of a dispute (conflict) by way of mediation this would prevent the parties of the dispute from any future attempts to settle their dispute in mediation. In all other cases, failure of mediation would, in principle, allow another attempts to settle the dispute by way of mediation, provided that for mediation agreed within the course of legal proceedings established time limits for respective proceeding allow another mediation. There are no particular consequences of failure of mediation for mediator in the most of these cases with the exception of when mediation terminated upon the mediator’s refusal due to absences of his/her impartiality. In this case such mediator will not be able to be chosen by the parties of a dispute (conflict) to settle it in another mediation to take place based on new mediation agreement (which shall be concluded with another mediator).
I.7. Success of the mediation procedure: A. As mentioned above, according to Article 26 of the Mediation Law, conclusion of a settlement agreement constitutes the ground for termination of mediation from the day when the parties of mediation have entered into (signed) the agreement. With the conclusion of the settlement agreement the purpose of mediation declared in the Law are achieved and, therefore, mediation is considered to finish successfully in Kazakhstan. Article 27 of the Mediation Law provides for specific requirements with respect to the form and substance of a settlement agreement. It is required that the settlement agreement shall be made in written form and it must be signed by the parties settled their dispute or conflict. The agreement becomes effective as of the day of its signing by the parties unless this agreement is reached in mediation taken place within civil-law judicial proceedings. In this later case the settlement agreement must be forwarded immediately after its signing by the parties to the judge considering respective civil case for the agreement’s approval by the judge in the procedure set forth by the RK Civil Procedural Code. Any settlement agreement must include the following provisions: (i) reference to the parties of mediation (parties of the respective dispute or conflicting parties); (ii) substance of the dispute (conflict); (iii) identification of the mediator chosen by the parties; (iv) terms and conditions agreed by the parties to settle their dispute or conflict; (v) ways and time limits for implementation of the agreed terms and conditions regarding settlement of the dispute (conflict), and (vi) consequences of failure to implement or properly implement of the settlement terms and conditions. Apparently, any failure to comply with these requirements legally established with respect to the form and content of a settlement agreement may put a question as to acknowledgement and/or enforceability of the agreement. In addition, special provisions are established in the law with respect to conditions for enforceability of settlement agreements reached in court-annex and criminal proceedings mediation (see below). B. With conclusion of the settlement agreement it is not only mediation terminates but also all rights and responsibilities of the mediator shall cancel. After the agreement becomes effective no any further involvement of the mediator in implementation or enforcement of the settlement agreement is proposed. C. As general principle Article 27(3) establishes that the settlement agreement is subject to voluntary implementation by the parties to the agreement according to its terms and conditions. This principle is fully applicable to mediation taken place as out-of-court procedure. Particularly, Article 27(4) sets forth that «an agreement to settle a dispute entered into before consideration of a civil-law case in the court represents a transaction aimed to establish, change or terminate civil-law rights and obligations of the parties [to the dispute]». There is the opinion that conclusion of a settlement agreement gives rise to a new relationship between the parties of a dispute which, obviously, replaces the previous relationships led the parties to the dispute and mediation. In case of enforcement of a settlement agreement in court such new relationship based on the settlement agreement would constitute the subject of respective judicial consideration.[28] This Article 27 also provides for that, if the settlement agreement is not implemented or is implemented improperly, the party which has violated the agreement shall be liable as established by the laws of Kazakhstan. It is proposed that if the settlement agreement is not implemented or implemented improperly, respective party to it may use the same means of protection as proposed for application when any other civil-law agreement is violated, including the right to brought a case to the court.[29] D. Separate provisions are established in the Mediation Law concerning status and effect of settlement agreements reached in the court-annexed mediation and criminal proceedings. As mentioned above, the settlement agreement made in the course of civil judicial proceedings is subject to approval by a judge considering the case. Apparently, such agreement’s effectiveness is subject to the required approval and above mentioned requirement of the agreement’s effect from the date of its signing would not apply in this case. It can be also concluded that the judge is not obliged to approve the settlement agreement automatically and he/she will have to examine the agreement as to whether its terms and conditions do not contradict or otherwise violate imperative provisions of the law. According to Article 49 of the RK Civil Procedural Code the court may cancel the settlement agreement if it contradicts to the RK legislation or violates someone’s rights and freedoms provided for in the laws of Kazakhstan. Once the court approves the settlement agreement, it will come into full effect and constitute a ground for termination of the judicial proceeding with respect to the dispute settled by this agreement on a respective stage of the judicial proceedings. Particularly, under Articles 247, 342 and 383-1 of the RK Civil Procedural Code approval of a settlement agreement by the court terminates the proceeding on the 1st instance, appellation or cassation stages, as the case may be. E. There is no other express provision requiring homologation of settlement agreements by the court or other public authority established in the Mediation Law. However, there is a ground to believe that settlement agreements reached within criminal proceeding would also require certain acknowledgment or, at least, examination by respective prosecuting authority. As Article 27(6 and 7) of the Mediation law defines the settlement agreement reached by the parties in result of mediation during the course of criminal proceedings as an agreement resolving a conflict by way of compensation of harm and reconciliation of a person committed a crime with the person suffered from the crime. Once the settlement agreement is reached it must be immediately forwarded to the respective prosecuting authority and, if the RK Criminal Procedural Code allows it, such settlement agreement can serve as the circumstance excluding or allowing to avoid criminal prosecution. This would mean that respective prosecuting authority or criminal court would also examine the settlement agreement of whether its essence complies with requirements of the law in order to refer to the agreement as ground for cancelling criminal prosecution. F. It worth to mention that at the opinion of professor M.Suleimenov, there have been essential mistake of Kazakhstani legislators that there were two different phenomena mixed up in the Mediation Law and that regulation of the third phenomenon has been simply missed. He reasonably believes that out-of-court mediation and court-annexed mediation should be better regulated separately, as well as special regulation is needed for mediation under the auspice of an institutionalized arbitration, which is not even considered by existing legislation in Kazakhstan at all.[30] We can add that separate regulation should be also offered to regulation of mediation in course criminal proceedings. Mixing all this within the frame and content of a single Mediation Law causes incompleteness and contradicting nature of the respective legal framework and legal regime.
I.8. Costs: A. Article 22 of the Mediation Law deals with the issue of expenses related to mediation. As such expenses there the following two categories are indicated: (i) mediators’ fee (consideration), and (ii) the mediator’s expenses incurred in connection with mediation including costs of transportation to the place of mediation, accommodation and catering. This list of expenses is exhaustive (closed). Parties of mediation jointly in equal parts shall cover these expenses. However in their respective mediation agreement the parties may agree on different distribution of coverage such expenses. B. As mentioned in Section C of Part 1.4 of this Report above, regulation of the issue of payment any fee (consideration) to mediators is not sufficiently clear in the Mediation Law. From one hand, it prescribes including into the agreement the reference to an amount of the fee payable to a professional mediator, if such payment is provided at all, and it is silent as to whether any payment of consideration to non-professional mediators can be made (which payment, at the same time, is not prohibited by law). From the other hand, it is established that non-professional mediators shall be reimbursed with the expenses he/she incurs in connection with mediation, remaining silent with respect to any possibility for reimbursement of expenses to professional mediators. This makes the Mediation Law remaining ambiguous. Similar ambiguity is caused by the provision of Clause 5 of this Article 22 of the Mediation Law which requires that mediator must return to the parties of mediation all the money he/she received from them when the mediator rejects to conduct mediation due to circumstances preventing his/her impartiality. Such regulation sounds too strict because the participants of mediation may reveal respective circumstances after mediation started and it is not fair to leave the mediator not compensated for his/her expenses incurred before the circumstances were discovered. In principle, such issues should be better left for discretion of the parties to respective mediation agreement. C. The Mediation Law does not specifically address the issue of whether any legal aid is available to participants (including mediator and the parties) of mediations. However it does not mean that the parties of a mediation agreement cannot agree to cover expenses associated with receiving legal advice or other type of legal services to be received by all the participants during mediation. And there is, certainly, no any restriction for each party of mediation to pay for its own expenses related to legal aid it receives in connection with its participation in mediation.
II. CROSS-BORDER MEDIATION
II.1. Notion of cross-border mediation: Legislation of Kazakhstan does not operate the notion of cross-border mediation. Accordingly, there is no any separate legal framework in Kazakhstan to specifically regulate cross-border mediation. As mentioned above, the Mediation Law (according to its preamble) is set to regulate social relationship in the sphere of organization of mediation in the RK. Pursuant to Article 1(1) of the Mediation Law mediation can be used for settlement disputes and conflicts within the framework of Kazakhstani law. In connection with this the conclusion can be made that the Mediation Law together with related provisions of other laws of Kazakhstan (such as, for example, the Civil Procedural Code or Criminal Procedural Code) constitutes a legal framework for internal mediation only. Please also note, that professor M.Suleimenov paid attention to the failure to regulate «mediation with foreign element».[31] He specifically mentioned that respective regulation assumes certain peculiarities in regulating respective relationships involving such foreign element that were missed in the draft the Mediation Law and are still missing in it after its adoption as well as in any other existing law of Kazakhstan.
II.2. Recognition and enforcement of foreign mediation settlements: Laws of Kazakhstan do not directly regulate those aspects related to recognition and enforcement of foreign mediation settlements. However general rules of Kazakhstani material and procedural legislation would apply to enforce settlements reached in foreign mediation. However, there should be separate categories of such settlements differentiated, as the regimes for the enforcement differ. If, for example, the settlement was reached in out-of-court mediation and the parties formulated respective agreement, than in order for it to be enforced in Kazakhstan directly the parties should choose Kazakhstani legislation as governing law for the respective settlement agreement and, preferably, judicial proceedings in Kazakhstani courts or Kazakhstani arbitration for disputes resolution under such settlement agreement to enable its enforcement in Kazakhstan. The RK Civil Code allows parties to a contractual arrangement with participation of foreign individuals and legal entities to choose Kazakhstani legislation as governing law for their settlement agreements (Article 1112) where such governing law would apply to rights and obligations of the parties thereto, performance under the agreement, consequences of failure to perform or properly perform thereunder, etc. The parties may also choose foreign courts or foreign arbitration for disputes resolutions under such settlement agreements. In this case respective provisions of the RK Civil Procedural Code will apply to identify whether a decision of foreign court or foreign arbitral tribunal would be enforceable in Kazakhstan. According to Article 425 of the RK Civil Procedural Code decisions of foreign courts and arbitration shall be acknowledged and enforced in Kazakhstan if it is provided for by the law or international treaty of the Republic of Kazakhstan and on the principle of mutuality. Particularly, enforcement of judicial decisions of courts of a particular foreign state shall be possible if there a bilateral treaty between Kazakhstan and respective state exists. If to say about enforcement of foreign arbitral awards, such enforcement can be done on the basis of the New York June 10, 1958 Convention on Acknowledgment and Enforcement of Foreign Arbitral Awards to which Kazakhstan joined in 1995 pursuant to the Decree of the RK President dated October 4, 1995 #2485. Similar consideration, as is made in the preceding paragraph, should be taken to the account when discussing mediation settlement reached in the court-annexed procedure and in foreign arbitration provided that the foreign court or arbitration tribunal approves respective settlement agreement. Respective judicial decision of a foreign court or foreign arbitral award by which a mediation settlement is approved or otherwise homologated can be enforced in Kazakhstan according to the provisions referenced above.
III. (e)JUSTICE (Application of (e)Justice instruments to mediation):
A. The Mediation Law does not address the issue of possible use of information technologies for purpose of mediation. It allows the parties of mediation to agree on the procedure for conduct of mediation provided that any such agreed procedure does no violate this Law, including application respective regulations adopted by a mediation center (Article 17). At the same time it entitles mediators to independently choose means and methods of mediations admissible under this Law (Article 7(1)). However this Law proposes no any particular mean or method for mediation. We can only refer to Article 10(1) where it is provided for that mediator has the right to have meetings with all the parties together or each of them personally. The conclusion can be made that the Mediation Law does neither prohibit use of electronic means of communication nor it prescribes to have only meetings in person for the mediation participants during the procedure or any stage of it (such as beginning, completion or other). Imperative provisions of the RK law or any principles of mediation (both express and, if any, implied) do not restrict this freedom of choice to use electronic devices and information technologies for out-of-court mediation in Kazakhstan. B. Similar conclusion can be made in relation to court-annexed mediation. Moreover Kazakhstani judicial system offers quite a wide range of opportunities for use (e)Justice device in the course of judicial proceeding starting from bringing a suit before court. The reference can be made to the one of interviews that the Chairman of the RK Supreme Court B.Beknazarov gave to mass media in 2013. He particularly mentioned the following: «Information technologies in the Republic of Kazakhstan have been used since 1999. Particularly, the integrated automated informational and analytical system of judicial bodies has been introduced in our country. Each suit is registered in the single database and this allows tracking the process on the case: to identify current stage of the proceedings, if there is any red tape. … The system of videoconference is especially important for us. There quite a lot of judicial procedures are implemented by means of videoconference. … Sms-messaging is used to summon witnesses for hearings. … Special technology called ‘electronic observation proceeding’ is also used allowing participants of the proceedings to familiarize with a case materials being outside of the court, distantly: so, being at home a person can become familiar with all documents related to the process. This system shows positive effect. It is very convenient for citizens. Besides, a claimant may file his claim to the court in the electronic form and to receive a decision in the same form. This makes an access to Justice easier».[32] The most of these technologies and means of communications are used in the judicial proceedings pursuant to respective provisions of the RK Civil Procedural Code. Among such provisions the following ones can be mentioned Article 90 (regarding use of scientific and technical means in the process of presenting evidences), Article 134 (which allows summons to the courts hearing with use of sms-messaging to a subscriber number of cellular communications or electronic mail messages), Articles 150 and 151 (which provide for submission of a suit in the electronic format as e-document). One can conclude that these technologies and means of communication can be used for mediation taking place within the course of respective judicial proceedings. _____________________ August 25, 2013.
List of abbreviations used in the report above:
«ADR» means alternative dispute resolution; «RK» means the Republic of Kazakhstan.
Annex to the National Report on Kazakhstan prepared by Prof., Dr. Farkhad Karagussov (Almaty, Republic of Kazakhstan) on the following topic: «Mediation, more particularly, cross-border and judicial mediation»
LAW OF THE REPUBLIC OF KAZAKHSTAN On Mediation
Chapter 1. General Provisions (Articles 1 - 8) Chapter 2. Legal Status of Mediators and Organizations Supporting Conduct of Mediation (Articles 9 - 16) Chapter 3. Conduct of Mediation (Articles 17 - 27) Chapter 4. Final Provisions (Article 28)
This Law regulates public relations in the sphere of organization of mediation in the Republic of Kazakhstan, defines its [mediation’s] principles and procedure, as well as [it determines] the status of mediator.
Chapter 1. General Provisions
Article 1. The Sphere of Use of Mediation 1. The sphere of use of mediation includes the disputes (conflicts) arising from civil, labor, family and other legal relations with participation of individuals and (or) legal entities, as well as those considered during criminal legal proceedings on affairs about crimes of small and middle gravity unless otherwise is established by laws of the Republic of Kazakhstan. 2. Procedure of mediation is not applied to the disputes (conflicts) arising out of relations, specified in point 1 of this Article in case such disputes (conflicts) infringe or can infringe on interests of third parties which do not participate in the procedure of mediation, as well as the persons recognized legally incapable or restricted in their legal capacity by the court. 3. Procedure of mediation is not applied to the disputes (conflicts) arising from civil, labor, family and legal relations with participation of individuals and (or) legal entities when a state authority performs as one of the parties [of the dispute]. 4. Procedure of mediation is not applied on criminal cases about corruption crimes and to other crimes against interests of public service and the government.
Article 2. Basic Concepts Used in this Law In this Law the following basic concepts are used: 1) «The agreement on settlement of a dispute (conflict)» [settlement agreement] means a written agreement of the parties reached by them in result of mediation; 2) «Mediator» means an independent individual involved by the parties [of a dispute] for carrying out of mediation on a professional and non-professional basis in accordance with requirements of this Law; 3) «Association (union) of mediators» means an organization created with a view of coordination of activity of the organizations of mediators as well as for protection of their rights and legitimate interests; 4) «Organizations of mediators» means noncommercial organizations created for association of mediators on a voluntary basis for achievement by them of common aims related to development of mediation, not contradicting legislation of the Republic of Kazakhstan; 5) «Mediation» means the procedure of resolution of dispute (conflict) between the parties with assistance of mediator (mediators) with the purpose to achieve a mutually acceptable solution to be implemented with voluntary agreement of the parties; 6) «The parties of mediation» includes participants of the relations specified in Clause 1 of Article 1 of this Law who participate in procedure of mediation; 7) «The contract about mediation» [mediation agreement] means a written agreement of the parties concluded with mediator with the purpose to resolve dispute (conflict) prior to the beginning of mediation; 8) «Participants of mediation» means mediator and the parties of mediation.
Article 3. The Purposes of Mediation The purposes of mediation are the following: 1) Achievement of a variant of the resolution of a dispute (conflict) acceptable for both parties of mediation; 2) Decrease in level of a conflictness of the parties.
Article 4. Principles of Conduct of Mediation Mediation shall be conducted on the basis of the following principles: 1) Voluntariness; 2) Equality of the parties of mediation; 3) Independence and impartiality of mediator; 4) Inadmissibility of intervention in procedure of mediation; 5) Confidentiality.
Article 5. Voluntariness 1. Mutual voluntary will of the parties expressed in the contract about mediation shall serve as the precondition of mediation. 2. The parties of mediation have the right to refuse from mediation at its any stage. 3. In the course of mediation the parties have the right to dispose at their own discretion material and procedural rights, to increase or reduce the size of their claims, or to refuse dispute (conflict). 4. The parties are free in a choice of issues to discuss options of the mutually acceptable agreement.
Article 6. Equality of the Parties of Mediation The parties of mediation have equal rights to choose a mediator, procedures of mediation, their position in it, ways and means of its upholding, to receive information, to assess acceptability of conditions of the agreement on settlement of the conflict, as well as they carry out their duties equally.
Article 7. Independence and Impartiality of Mediator. Inadmissibility of Intervention in Procedure of Mediation 1. During conduct of mediation, mediator is independent of the parties, the bodies, others legal entities, officials and individuals. Mediator is independent in a choice of means and methods of mediation which admissibility is defined by this Law. 2. Mediator should be impartial, [he/she should] conduct mediation in interests of both parties and provide equal participation of the parties in mediation. If any circumstances interfering impartiality of mediator occur, he/she [mediator] should refuse carrying out the process of mediation. 3. Intervention in the activity of mediator is not allowed during the process of mediation by any persons specified in Clause 1 of this Article, except for in the cases provided by laws of the Republic of Kazakhstan.
Article 8. Confidentiality 1. Participants of mediation have no right to disclose any data which have become known to them during the course of mediation without written permission of the party of mediation who provided this information. 2. Mediator cannot be interrogated as the witness with respect to any data which have become known to him/her during the course of mediation except for the cases provided by laws of the Republic of Kazakhstan. 3. Disclosure of any data by the participant of mediation which became known to him/her in the course of mediation without permission of the party mediation who provided this information, entails liability established by laws of the Republic of Kazakhstan.
Chapter 2. Legal Status of Mediators and Organizations Supporting Conduct of Mediation
Article 9. Requirements Established with Respect to Mediators 1. As mediator an independent, impartial individual who is not interested in the outcome of affair chosen by a mutual consent of the parties of mediation, included in the register of mediators and agreed to function of execution of mediators can act. 2. Activity of mediator can be carried out on both a professional basis (professional mediator) and on the nonprofessional basis. 3. Persons reached of forty-year age and included into the register of nonprofessional mediators can carry out activity of mediator on a nonprofessional basis.
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